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People v. Tackman

Court of Appeals of Michigan

May 2, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
VERNON BERNHARDT TACKMAN, JR., Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
TERRY LAWRENCE HORNER, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
STEVEN MICHAEL VANTOL, Defendant-Appellee.

         Bay Circuit Court LC No. 14-010852-FH

          Before: Cavanagh, P.J., and Sawyer and Servitto, JJ.

          PER CURIAM.

         In these consolidated appeals, the prosecution appeals as of right the trial court's orders dismissing criminal charges against the defendants under the provisions of the Michigan Medical Marihuana[1] Act (MMMA), MCL 333.26421, et seq. We reverse in all three cases and remand for proceedings not inconsistent with this opinion.

         Docket No.'s 330654 and 330656

         Defendant Tackman obtained a card on October 19, 2011, allowing him to use medical marijuana as a patient. Sometime before September 10, 2014, Tackman also became a licensed medical marijuana caregiver, although the number of patients he served overall is unclear; Tackman asserted that on September 10, 2104, he served two valid medical marijuana cardholders. On or about May 1, 2014, Tackman was convicted of delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii), a felony. Tackman was placed on probation under terms which allowed him to continue being a caregiver until Mid-August of 2014.

         Defendant Horner was granted a card for personal use of medical marijuana in 2012 and 2013. In 2013, he was also granted a MMMA license to act as a caregiver for up to five patients. On or about November 1, 2013, Horner was convicted of maintaining a drug house, MCL 333.7405(1)(d), and the felony of delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii). Horner was placed on probation and an extended delay of sentence term whose terms prohibited him from "us[ing] or possess[ing] any controlled substance or drug paraphernalia, unless prescribed for [him] by a licensed physician, or be[ing] with anyone [he] know[s] to possess these items, " but allowing marijuana use "so long as he has a valid medical marijuana card."

         On or about September 9, 2014, Officer John May drove by Tackman's home and noted the smell of marijuana coming from the home. He also noted a garage door covered in plywood and three air conditioners on the east side of the garage. Officer May contacted Tackman's probation officer and the two of them went to Tackman's home on September 10, 2014, to conduct a search. The search revealed what May termed a "marijuana grow operation" including a dehumidifier and glass pipe, suspected (and later confirmed) cocaine residue, 36 marijuana plants, pieces of marijuana, and other marijuana, as well as ammunition for guns. From the items transported to them, the Michigan State Police Crime lab identified 21 marijuana plants and 81.1 grams of marijuana. On the basis of these findings, the prosecution issued four criminal charges against Tackman as a second habitual offender, MCL 769.10: (1) delivery or manufacture of five to 45 kilograms of marijuana, MCL 333.7401(2)(d)(ii), second or subsequent offense, (2) possession of ammunition by a felon, MCL 750.224f(6), (3) maintaining a drug house, MCL 333.7405(1)(d) and MCL 333.7406, second or subsequent offense, and (4) possession of less than 25 grams of a narcotic, MCL 333.7403(2)(a)(v), second or subsequent offense.

         May received information from officers who had been sent to Horner's home on August 12, 2014, to respond to an alarm that they noticed an odor of growing marijuana coming from Horner's detached garage. Another officer was in the area of Horner's home on September 9, 2014, and noted an odor of marijuana, and saw air conditioners running which was suspicious in light of the cooler temperature. This information was also relayed to May. May obtained a search warrant for Horner's home and executed the same on September 18, 2014. When he and other officers arrived, defendant Steven Vantol was inside the garage. Also inside the garage, May found 36 marijuana plants (21 of which were identified as such by the controlled substances unit), drug paraphernalia, and ammunition for a 45 caliber weapon. On the basis of these findings, Horner was charged as a third habitual offender, MCL 769.11, with delivery or manufacturing of five to 45 kilograms of marijuana, MCL 333.7401(2)(d)(ii), second or subsequent offense, and possession of firearm ammunition by a felon, MCL 750.224f(6).

         Defendants Horner's and Tackman's cases proceeded in tandem. Both filed motions to dismiss count I of their respective informations, involving delivery or manufacture of marijuana, pursuant to § 4 of the MMMA, MCL 333.26424. Both asserted that they were "licensed medical marijuana cardholder[s], " who acted as "caregiver[s], " and "possessed" and grew less than the maximum amount of medical marijuana permitted under the act. Both claimed immunity from prosecution for the delivery or manufacture of marijuana.

         The prosecution admitted that defendant Tackman was a medical marijuana patient, but denied that he had a valid caregiver license on the date that his home was searched, on the ground that he could not act as a caregiver after August 20, 2014, under the terms of his probation. The prosecution further maintained that Tackman did not qualify for § 4 patient immunity because he possessed more marijuana than the MMMA permitted a medical marijuana patient. Similarly, the prosecution admitted that defendant Horner was a medical marijuana patient, but denied that he had a valid caregiver license on the date that his home was searched on the ground that Horner's November 1, 2013, felony drug convictions left him ineligible to maintain such a license.

         Both defendants also filed motions to suppress the evidence recovered in the searches of their respective homes. Defendant Tackman argued that his probation officer lacked authority to search his home. Tackman additionally asserted that he was a licensed MMMA caregiver on the day of the search, which status legally allowed him to possess marijuana. Defendant Horner asserted that the search warrant was not supported by probable cause and that he was a "licensed medical marijuana patient . . . and . . . caregiver" on the date that his home was searched.

         The trial court found that Horner had MMMA "immunity" because "at all times during these proceedings . . . [d]efendant [Horner] was vested with a care card under the" MMMA, that the Act is not "self-effectuating, " but rather, "the statute" "call[s] for the Secretary of State to issue cards to various people . . . upon satisfaction of certain conditions" and "[i]t is incumbent on the Secretary of State . . . to have procedures in place that adequately comply with the Act." And, the trial court found that "there is no dispute" that the amount of marijuana found was within the amounts authorized by the statute. Accordingly, the trial court granted Horner's motion to dismiss count I, and then dismissed all charges against him.

         The trial court similarly concluded that Tackman was immune under the MMMA. The trial court "believe[d] it[ was] incumbent upon the Secretary of State . . . to revoke [defendant Tackman's] card in the event a felony has been entered, " and found that "the Secretary of State did not revoke [defendant Tackman's] caregiver card." Accordingly, it granted Tackman's motion to ...


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