Defendant, Anthony Ryan Brown, appeals as of right his conviction, following a bench trial, of manufacturing less than 5 kilograms or fewer than 20 plants of marijuana, MCL 333.7401(2) (d) (iii). The trial court sentenced defendant to 30 days in jail (suspended), 2 years’ probation, and 100 hours of community service. In addition, the trial court imposed a $500 fine and suspended defendant’s driver’s license for one year. We affirm.
On January 7, 2010, defendant’s former roommate, Justin Fielding, contacted police and told West Michigan Enforcement Team Detective David Bytwerk that defendant was growing marijuana in his home in Holland Township. Fielding explained that when he lived with defendant he saw grow lights and ventilation fans installed in the laundry room of the home and small marijuana plants growing under the lights. On February 5, 2010, Bytwerk and another detective searched trash left for pickup on the shoulder of the road in front of defendant’s house and found a piece of fresh marijuana in the trash. Bytwerk also found two pieces of mail in the same trash container addressed to defendant. Bytwerk confirmed defendant’s address with the Michigan Secretary of State.
Bytwerk included the above facts in his search-warrant affidavit. However, Bytwerk did not check to see if defendant was a qualifying patient or a primary caregiver under the Michigan Medical Marihuana Act (MMMA),
A magistrate approved the search warrant on February 5, 2010. That same day, Bytwerk and other police officers executed the search warrant at defendant’s home. The officers found еight marijuana plants and two grams of marijuana.
On July 7, 2010, defendant moved to dismiss the case and for a hearing to suppress the evidence obtained during the execution of the search warrant. At the motion hearing defendant argued that the еvidence seized during the search should be suppressed because the search warrant was invalid. Defendant claimed that the MMMA made it legal to possess and grow certain amounts of marijuana and, thus, the statement in the affidavit that dеfendant was growing marijuana was insufficient to provide the police officers with probable cause that a crime had been committed.
The trial court held that the affidavit did not contain sufficient facts to provide a substantial bаsis for inferring that a fair
Despite its holding, however, the trial court did not suppress the evidence obtained from the search of defendant’s home because the trial court applied the good-faith exception to the exclusionary rule. The trial court found that the officers’ belief in the validity of the search warrant was not entirely unreаsonable because the warrant was not facially invalid, and before the passage of the MMMA, the facts included in the affidavit would have been sufficient to establish probable cause that a crime was committed. The trial court also found no evidence that Bytwerk misled the magistrate and that the magistrate did not wholly abandon his role.
Defendant filed a motion for reconsideration on September 15, 2010. The trial court denied defendant’s motion, holding that it was “unreasоnable to expect that a law enforcement officer would have known that previously sufficient evidence is no longer sufficient to establish probable cause.”
After a bench trial, the trial court found defendant guilty of manufacturing marijuana,
“A trial court’s findings of fact on a motion to suppress are reviewed for clear error, while the ultimate decision on the motion is reviewed de novo.” People v Hrlic,
We find that because the possession, manufacture, use, creation, and delivery of marijuana remain illegal in Michigan
A search warrant may only be issued upon a showing of probable cause. US Const, Am IV; Const 1963, art 1, § 11; MCL 780.651(1). Probable cause to issue a search warrant exists if there is a substantial basis for inferring a fair probability that evidence of a crime exists in the stated place. People v Kazmierczak,
The trial court acknowledged that before the MMMA became effective, traces of marijuana in a suspect’s trаsh would be
where the relevant medical-marijuana law provides an affirmative defense to a crime, the fact that a suspect may have a medical authorization to use and possess marijuana does not negate probable cause.... That is because an affirmative defense merely excuses or justifies the defendant’s criminal act, it does not negate any elements of the crime.
However, the trial court distinguished between the two MMMA sections that provide protection from criminal liability: MCL 333.26424 and MCL 333.26428. MCL 333.26424 provides a qualifying patient or a primary caregiver who meet the requirements of thе MMMA immunity from arrest, prosecution, or “penalty in any manner.” MCL 333.26428 allows a “patient” and a “patient’s primary caregiver” to assert the medical purpose for using marijuana as an affirmative defense. The trial court argued that to interpret the MMMA as providing only an affirmative defense would make MCL 333.26424 surplusage or nugatory. Accordingly, the trial court held that the immunities provided to a qualifying patient or a primary caregiver under MCL 333.26424 removed the per se illegality of the possession of marijuana. Thus, the trial court reasoned that evidence of a suspect’s mere possession of marijuana was no longer sufficient evidence of a crime to support probable cause. The trial court held that to support a probable cause ruling, “the affidavit must set forth specific facts from which a magistrate can conclude the possession is not legal under the MMMA.”
The trial court’s holding is inconsistent with this Court’s statements in People v King,
Although these individuals [who are seriously ill and are using marijuana for its palliative effеcts] continue to violate the Public Health Code by using marijuana, the MMMA sets forth narrow circumstances under which they can avoid criminal liability. In other words, the MMMA constitutes a determination by the people of this state that there should exist а very limited, highly restricted exception to the statutory proscription against the manufacture and use of marijuana in Michigan. As such, the MMMA grants narrowly tailored protections to qualified persons as defined in the act if the marijuana is grоwn and used for certain narrowly defined medical purposes. Further, the growing of marijuana is tightly constrained by specific provisions that mandate how, where, for what purpose, and how much marijuana may be grown. [Id. at 509 (emphasis added).]
Contrary to the trial cоurt’s holding, this Court has held that the MMMA does not abrogate state criminal prohibitions related to marijuana. The MMMA as a whole constitutes a “very limited, highly restricted exception to the statutory proscription against the manufacture and usе of marijuana in Michigan.” Id.
The possession, manufacture, use, creation, and delivery of marijuana remain illegal in this state, even after the enactment of the MMMA. Thus, we conclude
Affirmed.
Notes
The act uses the spelling “marihuana,” but we employ the more common spelling “marijuana” in this opinion.
Defendant received a physician certification pertaining to medical-marijuana usе on November 20, 2009. Defendant also received a letter from the Department of Community Health on April 6, 2010, explaining that he was approved for a qualifying patient registry identification card. Defendant’s identification card indicated that it was issued on February 4, 2010. Nevertheless, the trial court found defendant guilty of manufacturing marijuana. Evidently, defendant did not comply fully with the requirements of the MMMA, although the specifics of the noncompliance are not clear from the present record.
See People v Bylsma,
Even if the protection scheme set forth in MCL 333.26424 is not technically viewed as an “affirmative defense,” it nonetheless constitutes a “narrowly tailored protection!]” against punishment for a violation of the Public Health Code. King,
While we decline, in light of the pertinent case law, to impose an affirmative duty on the police to obtain information pertaining to a person’s noncompliance with the MMMA before seeking a search warrant for marijuana, if the police do have clear and uncontrоverted evidence that a person is in full compliance with the MMMA, this evidence must be included as part of the affidavit because such a situation would not justify the issuance of a warrant. This scheme will reduce any potential (however unlikely) for police overreach in attempting to obtain search warrants.
Contrary to defendant’s argument, the prosecutor was not obligated to file a cross-appeal to argue an alternative basis for affirmance. Kosmyna v Botsford Community Hosp,