Commonwealth of Pennsylvania, v. Tammy Cessna

 

Criminal Action-Law-Possession of a Small Amount of Marijuana-Writ of Habeas Corpus-Prima Facie Case-Medical Marijuana-Container-Labeling Requirements

 

Tammy Cessna (“Defendant”) was charged with Possession of a Small Amount of Marijuana after a child of whom the claimant is the guardian possessed eleven (11) bags of THC edibles and a medical marijuana container labeled with the name of a different juvenile while a student at the Lebanon County Career and Technology Center.  When Defendant arrived at the school, she provided a medical marijuana caregiver card and a container she indicated contained medical marijuana bearing a label that appeared unreadable.  Defendant failed to provide a valid medical marijuana container or form of paperwork confirming that the unreadable container contained medical marijuana.  Defendant filed a Petition for Writ of Habeas Corpus seeking dismissal of the charge on the basis that she is immune from prosecution for possessing marijuana in a container.

 

1. The Medical Marijuana Act, 35 P.S. § 10231.301 et seq., provides that it is unlawful to smoke marijuana or to grow the plant that is used to create marijuana.

 

2. Section 10231.303 provides that lawfully possessed medical marijuana must be prescribed by a physician and the person possessing the substance must possess a valid certificate and identification card.

 

3. The Medical Marijuana Act requires that medical marijuana not used by the patient must be kept in the original package in which it was dispensed with specific information required upon the label.

 

4. In order for possession of medical marijuana to be lawful, the requirements of the Medical Marijuana Act must be followed.

 

5. Lawful medical marijuana must be stored in a container that properly is labeled in compliance with the Medical Marijuana Act.

 

6. Viewing the evidence in the light most favorable to the Commonwealth, the record was sufficient to establish Defendant’s possession of the marijuana was unlawful in light of the fact that the label containing the marijuana she handed to the law enforcement officer was unreadable without containing any of the labeling information required by the Medical Marijuana Act so as to establish a prima facie case to bind the charge over for trial.

 

L.C.C.C.P. No. CP-38-CR-0001499-2021, Opinion by Bradford H. Charles, Judge, April 8, 2022.

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                    : 

PENNSYLVANIA                              :                                                                                                                           :        NO. CP-38-CR-1499-2021

1. :       

                                                          :

TAMMY CESSNA                             :

:

ORDER OF COURT

 

 

AND NOW, this 8^th day of April, 2022, in accordance with the attached Opinion, the Defendant’s Petition for Writ of Habeas Corpus is DENIED.  The Defendant is directed to appear at the Criminal Call of the List scheduled for June 7, 2022 at 8:30am in the designated Courtroom.  She is also directed to appear for the first day of Criminal Trials scheduled to commence on June 20, 2022 at 8:30am in the designated Courtroom.

BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

 

BHC/pmd

cc:     Court Administration (order only)

Daniel Linares-Herrador, Esquire, District Attorney’s Office

Shannon Pascal, Esquire// PD’s Office

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                    : 

PENNSYLVANIA                              :                                                                                                                           :        NO. CP-38-CR-1499-2021

1. :       

                                                          :

TAMMY CESSNA                             :

:

APPEARANCES

 

Daniel Linares-Herrador, Esquire  For Commonwealth of Pennsylvania

DISTRICT ATTORNEY

 

Shannon Pascal, Esquire                 For Tammy Cessna

PUBLIC DEFENDER

OPINION BY CHARLES, J., April 8, 2022

 

Unfortunately, more and more people have begun to believe that if you possess a valid medical marijuana card…you can use any form and any amount of marijuana with impunity…you can legally possess marijuana anywhere, even in school or in a courtroom…you can drive legally while under its influence…you are immune from being fired if your employer drug tests you, and…your choice to use marijuana cannot be considered against you in any court proceeding.  Sadly, many people operating under such delusionary beliefs ultimately receive a rude awakening.  In this case, the Defendant alleges that she is immune from prosecution for possessing an unknown strain of marijuana contained in a non-prescribed container that may or may not have been prescribed by a doctor to someone else.  As we will articulate in more detail below, the Defendant is mistaken in her belief.

1. FACTS

A Pre-trial Hearing was conducted on February 23, 2022.  At that Pre-Trial Hearing, South Lebanon Township Police Officer Dominic Juliani testified that he was called to the Lebanon County Career and Technology Center (hereafter CTC) on October 7, 2021.  He was told that a student was found in possession of illegal drugs and paraphernalia. (N.T. 4-5).

When Officer Juliani responded to the CTC, he proceeded to the Administration Office.  There, he was shown eleven (11) bags of THC edibles and a medical marijuana container with the name of C.C. on it.[1]  A young woman was also present.  The girl was reported to be in possession of the contraband.  The girl was not C.C. (N.T. 5-6).

Shortly after Officer Juliani arrived at the CTC, the guardian of the juvenile who possessed the contraband arrived.  That guardian was the Defendant. (N.T. 6-7).  The guardian showed Officer Juliani a medical marijuana caregiver card.  She also provided Officer Juliani with a container that she claimed was filled with medical marijuana.  The label on the purported medical marijuana package had been “obliterated”. (N.T. 8).  None of the information pertaining to the name of the patient or the name of the prescribing physician was visible. (N.T. 8).

Officer Juliani gave the Defendant an opportunity to provide a valid medical marijuana container with visible identifying information.  Officer Juliani stated: “I specifically told her that I would provide her the opportunity to either show me that [a valid medical marijuana container] or some form of paperwork to prove so.” (N.T. 8).  The Defendant was unable to provide either of the above.  (N.T. 9).  Because of this, the Defendant was charged with Possession of a Small Amount of Marijuana.

At the Pre-Trial Hearing, the Defendant’s lawyer sought dismissal of the charge based upon the Medical Marijuana Act.  We requested briefs from both parties regarding the requirements of the Medical Marijuana Act.  Both parties submitted briefs in a timely fashion.  We issue this Opinion in support of our decision to deny the Defendant’s Request to Dismiss Charges.

 

1. DISCUSSION

At the Pre-Trial hearing, the Defendant relied primarily upon the Medical Marijuana Act (“MMA”) in support of her proposition that charges should be dismissed.  What the Defendant conveniently ignores is that the MMA created only a limited exception to the illegality of marijuana.  Section 304 of the MMA states:

“Except as provided in § 303, § 704, Chapter 19 or Chapter 20, the use of medical marijuana is unlawful and shall, in addition to any other penalty provided by law, be deemed a violation of the [Controlled Substance Drug, Device and Cosmetic Act.]”

35 P.S. § 10231.304

Specifically, the MMA specifically states that it is unlawful to smoke marijuana or grow the plant that is used to create it.  See, 35 P.S. § 10231.304(b).  Moreover, lawfully possessed medical marijuana must be prescribed by a physician and the person possessing the substance must possess a valid certificate and identification card.  See, 35 P.S. § 10231.303.

Most pertinent to the dispute now before this Court, there are packaging requirements that apply to medical marijuana.    Section 303 of the MMA states: “Medical marijuana that has not been used by the patient shall be kept in the original package in which it was dispensed.”  Moreover, the requirements governing the original packaging are quite specific.  Section 801 specifically states:

“Medical marijuana shall be dispensed by a dispensary to a patient or caregiver in a sealed and properly labeled package.  The labeling shall contain the following:

• The information required to be included in the receipt provided to the patient or caregiver, as appropriate, by the dispensary.
• The packaging date.
• Any applicable date by which the medical marijuana should be used.
• A warning stating:

‘This product is for medicinal use only.  Women should not consume during pregnancy or while breastfeeding except on the advice of the practitioner who issued the certification and, in the case of breastfeeding, the infant’s pediatrician.  This product might impair the ability to drive or operated heavy machinery.  Keep out of reach of children.’

• The amount of individual doses contained within the package and the spices and percentage of [THC] and cannabidiol.
• A warning that the medical marijuana must be kept in the original container in which it was dispensed.
• A warning that unauthorized used is unlawful and will subject a person to criminal penalities.”

35 P.S. § 10231.801.

 

Decisional precedent regarding the MMA is still evolving.  One of only few published Appellate decisions regarding the MMA is Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021).  Barr involved the so-called “plain smell doctrine” and its effect on a determination of probable cause to search a motor vehicle.  However, the Supreme Court of Pennsylvania touched on the MMA. Specifically, the Court emphasized that for possession of medical marijuana to be lawful, the requirements of the MMA must be followed.  Id at page 41.  Moreover, Justice Dougherty included the following language within his concurrence Opinion:

“Regardless of the wisdom of imposing this original packaging requirement, the statute is clear: For marijuana use to be lawful, the patient ‘shall’ keep any unused marijuana ‘in the original package in which it was dispensed.’ 35 P.S. § 10231.303(b)(6).  Thus, where an officer who smells marijuana also observes its packaging (or lack thereof) and there is not barcode or other identifying information that typically appears on the original packaging from a dispensary, that could be enough to establish probable cause…

 

Respectfully, whether a particular expert or the medical community at large deemed the original packaging requirement a wise legislative choice is irrelevant.  Since the provision is unambiguous, ‘the letter of it is not to be disregarded under the pretext of pursuing its spirit .’  1Pa.C.S. § 1921.(b).”

Id at page 46; Footnote 1

 

          In this case, testimony was presented at the Pre-Trial Hearing that the package that contained marijuana did not have a discernable label; what appeared at one time to be a label had been “obliterated”.  Specifically, none of the information contained in § 801 of the MMA was visible on the marijuana container.  As such, possession of the marijuana was not in compliance with the MMA.  Under § 303 of the MMA, the Defendant’s possession of the marijuana was thus unlawful.

Perhaps recognizing the above, the Defendant shifted the focus of her argument within her brief.  In that brief, the Defendant argued that the Commonwealth did not prove that the substance possessed by the Defendant was in fact marijuana.  The Defendant pointed to the absence of any laboratory report and argued: “Because the Commonwealth failed [to] (sic) enter any evidence of Defendant’s alleged marijuana into the record, they have failed to establish a prima facie case for possession of a small amount of marijuana for personal use.”  While it is true that the Commonwealth did not produce a laboratory report, the Commonwealth did produce evidence in the form of an admission by the Defendant.  Specifically, the Defendant admitted that the container she showed to Officer Juliani contained medical marijuana. (N.T. 7).  At least for purposes of a Habeas Corpus proceeding, this admission by the Defendant was sufficient to enable the Commonwealth to establish a prima facie case.

 

 

 

 

III.     CONCLUSION

Even a person such as the Defendant who possesses a valid medical marijuana card must comply with the requirements of the MMA.  One of those requirements is that lawful medical marijuana must be stored in a container that is properly labeled.  Without this requirement, individuals could continue to purchase unlawful marijuana and avoid prosecution simply by placing the contraband inside a well-worn container that may have been lawfully prescribed by a physician weeks, months or even years previously.  Without a properly labeled medical marijuana container, an individual’s possession of a substance purported to be properly prescribed medical marijuana is unlawful.

In this case, the Defendant possessed what she purported to be medical marijuana.  However, it was contained in a package that was so old and so used that the label had become “obliterated”.  Because the information required under § 801 of the MMA was not visible, the Defendant’s possession of the substance contained therein could not be lawfully sanctioned by the MMA.  As such, the charges filed against the Defendant were valid. The Commonwealth has established a prima facie case and we will send a final decision regarding the charges forward to a Lebanon County jury.  An Order to accomplish this will be entered today’s date.

[1] Because C.C. is under the age of 18, we will refer to him only by his initials.