Marijuana Sniff Test Alone No Longer Enough For Probable Cause, Supremes Say

(Source: MIRS.news, Published 04/02/2025) The smell of marijuana from a parked vehicle alone no longer establishes reasonable suspicion for officers to perform an investigatory stop, the Michigan Supreme Court held Wednesday.

In a 5-1 opinion from Justice Megan Cavanagh, the court held that its 2000 holding in People v. Kazmierczak that “the smell of marijuana alone” establishes probable cause to search a vehicle “is no longer good law in light of” the 2018 passage of the Michigan Regulation and Taxation of Marijuana Act (MRTMA), which decriminalized the use and possession of marijuana in Michigan.

“Although the smell of marijuana is no longer sufficiently indicative of the presence of contraband or illegal activity, that does not mean that the smell of marijuana is irrelevant to developing probable cause concerning illegal activity,” Cavanagh wrote.

“… Instead of a rule that the smell of marijuana alone may be sufficient to support a finding of probable cause, the appropriate rule is that the smell of marijuana is one factor that may play a role in the probable-cause determination,” she noted.

Justice Brian Zahra dissented, holding the case doesn’t implicate the Kazmierczak case because the majority may be “discounting other, non-marijuana evidence that could have supported probable cause for a search.”

The majority rejects that position, saying the prosecution never argued the warrantless search was based on other factors in conjunction with the smell of marijuana.

Zahra believes the lower courts failed to consider whether the discovery of defendant Jeffery Scott Armstrong’s gun – which led to criminal charges – could have been in plain view after officers approached a vehicle he was sitting in because they smelled marijuana.

The Supreme Court’s holding sided with the trial court’s order suppressing the gun evidence and dismissal of the charges.

In October 2020, Armstrong was a passenger in a Jeep Cherokee parked on a Detroit street when a Detroit police officer claimed she smelled burnt marijuana as she drove past.

Five officers surrounded the Jeep and one ordered the driver and Armstrong out of the vehicle. A second officer subsequently found the gun under the front passenger seat, which led to criminal charges against Armstrong.

The trial judge suppressed the gun evidence, holding it had been found during a search and was not in plain view as the prosecution argued. The Michigan Court of Appeals affirmed.

Justice Kimberly Ann Thomas did not participate because the case was considered before she assumed office.