Oakland Circuit Court LC No. 2016-259655-FH
Before: Borrello, P.J., and M. J. Kelly and Boonstra, JJ.
appeals by leave granted the trial court's order denying her
motion to dismiss under § 4 of the Michigan Medical
Marihuana Act ("MMMA"), MCL 333.26421 et
seq. We affirm.
PERTINENT FACTS AND PROCEDURAL HISTORY
on a tip from road patrol officers on June 10, 2016, Troy
Police Detective Daniel Langbeen and other members of the
Oakland County Narcotics Enforcement Team arrived at a
"ranch style home" located at "5425
Berwyck" in Troy. After arriving at the home, Langbeen
spoke with defendant, who told him that she lived there with
"her husband, and her two children." Langbeen then
asked defendant "for consent to search the
basement," testifying that "it was obvious to [him]
at that point that marijuana - there was marijuana
growin' [sic] down there." Defendant replied that
"she wasn't sure," and she told Detective
Langbeen that she wanted to "contact her attorney."
Approximately one hour later, defendant's attorney,
Barton Morris, arrived at defendant's home; he
subsequently told Langbeen that "they had consent to
search the home."
search revealed that the basement contained an "indoor
marijuana grow operation." Langbeen testified that there
were "126 plants located in three different rooms along
with approximately 550 grams of marijuana buds on a drying
rack." Additionally, "[t]here were two digital
scales, Ziploc bags commonly used to package narcotics for
sale, grow lights, and a watering system." Morris
subsequently gave Langbeen permission to search the rest of
the house; a "Glock 19 9mm handgun" was discovered
in a bedroom safe that was unlocked by defendant.
August 2016, defendant was charged with one count of delivery
or manufacture of 20 marijuana plants or more, but less than
200 marijuana plants, MCL 333.7401(2)(d)(ii), and
one count of delivery or manufacture of marijuana, MCL
333.7401(2)(d)(iii). In October 2017, defendant was
additionally charged with two corresponding counts of
possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. On November 13, 2017,
defendant filed a motion "to examine evidence."
Defendant sought to examine the marijuana and marijuana
plants seized from her home so that Dr. Frank
Telewski could conduct "scientific
analyses" to determine "the weight, usability, and
moisture content of said marijuana; and whether or not the
amount possessed was in compliance with the [MMMA]." The
trial court granted the motion.
January 8, 2018, defendant filed an assertion of affirmative
defense, in which she argued that she was a medical marijuana
patient entitled to immunity under § 4 of the MMMA, MCL
333.26424, as well as a defense under § 8 of the MMMA,
MCL 333.26428. Defendant also filed a motion to dismiss the
possession with intent to deliver marijuana count (and the
associated felony-firearm count) under § 4 of the MMMA.
Defendant's motion made it clear that the "126
marijuana plants" seized from her home were "not
being challenged" in that motion; rather,
defendant's motion "focus[ed] on the '550
grams' of marijuana" that were on "drying
racks" in defendant's basement. Relying on
People v Manuel, 319 Mich.App. 291; 901 N.W.2d 118
(2017), defendant argued that the 550 grams of marijuana was
"unusable" because it was "drying," and
therefore, the unusable marijuana "must be
excluded" when considering defendant's claim of
immunity under § 4 of the MMMA.
prosecution argued that this Court's interpretation of
§ 4 of the MMMA in People v Carruthers, 301
Mich.App. 590, 609; 837 N.W.2d 16');">837 N.W.2d 16 (2013), was controlling,
and that the holding of Carruthers required the
trial court to consider the total amount of marijuana
possessed by defendant, not just the total amount of usable
marijuana. The trial court agreed with the prosecution,
finding Carruthers to be "more
comprehensive" than Manuel. Additionally, the
trial court observed that it was "confronted with
somewhat contradictory binding cases," and thus, it
would "proceed to follow the first case," i.e.,
Carruthers, rather than Manuel. Therefore,
the trial court denied defendant's motion to dismiss.
This appeal followed.
STANDARD OF REVIEW
review for an abuse of discretion a circuit court's
ruling on a motion to dismiss but review de novo the circuit
court's rulings on underlying questions regarding the
interpretation of the MMMA, which the people enacted by
initiative in November 2008." People v Bylsma,
493 Mich. 17, 26; 825 N.W.2d 543 (2012) (citations omitted);
People v Hartwick, 498 Mich. 192, 214-215; 870
N.W.2d 37 (2015) ("questions of law surrounding the
grant or denial of § 4 immunity are reviewed de
novo"). "An abuse of discretion occurs when the
trial court's decision is outside the range of principled
outcomes." People v Daniels, 311 Mich.App. 257,
265; 874 N.W.2d 732 (2015), citing People v Duenaz,
306 Mich.App. 85, 90; 854 N.W.2d 531 (2014). "We review
questions of statutory interpretation de novo."
Carruthers, 301 Mich.App. at 596 (citation omitted).
appeal, defendant argues that the trial court erred when it
denied her motion to dismiss based on this Court's ruling
in Carruthers. Rather, defendant argues,
People v Kolanek, 491 Mich. 382, 394; 817 N.W.2d 528