This question is an important one because a search conducted without sufficient probable cause for a search warrant may be a violation of the Fourth Amendment of the Constitution. Previously, the smell of marijuana was an indicator of illegal activity. With weed now being legal for recreational use, the waters are murky.
Background: The Automobile Exception
Typically, a search warrant is required to search someone’s home, person, or vehicle. In Michigan, there is an exception to this. If an officer has stopped your vehicle and they have probable cause to believe you have something illegal, they are permitted to search it without a warrant.
This exception is in place because vehicles can easily be moved from one place to another, and vehicles are understood to afford less privacy. Here in Michigan, criminal defense attorneys call this “the automobile exception” to the search warrant requirement. We refer to a lesser degree of a reasonable expectation of privacy while in a vehicle.
Why Is This Important?
This is important in the discussion of “pretext stops”. In Michigan, an officer can pull you over for any evidence of unlawful activity. Vehicles must be maintained in Michigan, so cops may pull you over for something as simple as the light above your license plate being out. The pretext stop gives the officers legal reason to pull you over, and then the facts can be played out in their favor. In other words, it gives them a legitimate reason to pull you over and conduct a warrantless search.
If you are pulled over for a taillight that is out and an officer smells marijuana, they will often consider that sufficient probable cause for a warrantless search. When the smell is of burned marijuana, and an officer searches your vehicle, it will often be upheld. When the smell is of fresh marijuana, the outcome is not as easily determined.
Officers are on the lookout for drugged driving, and smelling any marijuana will immediately make them suspicious. Although marijuana is recreationally and medically legal, you can still be charged with Operating With the Presence of Drugs (OWPD) or Operating Under the Influence of Drugs (OUID).
Cases regarding whether the smell of marijuana is enough to search a vehicle are very fact-specific, meaning results can vary greatly. Unfortunately, that means that there aren’t clear guidelines in Michigan. While officers are taught that the smell of marijuana alone isn’t enough, it can be enough if it is coupled with a belief that the individual is lying or may have been smoking marijuana. This means the use of marijuana smell for probable cause is not as airtight as before, but it is subject to the individual officer.
So you can see how a simple thing like a burned-out bulb above your license plate might lead to a legal arrest for drugged driving here in Michigan. Whether it’s in Grand Rapids, Lansing, Ann Arbor, or Jackson, pretext stops can lead to big problems for you.
What Does This Mean For You?
First, remember your rights! The Fourth Amendment protects you against unreasonable searches and seizures. If an officer searches your car and you don’t believe they had a reason to do so, seek experienced representation to help you fight back.
It also means that if you are a user of medical or recreational marijuana, or you work in either industry, you will need to be careful. We know it doesn’t seem fair, but unfortunately, that is what must be done. While our highly respected criminal defense attorneys are here to defend your case, it is always in your best interest to avoid charges in the first place. After decades of aggressively fighting for our clients, we’re certain that avoiding criminal charges is the best route.
If you are faced with any drug crimes or had a search without consent, The Kronzek Firm is prepared to help you fight, and we will not be afraid to do what is necessary to defend your rights. We offer a free initial consultation to help us learn about your specific issues. We’ve been defending clients from criminal charges since the last century. Call us 24/7 at 866-766-5245!