291 Mich. App. 503 | Mich. Ct. App. | 2011
Lead Opinion
The prosecution appeals the trial court’s order that dismissed two counts against defendant for the manufacture of a controlled substance (marijuana), MCL 333.7401(2)(d)(iii). For the reasons set forth in this opinion, we reverse and remand for further proceedings consistent with this opinion.
I. NATURE OF THE CASE
Defendant, who was arrested for illegally growing marijuana, possesses a registry identification card under the Michigan Medical Marihuana Act (MMMA),
II. FACTS
The Michigan State Police received an anonymous tip that someone was growing marijuana in the backyard of a house at 710 Grace Street in Owosso. On May 13, 2009, Detective Sergeant Brian Fox and Deputy Jed Eisenberger drove to the address and saw a chain-link dog kennel behind the house. Though the sides of the kennel were covered with black plastic, some areas of the kennel were uncovered and, using binoculars, Deputy Eisenberger could see marijuana plants growing inside.
As noted, defendant was charged with two counts of manufacturing marijuana. After the prosecutor presented his proofs at the preliminary examination, defendant moved to dismiss the charges under the affirmative defense section of the MMMA. The district court denied defendant’s motion and bound defendant over for trial. In the circuit court, defendant filed a motion to quash the bindover or suppress the evidence obtained during the search. He also sought to dismiss the charges on various grounds. Among other arguments, defendant maintained that the search warrant was invalid because it was based on hearsay. Defendant also sought to assert an affirmative defense under the MMMA. In response, the prosecutor argued that the search warrant was valid and that defendant had failed to comply with the MMMA because he did not keep the marijuana in an enclosed, locked facility pursuant to MCL 333.26424(a).
The trial court issued an opinion and order on September 30, 2009. The court ruled that, because defendant had a medical-marijuana registry identification card and kept “a legal quantity” of marijuana in an enclosed, locked facility, there was no probable cause to support the issuance of the search warrant for his
III. ANALYSIS
“We review a trial court’s decision to grant or deny a motion to dismiss charges for an abuse of discretion.” People v Kevorkian, 248 Mich App 373, 383; 639 NW2d 291 (2001). The prosecution contends that the trial court incorrectly interpreted the meaning of “enclosed, locked facility” in MCL 333.26424(a) and MCL 333.26423(c) and that it erred when it ruled that defendant had complied with the statute. We review de novo questions of statutory interpretation. People v Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010) (opinion by CAVANAGH, J.). “When interpreting statutes, our goal is to give effect to the intent of the Legislature by reviewing the plain language of the statute.” People v Perkins, 473 Mich 626, 630; 703 NW2d 448 (2005).
Again, the prosecution charged defendant with violating Michigan’s controlled substances act by growing marijuana, but defendant maintains that he is entitled to the protections from prosecution laid out in the recently enacted MMMA. By passing statutes that criminalize the possession, use, and manufacture of controlled substances, including marijuana, our Legislature and Congress have determined that such sub
[T]he MMMA does not create any sort of affirmative right under state law to use or possess marijuana. That drug remains a schedule 1 controlled substance under the Public Health Code, MCL 333.7212(l)(c), meaning that “the substance has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision,” MCL 333.7211. The MMMA does not repeal any drug laws contained in the Public Health Code, and all persons under this state’s jurisdiction remain subject to them. Accordingly, mere possession of marijuana remains a misdemeanor offense, MCL 333.7403(2)(d), and the manufacture of marijuana remains a felony, MCL 333.7401(2)(d).
By its terms, the MMMA does not abrogate state criminal prohibitions of the manufacturing of mari
Section 8 of the MMMA provides a defendant with an opportunity to assert a defense to the controlled substance laws if the conditions set forth in § 8 are followed. MCL 333.26428. Moreover, § 8 incorporates by reference other provisions of the MMMA with which a defendant must comply. Section 8 specifically states that a patient may assert a medical purpose defense to any marijuana prosecution, “[e]xcept as provided in section 7....” MCL 333.26428(a). Section 7(a) provides that “[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.” MCL 333.26427(a) (emphasis added). In Redden, this Court held that the statute permits an unregistered patient to assert the affirmative defense under § 8 if he or she meets the requirements of § 8. Redden, 290 Mich App at 81, 85.
Section 4(a), MCL 333.26424(a), provides, in relevant part:
*510 A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.
[tjhis issue presents a question of statutory interpretation. We review de novo issues of statutory interpretation. People v Stone Transp, Inc, 241 Mich App 49, 50; 613 NW2d 737 (2000). Generally, the primary objective in construing a statute is to ascertain and give effect to the Legislature’s intent. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). The MMMA was enacted as a result of an initiative adopted by the voters. “The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters.” Welch Foods, Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995). We presume that the meaning as plainly expressed in the statute is what was intended. Id. This Court must avoid a construction that would render any part of a statute surplusage or nugatory, and “[w]e must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme.” People v Williams, 268 Mich App 416, 425; 707 NW2d 624 (2005). [Redden, 290 Mich App at 76-77.]
As noted, the phrase “enclosed, locked facility” is defined by the MMMA to mean “a closet, room, or other enclosed area equipped with locks or other security devices ....” MCL 333.26423(c). As described earlier, defendant grew several marijuana plants in his backyard, within a chain-link dog kennel that was only partially covered on the sides with black plastic. The kennel had a lock on the chain-link door, but had no
The trial court’s interpretation and application of the phrase “enclosed, locked facility” is contrary to settled rules of statutory construction. The statutory reference to “other enclosed area” within the definition of “enclosed, locked facility” is a general phrase that follows the words “closet” and “room,” both of which have specific, limited meanings and which have the common characteristic of being stationary and closed on all sides. It would frustrate the intent of the MMMA to read the definition of “enclosed, locked facility” as meaning something akin to a moveable fence simply on the basis of a dictionary definition when the enumerated examples that precede “other enclosed area” suggest a much greater level of protected confinement.
Our courts must give effect to the language in the statute and elucidate the intent of the voters by considering not only the words themselves, but their placement and purpose in the statutory scheme. To that end, it is appropriate here to apply the doctrine of statutory construction ejusdem generis, which provides that “the scope of a broad general term following a series of items is construed as including ‘things of the same kind, class, character, or nature as those specifically enumer
We further hold that although the plants inside defendant’s home were kept in a closet, which is the type of enclosure specifically enumerated in the statute, it is undisputed that there was no lock on the closet door. The statute explicitly states that the enclosed area itself must have a lock or other security device to
Because defendant failed to comply with the strict requirements in the MMMA that he keep the marijuana in an “enclosed, locked facility,” he is subject to prosecution under MCL 333.7401(2)(d)(iii), and the trial court abused its discretion by dismissing the charges against defendant.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
The statute at issue here, MCL 333.7401, provides, in relevant part:
(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.
(2) A person who violates this section as to:
(d) Marihuana or a mixture containing marihuana is guilty of a felony punishable as follows:
{Hi) If the amount is less than 5 kilograms or fewer than 20 plants, by imprisonment for not more than 4 years or a fine of not more than $20,000.00, or both.
This holding is supported by the ballot proposal itself, Proposal 08-1, which stated that certain registered patients would be permitted to cultivate marijuana within certain restrictions. The proposal specifically provided that the law would “[plermit registered individuals to grow limited amounts of marijuana for qualifying patients in an enclosed, locked facility.”
Moreover, we observe that the trial court cited a definition that specifies enclosure on all sides, but nonetheless concluded that the open-top kennel satisfies the definition.
Dissenting Opinion
(dissenting). I respectfully dissent.
The police had received an anonymous tip that defendant was growing marijuana in his backyard. The police then drove to the driveway of defendant’s neighbor. Using binoculars, the police were able to observe marijuana plants growing in a dog kennel in defendant’s backyard. The dog kennel was made of six-foot-high chain-link fence covered with black shrink-wrap. The police were able to see that a section of the shrink-wrap had been detached. They then approached defendant’s home, knocked on the door, and asked if defendant had a medical-marijuana card. Defendant
Defendant moved to dismiss the charges of manufacturing marijuana pursuant to the Michigan Medical Marihuana Act (MMMA),
MCL 333.26424(a) of the MMMA allows a qualifying patient who has been issued a registry identification card to possess 2.5 ounces of marijuana and to cultivate 12 marijuana plants (if the patient has not designated a primary caregiver) and not be subject to arrest or
A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. [Emphasis added.]
There is no dispute that defendant is a qualifying patient in possession of a valid registry card.
The narrow issue before this Court is the interpretation of the term “enclosed, locked facility” as used in MCL 333.26423(c) of the MMMA. Questions of statutory interpretation are reviewed de novo. People v Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010) (opinion by CAVANAGH, J.).
The MMMA defines “enclosed, locked facility” as follows: “ ‘Enclosed, locked facility’ means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.” MCL 333.26423(c).
Clearly, the outdoor dog kennel could only qualify as an enclosed, locked facility under the term “other enclosed area.” MCL 333.26423(c) does not define the word “enclosed.” Random House Webster’s College Dictionary (1997) contains the following definitions of “enclose”: “1. to close in on all sides; shut in. 2. to surround, as with a fence; to enclose land. 3. to insert in the same envelope, package, etc.: to enclose a check. 4. to contain or hold.” Under these definitions, the dog kennel in this case would fall under the definition of “other enclosed area.” The chain-link walls of the kennel were six feet high, and the area surrounded by the chain-link walls was closed in on all sides. Like a fence that surrounds land (as in the dictionary ex
The prosecution further argues that defendant’s house was not an enclosed, locked facility because the back door did not have a lock. MCL 333.26423(c) requires that such a facility be equipped with “locks” or “other security devices.” The term “other security devices” is not defined in the MMMA. The dictionary defines a “device” as “1. a thing made for a particular purpose, [especially] a mechanical, electric, or electronic invention or contrivance.” Random House Webster’s College Dictionary (1997). Given that the statutory definition of an “enclosed, locked facility” allows for not only locks, but also “other security devices” to be used, the term “locked” should be broadly interpreted. Indeed, it appears from the use of the term “other security devices” that the intent is that the facility be “secure.”
Michigan State Police Detective Sergeant Brian Fox presented testimony at the preliminary examination that the back door of defendant’s home did not have a knob and that he did not “think” that defendant was
Furthermore, the definition of “enclosed, locked facility” reveals the people’s intent that the marijuana being cultivated be accessible only by a registered primary caregiver or registered qualifying patient. In other words, the concern is that the marijuana being cultivated not be accessible by anyone other than a registered primary caregiver or registered qualifying patient. As previously noted, the declared intent of the MMMA is “to protect[] from arrest the vast majority of seriously ill people who have a medical need to use marihuana.” MCL 333.26422(b). Rather than rigid definitions of “other enclosed area,” “locked,” and “other security device,” the true key to determining whether defendant’s dog kennel and home were enclosed, locked facilities for purposes of the MMMA is to determine whether access to the marijuana in the dog kennel and the house was possible “only by a primary caregiver or registered qualifying patient.” MCL 333.26423(c).
The evidence in the record indicates that the dog kennel where defendant was growing marijuana was located in his backyard. The walls of the kennel were
Similarly with respect to defendant’s house, we need not find a rigid definition for “locked” that requires the use of a key. Instead, the determination to be made is whether only defendant had access to the marijuana in his house. Defendant refused to allow Fox and the other officer access to his house. The police obtained access to the house only by securing a search warrant. No evidence was presented that anyone other than defendant had access to the house. I would conclude that defendant was growing marijuana in accordance with the provisions of the MMMA. The evidence from the preliminary examination reveals that access to both the kennel and the house was limited to defendant, which was sufficient for purposes of MCL 333.26424.
I would affirm the learned circuit judge’s dismissal of the charges against defendant.
Although the statute spells it “marihuana,” unless used in a direct quotation, I have spelled it throughout as “marijuana,” as that is the more commonly used spelling.
The prosecution does not dispute that defendant was entitled to possess 2.5 ounces of marijuana.
Contrary to the prosecution’s suggestion, nothing in the statutory definition of “enclosed, locked facility” prevents the facility from being movable.