Search & seizure; Automobile exception to the warrant requirement; The Michigan Regulation & Taxation of Marihuana Act (MRTMA); MCL 333.27954(1)(g); The Michigan Medical Marihuana Act (MMMA); MCL 333.26427(b)(4); The smell of marijuana as probable cause to search a vehicle; People v Kazmierczak; People v Anthony

Holding that the search of defendant’s car did not violate the Fourth Amendment given that it was conducted after the officer (W) smelled “an odor of freshly burned marijuana” coming from the car, the court reversed the order quashing defendant’s bindover and dismissing the cocaine possession charge against him. It appeared the circuit court determined the cocaine seized from the car “defendant was driving, the only evidence against him, was the fruit of an unlawful search.” The prosecution argued on appeal “that the search was lawful and that the charge should be reinstated.” The court agreed. It noted that before marijuana was legalized, the Supreme Court held in Kazmierczak “that the smell of fresh marijuana alone may establish probable cause to search a vehicle pursuant to the motor-vehicle exception of the warrant requirement.” As to the effect of marijuana’s legalization, the court noted that the MRTMA, in MCL 333.27954(1)(g), “prohibits consuming marijuana while operating a motor vehicle or smoking marijuana within the passenger area of a motor vehicle upon a public way.” Thus, the court concluded that when W “smelled an odor of freshly burned marijuana, he had probable cause to believe that there was a violation of MCL 333.27954(1)(g) because marijuana had been smoked in the vehicle. This probable cause allowed [W] to search the vehicle for recent evidence of that crime. In other words, [W] had probable cause to search the passenger area for evidence of smoked marijuana.” The court found that the facts in Anthony were similar to those here. While the MMMA was involved there and this case concerned the MRTMA, both statutes have “similar prohibitions against smoking marijuana inside a motor vehicle on a public street.” In this case, “the smell of marijuana was emanating from defendant’s vehicle, which was pulled over on a public street. Thus, [W] could search the vehicle for marijuana without a warrant. The fact that he ultimately found cocaine—evidence of a different crime—is not relevant.” The court rejected defendant’s efforts to distinguish Anthony. It reinstated the charge against him and remanded to the circuit court for further proceedings.