Convicted Michigan Pot Farmers Lose Appeal

CINCINNATI (CN) - A family with licenses to grow a certain amount of marijuana cannot challenge drug convictions related to the 211 plants seized from their farm, the 6th Circuit ruled.

Gerald Duval Jr. and his son, Jeremy Duval, attempted to suppress evidence obtained in two separate searches of their farm, claiming their compliance with Michigan's Medical Marijuana Act (MMMA) allowed them to grow a certain number of marijuana plants.

Gerald is classified as a "patient" under the MMMA, which allows him to grow up to 12 plants for personal use, while his children, Jeremy and Ashley, are registered as both "patients" and "caregivers," allowing them to grow up to 72 plants.

Ashley was never charged along with the other Duvals.

The searches, conducted by Monroe County Sheriff's Deputy Ian Glick in June and August 2011, turned up more 211 marijuana plants in greenhouses surrounded by chain link and barbed wire fences.

The Duval men were eventually charged with and convicted of drug trafficking, with Gerald and Jeremy sentenced to 10-year and 5-year prison sentences, respectively.

Father and son claimed that the search warrants used to obtain the plants were invalid because Glick and other law enforcement officials already knew the pot was there as a result of visits made to ensure the family was in compliance with the MMMA.

Glick said he learned of the drugs through a confidential informant, however, and discovered through his investigation that Gerald had been previously convicted on felony cocaine trafficking charges, which prohibited him from qualifying as a caregiver for the MMMA.

Along with the 144 live marijuana plants seized in the June search, police also turned up several firearms.

Another tip prompted the second search, which resulted in the seizure of another 67 plants.

The Duvals claimed on appeal that Glick deliberately left out information regarding their status under the MMMA, which would have prevented the first warrant from being granted.

A three-judge appellate panel disagreed Friday, however, finding that "Deputy Glick did not have 'clear and uncontroverted evidence' that the Duvals were in full compliance with the MMMA when he applied for the search warrant."

In fact, "the information that Deputy Glick had when he applied for the search warrant suggests just the opposite," according to the 13-page ruling.

"Glick's investigation uncovered Gerald's prior felony conviction, which prohibited Gerald from qualifying as a 'caregiver' under the MMMA," Judge Ronald Lee Gilman wrote for the panel. "This fact, combined with the number of marijuana plants that Deputy Glick observed in the greenhouses, supports the inference that Gerald did satisfy the 'very limited, highly restricted exception to the statutory proscription against the manufacture and use of marijuana in Michigan.'"

The ruling also notes that "Glick was not a member of the Office of Monroe Narcotics Investigations (OMNI) when the officers from that unit visited the Duvals in September 2010, he was not present during the visit, and the visiting officers did not speak with Deputy Glick about their interactions with the Duvals."

Gilman also sidelined claims that the "collective knowledge" of all the OMNI agents was enough to invalidate the warrants, even if Glick did not visit their farm personally.

"There is no evidence that the OMNI officers communicated with Deputy Glick, either directly or indirectly, about the Duvals' registration status under Michigan law," Gilman wrote.

"Deputy Glick instead had his own 'independent basis' to target the Duvals - he had personally observed marijuana growing in two greenhouses, which was consistent with the CI's tip," he added.

The Duvals also failed to challenge the search warrant on the basis of its procurement from a state magistrate rather than a federal magistrate, without proof that a federal magistrate was unavailable at the time.

AS a task force agent, Glick was able to go to either a state or federal magistrate, and he "exercised this flexibility to apply for and obtain a state search warrant based on Gerald's presumptive violation of state law," the court found.

Citing testimony, the panel noted that Glick had "said that 'we, at the time, did not know if we were going to state or federal with this investigation' ... [and] that Gerald 'was a convicted felon and the marijuana ... was growing on his property ... [and a] person who is a convicted felon or narcotics trafficker cannot be a caregiver and cannot possess more than twelve plants.'"

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