High court: Sticky notes aren't evidence in pot case

Prosecution of a woman whose husband is authorized to grow medical marijuana may hinge on sticky notes.

The Michigan Supreme Court on Thursday found that Cynthia Mazur is immune from prosecution for giving her husband the sticky notes with dates of when to harvest the marijuana, calling the notes legal drug paraphernalia. As such, they can't be used as evidence against her in a case involving drug possession and manufacturing.

But she doesn't qualify for "mere presence" immunity under the act, as she had claimed, simply because her spouse is registered to grow medical marijuana, the court said. That immunity applies when the registered user is in full compliance with the Michigan Medical Marihuana Act, it said. Prosecutors say her husband was not in compliance at the time of a police raid on the Holly family's home in 2011.

"A person is only entitled to immunity when the underlying medical use of marijuana is in accordance with the MMMA," the court wrote. "Although we decline to state whether defendant's husband's convictions should have been persuasive in deciding whether (Mazur) was eligible for immunity, we agree with the Court of Appeals that the evidence showed that the marijuana operation was not in accordance with the MMMA."

Mazur now must return to the trial court in Oakland County on the drug charges. Further proceedings in the case against her will be heard without the sticky notes as evidence, said her attorney, David Rudoi.

"The ruling was more good than bad. It still protected a lot of good behaviors — growing, smoking — as long as you don't fall outside the protections" of the state's medical marijuana act, Rudoi said, referring to activities allowed for people authorized to use marijuana under the state law.

"Obviously, we won on that part of the case," he said. "I think we're a bit disappointed the case wasn't completely dismissed by the Supreme Court."

The ruling reverses decisions by the Court of Appeals and trial court.

Mazur and her husband, David Mazur, were arrested in 2011 after the raid discovered marijuana growing in their basement.

The raid was sparked by neighbors complaints to police of the smell of marijuana emanating from the Holly home, Rudoi said.

According to court records, Cynthia Mazur was charged with one count of possession with intent to deliver less than five kilograms or fewer than 20 plants of marijuana, and one count of manufacturing less than five kilograms or fewer than 20 plants of marijuana, both felonies.

Her husband pleaded guilty in 2012 to two counts of possession/manufacturing marijuana, according to court records, and received no jail time.

"They have two young children," Rudoi said, "He was facing a two-year mandatory minimum (sentence)."

She faces a maximum sentence of four years for each charge.

"In my opinion, it is completely unfair," he said. "The intent of the voters was to say family members of medical marijuana patients need not worry."

In 2008, Michigan voters approved the Michigan Medical Marihuana Act, which allows for medical use of marijuana for qualifying patients.

A trial court denied Mazur's request that the charges be dismissed and she appealed. She stated that she was entitled to immunity under sections of the act that allows for "providing 'marihuana paraphernalia' to a registered qualifying patient or registered primary caregiver for purposes of the 'medical use of marihuana.'"... or "merely being in the presence or vicinity of 'the medical use of marihuana' in accordance with the act," according to court records.

In an unpublished opinion, the Court of Appeals affirmed the trial court's ruling that Mazur wasn't immune from prosecution. Mazur again appealed. The Supreme Court heard the case in January.

cwilliams@detroitnews.com

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