LANSING – The Michigan Supreme Court on Wednesday ruled that the smell of marijuana alone is no longer sufficient probable cause for police to search a vehicle in light of the legalization of recreational marijuana in the state in 2018.
In a 5-1 decision, the court overturned a 25-year-old precedent.
“The appropriate rule is that the smell of marijuana is one factor that may play a role in the probable-cause determination,” Justice Megan Cavanagh wrote for the majority. The Democratic-nominated Cavanagh was joined by fellow Democratic-nominated justices Richard Bernstein, Elizabeth Welch and Kyra Harris Bolden, along with Michigan Supreme Court Chief Justice Elizabeth Clement, a Republican appointee.
“A warrantless search must be based on probable cause and the smell of marijuana is insufficient to support probable cause,” Cavanagh wrote.
In 2020, several police officers were conducting parole compliance checks in Detroit. One of those police officers observed a Jeep Cherokee parked on the side of the street, and said she smelled the scent of burning marijuana coming from the vehicle as she drove by. The police officer asked the two occupants of the vehicle if they had been smoking marijuana in the vehicle, which they denied, and then asked them to get out of the vehicle. At that point, another police officer observed a handgun under the front passenger seat.
Now, the smell of marijuana could indicate that the person possesses a legal amount of marijuana, recently used marijuana legally or was in the presence of someone else who used marijuana. However, Cavanagh wrote that marijuana use and possession are still not legal under all circumstances. Operating a motor vehicle under the influence of marijuana remains a crime and smoking marijuana in public is a civil infraction.
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