www.mlive.com Open in urlscan Pro
2600:1408:8c00::172e:9649  Public Scan

Form analysis
0 forms found in the DOM

Text Content

Skip to Article
Subscribe
 1. Cannabis




ILLEGAL MARIJUANA GROW OF ANY SIZE ONLY A MISDEMEANOR IN MICHIGAN, COURT RULES


 * Updated: Oct. 20, 2023, 11:31 a.m.|
 * Published: Oct. 20, 2023, 11:02 a.m.

File photo, March 22, 2021 (Jake May | MLive.com)
 * 
 * 

By
 * Gus Burns | fburns@mlive.com

LANSING, MI -- The likelihood of black-market marijuana growers in Michigan
facing full-blown, paramilitary-style raids featuring battering rams and heavily
armed narcotics teams has diminished.

Growing illegal marijuana in Michigan, even potentially thousands of plants, is
only a misdemeanor crime, the state Court of Appeals ruled on Oct. 5.

The severe prison terms tacked onto marijuana prohibition laws of the past have
been eliminated by newer, more lenient laws, the court said.



Attorneys and marijuana industry insiders who spoke to MLive, however, say
illegal growers could still face serious punishment for other crimes, such as
tax evasion, and the seizure of their valuable marijuana.

“There was never any need for there to be a military invasion, felony or any
long sentences or anything like that, so that worked out,” said marijuana
activist Jamie Lowell, who helped write the law that reduced penalties. “There
are limits and there are parameters and if someone gets outside of them there
are consequences, but it’s just cannabis.”

The appellate court said marijuana-related punishments contained in a 1978 drug
law -- up to 15 years in prison for possessing more than 99 pounds or 200
marijuana plants -- no longer stand. Similar crimes today should be charged as
misdemeanors, punishable by up to 93 days in jail, under the 2018, voter-passed
Michigan Regulation and Taxation of Marijuana Act.

Since passage of the the act in 2018, more than 3,500 people have been charged
and 1,072 convicted under the outdated 1978 law, according to analysis provided
to MLive by Michigan Supreme Court spokesman John Nevin.



Those defendants may have grounds to fight their prior convictions.

File photo (Tanya Moutzalias | MLive.com)

Marijuana bust in Tuscola County

The case reviewed by the appellate court stems from an August 2020 raid in
Tuscola County by the state police-led, multi-jurisdictional Thumb Narcotics
Unit, which operates in Huron, Tuscola, Sanilac and Lapeer counties.

Using a search warrant, police entered a property owned by 45-year-old Shaaln
Kejbou. There they found an “extensive, unlicensed marijuana grow operation”
with 1,156 marijuana plants, Tuscola County Prosecutor Mark Reene said in a
press release.

“It included a number of outbuildings, hydroponic equipment, chemical and other
materials typically used to cultivate and harvest marijuana plants,” Reene said.
“The outdoor areas were protected by a video surveillance system. Police found
dogs on the property, presumably also for protection. While searching a house on
the property, they discovered a loaded 12-gauge shotgun in one of the bedrooms.”

Tuscola County prosecutors charged Kejbou with two crimes tied to the 1978 drug
law that states violators may be sentenced to up to four years in prison for
possessing less than 20 marijuana plants and up to 15 years in prison for
possessing greater than 200 plants.



Based on those felony charges, the Tuscola County Prosecutor’s Office also
charged Kejbou with possessing a firearm during the commission of a felony.

Additionally, he faced counts of operating a criminal enterprise, concealing
more than $1,000 worth of stolen property and animal abuse. Those charges
weren’t part of the appellate review.

A Tuscola County Circuit judge dismissed the marijuana and firearm crimes,
ruling the old marijuana plant-count laws are obsolete. The Tuscola County
Prosecutor’s Office appealed.

Marijuana plants grow in October 2021 at Winewood Organics in Ann Arbor,
Michigan.

The appeal

The three-judge Court of Appeals pane ruled unanimously that felony punishments
didn’t apply and the case should be prosecuted under the Michigan Regulation and
Taxation of Marijuana Act.

That law makes it legal to store up to 10 ounces of marijuana, personally
possess 2.5 ounces and grow up to 12 plants. Violations for exceeding those
amounts range from civil infractions to misdemeanors, and are not “subject to
imprisonment unless the violation was habitual, willful, and for a commercial
purpose or the violation involved violence,” the act states.



“We conclude that the (2018 law) was enacted to prevent situations like that
which we are presented with here, in which the prosecution seeks a felony
conviction for an unlicensed marijuana grow operation,” said the joint opinion
issued by Court of Appeals judges Michelle M. Rick and Kirsten Frank Kelly. “We
acknowledge this outcome may be viewed unjust by those businesses that
legitimately operate within the parameters of the (law). The remedy, however,
lies within the sole responsibility of the Legislature.”

Since the original law was passed by voter ballot initiative, any legislative
changes will require three-fourths supermajority support in both houses.

“You’re not going to be able to get a three-quarters supermajority vote, and
that’s what it’s going to take to change one word of that law,” said Tim Beck,
who began working on marijuana legalization in 2002 and attended a marijuana
trade organization meetup in Lansing this week where the court’s ruling was a
topic of conversation.

Beck said the punishment for marijuana possession has remained “clouded and
confusing” since the 2018 law passed. “And this court case clarified it.”



Prosecutor Reene said the outcome “highlights the peril of unintended
consequences often associated with ballot initiatives.”

“It is unlikely, given the broad statement of purpose provided with (the law),
that the average Michigan voter in 2018 believed they were approving a
regulatory scheme that would allow the unlicensed, unregulated and untaxed
manufacture of 1,156 (or for that matter 11 million) plants of marihuana and
that those engaged in such activity would only be subject to a misdemeanor
penalty,” Reene said. The “unlimited manufacture of marijuana plants, which
results in only a misdemeanor sanction, clearly obliterates much of the stated
purpose of the act. It decimates legitimate businesses and license holders and
fuels the illicit market and criminal enterprises.”

File photo (Jake May | MLive.com)

Drafters disagree

“We’ve been waiting for this for a long time,” said Robin Schneider, who helped
write the law that legalized marijuana and now leads the Michigan Cannabis
Industry Association business trade organization. “The reason voters approved
legalization was to end decades of senseless cannabis incarcerations. The law is
working exactly as intended.”



The Michigan Cannabis Industry Association represents more than 400 licensed
marijuana businesses.

“I haven’t heard any of our members complain about this,” Schneider said. “I
think all of our members share the belief that they don’t want to see anyone
incarcerated for a cannabis crime.”

The Cannabis Regulatory Agency (CRA) is the responsible for licensing and
regulating businesses to operate within the commercial marijuana industry. It’s
powers are limited to issuing fines, license revocation or other sanctions to
licensed businesses that violate the rules.

Through its work, the agency often encounters illicit marijuana and producers
who operate outside the regulated market, which it reports to state police,
usually the Tobacco and Marijuana Section, tasked with investigating criminal
violation of marijuana licensing laws.

“We are aware that people are discussing the topic,” CRA spokesman David Harns
said. “We have discussed internally and are continuing to follow our processes
and procedures which mean that we are going to continue referring to (state
police).



The CRA referred 135 investigations to state police between October 2022 and
June 30, according to quarterly reporting data.

State police spokeswoman Shanon Banner said the court ruling won’t impact state
police Tobacco and Marijuana Section operations.

“We have reviewed the ruling and because it deals with the level of the penalty
and doesn’t change what is legal or illegal under the law, we don’t expect it
will have a major impact on our enforcement operations,” she said.

File photo, Oct. 5, 2018. Joel Bissell | MLive.com Joel Bissell | MLive.com

‘How do we charge somebody’

Kejbou’s attorney, Detroit-based Michael J. Lemnitz, believes the appellate
ruling will have a lasting effect on the voracity with which police and
prosecutors pursue marijuana crimes.

“This was not an intent to distribute charge,” he said. “However, I think the
reasoning would apply to a charge of possession with intent to deliver and
would, likewise, be prosecutable only by a misdemeanor.”

Attorney Michael Komorn of the Komorn law firm specializes in cannabis defense
and currently has several clients charged under felony marijuana possession
laws. In light of the Court of Appeals ruling, he plans to file motions
requesting those charges be reduced to misdemeanors.



Komorn said most prosecutors and police have already placed a low priority on
marijuana enforcement, except for “certain pockets” of the state.

“They’ll raid like the old days, come in with guns and masks and go through that
whole process,” he said, “but their dilemma is, how do we charge somebody. What,
do you get charged with a misdemeanor?

“I have a number of cases where they’ve seized property and not charged anybody.
And you can only reap the benefits of forfeiture if you get a felony
conviction.”

In February, Michigan state police with cooperation from the Ogemaw County
Prosecutor’s Office reported the seizure more than 5,400 marijuana plants and
100 pounds of processed marijuana products from two residences associated with a
large-scale grow operation.

If those suspects will be charged with misdemeanor or more severe crimes is
unknown. Eight months later, the investigation still hasn’t been submitted for a
prosecutorial review.

“We called (state police) to find out if they were planning to giving (the
investigation) to us or if they submitted it to the (state Attorney General’s
Office),” Ogemaw County Prosecutor LaDonna A. Schultz said Thursday. “They
basically said they were going to give it to us and we said, can we have it
sooner that later? My understanding is that we are going to be receiving it
shortly.”



The Tuscola County prosecutor has the option to appeal the Court of Appeals
ruling.

“We’re looking at a variety of different options at this point in time,” Reene
said. “There’s ample confusion ... it is definitely not the model of clarity.”

More on MLive:

Judicial ceasefire issued in Michigan U.P. border town marijuana battle

Weed war intensifies in small Michigan U.P. town

‘Confident that we can compete’: New marijuana dispensary pitched just outside
Ann Arbor

Michigan marijuana sales likely to surpass $3 billion, helped by record-breaking
July




If you purchase a product or register for an account through a link on our site,
we may receive compensation. By using this site, you consent to our User
Agreement and agree that your clicks, interactions, and personal information may
be collected, recorded, and/or stored by us and social media and other
third-party partners in accordance with our Privacy Policy.





FOOTER NAVIGATION

About Us
 * Contact Us
 * Jobs at MLive
 * MLive Media Group
 * Our Team
 * Advertise with us

Subscriptions
 * MLive.com
 * Newsletters
 * The Ann Arbor News
 * The Bay City Times
 * The Flint Journal
 * The Grand Rapids Press
 * Jackson Citizen Patriot
 * Kalamazoo Gazette
 * Muskegon Chronicle
 * The Saginaw News

Already a Subscriber
 * Manage your Subscription
 * Place a Vacation Hold
 * Make a Payment
 * Delivery Feedback

MLive Sections
 * Jobs
 * Autos
 * Real Estate
 * Rentals
 * Classifieds
 * News
 * Business
 * Sports
 * Advice
 * High School Sports
 * Betting
 * Life
 * Opinion
 * Obituaries

Your Regional News Pages
 * Saginaw
 * Jackson
 * Kalamazoo
 * Muskegon
 * Ann Arbor
 * Bay City
 * Flint
 * Grand Rapids

Mobile
 * Mobile apps

More on MLive
 * Video
 * Weather
 * Post a job
 * Archives
 * Classifieds
 * Sell your car
 * Sell/Rent your home
 * Sponsor Content

Follow Us
 * Twitter
 * Facebook
 * YouTube
 * RSS




DISCLAIMER

Use of and/or registration on any portion of this site constitutes acceptance of
our User Agreement (updated 4/4/2023), Privacy Policy and Cookie Statement, and
Your Privacy Choices and Rights (updated 7/1/2023).

Cookie Settings/Do Not Sell My Personal Information

© 2023 Advance Local Media LLC. All rights reserved (About Us).
The material on this site may not be reproduced, distributed, transmitted,
cached or otherwise used, except with the prior written permission of Advance
Local.

Community Rules apply to all content you upload or otherwise submit to this
site.

YouTube’s privacy policy is available here and YouTube’s terms of service is
available here.

Ad Choices

Ad