by Sagi Schwartzberg

The Supreme Court of Michigan held that the smell of marijuana, by itself, does not establish probable cause to search a motor vehicle. In doing so, the Court overturned People v. Kazmierczak, 605 N.W.2d 667 (Mich. 2000), which held that “the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle, pursuant to the motor vehicle exception to the warrant requirement.” Instead, the Court instructed that the smell of marijuana may be one factor in determining probable cause to justify a search.

Background

On October 8, 2020, officers conducting parole compliance checks noticed a Jeep Cherokee parked on the side of the road. Corporal Treva Eaton allegedly smelled burnt marijuana as she drove past the vehicle. She stopped, activated her body camera, and approached the vehicle along with several other officers. Inside the vehicle were defendant Jeffery Armstrong in the front passenger seat and an unidentified woman in the driver’s seat.

Eaton approached the passenger side and asked Armstrong where he lived. He replied he was just visiting. Eaton then asked how long he had been “smoking weed in the car.” Armstrong responded he had just entered the vehicle. The driver denied smoking. Eaton claimed she could smell marijuana and asked both occupants whether they knew the subject of their parolee search. When they said they did not know him, Eaton asked Armstrong again where he lived, and he pointed down the street. Eaton then instructed Armstrong to exit the vehicle, patted him down, and handcuffed him. Officer Hayley Genaw then looked inside the vehicle and found a black handgun under the front passenger seat. Armstrong was arrested and charged with several firearm-related felonies.

Armstrong filed a motion to suppress the firearm found in the vehicle, arguing the search violated the Fourth Amendment. The trial court, relying on body camera footage and police reports, concluded: (1) Armstrong was seized when the officers surrounded the vehicle, (2) probable cause was required before removing him from the vehicle, (3) the smell of marijuana alone did not provide probable cause, and (4) the firearm was not visible until Armstrong was removed and Genaw searched under the seat. The court granted the motion to suppress and dismissed the charges.

The State timely appealed. The Michigan Court of Appeals affirmed the trial court’s decision, agreeing that Armstrong was seized before being ordered out of the Jeep, Eaton’s decision was based solely on the smell of burnt marijuana, and Armstrong’s nervousness and inconsistent answers occurred after the unlawful seizure.

On appeal to the Michigan Supreme Court, two issues were raised: (1) whether officers had probable cause to conduct a warrantless vehicle search under the automobile exception based solely on the smell of marijuana and (2) whether Eaton had reasonable suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1 (1968), when she ordered Armstrong to exit the vehicle and whether the firearm was in plain view.

Analysis

The Court began its analysis by discussing warrantless searches under the Fourth Amendment. Such searches are “presumed” to be unconstitutional unless one of the recognized exceptions apply. People v. Lucynski, 983 N.W.2d 827 (Mich. 2022). The government bears the burden of establishing that an exception to the warrant requirement exists. People v. Reed, 224 N.W.2d 867 (Mich. 1975). A search is reasonable where the police have a warrant or the search falls within one of the well-established exceptions to the warrant requirement. People v. Slaughter, 803 N.W.2d 171 (Mich. 2011).

The prosecution relied on the automobile exception, which provides that if a vehicle is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more. Pennsylvania v. Labron, 518 U.S. 938 (1996). Probable cause means there is a “substantial basis” for inferring a “fair probability” that contraband or evidence of a crime will be found in a particular place. Kazmierczak.

The Kazmierczak Court ruled that the smell of marijuana alone could justify probable cause for a search. Specifically, Kazmierczak held that when a qualified person smells an odor sufficiently distinctive to identify contraband, the odor alone may provide probable cause to believe that contraband is present, and probable cause can exist when the odor of marijuana is the only factor indicating the presence of contraband. At the time Kazmierczak was decided, Michigan law criminalized the possession, use, and transportation of marijuana without exception. Consequently, the smell of marijuana indicated a substantial chance of criminal activity. Illinois v. Gates, 462 U.S. 213 (1983) (the odor of marijuana indicated a “substantial chance of criminal activity”).

However, the Court noted that significant changes to Michigan’s marijuana laws have occurred since Kazmierczak. In 2008, voters passed 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. See MCL 333.26424. This created confusion over Kazmierczak’s continued viability. In People v. Anthony, 932 N.W.2d 202 (Mich. Ct. App. 2019), overruled in part on other grounds by People v. Duff, 22 N.W.3d 476 (Mich. 2024), the Court of Appeals held that Kazmierczak remained good law where the smell of marijuana pointed to illegal activity, such as smoking in public, which remained prohibited under the MMMA. The court reasoned that the MMMA provided only a limited license for qualifying patients, and thus, the smell alone could still supply probable cause if it indicated conduct outside MMMA protections.

The Court of Appeals applied Kazmierczak again in People v. Moorman, 952 N.W.2d 597 (Mich. Ct. App. 2020), but recognized that post-MMMA, additional facts were needed to support the belief that a suspect’s actions fell outside MMMA protections. In Moorman, the smell of fresh marijuana combined with the defendant’s lie about possessing it established probable cause that the possession was illegal.

The Court noted that a major change occurred in 2018 with the Michigan Regulation and Taxation of Marijuana Act (“MRTMA”),, MCL 333.27951 et seq. The MRTMA’s general intent is to decriminalize the use and possession of marijuana, preventing arrest and penalty for personal possession and cultivation by adults 21 or older. See MCL 333.27952. MCL 333.27955 lists permissible acts for adults 21 or older, including possessing, using, purchasing, transporting, or processing 2.5 to 15 grams of marijuana. These acts are not grounds for seizure, forfeiture, arrest, prosecution, penalty, search, inspection, or denial of rights or privileges. However, certain activities remain illegal under the MRTMA, such as being in physical control of a motor vehicle while under the influence of marijuana, consuming marijuana in a public place, consuming marijuana while in physical control of a motor vehicle or smoking marijuana within the passenger area of a vehicle upon a public way, and operating a motor vehicle under the influence. Smoking marijuana in public is a civil infraction under MCL 333.27965(1).

The Court stated that the current case is the first opportunity it has had to consider Kazmierczak after the passage of the MRTMA. In light of the MRTMA’s intent to legalize marijuana usage and possession, the Court held that the smell of marijuana alone is insufficient to establish probable cause for a vehicle search. It reasoned now that possession and use are generally legal, the odor might indicate legal possession of a permissible amount, recent legal use, or mere proximity to someone else’s legal use. Thus, it no longer supplies a substantial basis for inferring a fair probability of contraband or illegal activity.

However, the Court stated that the smell of marijuana is not irrelevant. It may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances establishes probable cause. Other relevant inculpatory facts might include an officer’s observation of evidence suggesting intoxication or the presence of smoke. This requires probable cause particularized to the person. Ybarra v. Illinois, 444 U.S. 85, 91 (1979). The Court observed that this rule aligns with post-legalization approaches in other states, such as People v. Zuniga, 372 P.3d 1052 (Colo. 2016) (odor relevant to totality but contributes to probable cause); People v. Redmond, 248 N.E.3d 1026 (Ill. 2024) (odor of burnt cannabis a fact in probable cause, but not alone without other inculpatory facts); State v. Torgerson, 995 N.W.2d 164 (Minn. 2023) (odor one circumstance in totality for fair probability); and Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021) (odor a factor but not stand-alone).

The Court overruled Kazmierczak in light of MRTMA. Thus, because Eaton’s sole basis for the search was marijuana odor, the search was unconstitutional under the automobile exception, the Court ruled.

The prosecution alternatively argued that officers had reasonable suspicion to perform a Terry stop and that the firearm was in plain view during that stop. To be constitutionally reasonable, an arrest must be justified by probable cause. However, police may briefly seize a person to investigate possible criminal behavior with reasonable and particularized suspicion, not just a hunch, even without probable cause for arrest. See People v. Prude, 15 N.W.3d 249 (Mich. 2024); Lucynski. This “Terry stop” is an exception to the warrant requirement. Terry. Reasonable suspicion requires more than an inchoate suspicion. People v. Pagano, 967 N.W.2d 590 (Mich. 2021).

The plain-view doctrine allows seizure of items without a warrant if officers are lawfully positioned to view them and the item’s incriminating character is immediately apparent, requiring probable cause in that context. People v. Champion, 549 N.W.2d 849 (Mich. 1996). Importantly, the Court explained that it is exclusively a seizure rationale; no searching, however minimal, is permitted under it. Id.

The trial court concluded that Armstrong was seized solely based on the smell of marijuana – when the vehicle was surrounded by officers – and that the firearm was discovered during a search, not in plain view. The Court upheld these factual findings, concluding they were not clearly erroneous, as the record, including body camera footage, supported them and left no definite conviction of mistake. However, the Court explained that the lower courts erred by failing to consider whether officers had reasonable suspicion for a Terry stop; instead, they incorrectly stated that probable cause was required for the initial seizure.

Nevertheless, the Court did not decide whether, post-MRTMA and overruling Kazmierczak, the smell of marijuana alone provides reasonable suspicion for a Terry stop. Assuming for the sake of argument that reasonable suspicion existed for the seizure and order to exit, the plain-view argument failed because the trial court factually found the gun was discovered during a search, not in plain view, the Court explained. It reiterated that the plain-view exception is “exclusively a seizure rationale;” it does not provide justification for a warrantless search.

Conclusion

Accordingly, the Court affirmed the Court of Appeals’ judgment, upholding the trial court’s suppression order and dismissal of the charges. See: People v. Armstrong, 2025 Mich. LEXIS 583 (2025).  

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