3.11Refusing Entry or Keeping or Maintaining a Drug House
“A person:
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(c) Shall not refuse an entry into any premises for an inspection authorized by [Article 7 of the PHC].
(d) Shall not knowingly keep or maintain a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, that is frequented by persons using controlled substances in violation of [Article 7 of the PHC] for the purpose of using controlled substances, or that is used for keeping or selling controlled substances in violation of [Article 7 of the PHC].” MCL 333.7405(1)(c)-(d).
If the violation of MCL 333.7405 “is prosecuted by a criminal indictment alleging that the violation was committed knowingly or intentionally, and the trier of the fact specifically finds that the violation was committed knowingly or intentionally,” the violation is a misdemeanor punishable by:
•imprisonment for not more than two years; or
•a fine of not more than $25,000; or
•both. MCL 333.7406.
If it is not alleged and proved that the violation of MCL 333.7405 was committed knowingly or intentionally, the violation may only be punished by a civil fine of not more than $25,000. MCL 333.7406.
In order to satisfy the “keep or maintain” element of MCL 333.7405(1)(d), the prosecution must prove that the defendant exercised authority or control over the property; the defendant need not own or reside at the property. People v Griffin, 235 Mich App 27, 32 (1999), overruled on other grounds by People v Thompson (Keith), 477 Mich 146 (2007).1, 2 In addition, the prosecution “‘need not prove that the property was used for the exclusive purpose of keeping or distributing controlled substances, but such use must be a substantial purpose of the users of the property, and the use must be continuous to some degree; incidental use of the property for keeping or distributing drugs or a single, isolated occurrence of drug-related activity will not suffice.’” Thompson (Keith), 477 Mich at 152-153 (case involving drugs sold from a vehicle), quoting Dawson v State, 894 P2d 672, 678-679 (Alas App, 1995). The Court further explained that “‘keep or maintain’ is not synonymous with ‘use.’ Hence, if the evidence only shows that defendant used a vehicle to keep or deliver drugs on one occasion, and there is no other evidence of continuity, the evidence is insufficient to establish that defendant kept or maintained a drug vehicle in violation of MCL 333.7405(1)(d).” Thompson, 477 Mich at 157-158.
Payment of rent for a building is indicative of “control” over the building. People v Bartlett, 231 Mich App 139, 156 (1998).
There was sufficient evidence to support the defendant’s conviction of keeping or maintaining a drug house where the only dispute during trial was whether the defendant manufactured more marijuana than was permitted under his license,3 and it was undisputed that the defendant owned and resided at the premises where 78 marijuana plants and 578.6 grams of harvested marijuana were found and that he used the premises to grow marijuana. People v Bosca, 310 Mich App 1, 24 (2015), rev’d in part on other grounds 509 Mich 851 (2022).4
The defendant could not show that the failure to instruct the jury on the definition of “keep or maintain” or on the requirement of continuous use prejudiced him where “the jury would have convicted defendant on the basis of the evidence at trial even if the jury had been more fully instructed on the intricacies of the ‘keep or maintain’ element.” People v Norfleet, 317 Mich App 649, 658 (2016). “The evidence of continuous use of his home and Jeep to keep and sell heroin and the evidence that a substantial purpose of his home and Jeep was to keep and sell heroin was the testimony of various witnesses indicating that the Jeep was used to make heroin deliveries and that the home was used to store both the heroin and the proceeds of the heroin’s sale.” Id. at 659 (rejecting the defendant’s argument that the instructional error was prejudicial where no heroin was found by the police in either his home or his Jeep because even if evidence was presented that heroin was discovered in his home or his Jeep that evidence would not be direct evidence of continuous use or a substantial purpose).
2.When Keeping or Maintaining a Drug House is Considered a Felony
Despite being categorized as a misdemeanor by the PHC, keeping or maintaining a drug house “may serve as the predicate felony for a felony-firearm conviction.”5 People v Washington, 501 Mich 342, 363 (2018). “When the government charges a criminal defendant with felony-firearm under the Penal Code, th[e] Court must look to the Penal Code to ascertain the meaning of the word ‘felony,’ which is defined as an offense punishable by imprisonment in state prison,” and “[a]lthough the Legislature intended the offense of keeping or maintaining a drug house to be a misdemeanor for purposes of the Public Health Code, that offense is punishable by imprisonment in a state prison, and, therefore, it unquestionably satisfies the definition of ‘felony’ in the Penal Code.” Id. at 347. In reaching its conclusion, the Court stated that “an offense expressly labeled a misdemeanor in one code does not necessarily mean the same offense is a misdemeanor for purposes of interpreting and applying a different code.” Id. at 357.
1 For more information on the precedential value of an opinion with negative subsequent history, see our note.
2 Thompson overruled the Griffin Court’s determination that the defendant’s exercise of authority or control must occur “continuously for an appreciable period.” Thompson, 477 Mich at 148.
3 The defendant was a licensed caregiver under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. Bosca, 310 Mich App at 9-10.
4 For more information on the precedential value of an opinion with negative subsequent history, see our note.
5 The offense of felony-firearm is in the Michigan Penal Code, codified at MCL 750.227b(1).