With decriminalization, the [normal] smell of marijuana coming from a car is no longer probable cause. Also, defendant was seized when he was directed out of his vehicle and a bunch of law enforcement officers were waiting for him. People v. Armstrong, 2022 Mich. App. LEXIS 6987 (Nov. 22, 2022):
Passage of the MRTMA decriminalized possession and use of marijuana in Michigan. We conclude that this action changed the law concerning possession and use of marijuana, superseding otherwise-binding decisions that the smell of marijuana, without more, provides probable cause to search for marijuana. Therefore, in light of the MRTMA, we conclude that Kazmierczak no longer governs our analysis of whether the smell of marijuana, standing alone, constitutes probable cause to search for that substance. See id. at 45-46 n 11. As a result, we must chart our own path across the new legal landscape created by the MRTMA.
The advent of marijuana decriminalization has spawned conflicting approaches to analysis of the smell of marijuana in the calculus of probable cause. The emerging majority approach holds that, after decriminalization of marijuana, the smell of marijuana, standing alone, does not establish probable cause for a search of a vehicle or a command to the occupants to get out the vehicle. See, e.g., Commonwealth v Cruz, 459 Mass 459, 472; 945 NE2d 899 (2011); People v Johnson, 50 Cal App 5th 620, 629; 264 Cal Rptr 3d 103 (2020). … We conclude that this action changed the law concerning possession and use of marijuana, superseding otherwise-binding decisions that the smell of marijuana, without more, provides probable cause to search for marijuana. Therefore, in light of the MRTMA, we conclude that Kazmierczak no longer governs our analysis of whether the smell of marijuana, standing alone, constitutes probable cause to search for that substance. See id. at 45-46 n 11. As a result, we must chart our own path across the new legal landscape created by the MRTMA.
The prosecution has anticipated our middle-ground approach by contending that additional facts coupled with the smell of marijuana constituted probable cause to justify removing defendant from the Jeep and searching the vehicle without a warrant. Specifically, the prosecution points out that: (1) defendant’s hands were shaking when the police spoke with him; (2) he gave inconsistent answers about where he lived; and (3) he leaned down as Corporal Eaton approached the vehicle. But those facts identified as suspicious by the prosecution all surfaced after Armstrong was seized when the parked Jeep was boxed in by the officers on the scene. Anthony, 327 Mich App at 40 (“only if officers completely block a person’s parked vehicle . . . is the person seized”). Therefore, the trial court correctly found that “Corporal Eaton approached the parked car that Armstrong was in and she did so solely on the basis that she smelled marijuana emanating from the vehicle.” (Emphasis added.) Accordingly, although we readily acknowledge that the smell of marijuana—like many other factors—can be considered in the calculus of probable cause, Moorman, 331 Mich App at 487-488, no other factor may be permissibly considered in this case to decide whether law-enforcement officers had probable cause to seize defendant and search the Jeep. For that reason, we conclude that the trial court properly determined that defendant was unconstitutionally seized, so all of the evidence obtained after that unconstitutional seizure must be suppressed. officer detects an odor of marijuana emanating from the vehicle [if] marijuana in any amount remains contraband[.]” See Robinson v State, 451 Md 94, 99; 152 A3d 661 (2017). But the most persuasive approach comes from the courts that have staked out the middle ground by concluding that “the smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances established probable cause to permit a police officer to conduct a warrantless search of a vehicle” or to seize a driver or passenger found in the vehicle. Commonwealth v Barr, 258 Md. 363, 266 A.3d 25, 28 (Pa 2021). Under this approach, “the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination[,]” People v Zuniga, 2016 CO 52, 372 P3d 1052, 1054 (Colo 2016), but the smell of marijuana, by itself, does not give rise to probable cause unless it is combined with other factors that bolster the concern about illegal activity that may flow from the smell of marijuana. We adopt this middle-ground approach as the most compatible with Michigan law in the wake of the passage of the MRTMA. See Moorman, 331 Mich App at 487-488.