Associated Press

KINGSFORD — An Upper Peninsula man is asking a federal judge to suppress evidence of more than 200 marijuana plants, which were seized after his kindergarten-age daughter came to school with the smell of marijuana on her clothes and told her teacher about her father's homegrown pot.

Federal Magistrate Judge Timothy Greeley ruled there was probable cause to search Randall Fieck's home last January. But Fieck's lawyer has asked another federal judge to overrule that report and quash the search warrant.

Kingsford police went to Fieck's home Jan. 29, five days after Woodland Elementary School Principal Darren Petschar told police that Fieck's daughter came to school "with a strong odor of marijuana on her clothing," Kingsford police Sgt. Joseph Menghini said in an affidavit.

Menghini said the 6-year-old girl told her teacher that her father "was growing marijuana in the basement of their residence and that she was not supposed to tell anyone."

Michigan voters approved the medical use of marijuana in 2008. Fieck had a medical marijuana card, but state law allows a maximum of 12 plants.

Because of the marijuana card, Fieck's lawyer said police had no probable cause to believe there was criminal activity to justify a search. Karl P. Numinen said that the smell of marijuana by itself no longer provides probable cause that a crime has been committed.

"The mere allegations that the kindergarten-age child smelled like marijuana and that Mr. Fieck's home smelled like marijuana is insufficient for the magistrate to issue the search warrant," Numinen wrote in his May 14 brief. "The officers had no reason to suspect that the quantity of marijuana was more than allowed" under Michigan's medical marijuana law.

In his response, U.S. Attorney Patrick A. Miles Sr. cited what he said was Fieck's refusal to tell the police sergeant how many marijuana plants he had or to let officers enter to inspect his growing operation. He cited a Michigan Court of Appeals decision that said police do not have "a specific duty to determine whether a marijuana suspect was in compliance" with the Michigan medical marijuana law before seeking a search warrant.

A pretrial hearing is scheduled Oct. 8 before U.S. District Judge Robert Holmes Bell in Marquette. He is scheduled to preside at a trial set for Oct. 20.