MI: Smell of MJ from a vehicle no longer PC

In Michigan, because of legalization of recreational marijuana the smell of marijuana from a vehicle is no longer probable cause to search. People v. Armstrong, 2025 Mich. LEXIS 583 (April 2, 2025). From the court’s syllabus:

The Kazmierczak rule that the smell of marijuana alone is sufficient to support a finding of probable cause to believe a crime was being committed is no longer good law in light of the MRTMA. Instead, the appropriate rule is that the smell of marijuana is one factor that may play a role in the probable-cause determination. Because the officers in this case lacked probable cause, the automobile exception to the warrant requirement did not apply. Moreover, even if the smell of marijuana gave the officers reasonable suspicion to detain and investigate defendant, the trial court did not clearly err when it concluded that the gun was discovered during a search based on the smell of burnt marijuana, not because it was seized while in plain view. A warrantless search must be based on probable cause, and the smell of marijuana is insufficient to support probable cause. Accordingly, the Court of Appeals correctly affirmed the trial court’s suppression order and dismissal of the charges.

1. A search is constitutionally reasonable where the police possess a warrant or the search falls within one of the well-established exceptions to the warrant requirement. In this case, the police relied on the automobile exception, which allows the police to conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe it contains contraband, and on Kazmierczak, which held that the smell of marijuana alone supplied probable cause in this context. When Kazmierczak was decided in 2000, Michigan law criminalized the possession, use, and transportation of marijuana without exception. Since then, the citizens of Michigan passed both the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., which authorized qualified patients to possess and use, and registered caregivers to cultivate and possess, marijuana for medicinal purposes, and also the MRTMA, the intent of which was to generally decriminalize the use and possession of marijuana in the state of Michigan. In light of these statutory changes, although certain conduct related to marijuana use is still prohibited, the smell of marijuana, standing alone, no longer constitutes probable cause sufficient to support a search for contraband. Because the alleged basis for the officers’ search of the automobile in this case was the smell of marijuana standing alone, the search was not constitutional under the automobile exception to the warrant requirement.
2. The prosecution also argued that the officers performed a valid investigatory stop under Terry based on reasonable suspicion of criminal activity, during which the police seized the gun observed in plain view. Although reasonable suspicion requires a lesser showing than probable cause, it still entails something more than an inchoate or unparticularized suspicion or hunch, and it must be evaluated by considering the totality of the circumstances. The plain-view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item’s incriminating character is immediately apparent. The trial court did not err by ruling that defendant was seized when the vehicle he was seated in was surrounded by several police officers and that, at the moment he was seized, the justification for the seizure was only the smell of burnt marijuana. However, instead of considering whether the smell of burnt marijuana emanating from a parked vehicle was sufficient on its own to support a reasonable, articulable suspicion of criminal activity under Terry, the trial court erroneously concluded that probable cause was required to seize the occupants of the vehicle, and the Court of Appeals agreed. Thus, the lower courts erred by failing to consider whether the police officers had reasonable suspicion of criminal activity that justified an investigatory Terry stop. However, it was not necessary to decide whether, in light of the enactment of the MRTMA and the overruling of Kazmierczak, the smell of marijuana provided the police officers with reasonable suspicion in this case. Assuming arguendo that Corporal Eaton had a reasonable suspicion of criminal activity at the moment she seized defendant and eventually asked him to exit the vehicle, the trial court concluded that the gun was discovered during a search, not because it was in plain view, and the Court of Appeals affirmed. The prosecution provided no compelling argument as to why the trial court’s factual finding was clearly erroneous, and the trial court’s findings of fact were consistent with the Supreme Court’s review of the body camera footage. Because the trial court concluded that the gun at issue was discovered during a search, it follows that it cannot have been found in plain view. The plain-view doctrine is exclusively a seizure rationale, whereas a search must be based on probable cause. Because the smell of marijuana was insufficient to support probable cause for a search, the prosecution’s alternative argument also failed.

Affirmed.