Smell leads to Search

In Blog by Chris KesselLeave a Comment

February 13, 2020, the Michigan Court of Appeals held that even when a driver has a valid medical marijuana card, the smell of marijuana can give an officer probable cause to search a vehicle. However, the smell of marijuana must also be accompanied by some facts/circumstances that would cause the officer to “reasonably believe” that the amount of marijuana he smells falls outside the restrictions set out by the MMMA.

The case at issue is People v Moorman.

Mr. Moorman was driving his vehicle on a public road when he was stopped for speeding. When the officer approached, he smelled the strong order of “fresh” marijuana. When questioned, Moorman told the officer that he was a licensed marijuana caregiver (with 5 patients). He initially told the officer that he did not have any marijuana in the car at that time, though he later admitted that he had just harvested marijuana and delivered it to his patients. Based solely on the smell of marijuana, the officer searched the vehicle to determine if Moorman had more than the allowable amount of marijuana. His rational for the search, “just the smell.” When he told Moorman about the search and asked if there were any weapons in the car, Moorman admitted he had a gun in the vehicle. During the search, some pills were also discovered. Moorman was charged and (after the trial court denied his motion to suppress the gun and pills) convicted of Carrying a Concealed Weapon and Possession of Ultram.

The court initially agreed with Moorman’s argument that if he is a licensed caregiver, the simple smell of marijuana alone would not constitute probable cause to search his vehicle. As such, there would need to be additional evidence to make the trooper suspect there was more than the allowable amount (in this case, 12.5oz). However, the court ruled that because Moorman initially lied about the presence of marijuana then changed his story, that would give rise to the officer suspecting that Moorman possessed more than the allowable amount of marijuana. In the court’s mind, a person allowed to possess marijuana would not lie about possessing marijuana…unless something else was going on, like he was over the limit for possession.

I had to read this opinion twice, because there is actually no mention of the officer finding any marijuana in the vehicle. So it seems less that Moorman lied about the actual presence of marijuana in his car and more like he just didn’t initially state that the marijuana had previously been in the vehicle. I suppose the court viewed this as a lie of omission…which I think is still a stretch. It appears that the officer’s belief that Moorman was being deceptive (in some way) was enough to tip the scale to probable cause that there was more than the allowable amount of marijuana in the vehicle. Hmmm…

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