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.