Court: Michigan Court of Appeals ( Published Opinion )
Search & seizure; Whether the search complied with the Fourth Amendment; Probable cause; When & how the seizure occurred; Timing of the officers’ decision to investigate the truck; Terry stop; People v. Barbarich; People v. Barbee; Timing of the officers arrival in the police car at the location where the vehicle was parked; People v. Jenkins; Brendlin v. California; United States v. Knotts; Texas v. Brown; Whren v. United States; United States v. Carr (6th Cir.); Officers’ approach on foot & removal of defendant from his car; People v. Kazmierczak; People v. Freeman; Whether in light of the Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq.) the smell of burned marijuana justifies criminal investigation; Authority to consider the issue; Associated Builders & Contractors v. City of Lansing; MCL 333.26427(b)(3)(B); People v. Carlton; Felon in possession (FIP); Carrying a concealed weapon (CCW)
Holding that the search complied with the Fourth Amendment and was supported by probable cause, the court reversed the trial court’s order suppressing the firearm, vacated the order dismissing the case, and remanded. Defendant was charged with FIP of a firearm, FIP of ammunition, CCW in a vehicle, and felony-firearm after a search of his truck in which police found a .45 caliber semi-automatic pistol. “The trial court’s analysis that officers violated the Fourth Amendment hinged entirely on what it called ‘pretext’ and was premised on the trial court’s finding that no traffic offense had occurred.” The crucial issue was when and how that seizure occurred. There were three possible alternatives: when the officers drove to investigate the truck, when they arrived at the location where it was parked, and when they got out of the car and removed defendant from his vehicle. The trial court never explicitly reached a conclusion on this issue, “referring only to ‘pretext’ for ‘the stop,’ stating that ‘[t]here was not a reasonable suspicion to approach the vehicle.’” The court held that none of the three possibilities “would support a finding that the officers’ actions were anything other than the consensual approach of officers to an individual in a public place.” The trial court erroneously disregarded the fact that their approach did not implicate the Fourth Amendment, and erroneously disregarded the basis that Officer B “gave for conducting the actual search of the vehicle, which was the evidence of marijuana emanating from defendant’s vehicle.” Their subjective reasons for stopping alongside the truck were “irrelevant because regardless of intent, the police could do so in the manner in which they did without offending the Fourth Amendment. Further, while at that lawful vantage point, the officer smelled marijuana—all before any seizure occurred—which gave the officers probable cause to search” the truck without a warrant. Thus, the “trial court erred when it excluded the evidence seized during the search on the basis that the officers needed to have a valid justification to stop next to defendant’s vehicle on a public street.” Defendant’s claim that in light of the MMMA the smell of burned marijuana could not justify criminal investigation was not persuasive. The court has held that “a person using marijuana in a parked car in a parking lot open to the public is in a ‘public place’ within the meaning of the MMMA. Accordingly, if the MMMA does not apply to a parked vehicle in a parking lot open to the public, then it likewise could not apply to a parked vehicle on a public street.” As he was using marijuana in his truck on a public street, the MMMA’s protections did not apply.