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Unfairly Targeted? Medical marijuana grower says Charlevoix deputies went too far destroying $100,000 crop

By Anne Stanton


In what an attorney called vigilante justice, a Charlevoix narcotics team destroyed an estimated $100,000 worth of medical marijuana plants before a jury could decide on whether they were growing in a legal enclosure.

“I was treated like a common criminal. My civil rights were violated,” said the 63-year-old Charlevoix man, who said he rigorously studied the new law before growing plants this summer.

Dwight Smith (not his real name) was growing 32 plants in a padlocked double-fenced enclosure for himself and two other patients. The plant number was below the legal limit and he immediately produced caregiver and patient cards for sheriff's deputies.

“I'm madder than hell. I never did anything to cause this. I'm embarrassed and my wife's embarrassed. And the biggest thing is they didn't care about the compassion part of it. They never once asked about the medical marijuana aspect of this. They were more like, "You're a drug dealer and now we've got you!”

Charlevoix Deputy William Church of the Joint Operational Law Enforcement (JOLT) multi-jurisdictional drug team wrote that the plants were not properly enclosed. The team found the plants in a padlocked hoop house, which was wholly covered with fencing (including the roof). A six-foot chain link fence surrounds the hoop house. Although not required by law, the hoop house and fence were both covered with thin white plastic to block an outside view of the plants.

HEALTH VIOLATION

So why the seizure? Smith said the deputies told him that the problem was an 18-inch gap in the 25-foot by 20-foot enclosure. The gap was caused by the weight of rainwater on the roof pulling the tarp upward from the ground. At issue is whether a plant stem was protruding from the hoop house. Even if it were, it was still not protruding from the exterior six-foot fence, Smith said.
Smith was charged with a “local health department violation” in violation of the state law, which carries a six-month jail sentence and/or a $200 fine. His attorney, Jesse Williams of Traverse City, said the JOLT team should have immediately left after Smith presented the medical marijuana cards. Instead, they destroyed $100,000 worth of plants for what they believed to be a misdemeanor.

“Here we have deputies acting like cowboys, running on people's property and refusing to follow the law, which voters overwhelmingly approved. If they used common sense and spoke to this man, they would have realized he was fully complying and left him alone,” he said. “This guy went above and beyond the requirements of the law. He did everything he could to safeguard the community and his family with a gated fence on his driveway, motion sensors and a video security camera. My client and his two patients rely upon this medicine and they took it without any legal reason.”

PAIN RELIEF OPTIONS

In fact, Smith could be considered pretty much a poster child for the relatively new medical marijuana law. Twenty years ago, he had a partial hip replacement that now causes him arthritic pain. He also has painful pressure behind his eyes from glaucoma.

After voters approved the medical marijuana law, Smith said he studied his options for pain relief. Economics played a large part in his decision. Smith and his wife live in a beautiful home south of Charlevoix with a man-made pond on 26 acres. Although it looks as if they're doing well, the couple's cash flow has diminished with Smith unable to work. In their early 60s, they are too young to qualify for Medicare.

Smith‟s wife works three nights a week as a bartender, but they mostly rely on an $863 Social Security check. Most of their money is eaten up by car and health insurance, which doesn't cover prescription drugs or doctor visits. Smith says his doctor in Traverse City said he couldn't guarantee that hip surgery would help, and suggested he solve it with “chemicals.” Smith wanted to avoid the side effects of the prescription narcotic, as well as addiction. Plus he couldn't afford it, so he obtained permission from two doctors to become a medical marijuana patient.

Smith decided to grow marijuana for himself and two other patients (both Vietnam veterans) this summer and aimed for strict compliance. He required his patients to obtain cards before he began any new plants, and he chose not to grow the plants in his large pole barn because his four grandkids, ages 11 to 16, often went in there. In fact, he blocked the enclosure from view—using dump trucks, a 12-foot earthen berm, and an RV trailer. He requested anonymity in this article to protect his property from burglars, as well as to spare his grandkids embarrassment.

“Nothing is more important to me than my grandkids. I'm not promoting pot to anyone.”

Security is important not only for the community, but also for medical marijuana growers. There has been at least one reported theft in the state. In late September, three armed people entered a medical marijuana dispensary and stole cash and marijuana, according to an October 1 annarbor.com report.

SHARP HELICOPTER EYES

Smith said he was eating lunch on the back porch of his home, which is located one driveway down from where the hoop house is located. He saw a black helicopter fly over at about 40 mph and an estimated 400 feet above the property. He said it did not hover. Narcotics teams around the state do flyovers at this time of year when marijuana plants are nearing maturity and ready to harvest.

Almost immediately, one of Smith's patients who was living in an Airstream several hundred feet away from the hoop house, called Smith to tell him that deputies were on the property. They had edged around the driveway's locked power gate. They had no search warrant.

Smith quickly arrived at the locked driveway and found five more JOLT officers, who also lacked warrants. They told him that marijuana was viewed from the helicopter, so their search was justified. Williams said that's highly unlikely since the roof of the hoop house was covered with white plastic. “Please produce the photos of what was seen from a helicopter. Common sense tells me you can't see a stem sticking out of a six-by-six inch hole from 400 feet in the air.”

Officers, who arrived at 1:45 p.m., asked for additional paperwork besides the cards; although not required by law. Smith complied. When they still refused to leave, Smith allowed them into the hoop house to count the plants and take photos. (The deputy's report erroneously says the search warrant was “executed” at 1:45 p.m.)

THE DECISION

Smith and the JOLT team stood at the structure for about two hours, awaiting a decision by Assistant Prosecutor Shaynee Fanara who received a photo from the iPhone. Smith said he talked to Fanara at about 4 p.m. A deputy told her that someone could jump the six-foot fence and reach the plant.

“I had the prosecutor on the phone, begging her to let me fix this foot and a half piece of plastic. I'm hearing impaired so it was difficult for me to hear her, but I said, "Mrs. Prosecutor, come out and see this for yourself. Will you work with me on this? I'm begging her like a little kid.”

Smith said Fanara approved the search warrant at about 4 p.m. Although other prosecutors have left marijuana plants intact if there was a legal question (such as Kalkaska Prosecutor Brian Donnelly), Fanara ordered the plants torn from the ground. Charlevoix Prosecutor John Jarema wasn't involved in the approval of the affidavit, but said Fanara trusted the deputy's account that the enclosure was illegal.

ONCE THE SMOKE CLEARS

One of the patients, Dan, said he uses medical marijuana for pain he still suffers from falling down a stairway; getting hit by a car as he was walking down a street; and getting hit by a car while bike riding three years ago. “I about cried when I got the phone call. I don't know what I'm going to do.”

Marijuana provides some relief, but he still suffers from quite a bit of pain, he said. “It makes it easier to bear.”

Dan wondered if the state agency that provides approval for the medical marijuana cards shares the address of the caregiver. “How discreet is this? I was under the assumption that it was confidential.” Ronnie, the other patient and a Vietnam veteran, said he uses medical marijuana for arthritis in his fingers, which are gnarled and sometimes look like thick sausages after severe swelling. Both patients helped Smith build the structure.

“They were on the property without a search warrant. They put the cart before the horse,” he said. Smith thinks that a neighbor might have notified JOLT of the location—in fact, another medical marijuana patient who was growing plants in the woods was also searched and charged.

Smith said that he believes local law enforcement need to change its attitude toward legal medical marijuana. “When I got them cards out for them, it devastated them. You could tell.”

With the marijuana destroyed, Smith said he and his two patients are without their medicine or any money to buy it. Yet Smith said he remains committed to medical marijuana as an option. Once the smoke is cleared (no pun intended), the law will give him clarity on what an outside structure must like. On that, he and the prosecutor agree.

You can watch Anne Stanton's videotaped interview with Dwight by going to: www.upnorthmedia.org/upnorthtvshows.asp and looking for shows produced by Eric VanDussen.

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