People of Michigan v. Robert a Johnson

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

September 13, 2018

Plaintiff-Appellee,

v No. 329742

Ontonagon Circuit Court

ROBERT A. JOHNSON, LC No. 14-000098-FH

Defendant-Appellant.

Before: MURRAY, C.J., and CAMERON and LETICA, JJ.

PER CURIAM.

In this interlocutory appeal, defendant appeals, pursuant to an order of remand from our

Supreme Court in People v Johnson, 501 Mich 1023 (2018), the trial court’s opinion and order

denying his motion to dismiss a charge of delivery/manufacture of more than 5 but less than 45

kilograms of marijuana, MCL 333.7401(2)(d)(ii), based on his claim of immunity and

affirmative defense under the Michigan Medical Marihuana1 Act (MMMA), MCL 333.26421 et

seq. For the reasons stated below, we affirm.

I. FACTUAL BACKGROUND

Defendant became a patient under the MMMA in 2009 and a caregiver in 2010. He

resides on the second floor of a building that formerly functioned as a motel. His son resides in a

converted room on the first floor of the same motel. Defendant’s main “grow operation” is in a

greenhouse behind the building. He also grows plants in two of the old motel rooms and

maintains a “cloner” in his son’s room.2 Defendant leased a mobile home on the property to

Michael Lehto, who is also a medical marijuana caregiver. The mobile home bears its own

address, but it appears that Lehto does not live there. Rather, he grew marijuana plants in and

behind the mobile home. Defendant and Lehto helped one another with each other’s grow

operations.

1

We will use the conventional spelling of marijuana.

2

According to defendant, a cloner room is a place where cuttings from a marijuana plant “are

placed in order to develop root systems for a future plant.”

-1-

On August 20, 2014, Michigan State Police Detective Jason Sleeter, a member of the

Upper Peninsula Substance Enforcement Team, and a “Detective Sergeant Koski” were

conducting “Medical Marijuana grow checks.” The detectives stopped at defendant’s residence.

Detective Sleeter testified that, from the roadway, he was able to view marijuana plants behind

what “looked like an old motel.” The detectives made contact with defendant, who denied them

access to the property without a search warrant. Detective Sleeter said that defendant presented

to him an expired medical marijuana patient card and separate caregiver cards for two of

defendant’s patients. In an affidavit submitted in request for a search warrant, Detective Sleeter

stated in part that he had observed marijuana plants growing on the property, that defendant had

stated that he was a medical marijuana caregiver who had a “secure facility,” and that defendant

had presented to him an expired card. Detective Sleeter averred that there was reason to believe

that a search would reveal violations of the Controlled Substance Act and the MMMA. On

September 16, 2014, a search warrant was issued.

On September 17, 2014, Detective Sleeter and other law enforcement officers executed

the search warrant. They seized 130 marijuana plants. Defendant maintained that he was a

caregiver for himself and five patients, allowing him to possess 72 marijuana plants. While

defendant presented a valid patient card, his “paperwork” showed that cards for “two or three” of

his patients had been denied. Lehto and his one patient were also present at the scene. Detective

Sleeter explained that Lehto’s plants were attributed to defendant because the two men had

access to each other’s plants. Law enforcement also found and seized approximately 15 pounds

of processed marijuana. A significant amount of this marijuana was a “finely chopped” leafy

substance that field tested positive for marijuana. Defendant was arrested for possessing more

marijuana than he was authorized to have under the MMMA.

Defendant filed a motion in the trial court to quash the search warrant and dismiss the

information. He argued that Detective Sleeter’s affidavit was insufficient to establish probable

cause for a search warrant. Specifically, he contended that Detective Sleeter’s observation that

there was marijuana growing on the property did not establish probable cause for the search.

Further, defendant contended that Detective Sleeter’s averment that defendant had presented an

expired card did not support a finding of probable cause. Defendant also asserted that he had

presented a valid patient card and that it was the caregiver cards that were expired. After a

hearing at which defendant presented a patient card that was valid on the subject date, the trial

court denied defendant’s motion. The court reasoned that, pursuant to People v Brown, 297

Mich App 670; 825 NW2d 91 (2012), Detective Sleeter’s affidavit only needed to establish

probable cause that contraband would be found on the property.

Defendant subsequently filed a motion to dismiss the charge based on Section 4

immunity under the MMMA. He also moved for an evidentiary hearing, asserting a Section 8

defense under the MMMA. At the evidentiary hearing that followed, defendant’s caregiver cards

for the five patients he was purportedly growing marijuana for on September 17, 2014, were

admitted into evidence. Three of the cards were issued to defendant in December 2014.

Defendant testified that he possessed 59 plants and 10 to 12 ounces of usable marijuana on the

day of the search. He explained that the finely chopped marijuana found by law enforcement

was “trimmings” or “scraps” of marijuana leaves. Defendant opined that the trimmings were

unusable, but that they could be used to create “Rick Simpson oil,” which he testified was given

to his patients who had cancer. Four of defendant’s patients testified, in part, to their underlying

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medical condition and to how long defendant had been their caregiver. Dr. Larry Carlyon, the

certifying doctor for defendant and three of the patients, testified to his relationship with those

patients and the examinations he performed before certifying them as qualified patients.

The trial court denied defendant’s claims of Section 4 immunity and the Section 8

affirmative defense. With respect to Section 4, the trial court found, based on defendant’s

caregiver cards, that on September 17, 2014, defendant was the primary caregiver for only two of

the patients. The three remaining patients did not have valid medical marijuana cards until

December 2014. Therefore, the court reasoned, defendant could only possess 36 plants.3

Regarding Section 8, the trial court determined that there were questions of fact, and defendant

could present evidence to the jury in support of the affirmative defense.

II. ANALYSIS

A. SECTION 4 IMMUNITY

Defendant first argues that the trial court erred in ruling that he failed to prove that he

was entitled to Section 4 immunity. We disagree. The trial court correctly determined that, at

the time of the arrest, defendant possessed more than the authorized amount of marijuana plants

and usable marijuana in violation of the MMMA.

Prior to trial, the trial court decides as a question of law whether a defendant has met the

elements of a Section 4 immunity claim under the MMMA. People v Hartwick, 498 Mich 192,

212-213; 870 NW2d 37 (2015). We review the trial court’s factual findings relating to Section 4

immunity for clear error and the legal determinations de novo. People v Tackman, 319 Mich

App 460, 468; 901 NW2d 638 (2017). We also review de novo questions of statutory

interpretation. People v Manuel, 319 Mich App 291, 299; 901 NW2d 118 (2017). “The intent of

the electors, rather than the Legislature, governs the interpretation of voter-initiated statutes like

the MMMA.” People v Jones, 301 Mich App 566, 572; 837 NW2d 7 (2013). “A statute must be

interpreted on the basis of its plain language, and the words of the MMMA must be given their

ordinary and plain meaning as would have been understood by the electorate.” Id.

“The possession, manufacture, use, creation, and delivery of marijuana remain illegal in

this state, even after the enactment of the MMMA.” Brown, 297 Mich App at 677. The medical

use of marijuana is legal if it complies with the MMMA’s provisions. MCL 333.26427(a); see

also Hartwick, 498 Mich at 209. “Sections 4(a) and 4(b) of the MMMA contain parallel

immunity provisions that grant registered qualifying patients and registered primary caregivers

broad immunity from arrest, criminal prosecution, civil penalties, and disciplinary actions.”

Jones, 301 Mich App at 573.

On appeal, defendant claims immunity under Section 4(b), which, at the time this case

was decided, provided in relevant part:

3

Although the trial court found that ruling dispositive, it also found that defendant failed to store

his marijuana plants in an enclosed, locked facility as required by Section 4.

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(b) A primary caregiver 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 assisting a qualifying patient to whom he or she is connected

through the department’s[4] registration process with the medical use of marihuana

in accordance with this act. The privilege from arrest under this subsection

applies only if the primary caregiver presents both his or her registry

identification card and a valid driver license or government-issued identification

card that bears a photographic image of the primary caregiver. This subsection

applies only if the primary caregiver possesses an amount of marihuana that does

not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he

or she is connected through the department’s registration process; and

(2) for each registered qualifying patient who has specified that the

primary caregiver will be allowed under state law to cultivate marihuana for the

qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and

(3) any incidental amount of seeds, stalks, and unusable roots. [MCL

333.26424, as amended by 2012 PA 512.5]

A defendant claiming Section 4 immunity must prove by a preponderance of the evidence that he

or she

(1) was issued and possessed a valid registry identification card,

(2) complied with the requisite volume limitations of § 4(a) and § 4(b),

(3) stored any marijuana plants in an enclosed, locked facility, and

(4) was engaged in the medical use of marijuana. [Hartwick, 498 Mich at 217-

218.]

Defendant argues that the trial court erred by determining he was only allowed to possess

marijuana for himself and two of his patients. Whether defendant complied with the MMMA’s

volume limitations requires a determination of (1) the number of qualified patients that defendant

was connected with through LARA’s registration process, and (2) whether they had specified

that defendant would be allowed to possess marijuana plants on their behalf.

4

“ ‘Department’ means the department of licensing and regulatory affairs [(LARA)].” MCL

333.26423(c).

5

The subsequent amendments to Section 4 are not relevant to our resolution of this appeal. See

2016 PA 283. Therefore, we need not decide whether to apply PA 283 retroactively.

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Section 6 of the MMMA sets forth “requirements for issuance of a registry identification

card.” Jones, 301 Mich App at 579 n 6. “ ‘Registry identification card’ means a document issued

by the department that identifies a person as a registered qualifying patient or registered primary

caregiver.” MCL 333.26423(m). To receive a registry identification card, a qualifying patient

must include identifying information pertaining to the “qualifying patient’s primary caregiver, if

any.” MCL 333.26426(a)(5). “If the qualifying patient designates a primary caregiver,” LARA

must include “a designation [on the registry identification card] as to whether the qualifying

patient or primary caregiver will be allowed under state law to possess marihuana plants for the

qualifying patient’s medical use.” MCL 333.26426(a)(7). “The department shall issue a registry

identification card to the primary caregiver, if any, who is named in a qualifying patient’s

approved application[.]” MCL 333.26426(d). Based on the above, we conclude that, for a

caregiver to be connected with a qualifying patient through LARA’s registration process, the

patient must designate that person as his or her primary caregiver. The number of qualifying

patients that the caregiver is connected to determines the amount of usable marijuana that the

primary caregiver can possess. See MCL 333.26424(b)(1). But the number of plants that a

primary caregiver can possess is determined by the qualifying patients who have taken the

additional step and specified that the caregiver will be allowed to cultivate6 marijuana on their

behalf. See MCL 333.26424(b)(2).

Based on defendant’s caregiver cards, it is undisputed that he was not validly registered

as the primary caregiver for three of his claimed patients on September 17, 2014. The three

patients’ cards were not issued until December 3, 2014, December 8, 2014, and December 12,

2014, respectively. Defendant suggests that this fact is not dispositive. He notes that the

applications for the three patients were “in progress” at the time of the search and seizure. Even

assuming this is true, we construe the phrase “connected through the department’s registration

process” to mean that LARA has approved the application designating a primary caregiver.

LARA has discretion to deny an application or renewal “if the applicant did not provide the

information required pursuant to this section, or if the department determines that the

information provided was falsified.” MCL 333.26426(c). There are also requirements for a

person serving as a primary caregiver; that person must be 21 years old and not have been

convicted of a felony in the past 10 years and cannot have been “convicted of a felony involving

illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the

code of criminal procedure, 1927 PA 175, MCL 770.9a.” MCL 333.26423(k). Further, a patient

can only have one primary caregiver and a primary caregiver can only serve in that capacity for

five patients. MCL 333.26426(d). These requirements would be meaningless if a Section 4

claim could be maintained before LARA has approved the application. Courts should avoid

interpretations that would render part of the statute meaningless. People v Pinkney, 501 Mich

259, 282-283; 912 NW2d 535 (2018).

6

It is unclear why Section 4 refers to patients specifying that caregivers can cultivate plants on

their behalf when Section 6, pertaining to the registration process, contemplates that patients will

specify whether caregivers can possess plants on their behalf. The Michigan Supreme Court has

noted that there are “many inconsistencies” in the MMMA. Hartwick, 498 Mich at 200.

-5-

Further, registration matters under Section 4. The first element of an immunity claim is

that the primary caregiver has a valid registry identification card. In contrast, “[s]ection 8(a) of

the MMMA provides any patient or primary caregiver—regardless of registration with the

state—with the ability to assert an affirmative defense to a marijuana-related offense.”

Hartwick, 498 Mich at 226 (emphasis added). It follows that LARA must actually approve a

patient’s application for a primary caregiver to possess marijuana on that patient’s behalf under

Section 4.

Defendant also argues that the MMMA does not require that a caregiver’s patients have

an updated card or that the caregiver know of the status of the patient’s card. However, the

MMMA provides that registry identification cards “expire 2 years after the date of issuance,”

MCL 333.26426(e), and the act contemplates that patients will seek renewal of their cards. See

e.g., 333.26425(b). Further, a caregiver’s knowledge of the patient’s card status is irrelevant

under Section 4. The volume limitations are determined by LARA’s registration process.

On the day of the search and arrest, defendant, a qualified patient, only had valid

caregiver cards for two patients. Accordingly, at that time, defendant was allowed to possess 7.5

ounces of usable marijuana and 36 marijuana plants. MCL 333.26424(b)(1) and (b)(2). By his

own testimony, defendant was in possession of 10 to 12 ounces of usable marijuana and 59

plants on the day of his arrest. Therefore, he failed to comply with the MMMA’s volume

limitations, and the trial court did not err in denying his claim of immunity under Section 4. We

decline to address defendant’s other arguments pertaining to Section 4. See B P 7 v Bureau of

State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998) (“As a general rule, an appellate

court will not decide moot issues.”).

B. SECTION 8 AFFIRMATIVE DEFENSE

Next, defendant argues that the trial court erred in determining that there were questions

of fact regarding his Section 8 claim that must be submitted to a jury. We disagree.

“A defendant seeking to assert the MMMA’s statutory affirmative defense must present

prima facie evidence for each element of § 8(a).” Hartwick, 498 Mich at 228. “[I]f a defendant

establishes these elements and no question of fact exists regarding these elements, then the

defendant is entitled to dismissal of the criminal charges.” Id. at 227. If there are questions of

fact, the affirmative defense must be presented to the jury. Id. If the defendant fails to present

prima facie evidence regarding each element from which a reasonable juror could find that

Section 8’s elements have been satisfied, then the trial court must deny the motion to dismiss and

the defendant is precluded from submitting the defense to the jury. Id.

Except as provided in section 7(b),[7] a patient and a patient’s primary

caregiver, if any, may assert the medical purpose for using marihuana as a defense

7

The unprotected activities identified in Section 7 are not pertinent to this case. See MCL

333.26427.

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to any prosecution involving marihuana, and this defense shall be presumed valid

where the evidence shows that:

(1) A physician has stated that, in the physician’s professional opinion,

after having completed a full assessment of the patient’s medical history and

current medical condition made in the course of a bona fide physician-patient

relationship, the patient is likely to receive therapeutic or palliative benefit from

the medical use of marihuana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s serious or debilitating

medical condition;

(2) The patient and the patient’s primary caregiver, if any, were

collectively in possession of a quantity of marihuana that was not more than was

reasonably necessary to ensure the uninterrupted availability of marihuana for the

purpose of treating or alleviating the patient’s serious or debilitating medical

condition or symptoms of the patient’s serious or debilitating medical condition;

and

(3) The patient and the patient’s primary caregiver, if any, were engaged

in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or

transportation of marihuana or paraphernalia relating to the use of marihuana to

treat or alleviate the patient’s serious or debilitating medical condition or

symptoms of the patient’s serious or debilitating medical condition. [MCL

333.26428(a).]

Section 8(a)(1) contains three elements: “(1) [t]he existence of a bona fide physician-patient

relationship,”8 “(2) in which the physician completes a full assessment of the patient’s medical

8

Originally the term “bona fide physician-patient relationship” was undefined. People v

Kolanek, 491 Mich 382, 396 n 30; 817 NW2d 528 (2012). Effective April 1, 2013, the

Legislature amended the MMMA to include a definition of the term.

(a) “Bona fide physician-patient relationship” means a treatment or

counseling relationship between a physician and patient in which all of the

following are present:

(1) The physician has reviewed the patient’s relevant medical records and

completed a full assessment of the patient’s medical history and current medical

condition, including a relevant, in-person, medical evaluation of the patient.

(2) The physician has created and maintained records of the patient’s

condition in accord with medically accepted standards.

(3) The physician has a reasonable expectation that he or she will provide

follow-up care to the patient to monitor the efficacy of the use of medical

marihuana as a treatment of the patient’s debilitating medical condition.

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history and current medical condition,” and “(3) from which results the physician’s professional

opinion that the patient has a debilitating medical condition and will likely benefit from the

medical use of marijuana to treat the debilitating medical condition.” Hartwick, 498 Mich at

229.

The trial court found that defendant satisfied Section 8(a)(1) with respect to himself and

one of the validly registered qualifying patients. The trial court found the evidence inadequate

with respect to the other validly registered qualifying patient, whose doctor did not testify.

Contrary to defendant’s argument, the trial court did not rule that the doctor’s testimony was

necessary. Rather, it ruled that the patient’s testimony was sufficient to satisfy Section 8(a)(1).

We find no error in that determination. Although the patient’s testimony established a long-

standing relationship with the certifying doctor, the trial court was left to speculate regarding

whether the doctor adequately reviewed the patient’s medical history and current condition, or

determined that the patient had a serious or debilitating medical condition such that the patient

would benefit from the use of marijuana. Defendant asks that we presume that these elements

were met, but the evidence does not show that he is entitled to that presumption.9

Next, defendant cites Dr. Carlyon’s testimony about the three patients for whom

defendant was not validly registered as a primary caregiver at the time of the arrest in support of

his claim of error. But the trial court did not address that evidence for this precise reason, i.e.,

the lack of valid registration. Defendant does not address the trial court’s ruling and therefore is

not entitled to appellate relief. See Derderian v Genesys Health Care Sys, 263 Mich App 364,

381; 689 NW2d 145 (2004). Further, to address whether the trial court erred on this matter, we

would have to engage in statutory interpretation of Section 8 and the MMMA as a whole. But

defendant does not address the finer points of this issue,10 and we need not elaborate on

defendant’s arguments. See People v Bosca, 310 Mich App 1, 48; 871 NW2d 307 (2015).

Further, this is an unpreserved issue that is not briefed by the parties. This Court “generally

do[es] not address the merits of unbriefed issues.” People v Byrne, 199 Mich App 674, 677; 502

NW2d 386 (1993). For these reasons, we decline to address whether the trial court erred by not

considering the evidence pertaining to patients for whom defendant was not registered as the

primary caregiver at the time of his arrest.

(4) If the patient has given permission, the physician has notified the

patient’s primary care physician of the patient’s debilitating medical condition

and certification for the use of medical marihuana to treat that condition. [MCL

333.26423(a)(1), (a)(2), (a)(3), (a)(4), as amended by 2012 PA 512.]

9

A valid registry identification issued after April 2013 establishes the second and third

components of this sub-element. Hartwick, 498 Mich at 203 n 10. The evidence shows that

Livingston’s patient card was issued in 2010.

10

As noted, a patient’s or caregiver’s registration status is generally irrelevant under Section 8.

Hartwick, 498 Mich at 226.

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Defendant also argues that the trial court erred by finding that there were questions of

fact pertaining to whether defendant possessed a reasonably necessary amount of marijuana.

Again, the second element of a Section 8 defense requires the primary caregiver to show that

[t]he patient and the patient’s primary caregiver, if any, were collectively in

possession of a quantity of marihuana that was not more than was reasonably

necessary to ensure the uninterrupted availability of marihuana for the purpose of

treating or alleviating the patient’s serious or debilitating medical condition or

symptoms of the patient’s serious or debilitating medical condition[.] [MCL

333.26428(a)(2).]

“The critical phrase from the above quoted passage is ‘reasonably necessary to ensure

uninterrupted availability of marihuana [for treatment]. . . .’ ” Hartwick, 498 Mich at 233. Our

Supreme Court has advised that, to establish what that amount is, a primary caregiver would

generally have to present testimony “regarding how much usable marijuana each patient required

and how many marijuana plants and how much usable marijuana the primary caregiver needed in

order to ensure each patient the ‘uninterrupted availability’ of marijuana.” Hartwick, 498 Mich

at 235.

On appeal, defendant focuses on the marijuana “trimmings” or “scraps” found on his

property. Defendant maintains that this was not usable marijuana, as he and other witnesses

testified. “ ‘Usable marihuana’ means the dried leaves, flowers, plant resin, or extract of the

marihuana plant, but does not include the seeds, stalks, and roots of the plant.” MCL

333.26423(n) (emphasis added). Defendant’s testimony established that the scraps were

trimmed marijuana leaves. Thus, the trimmings seized from defendant’s property constitute

usable marijuana.11

Alternatively, defendant asks us to conclude that the seized trimmings constituted a

reasonable amount of marijuana under the circumstances. We decline to do so and note that

defendant overlooks many of the factual nuances in this case. For instance, it appears that only

one of defendant’s patients used the Rick Simpson oil that would have been derived from the

trimmings. Further, the trial court also found that there were questions of fact regarding how

many plants defendant possessed and how many plants he needed to possess to meet his client’s

needs. Defendant does not address this aspect of the court’s ruling. Accordingly, we cannot say

that the trial court erred in ruling that there were questions of fact on defendant’s Section 8

affirmative defense.

C. FOURTH AMENDMENT

Finally, defendant argues that the issuance of a search warrant in this case violated his

Fourth Amendment rights. We disagree.

11

Defendant argues, for the first time, that the trimmings were not completely dried. There was

simply no testimony pertaining to whether the trimmings were dried. Defendant cannot satisfy

his burden to present prima facie evidence on this matter by speculating on appeal.

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We review de novo whether the Fourth Amendment was violated. People v Hyde, 285

Mich App 428, 436, 438; 775 NW2d 833 (2009). In reviewing the outcome of a suppression

hearing, which is apposite to this case, we review the trial court’s factual findings for clear error.

“A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is

left with a definite and firm conviction that a mistake has been made.” People v Gingrich, 307

Mich App 656, 661; 862 NW2d 432 (2014). (quotation marks and citation omitted). Questions

of law relating to the motion to suppress are reviewed de novo. Id.

“[B]oth the United States Constitution and the Michigan Constitution guarantee the right

of persons to be secure against unreasonable searches and seizures.” Hyde, 285 Mich App at 438

(quotation marks and citations omitted). “A search warrant may only be issued upon a showing

of probable cause.” Brown, 297 Mich at 675. “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.” Id. “Probable cause must be based on facts presented to the issuing magistrate by

oath or affirmation.” People v Waclawski, 286 Mich App 634, 698; 780 NW2d 321 (2009).

“When probable cause is averred in an affidavit, the affidavit must contain facts within the

knowledge of the affiant rather than mere conclusions or beliefs.” Id.

Defendant’s overarching argument is that Detective Sleeter’s affidavit did not establish

probable cause because the affidavit did not allege facts establishing that defendant was in

violation of the MMMA. But in Brown, 297 Mich App at 677, we concluded

that to establish probable cause, a search-warrant affidavit need not provide facts

from which a magistrate could conclude that a suspect’s marijuana-related

activities are specifically not legal under the MMMA. Probable cause exists if

there is a substantial basis for inferring a fair probability that contraband or

evidence of a crime exists in the stated place.

Defendant is correct that Brown is distinguishable. In Brown, the police officers were unaware

that the defendant was a qualified patient under the MMMA when they sought and executed the

search warrant. See Brown, 297 Mich App at 672-673, 674 n 2. In this case, the officers were

aware that defendant was a caregiver under the MMMA. However, this distinction has no

bearing on the binding rule of law announced in Brown. See MCR 7.215(J)(1); see also People v

Ventura, 316 Mich App 671, 677-678; 894 NW2d 108 (2016) (applying Brown).

We reasoned in Brown “that because the possession, manufacture, use, creation, and

delivery of marijuana remain illegal in Michigan even after the enactment of the MMMA, a

search-warrant affidavit concerning marijuana need not provide specific facts pertaining to the

MMMA[.]” Id. at 674-675. Defendant suggests that Brown is no longer valid because medical

marijuana is now a schedule 2 substance under MCL 333.7213(b). However, “[m]arijuana

remains a schedule 1 substance in Michigan’s Public Health Code, MCL 333.7212(1)(c), and

medical use of marijuana is not recognized as a legal activity at the federal level.” People v

Kolanek, 491 Mich 382, 394 n 24; 817 NW2d 528 (2012). We note that the MMMA provides

that the possession of a registry identification card “shall not constitute probable cause or

reasonable suspicion, nor shall it be used to support the search of the person or property of the

person possessing . . . the registry identification card . . . .” MCL 333.26426(g). But Detective

Sleeter did not seek a search warrant on the ground that defendant possessed a registry

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identification card. Rather, he averred that he could see marijuana plants growing openly from

the road and that defendant responded by telling him that he was a medical marijuana cardholder

and that he had a “secured facility.” Accordingly, the affidavit provided “a substantial basis for

inferring a fair probability that contraband or evidence of a crime exists in the stated place.”

Brown, 297 Mich App at 677.

While this Court could affirm the trial court’s ruling for this reason alone, we also

conclude that there was a substantial basis in the affidavit for inferring that defendant was not in

compliance with the MMMA.

According to Detective Sleeter, he observed the marijuana growing from the highway.

Under the definition of an “enclosed, locked facility”, marijuana plants can be grown outside “if

they are not visible to the unaided eye from an adjacent property when viewed by an individual

at ground level . . . .” MCL 333.26423(d). We agree with the trial court’s determination that

Detective Sleeter was at ground level when he was sitting in a truck. There is no requirement in

the statute that a person be on foot. Defendant maintained that Detective Sleeter could not have

seen the plants from 300 feet away, but Detective Sleeter did not testify as to how far away he

was when he viewed the plants. And defendant’s estimation was apparently based on a

photograph viewing the mobile home from the road, but Detective Sleeter observed the plants

behind the former motel. The trial court accepted that Detective Sleeter observed the plants, and

defendant does not establish that this finding was clearly erroneous.

Detective Sleeter’s affidavit was also based on defendant presenting an expired MMMA

card. Defendant indicates that this statement is insufficient to establish probable cause that the

MMMA was being violated. But the affidavit states that, in response to being informed that

Detective Sleeter could view marijuana from the road, defendant stated that he was a MMMA

cardholder and that he had a “secured facility.” It can be inferred from the affidavit that

defendant was growing marijuana with an expired card, and therefore was not in compliance

with the MMMA.

Alternatively, defendant argues that he proved that his card was not expired. He

presented his registry identification card, which was issued in February 2014 and expired in

March 2016. Detective Sleeter maintained that defendant presented a card that expired in 2013.

The trial court did not resolve this dispute.

Even if defendant had presented his valid patient card to Detective Sleeter, defendant

admittedly presented Detective Sleeter two expired caregiver cards. Likely, the similarity of the

cards was the source of confusion. The face of each the cards are nearly identical, with the

caregiver cards having a “C” in the bottom right and the patient cards having a “P.” “The

defendant has the burden of showing, by a preponderance of the evidence, that the affiant

knowingly and intentionally, or with a reckless disregard for the truth, inserted false material into

the affidavit and that the false material was necessary to the finding of probable cause.” People v

Ulman, 244 Mich App 500, 510; 625 NW2d 429 (2001). “[T]here is a presumption that the

affidavit supporting the search warrant is valid.” People v Martin, 271 Mich App 280, 311; 721

NW2d 815 (2006), aff’d 482 Mich 851 (2008). In all likelihood, Detective Sleeter made a

reasonable mistake in viewing the cards. In any event, defendant did not show that Detective

Sleeter intentionally or recklessly inserted false material into the affidavit. Even if defendant

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met that burden, Detective Sleeter’s observation of the grow operation from the road provided a

substantial basis for inferring that both the Controlled Substances Act and the MMMA were

being violated. Thus, the statement relating to the expired card was not necessary to establish

probable cause.

Affirmed.

/s/ Christopher M. Murray

/s/ Thomas C. Cameron

/s/ Anica Letica

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