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Smell of Marijuana Established Probable Cause Before New Law


Case: People v. Carlson, Michigan Court of Appeals, (Unpublished Opinion)


Search & seizure; Denial of motions to quash a search warrant & suppress evidence; Whether the odor of marijuana by itself was sufficient to give rise to probable cause for the search warrant; People v. Kazmierczak; People v. Martin; Effect of the enactment of the Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq.); People v. Brown; Whether the Michigan Regulation & Taxation of Marihuana Act (MRTMA) (MCL 333.27951 et seq.) could be considered; Relevance of the argument that marijuana has been effectively reclassified as a Schedule 2 controlled substance due to alleged inconsistencies between the Medical Marihuana Facilities Licensing Act (MCL 333.27101 et seq.) & § 7212 of the Michigan Controlled Substances Act (MCL 333.7212)


In this interlocutory appeal, the court held that an officer’s observation of a strong marijuana odor coming from defendant’s home was sufficient to provide probable cause to support the search warrant, and that the police did not have to determine the legality of the marijuana-related activities before obtaining the warrant. Thus, it affirmed the denial of his motions to quash the warrant and suppress evidence. He argued that the search was constitutionally invalid and any evidence seized from his home during the execution of the search warrant had to be suppressed on the basis that a marijuana odor by itself is insufficient evidence of criminality to provide probable cause for a search warrant. The court disagreed. First, his claim that Kazmierczak did not apply because the search involved a home rather than a vehicle conflated “the concept of probable cause and how it may be established, with the concept of search warrant exceptions and when they exist.” The court concluded that whether “suspected contraband is in a house or a vehicle is irrelevant during the initial inquiry regarding whether probable cause exists. That information is not relevant until the next inquiry, which is whether the police obtained a warrant before searching. If not,” then they must establish that the “search fell within a valid exception to the search warrant requirement, at which point the location of the contraband in a home rather than a vehicle” would be relevant. Given that it was undisputed that the police obtained a search warrant for “defendant’s home, the situs of the search being a home rather than a vehicle” was not relevant. As to his reliance on the MMMA and the MRTMA, the court declined to consider the latter because it was not in effect at the relevant times and thus, did not apply. The continuing viability of Kazmierczak after the MMMA’s enactment was addressed in Brown, which held that “to establish probable cause, a search-warrant affidavit need not provide facts from which a magistrate could conclude that a suspect’s marijuana-related activities are specifically not legal under the MMMA.” Finally, defendant’s claim that “marijuana has been effectively reclassified as a Schedule 2 controlled substance” due to alleged inconsistencies between the Medical Marihuana Facilities Licensing Act and § 7212 of the Michigan Controlled Substances Act was not relevant to the probable cause inquiry here.

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