Court Watching: Judge Oakley binds Nelson Po over to circuit court on mj charge

After a preliminary exam on Oct. 12, 34th District Court Judge Brian A. Oakley bound Nelson S Po over to circuit court to face a charge of delivering/manufacturing 5-45 kilograms of marijuana on Aug. 16 in Sumpter Township.
Po’s arraignment on the information is set for 9 a.m. Oct. 26 at the Frank Murphy Hall of Justice in Detroit. The charge is a felony and if found guilty Po would be subject to 7 years in prison or a $500,000 fine.
The preliminary exam started with Assistant Wayne County Prosecutor Doug Dwyer saying that Po’s attorney Ronald Ruark was at the scene when the search warrant was executed and so he’s a witness.
A lawyer is not supposed to be a witness and also represent the client, Prosecutor Dwyer said.
“I don’t plan to be called as a witness,” Ruark replied. “I was on the scene when the search warrant was executed.”
“What do you want me to do?” Judge Oakley asked Dwyer, noting he has not cited any case law to support his claim.
“I just found out about it,” Dwyer said and then decided to just get on with the preliminary exam.
His first witness was Sumpter Detective John Toth who said he was on duty on Aug. 16 when there was a complaint about an odor of marijuana in the area of 45025 Harris Road. He testified that Sumpter has a local ordinance that covers odors and this “skunky, marijuana” smell could be smelled two doors down.
He said he assumed it was coming from the Po residence. He said he had been in several marijuana grows and knows the smell. With the medical marijuana licensing at the township, he had been at many grows and many times over the years before that What he smelled was fresh marijuana, he testified.
“You were familiar with Mr. Po’s operation in the past?” Dwyer asked and Det. Toth said he was.
Toth said he went to Po’s house and Officer Beth Egerer was there with him and she rang the doorbell or knocked. He said Po was on the telephone and he came out and said they could not search the property.
At that point, Po’s attorney Ruark pointed out Sumpter Police Chief Eric Luke was in the back of the courtroom and Chief Luke had been a witness and should be sequestered.
Dwyer said there was a chance Chief Luke could testify down the road, but he wouldn’t be testifying that day. Ruark said then he had no problem.
Det. Toth continued his testimony saying that after Po greeted them with the statement that they couldn’t search his property, “I thought it was interesting that was the first thing out of his mouth, but this is America… Ruark had advised him what to say … I was waiting for Ruark. Po said he was on his way.”
Toth said after Ruark arrived he told him that he was going to have to see the grow operation because the ordinance allows for inspection.
Toth testified they did not search without a search warrant. After he got the warrant he went back to the grow and Po told him he would be 100 plants over the 72 plants allowed.
Toth described the layout of the six grow rooms, which included a former kennel, a large pole barn and an additional pole barn.
Toth said there were 254 total plants and the Michigan State Police located 20 pounds of marijuana in the freezer that was infused with butane, which increases the THC. Plus there were 70 quarts of Tupperware containers with edibles. There also was a notebook with details on the grow, $60,000 cash and guns, Toth testified.
Dwyer asked how much Po was allowed to have under the law for medical marijuana and Toth said it was 60 because he was short one medical marijuana card.
Dwyer pointed out marijuana with butane is not allowed at all.
Toth said they submitted one fresh leaf to the Michigan State Police lab and it came back positive for marijuana.
Then Po’s attorney Ruark began his cross-examination of Toth and asked what time he arrived at Po’s house and Toth said it was about 11 a.m.
Ruark pointed out that in the deferred agreement signed with Po on Sept. 11, 2015, police were only allowed to search between 9 and 10 a.m. and Toth was an hour later than he’s allowed. He said it goes to the search issue and the alleged confession.
Toth said he didn’t sign the agreement and hadn’t read it until just two weeks before this hearing.
Dwyer said he would disagree that this agreement was part of this charge. He said in a preliminary exam the judge is just supposed to decide if a crime has been committed and if there is reason to believe that the suspect may have committed the crime.
“I don’t think this is correct for a probable cause hearing,” Judge Oakley concurred.
Toth said in the agreement, Po was to cease growing last April and he was still growing. He said he hadn’t read the agreement when he went to Po’s house on Aug. 16.
Ruark asked who else was at the scene that day and he said Officer Egerer was there and she was in uniform with a marked car. Ruark asked if she was wearing a weapon and Toth said she was.
Ruark asked if Toth identified himself and Toth said he had talked with Po many times in the past.
“He tried to hire me for $200,000 to come to work for him,” Toth said. “He offered $150,000 to Egerer and she thought it was sexist because he offered me $200,000.”
Ruark asked if Toth engaged Po in conversation and he said he did. Ruark asked if they still talked after Po said his attorney was on his way and Toth testified yes, they talked.
Ruark asked if Po was arrested and Toth said no, he was detained because the police department had taken 200 pounds from this location in a previous incident. He said they did not want to lose evidence they were in the process of investigating.
“He was not free to leave the property?” Ruark asked and Toth repeated that he was not under arrest but he was not allowed to leave the property.
Ruark asked who all was at the scene and Toth said Po’s wife, attorney Ruark, and a couple of gentlemen back in the grow.
Toth testified he left Officer Egerer at the scene and went to get the search warrant at about 11:45 a.m. He said everyone was detained except Ruark.
Toth said in the agreement Po was to shut down growing. He said he called township attorney Rob Young and the search warrant went to Young.
“Why not just ticket him?” Ruark said of the odor investigation.
Toth said you have to investigate to make sure of the source of the odor. He said in 2015, Sumpter Township was involved briefly in at situation at this site.
Ruark asked who made the odor complaint and Toth said, “I received an order from my chief of police to investigate.” He pointed out the chief was his superior officer.
Ruark gave a copy of the three-page search warrant to Toth and Prosecutor Dwyer questioned the relevance.
“I’ll allow a couple of questions,” Judge Oakley said.
Ruark asked if Toth produced the report on what was confiscated and Toth said it looks like his report.
“It’s beyond the scope of this hearing,” Dwyer stated.
“Where are the marijuana plants?” Ruark asked and Toth said they are destroyed. “Who destroyed them?” and Judge Oakley said not to answer that.
“How many plants are available today?” Ruark asked and Toth said there are 90.
Ruark asked if he had the right for 60 plants and Toth said yes. They seized six medical marijuana cards? And, Toth said yes and one was his wife’s card.
Ruark said his client was allowed 72 plants and Toth said that could be.
Ruark said police destroyed everything beyond the 90 plants. He asked who seized the marijuana and Toth said it was the Sumpter Township Police Department.
Ruark asked how much marijuana they took and Judge Oakley cut in, spieling off what was taken, adding, “I kept count.”
Ruark said he had no further questions for Toth and then Dwyer made a motion to bind Po over to circuit court. Ruark said he had a defense witness to call and called Officer Egerer.
Ruark asked Egerer who was at the scene besides her and she said Detective Toth and Chief Luke and Officer Cox. He asked if the police had guns and she said they did.
“You were left behind?” Ruark asked, referring to Toth leaving the scene to get the search warrant and Egerer said yes.
She said Toth told her to detain people on scene to make sure everybody stayed and evidence was not destroyed.
Ruark asked if Egerer and Po talked after Ruark left and she said they talked about many things.
“He engaged me in conversation,” Egerer clarified. Ruark asked if they talked about marijuana and she said they did.
She said she told him not to talk because his attorney told him not to talk. But, he talked.
Egerer said Po told her Sumpter probably would destroy 100 to 180 plants. Then, she said, he talked about his customer in the Seven Mile/Southfield area and another guy from Ohio. He talked about a lot, she said.
Ruark asked if they read his client his Miranda Rights because he clearly was under arrest.
Egerer said they were there for an odor investigation.
Ruark concluded his questioning of Egerer and Dwyer said there is sufficient probable cause to bind Po over.
Ruark said on that day, his client was allowed 72 plants under the law and they preserved 90 and destroyed the rest. He said they destroyed the evidence and he did not have the opportunity to test for THC.
He said because the rest are destroyed, they can only count the 90 they have. Since he can have 72, there are 18 plants too many, which is a misdemeanor.
There is no probable cause he committed a felony, but there is a possible misdemeanor, Ruark said.
Dwyer argued that questions of fact are for the circuit court to decide.
“He was at the scene. He could have inspected the plants,” Dwyer said of Ruark. “He had 254 plants,” referring to Po.
“There was no opportunity to inspect,” Ruark said. “They destroyed the evidence.”
“I have no case law to say this,” said Judge Oakley. “That is for a trier of fact down the road.”
He ordered the case bound over to circuit court.
Gobel Dene Ratliff
Gobel Dene Ratliff, 72, will have his preliminary exam in November on charges of possession of a weapon by a felon, assault with a dangerous weapon, and weapons/ felony firearm on Sept. 14 in Sumpter Township.
His retained attorney Jeremy Henner asked for a delay in the exam to get other items of discovery from Sumpter Township police. Detective Toth said the attorney could pick up the items he wanted later that same day.
Brandi Monique Christian
Brandi Monique Christian, 37, waived her preliminary exam on two counts of unauthorized driving away of a motor vehicle and one count of receiving and concealing a stolen motor vehicle on Sept. 30 in Van Buren Township.
She was ordered to appear at the Frank Murphy Hall of Justice in Detroit on Oct. 26. Christian is free on $5,000 personal recognizance bond. Her court-appointed attorney is Kathleen Tulacz. VBT officer in charge of the case is Donovan McCarthy.