People V. Sinclair - Pt.1

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Lansing, Michigan


Michigan Supreme Court Reports

PEOPLE v. SINCLAIR>, 387 Mich. 91 (1972)

194 N.W.2d 878


No. 19 October Term 1971, Docket No. 53,550.

Supreme Court of Michigan.

Decided March 9, 1972.

Decided March 9, 1972.

30 Mich. App. 473 reversed.

John A. Sinclair was convicted of possession of marihuana.
Defendant appealed to the Court of Appeals. Affirmed. Defendant
appeals. Conviction reversed and set aside and defendant

Frank J. Kelley, Attorney General, Robert A. Derengoski,
Solicitor General, William L. Cahalan, Prosecuting Attorney,
Dominick R. Carnovale, Chief, Appellate Department, and Angelo
A. Pentolino, Assistant Prosecuting Attorney, for the people.

Philo, Maki, Ravitz, Jobes, Cockrel & Robb and Robert
Bartels, Hugh M. Davis, and Shellow & Shellow, for defendant.

Amici Curiae:

Sol Plafkin, for State Senators Coleman Young, Basil Brown,
and Jack Faxon, and State Representatives Jackie Vaughn III,
William Broadhead, James Bradley, Edward Suski, and Daisey

Wallace H. Glendening, for American Civil Liberties Union of
Page 98

R. Keith Stroup, for the National Organization for the Reform
of Marijuana Laws.

Michael Schuman and Gary Roth, for YPC-Center House of

Bernard D. Fischman, for the American Orthopsychiatric
Association, Inc.

Philip J. Hirschkop, for Penal Reform Institute.

David Hood, for New Detroit Subcommittee on Drug Treatment.

Ernest Winsor, for the Committee for a Sane Drug Policy.

Thomas Meyer, M. Gerald Schwartzbach; Glotta, Audelman &
Dingus; Gage, Burgess & Knox; Neal Bush; Lafferty, Reosti,
Jabara, Papakhian, James & Strickgold; Mark Weiss; and Colista,
Moore & Braun, for the Detroit Chapter of the National Lawyers

Goodman, Eden, Robb, Millender, Goodman & Bedrosian, for
Medical Committee for Human Rights.


For the reasons set forth in our several opinions, the judgment
of conviction of defendant Sinclair is reversed and set aside and
the defendant discharged.

JJ., concurred.
Page 99


Defendant, John A. Sinclair, was arrested on January 24, 1967,
and charged with the unlawful sale[fn1] and unlawful
possession[fn2] of two marijuana cigarettes. Defendant was
convicted by a jury in the Recorder’s Court for the City of
Detroit of unlawful possession of the two marijuana cigarettes,
on July 25, 1969, and on July 28, 1969, he was sentenced to 9-1/2
to 10 years imprisonment. During the 2-1/2 years between his
arrest and trial, defendant was free on bond in the amount of
$1,000, and never failed to appear when required to do so.

Prior to the trial, a special three-judge panel of Recorder’s
Court was convened to consider the constitutionality of the
Michigan statutes prohibiting sale or possession of marijuana. On
April 17, 1968, the panel upheld the statutes against the
contentions that they violated the equal protection of the
laws;[fn3] denied defendant due process of law;[fn4] violated
rights of privacy retained by the people;[fn5] and that the
penalty provisions imposed cruel and unusual punishment.[fn6] Judge Robert J. Colombo, a member of the three-judge panel, in a
concurring opinion stated that he personally believed that there
was a question of whether defendant had been entrapped.[fn7] The
trial judge (Hon. Robert J. Colombo), on June
Page 100
23, upon motion of defense counsel, dismissed the count for
unlawful sale on the ground that the sale was entrapped by the
police officers.[fn8] Defendant was thereafter convicted of the
unlawful possession of marijuana based on the two cigarettes
introduced into evidence. The Court of Appeals affirmed the
conviction. 30 Mich. App. 473. We granted leave to appeal. 385 Mich. 786.

The Detroit Police Department Narcotics Bureau had instructed
Patrolman Vahan Kapagian and Policewoman Jane Mumford Lovelace to
assist in an investigation of illegal activities involving
narcotic violations in an area surrounding Wayne State University
and, in particular, an establishment known as the Artists’
Workshop which was located at 4863 John Lodge, in the City of
Detroit. Defendant Sinclair made his residence above the Artists’
Workshop, at 4867 John Lodge.

In pursuance of this assignment, Patrolman Kapagian grew a
beard and began to let his hair grow long, in late August 1966.
On October 18, 1966, using the aliases of Louis Cory and Pat
Green, the officers commenced their assignment. They continued
working until January 24, 1967, on this particular assignment.
The officers assisted in doing typing and other odd chores at the
Artists’ Workshop, including sweeping floors and collating
literature. They sat in at communal dinners and provided the food
for one of these dinners. They joined a group called LEMAR, which
advocated that marijuana be legalized. They listened to poetry
and helped in the preparation of certain literature. Patrolman
Kapagian visited the shop and saw defendant approximately two or
three times a week until the defendant’s
Page 101
arrest. As part of the assignment, Patrolman Kapagian took a job
at the Candle Shop. Patrolman Kapagian was equipped with a
porta-talk radio transmitter which allowed him to keep in contact
with other police officers stationed outside and nearby.

Patrolman Kapagian testified at the preliminary examination
that on two occasions prior to December 22, 1966, during the
investigation, the police officers asked defendant for marijuana.
He denied this at the trial, despite the fact that his testimony
to that effect at the preliminary examination was read to him
from the transcript. Policewoman Lovelace stated that she had
asked defendant on previous occasions to obtain marijuana for

Officer Kapagian testified that on December 22nd, at about 7
p.m., defendant appeared at the Workshop and following an
exchange of greetings, defendant asked whether they had received
any marijuana the previous night. The officers responded
affirmatively and stated that they were looking for some more. At
approximately 8:55 that evening, Kapagian told the defendant that
they had to leave and defendant asked them to accompany him
upstairs to his residence. Once inside the residence, the
officers were seated at the kitchen table. Defendant went to a
shelf and removed a brown porcelain bowl which he set down on the
table before him. Defendant took some cigarette paper and from
the contents of the bowl rolled a cigarette, which he gave to
Kapagian. Kapagian handed this cigarette to Lovelace, who
inserted it into a partially filled Kool pack. Defendant then
rolled a second cigarette, lit it, and handed it to Kapagian. The
officer said he did not want to smoke it then because he had to
drive and the cigarette would make him dizzy. Kapagian gave the
cigarette to Lovelace after defendant Sinclair
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had butted it. She placed the cigarette in the same Kool pack. At
that time they said they had to leave, and departed. Sinclair was
not arrested for committing a felony in the officers’ presence
because, as Kapagian stated, he did not want to tip his hand
since numerous arrests were to be made as the result of this

At the trial, the only witnesses were the two police
officers.[fn9] No corroborating evidence was introduced. Although
officer Kapagian was equipped in a manner to enable the
transmission of his conversation to other officers, no
arrangements were made to tape the conversations, which allegedly
occurred between defendant and the police officers. In addition,
officer Kapagian testified that he did not preserve his log book
for the year 1966 because he decided that it was not worth
saving. He did admit that if the log book had been preserved, the
presence or absence of entries relating to the transactions of
December 22nd and all previous transactions during the
investigation, would either confirm or disprove his testimony.

Prior to trial, the defendant made several motions to quash the
information and to exclude the marijuana cigarettes from
evidence. These were denied by the trial court.

Defendant raises ten issues on appeal, and the prosecutor lists
five. We will deal with two of these:

1) Whether the classification of marijuana as a narcotic under
MCLA 335.151 violates the equal protection of the laws under the
US Const, Am XIV, and
Page 103

2) Whether the two marijuana cigarettes should have been
excluded from evidence on the ground that they constituted
evidence obtained as the result of an illegal police entrapment?


It is not denied that the State of Michigan has the power to
pass laws against the sale and use of marijuana. Rather, the
issue is whether marijuana may be constitutionally classified as
a narcotic drug if, in fact, it is not a narcotic. A threshold
question is raised – and that is whether this Court has the power
to determine the actual state of facts concerning marijuana and
other drugs. It cannot be doubted that the judiciary has the
power to determine the true state of facts upon which a law is
based. Brown v Board of Education, 347 U.S. 483; 74 S Ct 686;
98 L Ed 873 (1954).

A trial court may take judicial notice of any records of the
court where it sits. Knowlton v Port Huron, 355 Mich. 448, 452
(1959). Moreover, it is clear that “an appellate court can
properly take judicial notice of any matter which the court of
original jurisdiction may take notice”. Pennington v Gibson,
57 US (16 How) 65, 14 L Ed 847 (1853).

Const 1963, art 6, § 1, provides:

“The judicial power of the state is vested exclusively in one
court of justice which shall be divided into one supreme court,
one court of appeals, one trial court of general jurisdiction
known as the circuit court, one probate court, and courts of
limited jurisdiction that the legislature may establish by a
two-thirds vote of the members elected to and serving in each
house.” (Emphasis added.)

As such, the records of all courts of this State may be
examined by the Supreme Court since they
Page 104
are all part of the record of the “one court of justice” of the
State of Michigan. Hence, in addition to the record made by the
court below, we may properly look at the evidence introduced and
the findings of fact made by the trial court in People v
Lorentzen, 387 Mich. 167 (1972).

We now turn to a comparison of the properties of marijuana and
the other drugs classified as narcotics under MCLA 335.151 et
seq.; MSA 18.1121 et seq.


Comparison of the effects of marijuana use on both the
individual and society with the effects of other drug use
demonstrates not only that there is no rational basis for
classifying marijuana with the “hard narcotics”, but, also, that
there is not even a rational basis for treating marijuana as a
more dangerous drug than alcohol. This is not to say that our
scientific knowledge concerning any of the mind-altering drugs is
at all complete. It is not.[fn10] Even our society’s vast
experience with the mind-altering effects of alcohol has not led
to complete scientific knowledge of that drug, as the Canadian
Government Commission of Inquiry pointed out:[fn11]

“Little is known as to the specific mechanism by which alcohol
produces its psycho-pharmacological action. As with most drugs,
alcohol effects, especially those resulting from low or moderate
amounts, depend to a large extent on the individual and the
situation in which the drinking occurs. A drink or two may
produce drowsiness and lethargy in some instances, while the same
quantity might
Page 105
lead to increased activity and psychological stimulation in
another individual, or in the same person in different
circumstances. Furthermore, a dose which is initially stimulating
may later produce sedation.”

Despite our lack of complete knowledge though, we do have
sufficient scientific knowledge to categorize drugs according to
their relative level of danger to both the individual and
society. Proceeding to a comparison of marijuana with other
mind-altering drugs, we find marijuana is a euphoria producing,
mind-altering drug, whose effects are generally obtained by
smoking, but can also be obtained by oral ingestion of the drug,
usually mixed with other food or drinks.[fn12] Coming from the
hemp plant, cannabis sativa, the psychoactive strength of the
drug varies greatly with the part of the plant used, quality of
the seed stock, and the growing conditions.[fn13]

The psychoactive ingredient of cannabis sativa has been
isolated as two isomers of tetrahydrocannabinol (THC, although
additional active ingredients of cannabis sativa may be
discovered and isolated in the future).[fn14] Thus the strength
of any
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given amount of marijuana depends primarily on the amount of THC
it contains. The ordinary street form of marijuana, commonly
available and used in the United States, is composed of the
leaves and flower clusters of the female plant, which are dried
and crushed to make up the variable strength mixture. The resin
from the flowering tops of the mature female plants is known as
hashish (charas in India) and is apparently the strongest form
of the naturally occurring drug because it contains the highest
concentration of THC. Hashish is as much as eight times as strong
as ordinary marijuana.[fn15]

Consideration of the scientifically observed physical and
psycho-motor effects of marijuana indicates that it is overall,
the least dangerous mind-altering drug. Observed physical effects
of marijuana use include dryness of mouth and throat, slight
increase in pulse rate, and slight conjunctival reddening of the
eyeball.[fn16] No known tolerance develops to marijuana – in fact
negative tolerance has been observed, that is, a decreased amount
of the drug taken on subsequent occasions produces the same level
of physical and euphoric effect.[fn17] No physical dependency is
produced by use of the drug and, hence, there are no withdrawal
symptoms or “abstinence
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syndrome” when the drug is unavailable to the user.[fn18]

No lethal dose for marijuana has been established.[fn19] The
lack of harmful physical effects from marijuana use has been well
summarized by Dr. Grinspoon in Marijuana Reconsidered (Bantam
ed 1971), p 60:

“What is so striking about the pharmacology of cannabis is that
it has such limited and mild effects on human nonpsychic
function. This is consistent with the equally striking
observation that there has never in its long history been
reported an adequately documented case of lethal overdosage. Nor
is there any evidence of cellular damage to any organ.”

Both the opiates and alcohol provide a dramatic contrast to the
lack of physical harmfulness of marijuana. With the opiates[fn20] high levels of tolerance develop,[fn21] severe physical addiction
results from repeated use,[fn22] and deaths resulting from
overdosage also occur.[fn23] Occasional social use of alcohol
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in moderate dosage as a mind-altering drug has few deleterious
physical consequences. However, tolerance does develop in alcohol
use and the drug is subject to a great, acute and chronic
abuse.[fn24] Acute alcohol abuse can lead to death from
overdosage.[fn25] In addition, chronic alcohol abuse leads to
alcoholism where a clear withdrawal syndrome is observable (an
easily discernible physical shaking and later delirium
tremens), and death of brain cells, mental deterioration, and
cirrohsis of the liver may occur.[fn26]

Damaging effects of alcohol on psychomotor coordination are so
well known as to need no documentation. The President’s
Commission on Law Enforcement and Administration of Justice,
Task Force Report: Drunkenness, commenting on alcohol, observed
that (p 39):

“There is probably no other area in the field of drug research
and related dangerous behavior where the role of a drug as a
precipitating factor in dangerous behavior is so clear.”

On the other hand, the evidence available concerning
marijuana’s effect on psychomotor functions seems to show very
little impairment, at least in experienced users.[fn27] Page 109

Psychological Effects:

Marijuana is a mild hallucinogen, which in view of its lack of
any other harmful effects, leads us to conclude that there is no
rational basis for penalizing it more severely than the other
hallucinogens (MCLA 335.106; MSA 18.1106). Indeed, mild
hallucinogenic effects are reported almost exclusively from use
of more potent hashish type preparations and rarely, if ever,
from the use of ordinary street variety marijuana. The Canadian
Commission Report states (pp 116-117):

“Cannabis is one of the least potent of the psychedelic drugs,
and some might object to its being classified with LSD and
similar substances. It is often suggested that marijuana is a
mild intoxicant, more like alcohol. * * * It would be incorrect
to say that cannabis in moderate dose actually produces a mild
LSD experience; the effects of these two drugs are
physiologically, behaviorally and subjectively quite distinct.
Furthermore, since no cross-tolerance occurs between LSD and THC
the mechanism of action of these two drugs is thought to be

The Canadian Commission Report comprehensively summarized the
various possible psychological effects of marijuana use as
follows (pp 117-118):

“A cannabis `high’ typically involves several phases. The
initial effects are often somewhat stimulating and, in some
individuals, may elicit mild tension or anxiety which usually is
replaced by a pleasant feeling of well-being. The later effects
usually tend to make the user introspective and
Page 110
tranquil. Rapid mood changes often occur. A period of enormous
hilarity may be followed by a contemplative silence.

“Psychological effects which are typically reported by users
include: happiness, increased conviviality, a feeling of enhanced
interpersonal rapport and communication, heightened sensitivity
to humour, free play of the imagination, unusual cognitive and
ideational associations, a sense of extra-ordinary reality, a
tendency to notice aspects of the environment of which one is
normally unaware, enhanced visual imagery, an altered sense of
time in which minutes may seem like hours, changes in visually
perceived spatial relations, enrichment of sensory experiences
(subjective aspects of sound and taste perception are often
particularly enhanced), increased personal understanding and
religious insight, mild excitement and energy (or just the
opposite), increased or decreased behavioral activity, increased
or decreased verbal fluency and talkativeness, lessening of
inhibitions, and at higher doses, a tendency to lose or digress
from one’s train of thought. Feelings of enhanced spontaneity and
creativity are often described, although an actual increase in
creativity is difficult to establish scientifically. While most
experts agree that cannabis has little specific aphrodisiac (sex
stimulating) effect, many users report increased enjoyment of sex
and other intimate human contact while under the influence of the

“Less pleasant experiences may occur in different individuals,
or possibly in the same individuals at different times. Some of
these reactions may include: fear and anxiety, depression,
irritability, nausea, headache, backache, dizziness, a dulling of
attention, confusion, lethargy, and a sensation of heaviness,
weakness and drowsiness. Disorientation, delusions,
suspiciousness and paranoia, and in some cases, panic, loss of
control, and acute psychotic states have been reported.”
Page 111

There is no reliable scientific evidence demonstrating that
chronic psychosis can be caused by marijuana use[fn28] in
dramatic contrast to the American experience with alcohol.[fn29] The argument that marijuana use causes or contributes to
assaultive crime is now largely discredited.[fn30] Again by
contrast, considerable evidence points to a substantial
connection between alcohol use and commission of violent

Finally, the “stepping stone argument” that marijuana use leads
to use of “hard narcotics” has no scientific basis. The
President’s Commission on Law Enforcement and Administration of
Justice, Task Force Report: Narcotics and Drug Abuse, found at
pp 13-14:

“The charge that marihuana `leads’ to the use of addicting
drugs needs to be critically examined. There is evidence that a
majority of the heroin users who come to the attention of public
authorities have, in fact, had some prior experience with
marihuana. But this does not mean that one leads to the other in
the sense that marihuana has an intrinsic quality that creates a
heroin liability. There are too many marihuana users who do not
graduate to heroin, and too many heroin addicts with no known
prior marihuana
Page 112
use, to support such a theory. Moreover there is no scientific
basis for such a theory. The basic text on pharmacology, Goodman
and Gilman, The Pharmacological Basis of Therapeutics
(Macmillan 1960) states quite explicitly that marihuana
habituation does not lead to the use of heroin.” (Emphasis

All of the preceding factual findings with respect to the
effects of marijuana use, are substantiated by the trial court’s
findings of fact made after five days of expert testimony in
People v Lorentzen, supra.

Virtually every major commission which has studied the effects
of marijuana use agrees that it is improperly classified with the
“hard narcotics”. The British Report found (pp 6-7):

“Having reviewed all of the material available to us we find
ourselves in agreement with the conclusion reached by the Indian
Hemp Drugs Commission appointed by the Government of India
(1893-1894) and the New York Mayor’s Committee on Marihuana
(1944), that the long-term consumption of cannabis in moderate
doses has no harmful effects.”[fn33]

Further, counsel for the people admitted in oral argument that
the differences between marijuana and the opiates call for
different classifications:

[fn1] MCLA 335.152; MSA 18.1122.[fn2] MCLA 335.153; MSA 18.1123.[fn3] US Const, Am XIV; Const 1963, art 1, § 2.[fn4] US Const, Am XIV; Const 1963, art 1, § 17.[fn5] US Const, Am IX.[fn6] US Const, Am VIII; Const 1963, art 1, § 16.[fn7] “My concurrence in the decision of the court on the issues
raised here are limited solely to the issues raised here, as
there appears to this writer to be another important legal issue
not raised in this opinion which may well apply to count one in
the people’s information, namely, sale and possession of
narcotics, and that is the issue of unlawful and illegal
entrapment, an issue which suggests itself to this writer and
which suggested itself to the learned assistant prosecuting
attorney who presented this case on behalf of the people at the
preliminary examination of the defendant Sinclair in this
matter.”[fn8] “We’ve talked a lot about it. It’s up to me to come to
grips with the problem. I hold that count one, Sale and/or
Dispensing of marijuana should be dismissed on the grounds of
entrapment.”[fn9] Defendant did not take the stand because the trial court
ruled on July 22nd that if he did testify he could be
cross-examined on his prior convictions.[fn10] People v McCabe, 49 Ill.2d 338; 275 N.E.2d 407, 409
(1971).[fn11] Interim Report of the Canadian Government Commission of
Inquiry, The Non-Medical Use of Drugs (Penguin ed 1970), pp
65-66 (hereinafter referred to as “Canadian Commission Report”).[fn12] The Illinois Supreme Court in People v McCabe, supra p
410, point out that knowledge concerning marijuana has been
developing rapidly in the last decade. For an example of a case
where the United States Supreme Court relied on the current
writing of authorities in a then rapidly developing field, see
Brown v Board of Education, 347 U.S. 483, 494, fn 11; 74 S Ct
686; 98 L Ed 873 (1954).

L. Grinspoon, M.D., Marijuana Reconsidered (Bantam ed 1971),
p 46.

[fn13] L. Grinspoon, M.D., Marijuana Reconsidered (Bantam ed
1971), pp 39-40.[fn14] Stipulated Findings of Fact (No 19) in People v
Lorentzen, supra, reads: “There is no proven relationship
between the use of marijuana and the use of heroin. As marijuana
use has increased greatly in American society, heroin addiction
in proportion to the population has remained essentially the
same, or only slightly increased.”

See, also, L. Grinspoon, M.D., Marijuana Reconsidered (Bantam
ed 1971), pp 47-61.

[fn15] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Narcotics and Drug
Abuse (1967), p 3: “Other derivatives of the hemp plant, such as
hashish, which are more potent than marijuana, are rarely found
in the United States.”

See, also, L. Grinspoon, M.D., Marijuana Reconsidered (Bantam
ed 1971), pp 41-43.

[fn16] People v Lorentzen, supra, Stipulated Findings of Fact
(No 8): “The major physical effect of THC that can be detected is
a marked increase in pulse rate.”

See, also, Canadian Commission Report, p 122.

[fn17] People v McCabe, supra, p 411; People v Lorentzen,
Stipulated Findings of Fact (No 4): “There is no currently known
tolerance to marijuana but the question is still under
investigation.” Canadian Commission Report, p 122.[fn18] People v Lorentzen, Stipulated Findings of Fact (No
5): “Marijuana does not produce physical dependency.”

Canadian Commission Report, p 123.

[fn19] People v McCabe, supra, p 411; People v Lorentzen,
Stipulated Findings of Fact (No 7): “Marijuana does not produce
death, even with a single large overdose, which is characteristic
of depressant drugs including alcohol.”[fn20] “These drugs are obtained from the juice of the unripened
seed pod of the opium poppy plant [papaver somniferum] soon after
the flower petals begin to fall – no other part of the plant
produces psychoactive substances.” Canadian Commission Report, p
147. Heroin, codeine and morphine are all processed derivatives
of opium. Isonipecaine and anileridine are synthetic “opiates”
whose physical effects and addictive liability are equivalent to
morphine. Stedman’s Medical Dictionary (1966), p 95.[fn21] Canadian Commission Report, p 43; Report by the Advisory
Committee on Drug Dependence, Cannabis, (Her Majesty’s
Stationery Office, London, 1968) p 14 (hereinafter referred to as
“British Report”).[fn22] Canadian Commission Report, pp 153-154; British Report, p
15.[fn23] Canadian Commission Report, p 151; British Report, p 14;
President’s Commission on Law Enforcement and Administration of
Justice, Task Force Report: Narcotics and Drug Abuse, p 54:
“One of the special features of the opiates (and certain other
mind-altering drugs such as barbiturates and some tranquilizers)
is that death may also be produced by not giving the drug. That
is the classical withdrawal or abstinence syndrome associated
with opiate deprivation in an organism which has been receiving
heavy doses of the opiate.”[fn24] Canadian Commission Report, pp 43, 70-72.[fn25] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Drunkenness
(1967), p 35.[fn26] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Drunkenness, p
35; J. Kaplan, Marijuana: The New Prohibition (Pocket Book ed
1971), pp 275-320, specifically p 318.[fn27] People v Lorentzen, supra, Stipulated Findings of Fact
(No 30): “It is a debatable and equivocal question as to whether
or not one under the influence of marijuana and driving on the
highway is a better or worse driver. The experienced marijuana
smoker performs as well under the influence of the drug he does
when he is not using it. The inexperienced user performs less

See, also, R. Bonnie and C. Whitebread, II, The Forbidden
Fruit and the Tree of Knowledge: An Inquiry into the Legal
History of American Marijuana Prohibition, 56 Va L Rev 971, 1107

[fn28] British Report, p 16.[fn29] Canadian Commission Report, p 69; President’s Commission
on Law Enforcement and Administration of Justice, Task Force
Report: Drunkenness (1967), p 35.[fn30] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Narcotics and Drug
Abuse (1967), p 25; British Report, p 16; Report of the Indian
Hemp Drugs Commission (1893-94), p 264; J. Kaplan, Marijuana:
The New Prohibition, pp 139-141; Bonnie and Whitebread, The
Forbidden Fruit and The Tree of Knowledge, p 1105.[fn31] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Drunkenness
(1967), p 41: “On the basis of the present data one can say that
there is a strong link between alcohol and homicide and that the
presumption is that alcohol plays a causal role as one of the
necessary and precipitating elements for violence.”[fn32] People v McCabe, supra, pp 412, 413. See, also,
British Report, pp 12-13.[fn33] People v McCabe, supra, p 411. Also, the British
Report concluded on the classification question (pp 20-21): “We
believe that the association of cannabis in legislation with
heroin and the other opiates is entirely inappropriate and that
new and quite separate legislation to deal specially and
separately with cannabis and its synthetic derivatives should be
introduced as soon as possible. We are also convinced that the
present penalties for possession and supply are altogether too
high.” (Emphasis added.)


If we have two extremes here, and not a gray area in the
middle, doesn’t that call for different classifications?
Page 113

“Assistant Prosecutor: I think it does, I think it does, and
I think every state in the country is graduating to that
particular state where they are now recognizing and they are
classifying marijuana in a separate statute. The government has
done so in its control and abuse act.”

Finally, Governor William Milliken, in his Special Message to
the Legislature on Alcohol and Drug Abuse (Mar 4, 1971),
recognized that the present classification of marijuana with the
opiates is irrational and provided an illuminating comment on the
relative danger of alcohol:

“As public officials, we must face squarely the need for a
major revision of our laws dealing with marijuana. The hypocrisy
of our present law, which falsely classifies marijuana as a
narcotic, affects the credibility of our entire drug abuse
program. Recent federal legislation and the passage of local
marijuana ordinances give new urgency to the need for state
action in this controversial area. * * *

“Alcohol continues to be a larger problem than drugs. It
accounts for more broken homes, wasted lives, accidental deaths,
and greater expense for society than any drug. It is an
established fact that alcohol can destroy brain tissues and cause
cirrhosis of the liver which ultimately produces death. A
significant portion of crime is committed by people under the
influence of alcohol and alcohol-related problems are estimated
to account for 15% to 25% of our welfare costs.” (Emphasis

The murky atmosphere of ignorance and misinformation which
casts its pall over the state and Federal legislatures’ original
classification of marijuana with the hard narcotics has been well
documented in the 250-page article by R. Bonnie and C.
Whitebread, II, The Forbidden Fruit and the Tree
Page 114
of Knowledge: An Inquiry into the Legal History of American
Marijuana Prohibition, 56 Va L Rev 971 (1970).[fn34]

We can no longer allow the residuals of that early
misinformation to continue choking off a rational evaluation of
marijuana dangers. That a large and increasing number of
Americans recognize the truth about marijuana’s relative
harmlessness can scarcely be doubted.[fn35]

The truth compels us to conclude at the minimum that marijuana
has been erroneously classified with
Page 115
the opiates, and thus it is clear that based on current
scientific knowledge, marijuana is not a narcotic drug.

Indeed, the Michigan legislature has recognized the erroneous
classification of marijuana as a narcotic by its passage of the
“Controlled Substances Act of 1971” (1971 PA 196; MCLA 335.301 to
335.367; MSA 18.1070[1] to 18.1070[67]), effective April 1, 1972,
which classifies marijuana as a distinct type of substance and
provides drastically reduced penalties for its sale and

We agree with the Illinois Supreme Court in People v McCabe,
supra, that marijuana is improperly classified as a narcotic and
hold that MCLA 335.151; MSA 18.1121, in its classification of
marijuana violates the equal protection clauses of the US Const,
Am XIV and Const 1963, art 1, § 2.[fn36]


Defendant contends that the two marijuana cigarettes should not
have been admitted into evidence because they were the result of
an illegal police entrapment. The prosecution asserts that the
two cigarettes were admissible because the defendant
Page 116
possessed them independently of the undercover officers’ request
for them.

The trial court ruled that the sale count should be dismissed
because the defendant had been entrapped into committing this
offense. Our Court has long recognized the defense of entrapment
and the public policy behind this rule. In Saunders v People,
38 Mich. 218 (1878), the Court reversed Saunders’ conviction for
breaking and entering by night a court room not connected with a
dwelling and “taking therefrom certain recognizances described as
contracts in force and public records.” The Court held:

“Decoying, or conniving with persons suspected of criminal
designs, for the purpose of arresting them in the commission of
the offense, is denounced by the Supreme Court.” (Syl 1.)

Justice COOLEY, writing for the Court, reversed on the grounds
that the testimony of a witness named Dunnebacke, should not have
been excluded. Two of the Justices held that the conviction
should be reversed because of impermissible police conduct.
Justice MARSTON stated (pp 221-222):

“I cannot, however, silently permit the extraordinary course
adopted by the police officers in this case to pass unnoticed and
uncondemned. * * *

“The course pursued by the officers in this case was utterly
indefensible. Where a person contemplating the commission of an
offense approaches an officer of the law, and asks his
assistance, it would seem to be the duty of the latter, according
to the plainest principles of duty and justice, to decline to
render such assistance, and to take such steps as would be likely
to prevent the commission of the offense, and tend to the
elevation and improvement of the would-be criminal, rather than
to his farther debasement. Some courts have gone a great way in
giving encouragement to detectives, in some very
Page 117
questionable methods adopted by them to discover the guilt of
criminals; but they have not yet gone so far, and I trust never
will, as to lend aid or encouragement to officers who may, under
a mistaken sense of duty, encourage and assist parties to commit
crime, in order that they may arrest and have them punished for
so doing. The mere fact that the person contemplating the
commission of a crime is supposed to be an old offender can be no
excuse, much less a justification for the course adopted and
pursued in this case. If such were the fact, then the greater
reason would seem to exist why he should not be actively assisted
and encouraged in the commission of a new offense which could in
no way tend to throw light upon his past iniquities, or aid in
punishing him therefor, as the law does not contemplate or allow
the conviction and punishment of parties on account of their
general bad or criminal conduct, irrespective of their guilt or
innocence of the particular offense charged and for which they
are being tried. Human nature is frail enough at best, and
requires no encouragement in wrong-doing. If we cannot assist
another and prevent him from violating the laws of the land, we
at least should abstain from any active efforts in the way of
leading him into temptation. Desire to commit crime and
opportunities for the commission thereof would seem sufficiently
general and numerous, and no special efforts would seem necessary
in the way of encouragement or assistance in that direction.”

Chief Justice CAMPBELL stated (p 223):

“[T]he encouragement of criminals to induce them to commit
crimes in order to get up a prosecution against them, is
scandalous and reprehensible.”

Two theories have been advanced concerning the issue of
entrapment. The first view was articulated
Page 118
by Chief Justice Hughes in Sorrells v United States,
287 U.S. 435, 451; 53 S Ct 210; 77 L Ed 413 (1932), when he stated:

“[T]he defense of entrapment is not simply that the particular
act was committed at the instance of government officials. That
is often the case where the proper action of these officials
leads to the revelation of criminal enterprises. * * * The
predisposition and criminal design of the defendant are relevant.
But the issues raised and the evidence adduced must be pertinent
to the controlling question whether the defendant is a person
otherwise innocent whom the Government is seeking to punish for
an alleged offense which is the product of the creative activity
of its own officials. If that is the fact, common justice
requires that the accused be permitted to prove it. The
Government in such a case is in no position to object to evidence
of the activities of its representatives in relation to the
accused, and if the defendant seeks acquittal by reason of
entrapment he cannot complain of an appropriate and searching
inquiry into his own conduct and predisposition as bearing upon
that issue.”

In Sherman v United States, 356 U.S. 369; 78 S Ct 819; 2 L Ed
2d 848 (1958), the majority of the Court adopted the position of
Chief Justice Hughes in Sorrells, supra. Thus, according to the
majority view, whenever the defense of entrapment is raised, the
court must look at 1) the conduct of the police, and 2) the
predisposition of the defendant. The second view was stated by
Justice Roberts in Sorrells (pp 458-459):

“It has been generally held, where the defendant has proved an
entrapment, it is permissible for the government to show in
rebuttal that the officer guilty of incitement of the crime had
reasonable cause to believe the defendant was a person disposed
to commit
Page 119
the offense. This procedure is approved by the opinion of the
court. The proof received in rebuttal usually amounts to no more
than that the defendant had a bad reputation, or that he had been
previously convicted. Is the statute upon which the indictment is
based to be further construed as removing the defense of
entrapment from such a defendant?

“Whatever may be the demerits of the defendant or his previous
infractions of law these will not justify the instigation and
creation of a new crime, as a means to reach him and punish him
for his past misdemeanors. He has committed the crime in
question, but, by supposition, only because of instigation and
inducement by a government officer. To say that such conduct by
an official of government is condoned and rendered innocuous by
the fact that the defendant had a bad reputation or had
previously transgressed is wholly to disregard the reason for
refusing the processes of the court to consummate an abhorrent
transaction. It is to discard the basis of the doctrine and in
effect to weigh the equities as between the government and the
defendant when there are in truth no equities belonging to the
latter, and when the rule of action cannot rest on any estimate
of the good which may come of the conviction of the offender by
foul means. The accepted procedure, in effect, pivots conviction
in such cases, not on the commission of the crime charged, but on
the prior reputation or some former act or acts of the defendant
not mentioned in the indictment.”

In Sherman, supra, Justice Frankfurter, writing for four
justice of the Court, adopted the views advanced by Justice
Roberts in Sorrells, supra.

The factual situation confronting us here demonstrates the
practical problems that arise when the majority test is employed.
The basis of the entrapment defense is that the methods used by
the police
Page 120
are repugnant to fair play and justice. As the court stated in
United States v Chisum, 312 F. Supp. 1307, 1312 (CD Cal, 1970):

“Entrapment is indistinguishable from other law enforcement
practices which the courts have held to violate due process.
Entrapment is an affront to the basic concepts of justice. Where
it exists, law enforcement techniques become contrary to the
established law of the land as an impairment to due process.”

In an attempt to discourage these practices and uphold “public
confidence in the fair and honorable administration of justice”
(Sherman v United States, supra, p 380 [Frankfurter, J.]),
courts refuse to allow convictions based on entrapment. Thus,
when the trial court ruled as a matter of law that the defendant
was entrapped into giving the two cigarettes to the police
officers, count one, sale, was dismissed and the police were
prevented from obtaining a conviction based on their
reprehensible methods.

However, the defendant was still prosecuted for possession. The
two marijuana cigarettes obtained purely as a result of illegal
police conduct were the sole basis of defendant’s conviction. To
allow the conviction to stand, based on this evidence, is to
subvert the public policy rule behind the entrapment defense. If
the conviction stands, the police can ignore with impunity the
doctrine of entrapment in narcotic cases. Citizens could be
enticed and entrapped to give marijuana to police undercover
agents, using methods condemned by the Courts of this state and
our sister states.[fn37] While a court
Page 121
might dismiss the information based on sale, it would still allow
the evidence obtained by repugnant methods to be used as the
basis of a conviction for possession.

In other areas of the law, the Courts have fashioned
exclusionary rules against the use of evidence obtained by means
of illegal police conduct. Mapp v Ohio, 367 U.S. 643; 81 S Ct
1684; 6 L Ed 2d 1081; 84 ALR2d 933 (1961); Miranda v Arizona,
384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

The people contend that the exclusionary rules set out in
Mapp and Miranda are not applicable to this case because they
involve specific constitutional rights.[fn38] However, there are
examples of both state and Federal cases where exclusionary rules
have been fashioned under the general supervisory powers of the

To illustrate, in McNabb v United States, 318 U.S. 332; 63 S
Ct 608; 87 L Ed 819 (1943), the United States Supreme Court
excluded from evidence a confession obtained from defendant.
Although the Court held that the confession was not involuntary
in the sense that it was factually incorrect, nevertheless the
Court felt that it should not be allowed into evidence because to
do so would be to countenance reprehensible methods of
interrogation. The court based this on its specific supervisory
powers over procedure in Federal courts.

Likewise in a situation analagous to McNabb, our Court
applied the same rule depending on its supervisory powers over
the courts in People v Hamilton,
Page 122
359 Mich. 410, 411 (1960). In Hamilton, Justice BLACK, speaking
for a unanimous Court, relied on United States Supreme Court
cases which stated:

“`The aim of the requirement of due process is not to exclude
presumptively false evidence, but to prevent fundamental
unfairness in the use of evidence whether true or false.’
Lisenba v California, 314 U.S. 219, 236 (62 S Ct 280, 86 L ed
166 [1941]), quoted in Blackburn v Alabama, 361 U.S. 199 (80 S
Ct 274, 280, 4 L ed 2d 242, 248 [1960]).”

Const 1963, art 6, § 5, grants to this Court general
supervisory powers over the practice and procedure in this
case.[fn39] The excesses of police conduct which the Court in
Hamilton, supra, held justified exclusion of evidence, were
also present in this case. The trial court found as a matter of
law that defendant was entrapped into the sale. This case is
distinguishable from other entrapment cases where the courts did
not exclude the evidence.[fn40] We are dealing with a limited
factual situation. This occurs when a trial court has ruled as a
matter of law that a defendant was entrapped into the sale of
marijuana or narcotics. In such circumstances, we hold that the
evidence thus obtained through the illegal entrapment cannot be
used to prosecute a defendant for possession of marijuana or

In the case at bar, the trial court determined that defendant
was entrapped into the sale of marijuana.
Page 123
The same police misconduct (ante pp 100-102) that occurred in
the sale of the marijuana was also involved in the possession.
Defendant did not volunteer the two cigarettes to the undercover
agents; he only gave the cigarettes to them after repeated
requests by the officers, who had deceived him over a lengthy
period of time.

We hold that on the facts of this case the two marijuana
cigarettes should not have been admitted into evidence. The
judgment is reversed and the defendant is discharged.

[fn34] The unavailability of the Indian Hemp Drugs Commission
Report and the general lack of information upon which most
legislatures criminalized marijuana is pointed out by J. Kaplan’s
introduction to the 1969 reprint of the Report of the Indian
Hemp Drugs Commission 1893-1894, vii-xiii (Jefferson ed 1969).[fn35] People v Lorentzen, supra, Stipulated Findings of Fact
Nos 37-42: “From the general public standpoint, the general
marijuana user would require no treatment at all. Most marijuana
users do not have problems that would require any treatment from
a medical or psychiatric point of view. Those that seek help
because they have had an adverse reaction to marijuana or because
they think they are using too much of the drug ordinarily need
some guidance and some support and not much else. The majority of
current marijuana users are using but not abusing the drug in the
sense that one would normally think of dangerous drug abuse. To
say that marijuana is an absolutely harmless drug is untrue, on
the other hand to say it is a horrendous drug is equally untrue.
Marijuana is a drug with potential dangers for some people when
taken in conventional doses. Marijuana is safe for most people in
conventional doses. Occasional, recreational use of marijuana for
most individuals will be a pleasurable experience, involving no
adverse reactions. The vast majority of recreational marijuana
users will emerge from their drug experience without any apparent
harm, either to themselves or to society.”

J. Kaplan, in “Marijuana: The New Prohibition,” p 338,
stated: “Another attempt to measure the deterrent effect of the
marijuana laws was a careful study by two law students, Ellen
Green and Bruce Blumberg, who sampled the student body at the
University of California Law School at Berkeley. They found that
seventy-three percent of this student body had used marijuana, a
figure that is quite striking when one considers that law
students would be expected to be among the most deferrable
members of our society. Being involved in the law, they are more
likely to know of its consequences; studying for a profession
that regards moral character as one of its prerequisites, they
would be risking more than arrest or imprisonment if detected
using marijuana; and, finally, at least most observers have
considered lawyers and law students to be among the more
conservative and cautious groups of our student population.”

fn36] The decision today does not mean that persons arrested for
sale or possession or marijuana cannot be prosecuted under the
laws of the State of Michigan. Until April 1, 1972, the effective
date of 1971 PA 196, prosecutions must be commenced under MCLA
335.106; MSA 18.1106, which reads:

“Any person who violates any of the provisions of this act is
guilty of a misdemeanor, and upon conviction shall be subject to
a fine of not more than $500.00, or imprisonment in the county
jail not more than 1 year, or both such fine and imprisonment in
the discretion of the court. Any person, firm, partnership,
association or corporation who sells, offers for sale, barters or
otherwise disposes of or is in possession of d-lysergic acid
diethylamide, peyote, mescaline and its salts,
dimethyltryptamine, silocyn, or psilocybin or any salt or
derivative of any of the aforementioned substances or any other
drug possessing similar hallucinogenic properties is guilty of a
felony unless in accordance with the federal food, drug and
cosmetics act.”

[fn37] For examples of cases where the Courts have condemned the
use of entrapment, see People v McCord, 76 Mich. 200, 205-206
(1889); People v Pinkerton, 79 Mich. 110 (1889); United
States v Adams, 59 F 674 (D Ore, 1894); Woo Wai v United
States, 223 F 412, 415 (CA 9, 1915); Butts v United States,
273 F 35, 37-38 (CA 8, 1921); State v Neely, 90 Mont. 199;
300 P. 561 (1931), and Evanston v Meyers, 70 Ill. App. 205, 207
(1897).[fn38] Mapp involved the Fourth Amendment right to be free from
unreasonable search and seizure. Miranda involved the Fifth
Amendment right of freedom from self-incrimination and the right
to counsel in criminal proceedings guaranteed by the Sixth
Amendment.[fn39] “The supreme court shall by general rules establish,
modify, amend and simplify the practice and procedure in all
courts of this state. The distinctions between law and equity
proceedings shall, as far as practicable, be abolished. The
office of master in chancery is prohibited.”[fn40] In none of the cases cited by the people did the police
engage in their efforts of entrapment over a prolonged period of
time. See People v McIntyre, 218 Mich. 540 (1922); People v
Murn, 220 Mich. 555 (1922); People v Christiansen, 220 Mich. 506
(1922); People v England, 221 Mich. 607 (1923), and
People v Smith, 296 Mich. 176 (1941).

WILLIAMS, J. (for reversal).

This is an opinion concerning a problem whose time has come.
The name in the entitling is happenstance as the defendant could
have been any mother’s son or daughter.

The specific issue this opinion will consider is whether the
categorization of marihuana in 1929 PA 310[fn1] along with the
“hard drug” narcotics such as heroin, cocaine, and opium with the
same penalty is denial of equal protection of the law because of
unreasonable classification.

The defendant raised other issues such as entrapment and cruel
and unusual punishment but inasmuch as the issue of equal
protection is dispositive of the case neither those issues nor
the factual details supporting them will be here considered. My
Brother T.E. BRENNAN’S opinion concerning the issue of cruel and
unusual punishment is well-reasoned, and I am in agreement with
it as far as it goes, but it goes only to the length of
defendant’s sentence, not to his conviction.
Page 124

For the purposes of this opinion the facts of the case are that
the defendant prepared two marihuana cigarettes from a jar in his
private quarters and handed them to two undercover police
personnel. The defendant was subsequently charged on separate
counts with sale and with possession of marihuana, the charge of
sale being dismissed by the trial court because of entrapment.
Defendant was tried, convicted, and sentenced to 9-1/2 to 10
years in prison.

The Court of Appeals affirmed the defendant’s conviction in
People v Sinclair, 30 Mich. App. 473 (1971). This Court granted
the defendant’s application for leave to appeal on September 1,

The Michigan statute penalizing the possession of marihuana is
MCLA 335.153; MSA 18.1123. It was one of a number of state acts
of similar type passed around the time of the passage of the
Marihuana Tax Act in 1937.[fn2]

At the time of passage of the Marihuana Tax Act of 1937,
marihuana was linked with heroin and other so-called “hard drugs”
based on testimony indicating that marihuana was similarly
dangerous. For example, in his testimony before the House Ways
and Means Committee, Narcotics Commissioner Harry J. Anslinger
relied on a number of authorities including a paper by Dr. Frank
R. Gomila, at that time Commissioner of Public Safety of the City
of New Orleans, and Miss Madeleine Gomila, Assistant City
Chemist. That paper among other things said “we find that in
comparison with other important habit-forming drugs, heroin,
morphine, opium, and cocaine, marihuana has an established
Page 125
Taxation Of Marihuana-Hearings Before The Committee On Ways And
Means, House of Representatives, 75th Cong. 1st Session on H.R.
6385, 1937, p 35.

The Commissioner made further points which are summarized by
the Congressional Research Service (LRS, 13) as follows:

“1. A person under the influence of marihuana is dangerous
behind the wheel of an automobile or while performing other
functions which require coordination and judgment.

2. A habitual marihuana user is liable to commit a violent
crime while under the influence of the drug.

3. Prolonged use of marihuana may produce `mental
deterioration’ or even lead to insanity.

4. The drug may `operate to destroy the will’ and `gradually
weaken physical powers.’”

Based on such data it may not have been unreasonable for the
Congress and the state legislatures at that time to have passed
legislation coupling marihuana with opium and similar “hard
drugs” in penal offenses. However, the situation today is quite
the opposite. While experts cited in the briefs and appendices
for plaintiff, defendant and amici curiae are not in complete
agreement as to the exact properties of marihuana, it is quite
clear that today few, if any, responsible experts would classify
marihuana in the same category with opium and similar “hard
drugs.”[fn3] Page 126

The United States Congress, particularly the House of
Representatives, has been especially concerned with the
properties and effects of marihuana, apparently in connection
with H.R. 14012, a bill to provide for the establishment of a
commission on marihuana. Stanley F. Yolles, M.D., Director of the
National Institute of Mental Health appeared before the
Sub-Committee on Public Health and Welfare of the Interstate and
Foreign Commerce Committee on September 17, 1969, more than two
years ago to testify on this general subject. His testimony
establishes quite clearly that “in the past, dangerous drugs were
grouped arbitrarily, sometimes by historical accident rather than
with regard for their differing characteristics and their
specific and distinct effects”. He then went on to outline as
well the
Page 127
present significant knowledge concerning the characteristics of
marihuana. This Court can certainly take judicial notice that the
characteristics of marihuana are quite different from narcotic
drugs like heroin.