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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED December 15, 2015

v No. 319991 Oakland Circuit Court EARL CANTRELL CARRUTHERS, LC No. 2013-245268-FH

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 319992 Oakland Circuit Court RYAN TINSLEY CARRUTHERS, LC No. 2013-245250-FH

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 319993 Oakland Circuit Court DERRICK SHOMARI HOLOMAN, LC No. 2013-245247-FH

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 319994 Oakland Circuit Court VERTRECE LEO SHEPARD WELLS, LC No. 2013-245261-FH-2- Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 319995 Oakland Circuit Court DEONTE PIERRE ARNOLD, LC No. 2013-245248-FH

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 319996 Oakland Circuit Court SHERALYN MEDIANTE GEER, LC No. 2013-245249-FH

Defendant-Appellee.

Before: S AAD , P.J., and M. J. K ELLY and S HAPIRO , JJ.

S HAPIRO , J. ( concurring ).

I agree with the majority that the trial court erred by wholes ale dismissal of all charges on the basis of entrapment. I further agree that on remand the tr ial court should conduct a § 8 hearing. I write separately to further outline the differences between § 4 immunity and a § 8 defense and to consider how the claim of entrapment is to be an alyzed for each of the two sections.

I. FACTUAL BACKGROUND

The parties do not dispute, at least for purposes of this appe al, that Earl Carruthers and Ryan Carruthers operated a business called Green, Greener, Grow (G3) and that the other three defendants were employed there. They also do not dispute that employees of this facility-3- provided medical marijuana patients with marijuana in exchange for payment. 1 As a result of an undercover police investigation and a search pursuant to a warr ant, charges were brought against four of the five defendants for conspiracy to deliver marijuana . Deonte Arnold, Derrik Holoman, and Earl Carruthers were charged with possession with intent to deliver. Earl Carruthers was also charged with money laundering.

It is undisputed that the undercover officer represented himse lf as a lawful marijuana patient. On his first appearance at the location where defenda nts worked, he presented what appeared to be: (1) a legitimate marijuana certification signed by a licensed physician that fully complied with state law requirements and (2) the equivalent of a medical marijuana registry identification card. 2 According to the officer’s testimony, he provided the documen ts to defendants Sheralyn Greer and Arn old, who were working at the f ront desk. 3 He also signed a document they presented to him which stated: 1. By becoming a member you are certifying under penalty of l aw that your registry identification card, or its equivalent, and infor mation provided on our application form is true and accurate, and you are not seek ing membership for any illegal or fraudulent purposes.

2. You must have obtained a recommendation from a physician, currently licensed to practice medicine in the state of Michigan, to use medicinal marijuana to treat a serious illness. Or, you have been designated as a primary caregiver by a qualified patient to provide f or that patient’s health and we ll-being.

1 The fact of payment is irrelevant to the application of the pr otections of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq

. Michigan v McQueen , 493 Mich 135, 141; 828 NW2d2d 644 (2013).

2 MCL 333.26429(b) provides:

If the department fails to issue a valid registry identificati on card in response to a valid application or renewal submitted pursuant t o this act within 20 days of its submission, the regist ry identifica tion card shall be deemed granted, and a copy of the registry identi fication application or renewa l shall be deemed a valid registry ident ification card.

See also People v Nicolson , 297 Mich App 191, 194-195; 822 NW2d 284 (2012). Thus, the officer’s properly completed state application for a marijuana registry card with proof of submission more dated more than 20 days previously was properly considered to be the equivalent of a medical marijuan a registry identification card.

3 Some of defendants were persona lly shown the officer’s documen ts while others were made aware of them by the rec ords maintained at G3.-4- 3. You will not distribute medicine received from Green & Gre ener Grow Collective, Inc. hereinafter refe rred to as G&GGC to any other person that is not a member of G&GGC.

4. You will not use medical m arijuana from G &GGC for any non- medical
purposes.
5. By registering with us you are stating that you are not a member of any other co-op or collective currently and will not join any other co-op or collective while under the care of G&GGC.

6. You authorize G&GGC to contact your physician and verify y our state recommendation to use/acqui re medicinal cannabis.

7. You authorize G&GGC and its members to grow, store, proces s, transport, dispense, administer and transfer medicinal marijuan a for your medical needs.

8. You agree G&GGC and its members shall receive compensation as donations for cost associated wit h assisting you as a registere d qualifying patient and member of G&GGC.

9. You agree not to operate any heavy machinery while under t he influence of your medicinal cannabis. Do not drive under the i nfluence of any substance that may impair your m otor skills, including medical cannabis.

10. You have a Michigan Driver’s License or state-issued I.D.

11. You have a Medical marijuana card, or a valid doctor’s recommendation and one of them must be presented every time you obtain medical cannabis from our collective.

12. You are 18 years of age or older.

The officer testified that Greer gave him a G3 membership card and he was directed to a second room where he purchased approximately 1⁄4 ounce of marijua na from Holoman. The officer returned on two other occasions, and, after showing his membership card, he purchased similar amounts of marijuana from Holoman and Wells. On two ot her occasions, the officer placed phone calls to G3 and spoke with unnamed persons. On th ose occasions, he arranged for 1⁄4 ounce of marijuana to be sent to his purported address.

A warrant to search the G3 premises was obtained, and it was e xecuted on January 5, 2012. During the search, a larger quantity of marijuana was se ized and, thereafter, defendants were charged. At various times, defendants filed motions to di smiss under § 4 and § 8 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq ., and on grounds of entrapment. The trial court denied the request for relief unde r § 4, finding that the providers of the marijuana, i.e., defendants, had not been connected to the officer (or the person he represented himself to be) thr ough the Michigan registration pr ocess. The trial court also took-5- some evidence on the § 8 defense, but it interrupted that heari ng to consider the entrapment motion. After hearing the officer’s testimony, the trial court dismissed all charges on grounds of entrapment. The prosecutor appealed to this Court.

II. ANALYSIS

A. CHARGES BASED ON DELI VERIES TO THE OFFICER

Defendants’ claim of entrapment regarding the deliveries to th e officer rests upon their assertion that, given the documents presented by the officer, t hey properly concluded that providing him with marijuana was lawful. I agree with my colle agues that defendants could not have reasonably believed that the documents alone made the deli veries lawful because the presentation of such documents is only one of several requireme nts necessary for protection by the MMMA. More precisely, it is not enough for defendants to s imply assert entrapment as a general defense. Rather, they must show that the officer’s pre sentation of the documents, in the context of other factors, provided them with a reasonable basis to conclude that their actions were lawful specifically on the grounds of § 4 immunity or a § 8 defense. Thus, rather than speaking in general terms about entrapment, the court should ha ve considered the issue separately as to these two statutory provisions, i.e. did the o fficer’s actions lead defendants to reasonably conclude that deliver y to him would be lawful under § 4 or § 8.

It is well-settled that § 4 and § 8 define wholly separate def enses. This was first made explicit in People v Kolanek , 491 Mich 382, 387; 817 NW2d 528 (2012), where our Supreme Court held that, based on the plain language of the MMMA “a def endant asserting the § 8 affirmative defense is not required to establish the requiremen ts of § 4, MCL 333.26424, which pertains to broader immunity granted by the act.” Similarly in People v Blysma , 493 Mich 17, 22; 825 NW2d 543 (2012), our Supreme C ourt unanimously held tha t this Court had “erred when it concluded that defendant was not entitled to assert the § 8 affirmative defense solely because he did not satisfy the possession limits of § 4.” Id . Further, the court held “a defendant need not establish the elements of § 4 immunity in order to establish th e elements of the § 8 defense.” Id

. And again, in Michigan v McQueen , 493 Mich 135, 158; 828 NW2d 644 (2013), our Supreme Court reiterated that “ Kolanek makes clear that § 8 provides s eparate protections for medical marijuana patients and caregivers and that one need not satisfy the requirements of § 4 immunity to be entitled to the § 8 affirmative defense[.]” Most recentl y, in People v Hartwick , 498 Mich 192, 200-203; ___ NW2d ___ (2015), our Supreme Court, again spe aking unanimously, set out the elements that apply to a claim of § 4 immunity and contrast ed those with the elements that apply to a § 8 defense.

1. SECTION 4 IMMUNITY

Hartwick explains that under § 4, “[w]hen a qualifying patient elects a primary caregiver, a registry identification card is also issued to the primary ca regiver[,] . . . [who] is said to be ‘connected’ to that particul ar qualifying patient.” Hartwick , 498 Mich at 205 n 15. For the-6- caregiver 4 to be shielded by § 4 immunity, he and the patient must be “co nnected” in this fashion. Given that requirement , none of the defendants would have been entitled to § 4 immunity as to any deliveries to the officer even if his repres entations had been true. Defendants do not assert that they were named by the officer as his regist ered caregivers, or that they had any reason to believe so. Accordingly, to the degree defendant s claim that the officer’s representations led them to conclu de that they were immune from prosecution under § 4 of the MMMA, their claim of entrapmen t fails as a matter of law.

2. SECTION 8 DEFENSE

Section 8 of the MMMA does not provide immunity, but it does p rovide a complete defense. 5 Unlike § 4, the plain language of § 8 makes clear that its ap plication is not limited to registered patients or to registered caregivers. Further, unlike § 4 immunity, a § 8 defense does not require that a caregiver and patient be “connected” or “lin ked.” Section 8 can serve as a complete defense for any medical marijuana user and any medical marijuana caregiver 6 who satisfy its requirements. See Kolanek , 491 Mich at 398-399. Moreover, the language of § 8 places no limit on the number of patients a caregiver may serve so long as the standards are met as to each one. See MCL 333.26428.

Unfortunately, having erroneous ly concluded that the mere pres entation of the documents automatically constituted entrap ment, the trial court did not r each the more precise question whether the officer’s actions and the documents he displayed pr ovided defendants with a reasonable basis to believe that their deliveries to him would fall within the protections of a § 8 defense. On remand, the trial c ourt should consider this issue in the context of the § 8 hearing.

Hartwick holds that under § 8, a provider of marijuana has not committe d a crime and is a caregiver as defined by the statute where its requirements ar e satisfied. The first requirement, set out in MCL 333.26428(a)(1 ) has three parts:

(1) The existence of a bona fid e physician-patient relationsh ip,

4 In order to qualify as a caregiver, an individual must be at l east 21 years old, have no felony convictions for the prior ten years, and have no felony convict ions involving either illegal drugs or assault. MCL 333.26423(h).

5 Section 8 provides an affirmative defense to patients generall y for “possession of a quantity of marihuana that was not more than was reasonably necessary to en sure the uninterrupted availability of marihuana for the purpose of treating or allevi ating the patient’s serious or debilitating medical condition or symptoms of the patient’s ser ious or debilitating medical condition[.]” MCL 333.26428(a)(2). The affirmative defense of § 8 is thus available regardless of the amount of marijuana possessed. A defendant may assert a § 8 defense by filing a motion to dismiss the criminal charges, in which case an evidentiary h earing must be held before trial. MCL 333.26428(b).

6 “Caregiver” and “primary careg iver” are synonymous per MCL 333 .26423(h).-7- (2) in which the physician completes a full assessment of the patient’s medical history and curre nt medical condition, and

(3) from which results the physician’s professional opinion t hat the patient has a debilitating medical condition and will likely be nefit from the medical use of marijuana to treat the debilitating medical cond ition. [ Hartwick

, 498 Mich at 229.]

The documents presented by the officer may have provided a rea sonable basis for defendants to conclude that this three-part requirement was met . As Hartwick explains, possession of a valid registry c ard (of which the certification and a 20 day old application is the equivalent) is proof that a physic ian has offered his professio nal opinion that the patient has a debilitating medical condition for which he will receive benefi t from marijuana. Id . at 203 n 10. Depending on the precise language o f the physician’s statement and the content of statements made by the officer to defendants, some or all of defendants ma y have had a reasonable belief that the certificate was based on a bona fide physician-patient relationship and a proper assessment. See id . at 231-232 n 77.

Assuming that to be shown, defendants still must show that the officer’s actions led them to reasonably believe that the provision of marijuana also met the requirements of MCL 333.26428(a)(2) and (a)(3). Subsec tion (a)(2) requires that th e amount of marijuana possessed by the patient and his caregiver not be more than “reasonably n ecessary to ensure the uninterrupted availability of marihuana for the purpose of trea ting or alleviating the patient’s serious or debilitating medical condition or symptoms of the pa tient’s serious or debilitating medical condition.” MCL 333.26428( a)(2). While “a primary car egiver may reasonably rely on the amount his or her patient states is needed to treat the pat ient’s deliberating medical condition,” Hatwick , 498 Mich at 234, defendants could not have reasonably believe d that the transactions were lawful without having received some informati on as to the needed amount.

Finally, MCL 333.26428(a)(3) requires that the marijuana-relat ed activities that the patient and his caregiver engage d in related to the provision a nd use of the drug for treatment of the patient’s serious or debilitating medical conditions or sym ptoms thereof. On its face, it would appear that if defendants reasonably believed that they m et the other requirements of the statute, then this one would be met as well, but it remains to be seen if the prosecution has evidence to the contrary.

B. CHARGES BASED ON EVIDENCE S EIZED DURING THE SEARCH OF THE PREMISES

In addition to charges directly arising out of delivery of mar ijuana to the undercover officer, there are charges based on the January 12, 2013 discov ery of a significant quantity of marijuana at the facility where the officer made his initial pu rchase. Contrary to defendants’ argument, an entrapment defense has no application to these cha rges. Defendants argue that the items discovered in the ensuing search must be suppressed as fr uit of the poisonous tree because the search warrant that was obtained based upon the deliveries was tainted by entrapment. However, even if the deliveries to the officer were the result of entrapment, it does not undermine the use of the marijuana obtained in those transfers as the basis for further-8- investigation and a search warrant. People v Johnson, 466 Mich 491, 505; 647 NW2d 480 (2002). Therefore, the charges arising out of the marijuana an d other evidence discovered may not be dismissed on grounds of entrapment. 7

/s/ Douglas B. Shapiro

7 It is not clear from the record which defendants are charged i n connection with the larger quantity found during the search. I think it important to emph asize that each defendant is to be judged on his or own individual conduct and not collectively on the grounds that they were all employed by the same entity. In this regard, I believe my coll eagues overemphasize the question whether marijuana dispensaries are lawful entities

. The McQueen court ruled that a marijuana dispensary could be closed as a public nuisance. McQueen , 493 Mich at 158-159. However, as in any criminal case, the question is whether each individual d efendant is guilty or not guilty of the crimes with which they are charged based on the actions the y individually took. Being employed by a marijuana dispensary is not in and of itself a cr ime. Whether defendants have committed crimes turns on their individual actions and not on w hether or not the entity that employed them conducted its business lawfully.