Monday, November 11, 2013

COA: MMMA Status not Relevant to Dispensary Delivery

The Michigan Court of Appeals recently affirmed the Oakland County conviction of a Michigan Medical Marijuana Act card holder, when he delivered a small amount of marijuana to an undercover officer who possessed a fabricated medical marijuana card.  In People v VanSickle, Docket Number 309555 (November 5, 2013), Judges Servitto, Cavanagh and Wilder held, in a published opinion, that the trial court did not err in granting the prosecution's motion in limine requesting an order that the defendant be prevented from mentioning in the trial that he was a medical marijuana patient and, therefore, legally delivered the marijuana to another patient pursuant to Sec. 4 of the Act.

Jason VanSickle was arrested following the investigation of a Ferndale dispensary in 2010 (incidentally, the trial court had dismissed charges against seven of the owners or operators of the dispensary.)  During that investigation, undercover officers, posing as legitimate medical marijuana patients, met the defendant in the waiting room of the dispensary.  They engaged in friendly banter during which VanSickle stated he was there to sell his overage of marijuana to the dispensary.  During the conversation VanSickle offered to sell marijuana to the officers.  They went out to the parking lot and into VanSickle's truck where he produced a digital scale and a quantity of marijuana from a mason jar, and sold 1/4 ounce of marijuana to the officers for $50.00.

The Court dispensed, so to speak, with VanSickle's entrapment argument, finding that the officers had not engaged in conduct that would induce an otherwise law-abiding citizen to commit the crime, nor was their conduct so reprehensible that the Court could not tolerate it.  Though the officers lied about their status as MMA patients, the Court reaffirmed the position that law enforcement officers may engage in deception in order to uncover criminal activity as long as their actions do not create a crime.  Here, the officers only showed their fake cards to the dispensary personnel and not VanSickle, and he never asked to see them.

More interestingly, the Court also gave its blessing to the trial court's granting of the motion in limine. Because the defendant was prohibited from selling marijuana to any patients by the Court's 2011 ruling in People v MacQueen, 293 Mich App 644 (2011) (patient to patient transfers are not protected activity under the MMMA), VanSickle's status as a patient was irrelevant.  Therefore, any mention of his status as a card holder or allowing him to argue he was protected under Sec. 4 of the Act was prohibited by MRE 402 as the rule prohibits "the admission of evidence that is not relevant."  In addition, the Court gave full retroactive effect to MacQueen, finding that the ruling in MacQueen did not make criminal that which was previously legal and, therefore, did not violate the ex post facto clause of the Constitution.

The case was argued to the Court of Appeals by Jim Rasor for the defendant and Jeff Kaelin for the Oakland County Prosecutor's Office.