The Michigan Supreme Court on Wednesday ruled that the smell of marijuana alone is no longer sufficient probable cause for police to search a vehicle in light of the legalization of recreational marijuana in the state in 2018.
In a 5-1 decision, the court overturned a 25-year-old precedent.
“The appropriate rule is that the smell of marijuana is one factor that may play a role in the probable-cause determination,” Justice Megan Cavanagh wrote for the majority. The Democratic-nominated Cavanagh was joined by fellow Democratic-nominated justices Richard Bernstein, Elizabeth Welch and Kyra Harris Bolden, along with Michigan Supreme Court Chief Justice Elizabeth Clement, a Republican appointee.
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“A warrantless search must be based on probable cause and the smell of marijuana is insufficient to support probable cause,” Cavanagh wrote.
In 2020, several police officers were conducting parole compliance checks in Detroit. One of those police officers observed a Jeep Cherokee parked on the side of the street, and said she smelled the scent of burning marijuana coming from the vehicle as she drove by. The police officer asked the two occupants of the vehicle if they had been smoking marijuana in the vehicle, which they denied, and then asked them to get out of the vehicle. At that point, another police officer observed a handgun under the front passenger seat.
The defendant was arrested and charged with carrying a concealed weapon, being a felon in possession of a firearm and possession of a firearm during the commission of a felony.
The court ruled that because the general intent of the Michigan Regulation and Taxation of Marihuana Act, which voters passed in 2018, is to decriminalize the use and possession of marijuana in Michigan, the smell of marijuana no longer indicates the criminal possession, use or transportation of marijuana.
Now, the smell of marijuana could indicate that the person possesses a legal amount of marijuana, recently used marijuana legally or was in the presence of someone else who used marijuana. However, Cavanagh wrote that marijuana use and possession are still not legal under all circumstances. Operating a motor vehicle under the influence of marijuana remains a crime and smoking marijuana in public is a civil infraction.
“Thus, although the smell of marijuana is no longer sufficiently indicative of the presence of contraband or illegal activity, that does not mean that the smell of marijuana is irrelevant to developing probable cause concerning illegal activity,” Cavanagh wrote.
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Republican-nominated Justice Brian Zahra wrote the dissenting opinion and argued that the lower courts erred by failing to consider whether the handgun could have been discovered in plain view.
“The lower courts’ errors leave open the possibility that the smell of marijuana was not the only valid evidence supporting probable cause,” he wrote.
Contact Adrienne Roberts: amroberts@freepress.com.
This article originally appeared on Detroit Free Press: Michigan Supreme Court: Marijuana smell alone doesn’t justify search
