Court Rules Defendants Not Entrapped When They Were Already in Violation of the MMMA

People v. Carruthers

In this medical marijuana action, the trial court’s erroneous ruling, which dismissed this case against defendants on the grounds of “entrapment,” conflicts with the black letter law of entrapment and the Michigan Medical Marihuana Act (“MMMA”),1 MCL 333.26421 et seq.

1 The MMMA uses an outdated spelling, “marihuana.” Throughout the opinion, we use the current and common spelling “marijuana” unless quoting from the MMMA or cases that use the older spelling. See People v Hartwick, 498 Mich 192, 198 n 2; 870 NW2d 37 (2015).

The MMMA is an “exception to the Public Health Code’s prohibition on the use of controlled substances,” and its protections are accordingly “limited to individuals suffering from serious or debilitating medical conditions or symptoms, to the extent that the individuals’ marijuana use is carried out in accordance with the provisions of [the MMMA].” To further the underlying medical purposes of the law, the MMMA has always required that a provider of marijuana sell or transfer marijuana only to those patients with whom the provider is connected through the Department of Community Health’s (“DCH”) registration process. MCL 333.26424(b). In keeping with the purpose of the MMMA, our courts have held that individuals who operate marijuana dispensaries—emporiums where any patient can purchase marijuana from any provider, regardless of whether the patient and the provider were connected through DCH’s registration process—do not comply with the MMMA and may not receive its legal protections. Due to these infirmities, the business model of a marijuana dispensary violates the MMMA, and, importantly for our analysis, our courts have also held that undercover police operations to expose this ongoing illegality do not “entrap” the individuals operating the marijuana dispensary.

Here, defendants ran or worked for a marijuana dispensary called Green Greener Grow (“G3”), and held themselves out to sell (and actually sold) marijuana to patients with whom they were not connected through DCH’s registration process. Therefore, by definition, they were engaged in an ongoing criminal enterprise that did not comply with the MMMA. Because defendants were neither induced nor seduced into this “business” by the police, but rather were exposed and caught in their ongoing illicit activity—via a classic, textbook undercover sting operation—they were not entrapped. For each of these reasons, which we explain in detail below, the trial court’s dismissal of the charges is hereby reversed, and we remand for reinstatement of the charges against defendants.