Marijuana Odor Case Could Set State Precedent

[bobandtorey]

Mike Engle is not taking his defeat lying down.

Several years ago a neighbor complained about the smell of growing marijuana coming from Engle’s Ypsilanti Township home. The investigation that followed led to charges being filed, and the recent Washtenaw County court decision levied an odd penalty against Engle- and claims to be a precedent-setting case that could lead to charges in other communities.

Calling this a “seminal case,” the Township lauded the victory in news media. The penalty imposed prevents Engle from acting as a caregiver at the residence in the Township for anyone except himself and his wife; he had previously been registered as a caregiver for several additional patients.

The ruling was only the latest in a series of issues for Engle. He has endured three major surgeries in five years and the stress of the raid and investigation sent him to the hospital with a panic attack. “I’m a patient first,” Engle said, with conviction.

Attorneys are hesitant to make an Appeal to a higher court in this case because they fear real precedent could be set. Lower court decisions, like the Engle case, are binding only on the other Courts in their jurisdiction. “The ruling only applies to Washtenaw County,” Engle said, and expressed fear that the Township will target other known caregivers for similar action.

Having no lawyer take his case meant he may have to either accept the terms of the verdict or go it alone. “I’m going to try to file an appeal on my own,” he declared.

The case is complete with contradictions and conspiracy, all surrounding the issue of the odor. Certain policemen could detect the odor of growing marijuana, yet others could not, Engle related. Certain officers seemed to smell it on some days and not on others. In June of 2012 a Township representative, Bill Ellington, inspected the grow room and found it to be in compliance, Engel said, and at that time there was no odor issue. Engle installed an upgraded filtration system shortly after the initial incident and has neighbors that swear his home is odor-free.

Engle’s case is among the first of its kind in Michigan and it will certainly not be the last, although legal eagles and advocates thought they’d seen the end of municipal manipulation where the Michigan Medical Marihuana Act (MMMA) is concerned.

The Township cites a tiny footnote hidden within the Michigan Supreme Court’s Opinion in Ter Beek v Wyoming to justify the action against Engle. That case’s outcome in February has been widely seen as preventinglocal governments from impeding a patient or caregiver’s ability to engage in the medical use of marijuana, but some communities think they have found a loophole in Footnote #9.  The Footnote, which composes the last sentence at the bottom of the last page of the Opinion, says:

“Ter Beek does not argue, and we do not hold, that the MMMA forecloses all local regulation of marijuana; nor does this case require us to reach whether and to what extent the MMMA might occupy the field of medical marijuana regulation.”

Ypsilanti Township, like other communities, is testing the theory that these final words negate the previous 21 pages of Supreme Court Justice-written legalese, although there is plenty of evidence to the contrary. The City of Wyoming lost the case and had to abandon their Ordinance. The words of Footnote #8 from the Opinion establish that the Michigan Zoning Enabling Act is “inconsistent with and superseded by the MMMA.”

Jamie Lowell of Ypsilanti’s 3rd Coast Compassion Center said, “This case follows an emerging pattern where cities cite Footnote 9 to justify ‘business as usual’ and ignore the plain language of the Ter Beekdecision.”

The solution reached by the Court- denying Engle the ability to perform caregiving services for others despite the fact that the purported nuisance has already been abated- is inconsistent with the language of the Ter Beek Opinion. “The Ordinance directly conflicts with the MMMA…because it permits registered qualifying patients… to be penalized by the City for engaging in MMMA-compliant medical marijuana use.”

Engle is not surprised. “Ypsilanti Township has set out with a purpose, and that is to obviate and destroy the MMMA in their Township,” he opined.

 

UPDATE:

I spoke with Mr. Engle recently. his Motion for Reconsideration was denied by the judge on August 1st; if no appeal is filed within a few weeks, the Township has stated their intent to inspect his residence and ensure he is in compliance.

 

 

http://thecompassionchronicles.com/2014/08/06/updated-marijuana-odor-case-could-set-state-precedent-tac/

[Restorium2]

While we have sugar beet factories stanking up whole counties ..... even out on the lake. The only recourse has been civil lawsuits that prove real estate losses. It literally smells like crap most of the time. It would take 10,000 growers to compete with that smell. They have this huge pond of crap just sitting there.

[FranksHotPeppersAndMarijuana]

The difference there Restorium2 is usually zoning. If you are zoned for pig farming you can pig farm for example.

[bobandtorey]

Footnote #9.  The Footnote, which composes the last sentence at the bottom of the last page of the Opinion, says:

“Ter Beek does not argue, and we do not hold, that the MMMA forecloses all local regulation of marijuana; nor does this case require us to reach whether and to what extent the MMMA might occupy the field of medical marijuana regulation.”

 

This is why this City and others will be coming into a caregivers home and counting plants ?

[Willy]

What the hell, the township can't do that , as far as i know there is no law out,

 

to inspect for compliance... its not in the law anywere... these townships have been getting away with strong arming for years.. its time they were put in there place,, a bare few making the rules as they go.. personal agenda's an all..

 

Folks need to run for these pez ant positions in there local area, change from within.. Its easy and cheap to run... dont give up the  fight..

[Willy]

 

Footnote #9.  The Footnote, which composes the last sentence at the bottom of the last page of the Opinion, says:

“Ter Beek does not argue, and we do not hold, that the MMMA forecloses all local regulation of marijuana; nor does this case require us to reach whether and to what extent the MMMA might occupy the field of medical marijuana regulation.”

 

This is why this City and others will be coming into a caregivers home and counting plants ?

 

If they come to my home, im going to go to jail, cause there is no way i will let them in without a warrant, and a few cops just for good measure..  I got the card,, so as far as they know im in compliance , prove or get the hell off my property..

 

Remember== Free from unreasonable search and seizure.. 

 

Article the sixth... The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Edited August 7, 2014 by Willy

[t-pain]

imo what we need are a few amendments to the mich constitution to change the duties of the supreme court.

 

it seems like no one is happy with what the court does and does not do.

 

even rick snyder asked the supreme court to review legislation prior to passing to make sure it was constitutional. the court eventually rejected his request.

 

the supreme court could do any number of things to save the taxpayer and the state money on many bad laws, lower court opinions, etc. instead they sit there doing nothing. nothing to help the people of michigan.

[garyfisher]

The difference there Restorium2 is usually zoning. If you are zoned for pig farming you can pig farm for example.

 

The difference here is Michigan state law trumps local zoning. 

[phaquetoo]

I totaly agree with you willy!

 

But if they come to see if you are in compliance in numbers and weight, something else would have to have brought them there, they cant just punch up current c.g's or pt's with grow rights right?  So in reality leo has no business at your door to check your grow unless it states it in the law?  I also dont see it any where in the law for that, nor do I see it any where that leo can get into our registration numbers unless we who have pt or/and c.g regestration numbers run into to an issue with leo.

 

an example is getting pulled over and having lets say less weight than your allowed in the trunk in a box. if leo smells it do they have probable cause to search your vehicle?

 

I would have to say that in that case they do have probable cause, I go and pick some up from my c.g or I have some in my vehicle where it belongs, you can smell it, you can smell an oz in the trunk in most vehicles, but driving an suv w/o a trunk and putting it in the rear of the vehicle in a box you can most def smell it ( i have gone and picked some up and on the way home stop at the store and had people tell me I smell good lol)  I dont smell it but others do like i have a ton on me lol!

 

so I think well I know if I got pulled over for speeding or some traffic violation, I would show them my card IF they said they could smell mmj, Now if your going to show them your card why wouldnt you let them see the mmj also?  I mean if you are with in the law you should have nothing to worry about!  (im not sayins some phaq head cop wont arrest you) but if your following the law you will get out of it or they will just write you your traffic ticket and you will be on your way!

 

If you dont show them your card and dont let them search they will bring the dogs and they will get a search warrant and either ticket you and take your car or take you and your car untill the search of the vehicle is done!

 

It makes sense to me, dont travel with more than you are allowed, make sure everything on your car works, dont speed, carry your cards and no more mm than you are allowed by law!

 

I have been in the court, for a very short period for some simple possesions while legal, yea it sucked that I had to go thru it as a legal person, but the mm part always got dropped right away because I was legal and not over my numbers!

 

Peace

[garyfisher]

When traveling.  I always transport in vacuum sealed bags.  If that is not an option I will use mason jars and the smell doesn't permeate well.

[Willy]

Phaq your on the money, but some caregivers like myself, make a round to all my patients usually the same day for there monthly,, so I'm thinking with a michigan lb in the car, locked in trunk or not,, there gonna act just like you was Senor~  Mendosalong.. cartel leader of the michigan connection of drugs inc... 

Edited August 7, 2014 by Willy

[trichcycler]

this stinks to high heaven !

 

I make sure to never deliver to more than one patient per trip. I'm scared

[FranksHotPeppersAndMarijuana]

Garyfisher my comment wasn't aimed at marijuana growing it was aimed at comparing it to beet processing. Beet processors may emit a foul odor but when they are zoned properly then complaining about the odor isn't going to get you anywhere.

 

And while state law trumps local zoning it doesn't trump nuisance law. Nuisance law would allow a grow operation to be shut down if it was emitting an overwhelming odor that neighbors found objectionable because it isn't forbidding the growing it is forbidding a public nuisance. That means up your filtration systems and abate the odor and you can continue to grow.

[garyfisher]

I agree.  Seems like an easy problem to avoid.  No odor, no detection.  

[Restorium2]

You stink like pot has been a 'gotcha' for a long time. It was always because 'you are going to get in trouble'. 'Probable cause'. People need to desensitize themselves. No one's going to get in trouble, it's medical, it just smells funny to you. Times have changed. Your shirt probably smells just like your grow.

[bobandtorey]

imo what we need are a few amendments to the mich constitution to change the duties of the supreme court. it seems like no one is happy with what the court does and does not do. even rick snyder asked the supreme court to review legislation prior to passing to make sure it was constitutional. the court eventually rejected his request. the supreme court could do any number of things to save the taxpayer and the state money on many bad laws, lower court opinions, etc. instead they sit there doing nothing. nothing to help the people of michigan.

Even that i do agree Mr. T-pain they  ( S.C people ) are doing a lot if you think like they do KEEPING their Job's 

[bobandtorey]

You stink like pot has been a 'gotcha' for a long time. It was always because 'you are going to get in trouble'. 'Probable cause'. People need to desensitize themselves. No one's going to get in trouble, it's medical, it just smells funny to you. Times have changed. Your shirt probably smells just like your grow.

Smelling cannabis is no crime here in Michigan any longer Law 1 of 2008 changed that 

[Restorium2]

Smelling cannabis is no crime here in Michigan any longer Law 1 of 2008 changed that

I'm going to share;

My cousin (who smokes anytime he wants and isn't a patient) came over. He was standing on my front porch ringing the doorbell. I came around the side of the house and met him on the porch. We talked for a couple minutes there before I invited him in. After we talked for a minute or two he gets this funny look and on his and says he smells pot. I said, no chit, I was burning one before you got here, it's legal.

He knows I'm a patient, he knows I can grow legally, yet he still tried the 'gotcha'. Old habits die hard.

[trichcycler]

I think the smell of prescription medication is noxious, but I tolerate the users/needs mostly.

[trichcycler]

Out of respect for myself and others I never leave the house smelling of my medicine. A shower and fresh clothes go a long way towards a positive experience.

[GregS]

Chief Justice Young will be pretty pissedoff if this makes it to him for review. The move to twist Ter Beek to justify the Township's arguments is ridiculous. Hizzoner won't like having to repeat himself.

[imiubu]

I am of the opinion that there is a great percentage of leo, prosecutors, etc... that may not know how marijuana really smells.

 

I love the smell of patchouli and wore it exclusively since the early 70's (much to my parents chagrin).

After a 6 month probation stint, I am in the court house for my last visit to my p.o. 

Man that place was packed that morning with suits and leo!  I signed in and waited... then waited some more.

I started to notice that I was being scrutinized and began to feel very uncomfortable.

Finally my p.o. called me to her office.  She slammed the door behind me and started yelling at me!

"HAVE YOU BEEN SMOKING MARIJUANA???"

"EVERYONE IS SAYING YOU SMELL LIKE MARIJUANA!!!" 

I was totally perplexed.  She was telling me how she would violate my probation and send me to jail.

Now, mind you I was not there on a 'marijuana' charge.

What began as a beautiful sunny summer day filled with happiness that I would be off probation, turned black,

in an instant.  I am not to proud to tell you that I began to cry.

Then it hit me... it is my essential oil, the patchouli I loved so dearly was going to land me in jail because these

people who held my freedom, are ignorant.

I told her and she actually was mad because she couldn't violate me.  She told me I should never wear that to

the court house again, signed my release.  I wanted to tell her that she might educate herself to the smell of weed.

However, I felt my freedom of the utmost importance and chose that instead of educating her.

 

Since that day, I do not wear patchouli oil.  I have other friends who have been accused of smelling like weed

and it was the patchouli.

 

I know this isn't directly related to the OP but... it does have to do with leo's ignorance of the smell.

[GregS]

The sweet smell of 60s and 70s head shops. Aah. The memories.

[GregS]

Dutch was irresponsible and caused a public nuisance. He has no one to blame but himself, albeit the law should protect him. Because of this the legislature might just carve out an exception to our protections with some allowance for communities to enforce nuisance laws, which could open a whole new can of worms.

[Restorium2]

Out of respect for myself and others I never leave the house smelling of my medicine. A shower and fresh clothes go a long way towards a positive experience.

Are you really sure you can even smell it anymore? That's a lot of showers. Do you have any hair left? lol