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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)