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142850 - People v King (Larry)

The People of the State of Michigan,
Joel D. McGormley
(Appeal from Ct of Appeals)
(Shiawassee – Lostracco, G.)
Larry Steven King,
John R. Minock


The state police received an anonymous tip that marijuana was being grown in the backyard of an Owosso house. Two officers drove to the house, where they saw a chain-link dog kennel covered with black plastic. Using binoculars, one officer could see marijuana plants growing inside the kennel where a section of the plastic had become detached. The officers spoke to Larry King, who produced a registry card for medical use of marijuana. When the officers asked King to show them the marijuana plants, King retrieved a key and unlocked a lock on the kennel. The kennel, which contained six marijuana plants, was six feet tall, but had an open top and was not anchored to the ground. The officers obtained a warrant to search King’s home, and found additional marijuana plants growing inside King’s unlocked living room closet.

King was charged with two counts of manufacturing marijuana, MCL 333.7401(2)(d)(iii). At the preliminary exam, after the prosecution presented the testimony of one of the officers, King’s counsel moved to dismiss the charges, relying on the Michigan Medical Marihuana Act. The MMMA generally protects patients, caregivers, physicians and other persons from arrest, prosecution, or penalty for the use of medical marijuana. The act creates two separate rebuttable presumptions – one for qualifying patients who possess a valid registry identification card issued by the Department of Community Health, MCL 333.26424, and another that provides an affirmative defense for patients who have not been issued a registry identification card, yet meet certain criteria, MCL 333.26428. Under § 4, a registered patient like King is permitted to possess no more than 2.5 ounces (roughly 71 grams) of usable marijuana and 12 marijuana plants kept in an “enclosed, locked facility.” Under the § 8 affirmative defense, an unregistered patient is permitted to possess “a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana” for treatment of the patient’s condition or symptoms. The district judge denied the motion to dismiss and bound King over for trial, stating that King had not complied with the “enclosed, locked facility” requirement. In the circuit court, King filed a motion to quash the bindover or to suppress evidence obtained during the search. He also sought to dismiss the charges, arguing that the search warrant was invalid and that he was entitled to an affirmative defense under § 8. In response, the prosecution argued that the search warrant was valid and that King failed to comply with the MMMA because he did not keep the marijuana in an “enclosed, locked facility” pursuant to MCL 333.26424(a). The circuit court granted King’s motion and dismissed the charges. The judge first ruled that because King had a valid registry identification card and kept “a legal quantity” of marijuana in his dog kennel, which the judge found to be an enclosed, locked facility for purposes of MCL 333.26423(c), the officers did not have probable cause to seek a search warrant for the home. Nonetheless, the judge stated, King was not entitled to suppression of the evidence seized during the search because the officers acted in good faith reliance on the warrant. But the circuit judge went on to hold that, even assuming the search warrant was valid, the officers should not have seized the marijuana in the home because King had complied with the act.

The prosecutor appealed, and in a split published opinion, the Court of Appeals reversed the circuit court’s ruling and remanded the case for further proceedings. The majority held that King failed to comply with “enclosed, locked facility” requirement. The closet in which some of King’s marijuana was grown did not have a lock, and the backyard kennel had an open top and could be lifted from the ground, the majority noted. As a result, the Court of Appeals majority held, King was not entitled to the § 8 affirmative defense and was therefore subject to prosecution. The dissenting Court of Appeals judge would have affirmed the circuit court’s ruling. He concluded that the kennel qualified as an “enclosed, locked facility.” Moreover, in the absence of evidence that persons other than King had access to the home, the dissenting Court of Appeals judge determined that the home was also an “enclosed, locked facility.” King appeals.