People v. Brown: Police are Not Required to Check if a Person Is a Registered Medical Marijuana Patient or Caregiver for the Search Warrant Affidavit

September 17, 2012

David Rudoi Esq.

On August 28, 2012 the Michigan Court of Appeals issued its opinion in People v. Brown. The Case involved the issue of whether the police are required to investigate whether a person is a registered qualified Michigan Medical Marihuana Patient or Caregiver when investigating to build probable cause for a search warrant. A prior Michigan Appeals Court ruling in People v. Keller stated that evidence of marijuana discovered in a trash pull was sufficient probable cause of illegal activity for a magistrate to issue a search warrant on a home. Many Michigan medical marijuana attorneys have argued that the above rule from People v. Keller is not good law since the enactment of the Michigan Medical Marihuana Act because evidence of marijuana found in a trash pull is no longer necessarily evidence of criminal activity since the MMMA specifically allows registered patients and caregivers to possess and use marijuana.

The court in People v. Brown rejected this argument. The reasoning of the court was that the MMMA does not legalize possession of marijuana; rather the Michigan Medical Marihuana Act merely provides immunity from arrest, prosecution, and penalty in any manner. Focusing on this distinction the court found that evidence of marijuana is still sufficient evidence of illegal activity for a magistrate to issue a search warrant because it is still evidence of illegal activity even if the owner of the home may be immune from prosecution or arrest under the MMMA. Further the court in People v. Brown held that the Police are not even required to investigate to see if a person may be a registered medical marijuana patient or caregiver.

The Michigan Department of Licensing and Regulatory Affairs have issued 131,483 patient registrations for the Michigan Medical Marihuana Act. Evidence of marijuana would most likely be found if a trash pull was done in any one of these registered patients’ homes. Therefore, due the appeals court ruling in People v. Brown most registered medical marijuana patients and caregivers could be subject to having a search warrant executed on their home if the police are able to find evidence of marijuana in their trash.

This conclusion is completely ridiculous in this writer’s opinion. The court’s focus on the distinction between legality and immunity from prosecution is misguided. The point is that the MMMA specifically authorizes registered medical marijuana patients and caregivers to possess, use, and in some cases manufacture marijuana. This protection of the MMMA should not open those registered medical marijuana patients and caregivers to an invasive search on their home simply because they are exercising their rights under the MMMA.

At Rudoi Law we are current on all medical marijuana statutes and case law. Rudoi Law can help you avoid searches of your home, call our hotline anytime for advice.