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In The News

Saturday, November 26, 2022

Michigan's Court of Appeals Reverses 20 Years of Precedent -- Because it "Stunk"

By Michael Nichols
Categories: Drugged Driving

It is the case that we have been waiting for since the Michigan Medical Marijuana Act (MMMA) took effect in 2009: the Michigan Court of Appeals rules that the odor of marijuana – standing alone – is not enough to seize passengers inside a vehicle and order them out of the vehicle in order to conduct a search. The case is People v Armstrong (No. 360693; November 22, 2022).

The case started when officers drove by a parked vehicle in which Mr. Armstrong was a passenger. The officers made contact with the driver and Mr. Armstrong and, claiming that they smelled marijuana, the officers ordered them out of the vehicle and then conducted a search – during which they found a gun that led to felony weapons charges against Mr. Armstrong since the gun was underneath his seat. There was some debate about whether the officers had initially observed the gun in “plain view” or if the illegal search was the predicate act to lead them to the gun. The attorneys on both sides declined to hold an actual evidentiary hearing so the only information the court had to go on was the body worn camera footage of the officers.

The 8-page opinion was authored by Judge Chris Yates, one of the newer appointees from the circuit court bench in Kent County and it is a bold one. There is a long-standing case that has been the nemesis of the 4th Amendment called People v Kazmierczak (461 Mich 411 (2000)) that held that the “very strong smell of marijuana emanating from [a] vehicle … furnished “probable cause to search for marijuana,” (Kazmierczak at 421-422). This case remained the controlling precedent even though 8 years later, we legalized marijuana for medicinal use through Proposition 1, which was a voter-initiated law. 10 years later, Michigan made marijuana legal for recreational use as well, again through the voter-initiated process, when the Michigan Recreation and Taxation of Marijuana Act (MRTMA) was passed.

However, the Court of Appeals hit the nail on the head:

Thus, analysis of search-and-seizure law is now much more complicated and nuanced than it was when marijuana was unlawful in all circumstances in Michigan. Arnold, Criminal Law Issues After Passage of the MRTMA: Uncertainty Remains, 100 Mich B J 26, 29-30 (June 2021).

The court went on to say:

“Since the passage of the MRTMA, we have not established whether, by itself, the smell of marijuana furnishes probable cause to approach or seize a person without a warrant. Still, recent cases decided before the passage of the MRTMA help to distinguish defendant’s case and establish the need for probable cause beyond the smell of marijuana alone.”

And the court answered with a resounding “no.” The court said:

“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.”

What is really impressive about the court’s opinion is that in the preceding paragraph, the court explains why the prior precedent in Kazmierczak does not control any longer. It is an interesting case because the issue was whether to suppress a gun that the officers found after seizing Mr. Armstrong and the driver of the car. At the end of the day, Michigan law has changed for the better and your right to be free from unreasonable seizures now extends to a situation in which the only “cause” that an officer posseses is the odor of marijuana emanating from your vehicle.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.