Michigan high court says smell of marijuana alone can no longer justify police search

LANSING, Mich. — The Michigan Supreme Court knocked down a 25-year-old precedent Wednesday, deciding that the smell of marijuana should no longer independently provide law enforcement with probable cause to search a vehicle after state voters broadly legalized pot in 2018.

In a 5-1 decision, the court determined that the search of a Jeep Cherokee conducted by police officers in Detroit in 2020 was unconstitutional because the alleged basis for the officers’ search was the smell of marijuana.

"We agree with the Court of Appeals that in light of the voters’ intent to legalize marijuana usage and possession, the smell of marijuana, standing alone, no longer constitutes probable cause sufficient to support a search for contraband," Justice Megan Cavanagh wrote for the majority.

Three other Democratic-nominated justices signed on to Cavanagh's opinion, along with Republican-nominated Chief Justice Elizabeth Clement. Democratic-nominated Justice Kimberly Thomas, who was elected in November, did not participate because the case was considered before she took office.

Republican-nominated Justice Brian Zahra wrote a dissenting opinion, arguing a lower court error opened the possibility that other evidence supported the search of the vehicle.

Federal law still criminalizes the possession of any amount of marijuana, classifying it as a Schedule I drug. Possession of pot can start as a federal misdemeanor punishable by a fine, but the penalties can quickly escalate to prison time with additional charges, if an individual is dealing it and depending on the amount involved.

The case centered on three criminal charges, including being a felon in possession of a firearm, brought against Jeffery Armstrong in Wayne County after police searched a vehicle he was in and found a handgun under his seat. A police corporal had approached Armstrong's vehicle after smelling the scent of burnt marijuana, according to the Michigan Supreme Court opinion.

Prosecutors contended that under the 2000 Michigan Supreme Court decision in People v. Kazmierczak, officers had probable cause to search the Jeep Cherokee after smelling marijuana.

But in the new ruling, Cavanagh wrote that under the subsequent voter-approved legalization of recreational marijuana, "the smell of marijuana might just as likely indicate that the person is in possession of a legal amount of marijuana, recently used marijuana legally or was simply in the presence of someone else who used marijuana."

"Something more," such as an officer observing someone was intoxicated or seeing smoke, would be needed to support a finding of probable cause to trigger the search of a vehicle, added the justice, who was elected in November 2018.

"The presence of other inculpatory facts that suggest not only the illegal use of marijuana but, importantly, the where, when, and who of that use, is critical to determining whether probable cause exists to support a search," Cavanagh said.

The Wayne County prosecutor's office disagreed with the Supreme Court's decision in a statement to The Detroit News, contending a reexamination of the 25-year-old precedent wasn't necessary.

“It has been our position that this case did not require the court to reexamine Kazmierczyk since the recovery of the firearm was not a result of a search based upon the odor of marijuana. Unfortunately, the Supreme Court majority viewed the factual record differently," Chief of Appeals Jon Wojtala said.

In general, police can search vehicles without a warrant if they are readily mobile and probable cause exists to believe they contain contraband.

Cavanagh noted the Armstrong case was the first time the state's highest court had the opportunity to consider the continuing viability of the Kazmierczak rule following the passage of the 2018 marijuana proposal.

Mike Nichols, a defense attorney based in East Lansing, said the ability to use marijuana smell as a sole basis for probable cause under the Kazmierczak case frustrated defense attorneys because an officer's contention that the odor was present is subjective and difficult to disprove.

"For a long time, it was the bane of criminal defense attorneys," he said.

Nichols explained the court's decision in the Armstrong case doesn't bar law enforcement officers from using the smell of pot as a basis for probable cause, but the opinion ensures it has to be coupled with other observations, such as poor driving, the vehicle drifting out of its lane or the person not answering questions coherently.

"Other things have to be put into that basket of probable cause. The smell alone is not enough to satisfy that," Nichols said.

The Coalition To Regulate Marijuana Like Alcohol measure passed with 56% support among Michigan voters in November 2018. Through its Wednesday ruling, the Michigan Supreme Court upheld the Court of Appeals' dismissal of charges against Armstrong.

Matthew Abel, a lawyer who’s worked exclusively on cannabis cases for two decades in Michigan, said the Supreme Court's decision was "a long time coming" and should be celebrated for its protection of people's rights.

"I think that’s the right decision," Abel said. "It’s nice to have honesty in the courts.”

Before Michigan voters approved medical marijuana in 2008, police searches based solely on the smell of marijuana were routine, Abel said. But since the 2008 vote, the practice, which he labeled a vestige of marijuana prohibition, had been controversial, Abel said.

However, Zahra wrote that he disagreed with the majority's finding that the Kazmierczak rule had no continuing application during an era of legalized marijuana. Operating a vehicle while under the influence of marijuana remained a crime, the lone dissenter wrote.

"True enough, evidence of the mere possession or use of marijuana no longer automatically suggests criminal activity in the same way that it did when we decided Kazmierczak," added Zahra, who was appointed to the court in January 2011 and was reelected twice. "But marijuana use can still be criminal in numerous situations, particularly in relation to motor vehicles."

Zahra also said "lower courts' errors" left open the possibility that the smell of marijuana wasn't the only valid evidence supporting a search of Armstrong's vehicle in 2020. Zahra said he would have sent the case back to a lower court for a new ruling.

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(Detroit News staff writer Julia Cardi contributed to this story.)

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