Michigan’s Misdemeanor Milestone: Court Ruling on Small-Scale Illegal Marijuana Grows

Posted Oct 20, 2023 on Mlive

LANSING, MI — The likelihood of black-market marijuana growers in Michigan facing full-blown, paramilitary-style raids featuring battering rams and heavily armed narcotics teams has diminished.

Growing illegal marijuana in Michigan, even potentially thousands of plants, is only a misdemeanor crime, the state Court of Appeals ruled on Oct. 5.

The severe prison terms tacked onto marijuana prohibition laws of the past have been eliminated by newer, more lenient laws, the court said.

Attorneys and marijuana industry insiders who spoke to MLive, however, say illegal growers could still face serious punishment for other crimes, such as tax evasion, and the seizure of their valuable marijuana.

“There was never any need for there to be a military invasion, felony or any long sentences or anything like that, so that worked out,” said marijuana activist Jamie Lowell, who helped write the law that reduced penalties. “There are limits and there are parameters and if someone gets outside of them there are consequences, but it’s just cannabis.”

The appellate court said marijuana-related punishments contained in a 1978 drug law — up to 15 years in prison for possessing more than 99 pounds or 200 marijuana plants — no longer stand. Similar crimes today should be charged as misdemeanors, punishable by up to 93 days in jail, under the 2018, voter-passed Michigan Regulation and Taxation of Marijuana Act.

Since passage of the the act in 2018, more than 3,500 people have been charged and 1,072 convicted under the outdated 1978 law, according to analysis provided to MLive by Michigan Supreme Court spokesman John Nevin.

Those defendants may have grounds to fight their prior convictions.

Marijuana bust in Tuscola County

The case reviewed by the appellate court stems from an August 2020 raid in Tuscola County by the state police-led, multi-jurisdictional Thumb Narcotics Unit, which operates in Huron, Tuscola, Sanilac and Lapeer counties.

Using a search warrant, police entered a property owned by 45-year-old Shaaln Kejbou. There they found an “extensive, unlicensed marijuana grow operation” with 1,156 marijuana plants, Tuscola County Prosecutor Mark Reene said in a press release.

“It included a number of outbuildings, hydroponic equipment, chemical and other materials typically used to cultivate and harvest marijuana plants,” Reene said. “The outdoor areas were protected by a video surveillance system. Police found dogs on the property, presumably also for protection. While searching a house on the property, they discovered a loaded 12-gauge shotgun in one of the bedrooms.”

Tuscola County prosecutors charged Kejbou with two crimes tied to the 1978 drug law that states violators may be sentenced to up to four years in prison for possessing less than 20 marijuana plants and up to 15 years in prison for possessing greater than 200 plants.

Based on those felony charges, the Tuscola County Prosecutor’s Office also charged Kejbou with possessing a firearm during the commission of a felony.

Additionally, he faced counts of operating a criminal enterprise, concealing more than $1,000 worth of stolen property and animal abuse. Those charges weren’t part of the appellate review.

A Tuscola County Circuit judge dismissed the marijuana and firearm crimes, ruling the old marijuana plant-count laws are obsolete. The Tuscola County Prosecutor’s Office appealed.

The appeal

The three-judge Court of Appeals pane ruled unanimously that felony punishments didn’t apply and the case should be prosecuted under the Michigan Regulation and Taxation of Marijuana Act.

That law makes it legal to store up to 10 ounces of marijuana, personally possess 2.5 ounces and grow up to 12 plants. Violations for exceeding those amounts range from civil infractions to misdemeanors, and are not “subject to imprisonment unless the violation was habitual, willful, and for a commercial purpose or the violation involved violence,” the act states.

“We conclude that the (2018 law) was enacted to prevent situations like that which we are presented with here, in which the prosecution seeks a felony conviction for an unlicensed marijuana grow operation,” said the joint opinion issued by Court of Appeals judges Michelle M. Rick and Kirsten Frank Kelly. “We acknowledge this outcome may be viewed unjust by those businesses that legitimately operate within the parameters of the (law). The remedy, however, lies within the sole responsibility of the Legislature.”

Since the original law was passed by voter ballot initiative, any legislative changes will require three-fourths supermajority support in both houses.

“You’re not going to be able to get a three-quarters supermajority vote, and that’s what it’s going to take to change one word of that law,” said Tim Beck, who began working on marijuana legalization in 2002 and attended a marijuana trade organization meetup in Lansing this week where the court’s ruling was a topic of conversation.

Beck said the punishment for marijuana possession has remained “clouded and confusing” since the 2018 law passed. “And this court case clarified it.”

Prosecutor Reene said the outcome “highlights the peril of unintended consequences often associated with ballot initiatives.”

“It is unlikely, given the broad statement of purpose provided with (the law), that the average Michigan voter in 2018 believed they were approving a regulatory scheme that would allow the unlicensed, unregulated and untaxed manufacture of 1,156 (or for that matter 11 million) plants of marihuana and that those engaged in such activity would only be subject to a misdemeanor penalty,” Reene said. The “unlimited manufacture of marijuana plants, which results in only a misdemeanor sanction, clearly obliterates much of the stated purpose of the act. It decimates legitimate businesses and license holders and fuels the illicit market and criminal enterprises.”

Drafters disagree

“We’ve been waiting for this for a long time,” said Robin Schneider, who helped write the law that legalized marijuana and now leads the Michigan Cannabis Industry Association business trade organization. “The reason voters approved legalization was to end decades of senseless cannabis incarcerations. The law is working exactly as intended.”

The Michigan Cannabis Industry Association represents more than 400 licensed marijuana businesses.

“I haven’t heard any of our members complain about this,” Schneider said. “I think all of our members share the belief that they don’t want to see anyone incarcerated for a cannabis crime.”

The Cannabis Regulatory Agency (CRA) is the responsible for licensing and regulating businesses to operate within the commercial marijuana industry. It’s powers are limited to issuing fines, license revocation or other sanctions to licensed businesses that violate the rules.

Through its work, the agency often encounters illicit marijuana and producers who operate outside the regulated market, which it reports to state police, usually the Tobacco and Marijuana Section, tasked with investigating criminal violation of marijuana licensing laws.

“We are aware that people are discussing the topic,” CRA spokesman David Harns said. “We have discussed internally and are continuing to follow our processes and procedures which mean that we are going to continue referring to (state police).

The CRA referred 135 investigations to state police between October 2022 and June 30, according to quarterly reporting data.

State police spokeswoman Shanon Banner said the court ruling won’t impact state police Tobacco and Marijuana Section operations.

“We have reviewed the ruling and because it deals with the level of the penalty and doesn’t change what is legal or illegal under the law, we don’t expect it will have a major impact on our enforcement operations,” she said.

‘How do we charge somebody

Kejbou’s attorney, Detroit-based Michael J. Lemnitz, believes the appellate ruling will have a lasting effect on the voracity with which police and prosecutors pursue marijuana crimes.

“This was not an intent to distribute charge,” he said. “However, I think the reasoning would apply to a charge of possession with intent to deliver and would, likewise, be prosecutable only by a misdemeanor.”

Attorney Michael Komorn of the Komorn law firm specializes in cannabis defense and currently has several clients charged under felony marijuana possession laws. In light of the Court of Appeals ruling, he plans to file motions requesting those charges be reduced to misdemeanors.

Komorn said most prosecutors and police have already placed a low priority on marijuana enforcement, except for “certain pockets” of the state.

“They’ll raid like the old days, come in with guns and masks and go through that whole process,” he said, “but their dilemma is, how do we charge somebody. What, do you get charged with a misdemeanor?

“I have a number of cases where they’ve seized property and not charged anybody. And you can only reap the benefits of forfeiture if you get a felony conviction.”

In February, Michigan state police with cooperation from the Ogemaw County Prosecutor’s Office reported the seizure more than 5,400 marijuana plants and 100 pounds of processed marijuana products from two residences associated with a large-scale grow operation.

If those suspects will be charged with misdemeanor or more severe crimes is unknown. Eight months later, the investigation still hasn’t been submitted for a prosecutorial review.

“We called (state police) to find out if they were planning to giving (the investigation) to us or if they submitted it to the (state Attorney General’s Office),” Ogemaw County Prosecutor LaDonna A. Schultz said Thursday. “They basically said they were going to give it to us and we said, can we have it sooner that later? My understanding is that we are going to be receiving it shortly.”

The Tuscola County prosecutor has the option to appeal the Court of Appeals ruling.

“We’re looking at a variety of different options at this point in time,” Reene said. “There’s ample confusion … it is definitely not the model of clarity.”

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