Decision to overturn 2000 ruling in People v Kazmierczak affirmed
Gongwer News Service
A 25-year-old precedent that allowed the smell of marijuana – without any other factor – to be a sufficient reason for probable cause is no longer good law in light of the Michigan Regulation and Taxation of Marihuana Act, the Supreme Court ruled in a 5-1 decision released Wednesday.
In an opinion written by Justice Megan Cavanagh, the majority in People v. Armstrong (MSC Docket No. 165233) affirmed the Court of Appeals’ decision to overturn the Supreme Court’s 2000 ruling in People v Kazmierczak.
The majority consisting of Cavanagh, Chief Justice Elizabeth Clement, Justice Richard Bernstein, Justice Elizabeth Welch Justice Kyra Harris Bolden also affirmed the Wayne Circuit Court’s decision to grant a motion to suppress evidence of a gun discovered during the traffic stop at the heart of the case. Cavanagh said there was no plain error in the trial court’s finding that the gun was not discovered in plain view, making the search unconstitutional during a traffic stop that was already unconstitutional because it was predicated only on the smell of marijuana present in the vehicle.
Justice Brian Zahra dissented, holding the lower courts failed to consider whether the handgun could have been discovered in plain view and if that left open the possibility that the smell of marijuana was not the only valid evidence supporting probable cause.
The case involved Jeffrey Armstrong, who was charged with carrying a concealed weapon, a felon in possession of a weapon and felony firearm. The gun was found underneath the passenger seat of a vehicle where Armstrong was sitting but not driving.
Police initiated the stop because the officer claimed she smelled marijuana emanating from the vehicle. Armstrong moved to suppress evidence of the gun, arguing it was the fruit of a search that violated his Fourth Amendment rights.
It was the prosecution that invoked Kazmierczak in the trial court, but the judge ruled that the officer needed probable cause before asking him to exit the vehicle because he was not driving it.
Further, the smell of marijuana alone was not sufficient to form a basis of probable cause and the plain-view exception in Terry v. Ohio did not apply, the court ruled.
The Court of Appeals in turn affirmed the decision and ruled that Kazmierczak was no longer good law given the fact that marijuana was no longer an illegal substance per the MRTMA, and the smell of the plant or its products are no longer indicative of illegal activity. Voters approved legalization of recreational marijuana use in 2018.
The case before the court was the first time the bench was able to reconsider the viability of the Kazmierczak rule following voter passage of the MRTMA.
On Wednesday, Cavanagh said the high court’s majority agreed with the lower courts and further noted that there was no dispute that a warrant was not obtained before the officer searched the vehicle in Armstrong.
Cavanagh also said that when Kazmierczak was decided in 2000, the law criminalized the use and transportation of marijuana without exception. Since then, Cavanagh noted, Michigan’s laws surrounding cannabis have changed drastically.
“In that (previous) context, a rule like the one announced in Kazmierczak was reasonable,” Cavanagh wrote. “But now that marijuana possession and use is generally legal, the odor of marijuana does not on its own supply a substantial basis for inferring a fair probability that contraband or evidence of illegal activity will be found in a particular place. Instead, post MRTMA, the smell of marijuana might just as likely indicate that the person is in possession of a legal amount of marijuana, recently used marijuana legally, or was simply in the presence of someone else who used marijuana.”
Cavanagh agreed that not all marijuana possession or use happens in legal circumstances, as driving under the influence of marijuana was still a crime. But Armstrong wasn’t driving, and Cavanagh said the smell of the plant and its products alone weren’t enough to establish probable cause for a search.
Cavanagh further wrote that the prosecution provided no compelling argument as to why the trial court’s factual finding was erroneous and simply asserted that the trial court erred. That left the bench without a definitive answer on the possibility of an error, so the trial court’s ruling on the gun evidence stood.
Zahra in dissent said the majority holds the “erroneous belief that the police could not temporarily seize the vehicle and remove the defendant unless they first had probable cause to search the vehicle.”
“Because the challenged evidence might be admissible on the narrower ground that it was discovered in plain view during an investigatory Terry stop, I would not stretch, as the majority opinion does, to address the continuing viability of the rule from People v. Kazmierczak that the smell of marijuana alone can justify the warrantless search of a vehicle,” Zahra wrote.
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