Ann Arbor Criminal Defense Blog
Yes, the smell of marijuana gives a police officer probable cause to search a vehicle.
The Law
The Fourth Amendment provides that police officers need a warrant to conduct a search. There is an exception for the searches of cars, however. Under this warrant exception, a police officer can search a vehicle if there is probable cause to believe a crime has been committed or is being committed.
In the case of People v. Kazmierczak, the Michigan Supreme Court ruled that the smell of marijuana from a vehicle is probable cause if the officer is qualified to detect the odor of marijuana.
People v. Kazmierczak
Kazmierczak was charged with possession of marijuana with intent to deliver. In this case, a police officer pulled the defendant over for speeding 20 miles per hour over the speed limit. At a hearing, the officer testified he could smell marijuana when he was five to ten feet away from the car. He claimed the marijuana smelled like marijuana that was not burning. The police officer stated that he had been involved in 15 to 20 prior cases involving marijuana.
The officer searched the vehicle, and found a brick of marijuana sealed in plastic wrap in the trunk.
What This Means For You
You may have your car searched if you are pulled over and the officer says he smells marijuana. The officer has the legal authority. This can happen even if there is no marijuana in the car, but the smell is on your clothing. The problem for motorists is they can get in trouble for a lot more than just marijuana if contraband is found in a search.
Get in Touch
Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.
Sam Bernstein is a Criminal Lawyer in Ann Arbor.
ArborYpsi Law is located at 2750 Carpenter Rd #2, Ann Arbor, MI 48108.
The Court’s Decision in Kazmierczak
Procedurally speaking here’s what happened. The trial court suppressed the evidence based on a Michigan Supreme Court case People v. Taylor, which held that smell alone is insufficient for probable cause to search a vehicle.
The Kazmierczak Court overruled this. The Taylor case held that “[b]ecause the United States Supreme Court has held that odor alone is not sufficient to authorize a search of a building without a warrant, we hold that odor alone is not sufficient probable cause to search a vehicle. Rather, as these cases indicate, odor should be but one factor to consider in a totality of the circumstances.”
The Taylor Court based it’s ruling on Taylor v. United States, which held that smell alone is insufficient for probable cause to search a building without a warrant. (All these Taylors make the procedure a little more confusing.)
The Kazmierczak Court held this was wrong, pointing out the distinction is between a search of a building, which requires a warrant (absent some other exception), and a search of a vehicle, which is a warrant exception. No warrant is necessary to search a vehicle if probable cause exists. Smell alone could be probable cause to search a building, but a warrant is still needed. No warrant is needed for a vehicle, this is where the Taylor Court went wrong, said the Kazmierczak Court.
Read More
- What is 7411?
- Huffing DUIs
- Prescription Medication OWIs
- What to do When Pulled over for OWI