LEGAL POT GROWER SUES OVER PLANTS' CONFISCATION IN KALAMAZOO TOWNSHIP

KALAMAZOO TOWNSHIP - Last August, Salman Ali was away on a work trip.
But when he returned to his rented Kalamazoo Township home, he was
greeted by an unpleasant surprise.

Township police and members of the Southwest Michigan Enforcement
Team, a multi-jurisdictional drug enforcement unit, had raided his
home on East Main Street.

Ali, a registered medical marijuana patient and caregiver for one
patient at the time, had 12 of his marijuana plants - all enclosed in
a locked facility, as required by law - confiscated by authorities.

But now nearly a year later, he has never been charged with a crime
and his plants - if anything remains of them - are still in police custody.

Under the state's medical marijuana law, Ali, 28, was permitted to
possess up to 24 plants, 12 each for being a patient and a caregiver.
And even though he said he had posted in plain view in the room where
the plants were growing a doctor's recommendation that he was a
registered patient - a step not required under the law - the law
enforcement agents took the plants anyway, even confiscating the
recommendation itself.

Copies of his state-issued identification cards indicating he was a
registered patient and caregiver were not posted, but that's not
required either.

Now Ali has filed a lawsuit against Kalamazoo Township for the return
of his property, in this case, being compensated between $1,000 to
$3,000 for the value of each of the plants he was growing. The
three-count complaint was filed July 7 in Kalamazoo County Circuit
Court. The township has until Aug. 9 to respond to the complaint.

"They shouldn't take the medicine first and ask questions later," Ali
said. "I think they should be held accountable."

But even though qualifying individuals may possess marijuana in
Michigan - as well as 13 other states that have a medical marijuana
law - the drug is still illegal in the eyes of the federal government
in all cases.

Ali's case illustrates gray areas in the year-and-a-half old law:
Should law enforcement seize a registered patient or caregiver's
medical marijuana? And can the plants be returned if the patient or
caregiver is found to be operating within the state's law? Calls to
SWET seeking comment for this story were not returned.

The Kalamazoo Township Police Department and Kalamazoo County
Prosecutor's Office declined to comment on the specifics of the case,
citing the fact that it is being litigated, but Timothy Bourgeois,
the township's chief of police, provided a general statement on the matter:

"I cannot respond to specifics in the case as the suit is still being
litigated," he said. "The proper place to try this case is in a court
of law, not in the media. We're confident that the process will reach
an appropriate conclusion once all the facts are known. The
allegations in this case are just that; they haven't been determined
to be fact."

The Raid

On Aug. 10 of last year, Ali was doing marijuana-related work in
Detroit. He had no idea that police had acquired a warrant two days
earlier to search his home for marijuana.

According to an affidavit filed by police seeking the warrant, Ali's
landlord at the time, Mark William Davis, contacted the Kalamazoo
Township Police Department on Aug. 7 after he saw marijuana plants
growing in the home.

The affidavit says Davis had come to speak with Ali about being late
on his rent. Davis told police that he received no answer after he
knocked on the front door, so he looked in the front bedroom window
and saw five marijuana plants growing under a lamp, the affidavit says.

Upon entering the residence, he also found one marijuana plant in the
bathroom and "unknown amounts of plants" in a rear bedroom, the affidavit says.

Davis also told police that he saw a piece of paper affixed to the
wall in the front bedroom that had Ali's name on it as well as a
"validation date" of June 2009, the affidavit says. "It is unknown if
this paper was a copy of medical marijuana card," the affidavit says.
Ali received his patient and caregiver identification cards in early
July 2009 and he said he took them with him on his trip.

Prior to entering Ali's home, police contacted the Michigan
Department of Community Health to confirm whether Ali was a medical
marijuana patient or caregiver, according to the affidavit.

But after contacting the MDCH - the state agency charged with
processing patient and caregiver applications and providing
regulatory oversight of the law - police were told that the
department could not confirm or deny whether Ali was a registered
patient and user, the affidavit says.

The reason? Police didn't have Ali's patient and caregiver
identification card numbers, the only information that the MDCH will
allow to be used to make, or deny confirmation. Home addresses, names
or other personal information about a suspect are not enough. Adding
to headaches for law enforcement, calls to the MDCH seeking
confirmation can only be made between 8 a.m. and 5 p.m., Monday
through Friday, meaning that if law enforcement wants confirmation
outside of that time frame, they have to assume that there is
wrongdoing, law enforcement officials said.

According to Section 6(h)3 of the medical marijuana law: "The
department (MDCH) shall verify to law enforcement personnel whether a
registry identification card is valid, without disclosing more
information than is reasonably necessary to verify the authenticity
of the registry identification card."

"We have everyone's information, but if there is not a card number,
then it makes it difficult," said James McCurtis, spokesman for the
MDCH. "They have to have the registration ID number for us to
determine if they (a patient or caregiver) is legitimate. If they
don't have the number, then there's nothing we can do for them.
That's the way the law is."

McCurtis' advice for a registered user or caregiver unlucky enough
not to be home when police raid their home? Get an attorney.

"They are still protected," he said. "The only advice I can give is
contact an attorney. It can be a headache, but you can fight it."

McCurtis said that it's up to law enforcement to understand the
protections in the law afforded to registered patients and caregivers.

"Now it's no longer the time when they could just raid a home and
take a person's marijuana," he said. "The law calls for law
enforcement to make adjustments."

But without the ability to make those confirmations, the frustrations
mount for police. "If someone tells us that there is cultivation
going on there's no way determine if it's allowed under the law or if
it's illegal manufacturing and trafficking," Bourgeois said.

"Then it becomes a safety concern to people and officers. People
involved in the illegal manufacture of marijuana are routinely armed.
It's (marijuana) serious and we can't turn a blind eye to it.

"I think this points up the difficulty when laws come into force on a
referendum or a ballot issue. The law was written in a very vague way
that causes great confusion." Daniel Grow, a St. Joseph attorney who
is representing Ali in his civil suit, said police need to do more.

"They have to wait to see to rule out that it (marijuana) is for
medical purposes. They should at least try to find the person," said
Grow, who also represents Joseph Casias, a Battle Creek man who
garnered nationwide attention after the Wal-Mart store where he was
working fired him last year after he tested positive for marijuana.
Casias, 30, was treating an inoperable brain tumor legally with
medical marijuana.

"We don't do summary executions on the street, so why should we do
summary seizures of people's medicine?" Grow asked.

"Now it seems like it's seize now and ask questions later. We sense
some frustration from law enforcement that they have one hand tied
behind their back. But when voters approved this law, they wanted to
slow down the war on drugs."

Grow said he tells medical marijuana patients and caregivers to tread
carefully when it comes to being open about their marijuana, even
though the state has a law that protects them.

"Think that it's illegal, because it almost is," he said. "The police
had notice that these plants were for medical purposes. Historically,
a raid like this was justifiable. It (marijuana) was illegal
everywhere. That's not the case anymore."

Back in Business

On Sept. 17, 2009, Ali and John Targowski, a Kalamazoo criminal
defense attorney who was representing him at the time, met with,
Georgeann Ergang, a detective with the Kalamazoo Township Police
Department and another SWET officer, according to the complaint.
During the meeting, Ali requested that his plants be returned. The
request was denied.

About a week later, Ergang contacted Targowski and told him that no
charges would be filed against Ali, according to the complaint.

Law enforcement officials said that Ali's plants were not returned
because once in possession of them, they must follow federal
guidelines regarding marijuana, meaning that they can't return seized
property that is illegal.

Targowski, who has handled many medical marijuana cases and has
spoken at several conferences to lend his expertise on the state's
medical marijuana law, took serious issue with that practice.

"State officials operating under state law can't hide behind federal
law to refuse a person what's rightfully theirs," he said. "They
can't have their cake and eat it, too. People are still a little
skeptical that police might treat them as a criminal, not a patient."

Targowski said that if the raid on Ali's house had been performed by
federal law enforcement officials, nothing likely could be done.

Despite the setback, Ali is back in business in a new place - he was
evicted from the home he rented last year.

Immediately after stepping through the front door of his current home
on Kalamazoo's west side on a recent afternoon, one can smell marijuana.

Ali walks upstairs to his "grow" room, located in a bedroom. Before
entering, he washes his hands and sprays Lysol on the soles of his
shoes to kill any bacteria or viruses that might infect the plants.

Then he unlocks the bedroom door and heads inside, where seven plants
sit under a large grow light, some more mature than others. The
plants sway in the breeze made by a small fan oscillating in the
corner, which cools them.

Ali is currently providing medical marijuana to five registered
patients, he said, some of whom suffer from multiple sclerosis and
Hepatitis C. He is also a registered user, using medical marijuana to
treat chronic back pain he continues to experience after an injury in 2003.

"This is an industry that will grow," Ali said, "and I want to grow with it."

Still, he's scared, declining to have his face photographed for this
article not just because he fears criminal elements possibly breaking
into his home, but also further involvement from police.

"I've already had one run-in with the police and it didn't go very
well. I don't want to have another," he said. "I'm an advocate,
working with patients all across the state. This issue is happening
all over. Maybe the police will stop doing this. Maybe they'll stop
taking people's medicine."