Search Warrants and the Michigan Medical Marihuana Act

The Michigan Court of Appeals in People v. Brown held that police are not obligated to to determine whether a person suspected of using or growing marijuana is doing so legally under the Michigan Medical Marihuana Act before applying for a search warrant.

In 2007, Defendant Brown’s former roommate informed police authorities that Brown was manufacturing marijuana in his residence. The police conducted a search of his garbage bins left for pickup, finding pieces of fresh marijuana. Based on this evidence the police executed a search warrant of the residence and seized eight marijuana plants and two grams of marijuana.

During the investigatory process the police did not look into whether Brown was a qualifying patient or a primary caregiver under the MMMA (he was neither). Brown was charged and convicted of manufacturing marijuana.

Brown filed a motion to dismiss the case and there was a hearing regarding the suppression of evidence obtained during the execution of the search warrant. Brown argued that the search warrant was invalid, and therefore required the suppression of the evidence seized in the search of his residence. The warrant was invalid, Brown argued, because the MMMA made it legal to possess and grow certain amounts of marijuana, and as such the statement in the police affidavit for the search warrant that defendant was growing marijuana was insufficient to provide the police officers with probable cause that a crime was committed.

The trial court held that after the MMMA became effective, an affidavit must provide specific facts sufficient for a magistrate to conclude that the possession of the marijuana alleged in the affidavit is not legal under the MMMA. The trial court reasoned that the enactment of the MMMA made the possession of marijuana no longer per se illegal. Nevertheless, the trial court found a good-faith exception to the execution of the search warrant decided not to suppress the evidence.

The Court of Appeals, on review, found that because the manufacture of marijuana remains 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.

The Court of Appeals stated that the trial court’s reasoning that possession of marijuana is no longer per se illegal is at odds with the previous ruling in People v. King. In King, the Court of Appeals ruled that the MMMA does not abrogate state criminal prohibitions of the manufacturing of marijuana, but merely sets out a very limited exception for some activities involving marijuana.

Therefore, the Court of Appeals here said, to establish probable cause for a search warrant, the warrant affidavit is not required to show that a suspect’s marijuana-related activity is permitted under the Michigan Medical Marihuana Act.

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