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According to the most recent memo from our esteemed Attorney General Bill Schuette, it would appear the answer to the above question is yes. In Opinion #7262 released November 10, 2011 the Attorney General goes through a long winded analysis that boils down to his opinion that police officers would be breaking Federal Controlled Substance Laws by returning Medical Marijuana to patients who did nothing wrong.

What does this really mean? Bill Schuette is saying that even if you have complied with state law as a patient or a caregiver, and have done nothing wrong, the police will not give back medical marijuana that they may have wrongly seized and confiscated!! This is despite the explicit provision 4(h) of the MMMA that states in such instances the marijuana “shall not be seized or forfeited.”

The problem with this opinion, however; is that it is almost certainly wrong.

The Attorney General attempts to rest his case on the fact that Federal Controlled Substances Law trumps the MMMA. While it is true that Federal law trumps or preempts state law, including the MMMA, that fact does not mean that police will be committing a federal crime by returning property that was wrongfully or illegally seized.

First, 21 USC 885(d) of the Federal Controlled Substances Act, the Act that Bill Schuette says creates the problem, states that state police officers will be immune from criminal and civil liability when “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” Essentially, this provision means that if a state police officer is enforcing a state controlled substance law then they will not be violating the Federal Controlled substances Act. It seems fairly obvious that enforcing the MMMA (a law regarding controlled substances) which is a state law, would not subject police officers to federal penalty because of this immunity, and thus police would be free to return wrongfully seized medical marijuana.

Second, The Attorney General fails to mention the Fourteenth Amendment to the United States Constitution, which provides “that no state shall deprive any person of life, liberty, or property, without due process of law.” The right to property being a substantial right, and the property (medical marijuana), which is legal and not contraband, being officially held with no criminal charges pending almost certainly would be considered unconstitutional as a deprivation of property without due process under the law.

Lastly, Courts in California and Oregon have both ruled on this specific issue and have upheld the return of medical marijuana for the reasons I have stated. Those cases are City of Garden Grove v Superior Court of Orange County and State v Kama, respectively.

While I think the Attorney General’s opinion is wrong this issue has not been resolved by Michigan courts yet, though it is clear that another front has been added to battle against Michigan medical marijuana by the Attorney General.

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As if there isn’t enough controversy surrounding Michigan and medical marijuana, federal authorities have ordered an official order that bans medical marijuana patients from owning any gun whatsoever. As hard as it is to believe, medical marijuana patients can’t even own a gun for personal protection, target shooting, or for hunting. Considering Michigan is one of the top hunting states in the country with a massive bird and deer population, this is a big blow to the michigan medical marijuana community.

This is a slap in the face to Michigan marijuana patients, and you can bet this decision is desired to stop the acceptance and growth of medical marijuana. Technically, the State Appeals Court ruled that medical marijuana users fall under the category “drug abusers”. Licensed card owners are being treated like criminals, and are being made out to be drug dealers or addicts. The letter to prosecutors prohibits possessing a firearm or ammunition to “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes”.

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Drug Checkpoints in Michigan

A new tactic is being deployed by the Genesee County sherriff. Motorists in the Flint area have been subjected to random drug checkpoints. This is a highly controversial strategy, but it’s being done anyway. Considering the ruling by the Michigan Supreme Court against sobriety check lanes, it would seem likely these checkpoints won’t hold up in court. The only real way to stop the practice is for one of the accused/charged to fight in court.

How Are The Checkpoints Being Used?

At first, the checkpoints were conducted often daily, but now that people have caught on they are once again changing their strategy. The checkpoints aren’t popping up as often and the times seem very random. There are also claims that police are only stopping people that see the sign and then make a u-turn. In turn this avoidance gives them probable cause to conduct a search. Obviously this tactic is also controversial and seems like entrapment to me.

The highly debated legal environment surrounding Michigan Medical Marijuana laws adds another dimension. Motorists are scared to drive around Flint even with a medical marijuana card. It will be interesting to see how this pans out and no doubt I will keep you updated on any events related to these drug checkpoints.