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Is the odor of marijuana still enough to get your vehicle searched? Maybe

Since the Michigan Medical Marihuana Act (MMMA) was adopted in the end of 2008 and court cases started running through the pipeline, marijuana attorneys and other interested parties have been waiting for a case to resolve an important constitutional issue: is the odor of marijuana still enough to get your vehicle searched if you’re a medical marijuana patient and/or caregiver? Or more recently, is the odor enough period since marijuana is now legalized?

In January of 2019 the Court of Appeals in People v Anthony addressed the issue of the odor of burned marijuana in the context of the MMMA, albeit unsatisfactorily - There was no evidence Mr. Anthony was a patient and/or caregiver and presumably for this reason the court only minimally addressed it. Furthermore, the recreational marijuana law was not passed until after the offense date and so this was also only minimally addressed as well.

In People v Anthony, Mr. Anthony was in his vehicle parked on the street and, as a police car rolled by, an officer “immediately smelled a strong odor of burned marijuana.” Even though the trial court determined the officer was lying about his motivation for driving up to the parked vehicle - the officer said it was parked in the middle of the street and video evidence showed otherwise - his allegation that he smelled burned marijuana was apparently considered credible. The court held that the 4th Amendment was not implicated when the officer drove towards the car and pulled up to the car - there was no traffic stop because the car was already parked. The Court held the encounter was initially “consensual” and that before any seizure took place implicating the 4th Amendment the officer smelled a strong odor of marijuana establishing probable cause to search the vehicle.

Mr. Anthony argued that in light of the passage of the MMMA, the smell of burned marijuana cannot justify criminal investigation. The Court responded to this by citing the part of the MMMA prohibiting the smoking of marijuana in any public place and determined that smoking in one’s vehicle on a public street violates this prohibition. Therefore, the Court held, the protections of the MMMA would not apply. Of concern, the Court conflated marijuana smoking and other uses of marijuana that do not involve smoking - the statute only prohibits smoking in public not other uses e.g. possession in public. It is unclear how this misstatement will affect future cases. Finally, the Court held the recreational law also did not apply because it was not passed until after the offense occurred.

Even though this opinion contains a concerning misstatement, the holding is likely sound. The MMMA prohibits smoking in public and being on a public road even if in one’s own vehicle is considered a public place. The recreational law prohibits not just smoking but consuming marijuana in a public place and specifically prohibits smoking marijuana within the passenger area of a vehicle upon a public way. Therefore, the odor of burned marijuana will likely continue to be a sufficient justification to search vehicles. While I don’t personally think this is right - the odor may stick on someone even if they haven’t smoked in the vehicle, or the odor may be stuck in the vehicle after smoking in it on private property - I think it is what’s going to continue to happen.

In February of 2020, the Michigan Court of Appeals published an opinion in People v Moorman addressing the odor of fresh marijuana in the context of vehicle searches. However, specific facts in this case muddle the issue and I for one was left asking, where do things stand? In my opinion, the clear answer is NO, the odor of fresh marijuana should not be sufficient to have your vehicle searched in Michigan by Michigan law enforcement. If it is legal to possess marijuana, the odor of marijuana cannot constitute reasonable suspicion or probable cause of an offense. Unfortunately, People v Moorman did not present the Court of Appeals with ideal facts to make a clear rule that the odor of fresh marijuana is insufficient cause to search a vehicle, and the Court of Appeals was able to manipulate the existing facts to issue another essentially anti-marijuana ruling.

In People v Moorman, Mr. Moorman was pulled over for speeding and the officer allegedly smelled a strong odor of fresh marijuana coming from the vehicle. Apparently, the officer could determine general quantity through smell and he determined and testified that he smelled a “good quantity” of marijuana in the vehicle. Mr. Moorman denied having marijuana in the car but upon further questioning explained he had harvested marijuana earlier that day. There did not end up being marijuana in the vehicle, at least not that was mentioned in the opinion, corroborating Mr. Moorman’s statement. Although the officer didn’t remember seeing any of Mr. Moorman’s caregiver cards during the traffic stop, it was not contested that Mr. Moorman was in fact a caregiver to 5 patients and the numbers were listed in the police report. The officer searched the vehicle to verify that Mr. Moorman only possessed the amount of marijuana he was allowed. His sole justification for the search was the odor of marijuana. To the Court, Mr. Moorman reasonably argued that the smell of marijuana alone is not sufficient cause to search a vehicle and that possessing a valid medical marijuana card eliminated suspicion of criminal activity.

Unbelievably, the Court of Appeals in this matter found that the facts did in fact establish probable cause to search, although it did not solely rely on the odor of marijuana. The Court held there was probable cause because Mr. Moorman denied having marijuana in his car but the officer smelled marijuana and therefore the officer could reasonably believe Mr. Moorman was lying about not having marijuana in the vehicle. The “deception” about the presence of marijuana in the vehicle gave rise to probable cause to believe Mr. Moorman possessed more than he was allowed to under the MMMA - despite the fact that no marijuana was apparently found in the vehicle (although other illicit items were found which is why a criminal case went forth.)

More than anything, this case serves as a warning because it doesn’t provide much clarity on a legal issue - it is very specific to the manipulated facts that the Court of Appeals hung its decision on. Marijuana may be allowed medically and in fact recreationally now, but the system has not caught up and many law enforcement and judges seem perfectly fine manipulating the law or facts to reach a result that they want rather than what the law calls for. The officer in this matter said he wanted to search to see if Mr. Moorman possessed only as much marijuana as he was allowed - there is absolutely nothing allowing such a search. The 4th Amendment is designed to prevent such an arbitrary invasion of privacy. The Court of Appeals had no problem justifying this officer’s overreaching behavior and finding probable cause in a lie that wasn’t a lie.

So, is the odor of marijuana still enough to get your vehicle searched? Maybe, and in fact probably if these cases tell us anything. I’m not saying it should be, I’m saying the way things are it probably is. If the smell is of burned marijuana, there is probably a good chance law enforcement will search your vehicle and that most courts would uphold that search. If the smell is of fresh marijuana, the outcome will really be determined by the integrity of the law enforcement officer and each judge who hears the matter. In Moorman, the law enforcement officer wanted to / thought he had the right to violate Mr. Moorman’s privacy to check if he had only an allowed amount of marijuana because the officer claimed to smell fresh marijuana. Moreover, the officer claimed to not remember if Mr. Moorman presented a medical marijuana caregiver card, which should be something a competent officer either remembers or puts in his or her police report. Mr. Moorman told the officer he did not have marijuana in his car and later explained he had been trimming marijuana earlier in the day which explained the odor. The officer nonetheless searched the vehicle. The Court of Appeals had no problem justifying the officer’s violative search by deciding the officer could have correctly thought Mr. Moorman was lying about possessing marijuana - even though he ultimately wasn’t - which could mean even if he was allowed to possess marijuana he could be lying about how much marijuana he possessed. This thinly reasoned conclusion is precedent, and, despite being very fact specific, it is a strong indication that law enforcement and judges who are anti-marijuana will continue splitting hairs to violate the rights of Michigan citizens despite the obvious will of the People. Be cautious.

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