Feb. 9 2011 12:00 AM

The Tri-County Metro Narcotics Squad raids a medical marijuana growing operation that might be two plants over the state limit. Small stuff — yet the narcs call the feds. Why?

On the morning of Dec. 7, Deputy James Every of the Tri-County Metro Narcotics Squad found 146 cannabis plants growing in a basement of a house five miles west of Mason.

But instead of confiscating the plants and arresting the two growers who showed them to him, Every called in the federal Drug Enforcement Agency.

Since then, federal marijuana charges have been brought against Randall Lloyd Darling and Joseph David Johnson, the two growers who showed Every the plants. They face a minimum of five years in prison for growing more than 100 cannabis plants. Johnson’s lawyer says Johnson and Darling were both medical marijuana patients and caregivers, operating legally within the state statute.

But Tri-County, the DEA and the U.S. District Attorney’s Office are not saying why Tri-County would come investigate a grow operation and then turn to the DEA to finish it up.

Ingham County Prosecutor Stuart Dunnings said his office was not involved with Tri-County’s actions. He said that if Tri-County was to come across a grow operation that is legal in Michigan but against federal law, they can call in the feds.

“If they stumble across what they believe is a federal offense, they have sole discretion to hand it over as a federal matter,” Dunnings said.

So now potentially legal growers must concern themselves with violating federal laws? Dunnings suggests there may be some sort of plant “threshold” at which the DEA decides to take a case, but he did not offer a specific count.

“Apparently whatever these people were doing was in violation of federal law,” he said. “They must be in violation of the criteria the DEA has set up.”

Kris Hermes, a spokesman for the national cannabis advocacy group Americans for Safe Access, has watched this go on since the years of former President George W. Bush. He said it depends on the local law enforcement agency’s attitude toward medical marijuana. It ranges from local police encouraging DEA involvement to perhaps the two sharing services, Hermes said.

“In other cases, the DEA acts alone and doesn’t even inform local law enforcement on an investigation,” he said. But he added that a “vast majority” of raids occur with cooperation between the DEA and local law enforcement.

“Unfortunately in some places, local law enforcement can’t seem to get enough evidence of wrongdoing, and they will turn to the federal government knowing they can prosecute and often convict,” Hermes said.

An account by DEA special agent Scott Syme details what happened before his team raided the house.

On the morning of Dec. 7, the Michigan State Police Fugitive Team arrived at 4942 Nichols Road about five miles west of Mason. The team was acting on information that by growing pot Darling was violating probation stemming from a Clare County conviction on a felony weapons charge. Darling was less than two months into a one-year probation after he was convicted of carrying a concealed weapon without a permit. His probation conditions include not violating any criminal laws and not using or possessing controlled substances.

As the grow was discovered, the State Police called the Ingham County Sheriff ’s Department, which then called the Tri-County Metro Narcotics Squad to investigate.

Every of Tri-County arrived at about 9:20 a.m. Darling and Johnson showed him 146 plants growing in two separate rooms in the basement. Every also “observed a gallon size zip lock baggie containing suspected marijuana along with a trash bag of clippings,” according to Syme’s statement.

From there, the DEA executed a federal search warrant and confiscated the plants and growing equipment.

Darling may have violated his probation by growing medical marijuana, but that remains to be seen. John Cordell, a spokesman with the state Department of Corrections, said Darling’s probation conditions have not changed since he first began monitoring in October.

Bob Baldori — Darling’s attorney — has said both men are medical marijuana patients and caregivers for their maximum five patients. While that could only allow them to grow 144 plants together, Baldori believes more caregivers were operating out of the house. Attempts to reach Darling’s attorney Jack Vogl were unsuccessful.

Hermes said sometimes the DEA will raid a growing facility or dispensary but not bring forth any charges. That is the case for a group of caregivers who were raided for growing more than 400 plants in Okemos on Nov. 30.

But don’t expect the DEA to answer for itself, Hermes said.

“The federal government never has to go to the extent of validating their claims,” he said. “When you prosecute someone in federal court, you can unfortunately keep out any reference to medical marijuana.”

About five years ago, the U.S. Supreme Court ruled in U.S. vs. Oakland Cannabis Buyers’ Cooperative that being licensed to grow medical marijuana is not a legitimate defense in federal court. “The issue of whether or not this person was in compliance with state law never comes up,” Hermes said.

A trial for Darling and Johnson is scheduled to begin April 5 in the U.S. Western District Court in Grand Rapids.