The Court of Appeals published an interesting decision in People v. Wood in which they upheld the suppression of evidence from a drug case following a bad search.
A police officer pulled the defendant for speeding. When the officer approached the car, he empty pill bottles and whippet canisters on the floor. A whippet canister contains the gas nitrous oxide, which is inhaled by people to get high. The officer did not observe the defendant to be under the influence of the nitrous oxide, however.
When asked if he had been huffing the gas, the defendant stated he did huff four days earlier. The defendant denied consent to search the vehicle. Nevertheless, the officer went on to search the car and found some codeine syrup. The defendant was charged with possession of a controlled substance.
The Legal Argument
The defendant argued the officer did not have probable cause to search the vehicle. The prosecutor responded there was probable cause to search the vehicle based on the observation of the whippets and pill bottles.
Police do not need a warrant to search a car because there is an automobile exception. Police still need probable cause that a crime had been committed or was being committed before a search. A search without probable cause would be unconstitutional, and the results of that search could be suppressed, which is what happened here.
The prosecutor based his argument on the case of People v. Kazmierczak, which held that officers may search a car based on the smell of marijuana. The prosecutor argued that the presence of the whippet canisters and pill bottles provided the probable cause.
Here is the problem for the prosecutor, however. Unlike marijuana, whippet canisters with nitrous oxide gas are not illegal. While it is against the law to huff nitrous oxide to get high, the possession of nitrous oxide is not illegal.
The prosecutor pushed on and argued that the defendant’s admission to huffing the gas provided probable cause, as huffing the gas would be a crime. The Court did not buy this argument, either, stating the officer conceded that the defendant appeared neither intoxicated nor impaired. Again, the possession of nitrous oxide is not illegal, it’s the use to become intoxicated that is prohibited.
Read Michigan Inhalant Use Law for more information
The Court went on to say that the result of this case would be different had the defendant appeared to be under the influence of the nitrous oxide. Had the defendant been under the influence, he could have been arrested for operating while intoxicated by an inhalant, and the officer could have searched the car legally in that case.
The prosecutor also tried to argue that the police officer could have searched the vehicle based on an arrest/inventory search. An inventory search is a warrant exception where the police may search a vehicle after an arrest in accordance with police department procedure. The police take an ‘inventory’ of the items in the car after an arrest, sometimes revealing more than the officer knew about before the arrest.
The Court did not accept the inventory search argument. The prosecution argued that defendant was arrested for huffing. Huffing gasses, solvent chemicals, or other inhalants in order get high is prohibited by MCL 752.272.
The argument that the search was valid due to the arrest is a logical fallacy, as the Court points out.
The Court observed that defendant was really arrested for possession of codeine, not for huffing, and the codeine was only found due to an illegal search. The Court quoted another case, saying “justifying the arrest by the search and at the same time the search by the arrest, just will not do.”
Ultimately, the Court ruled there was no probable cause to search the vehicle, and suppressed the results of the search that turned up the codeine.
What Is Nitrous Oxide?
Nitrous oxide is a gas used as an anesthetic during minor medical procedures, often at the dentist. The gas works to relieve pain and relax the muscles. Inhaling the gas produces a euphoric feeling, leading to a giddy state of mind. This feeling gives nitrous oxide it’s nickname of “laughing gas.”
Nitrous oxide is often obtained through diversion from medical use, such as stealing tanks full of the gas from a dentist office or an industrial use. Users fill a balloon with the gas from the tanks, and then inhale and exhale from the balloon. Nitrous oxide can also be used for cooking, and is found in cans of whip creams. Nitrous is sold in small canisters that can be purchased at a grocery store, known as whippets, which is what the defendant in this case had in his car.
Sam Bernstein is a DUI and drug lawyer in Ann Arbor and Ypsilanti.
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