Circuit Court LC No. 14-010852-FH
Before: Cavanagh, P.J., and Sawyer and Servitto, JJ.
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 Act (MMMA), MCL 333.26421, et
seq. We reverse in all three cases and remand for
proceedings not inconsistent with this opinion.
No.'s 330654 and 330656
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.
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."
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
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
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.
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.
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.
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.
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 ...