Any marijuana in your car? Negative answer leads to valid search.

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On February 13, 2020, the Court of Appeals ruled that the smell of marijuana, even in light of a driver's possession of a valid medical marijuana card, can give rise to probable cause to search a lawfully stopped vehicle.  Provided, however, some additional suspicious fact gives rise to reasonably believe that driver may be possessing marijuana outside of the restrictions imposed by the MMMA.  

 In People v Moorman, Docket No. 349282 (2/13/2020), the defendant was stopped for speeding in Alger County.  Upon approaching the car, the state trooper smelled the strong odor of "a good quantity" of fresh marijuana.  He asked Moorman if he had any marijuana in the vehicle, and Moorman said that he did not, though he had harvested marijuana earlier that day.  He then produced his caregiver card and told the trooper that he was a caregiver for five patients.  Nonetheless, the trooper searched the vehicle because simply, in his mind, he had noted the "odor of marijuana."  Moorman was subsequently charged with possession of pills for which he did not have a prescription and carrying a concealed weapon.  The trial court denied Moorman's motion to dismiss, finding that the COA opinion in People v Anthony, 327 Mich App 24 (2019), controlled.

 The COA affirmed, though it opined that the trial court had reached the right result for the wrong reason.  Simply put, the Court determined that the smell of fresh marijuana alone, probably would not provide probable cause to believe that a driver with a valid MMMA card (contradicting the Supreme Court's 20-year-old decision in  People v Kazmierczak, 461 Mich 411, 421, 605 NW2d 667 (2000)), but that Moorman's deception when asked whether he was possessing marijuana, contrary to the odor, did establish probable cause to believe he was possessing marijuana in violation of the MMMA.

 It is interesting to note that the opinion is silent as to whether the trooper did in fact find marijuana in the car, which would lead one to believe that Moorman was being truthful, not deceptive.  Moorman was not charged with any marijuana violation.  Yet, the Court held the search was nonetheless legitimate because the trooper apparently did not believe that Moorman was being truthful.  Therefore, the odor of marijuana coupled with an apparent deceptive answer to the trooper's question, gave rise to probable cause.

 Robert Steinhoff, of the Alger County Prosecutor's Office, handled the appeal for the state.  Antonio Ruiz, from Marquette, represented Moorman.

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