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In People v. Wilkins, the Michigan Supreme Court held the automobile exception (probable cause and exigent circumstances) does not permit a warrantless search of a vehicle for a civil infraction offense. The automobile exception permits a search of a vehicle when there is probable cause to believe that a vehicle contains criminally prohibited contraband or evidence of a criminal offense but does not permit a warrantless search where there is probable cause that the vehicle only contains civil infraction contraband or evidence of a civil infraction offense.
Furthermore, the odor of marijuana, and the underage passenger’s (under 21 years of age) admission that she may have a small amount of marijuana in her possession, did not establish probable cause to believe that a criminal amount of marijuana was present in the vehicle.
A police officer observed a speeding vehicle and effectuated a traffic stop. Both the driver and passenger were under 21 years of age. The police officer detected an odor of marijuana and observed that neither the driver nor the passenger exhibited any signs of intoxication.
During the encounter, the driver and passenger initially denied possessing any marijuana. However, after the passenger was asked to step from the vehicle, she admitted that there was a small amount of marijuana in the vehicle (“some shake”).
Based upon the odor and the admission of the passenger, the police officer conducted a vehicle search. There was no consent sought, and no consent given, for the search. The police officer made the search based on probable cause and exigency (automobile exception), that the vehicle likely contained a civil infraction amount of marijuana based on the underaged passenger’s admission.
In a backpack inside the vehicle, the police officer found empty ziplock cellophane packages consistent with those from marijuana provisioning centers, and a loaded Glock semiautomatic pistol with a 33-round magazine in it.
The driver was arrested and charged with carrying a concealed weapon (CCW) in a vehicle under MCL 750.227 and challenged the search of the automobile. Although the trial court and the Michigan Court of Appeals declined to quash the search, the Michigan Supreme Court held that the search was unlawful.
The Court determined that the automobile exception (sometimes referred to as the “mobile conveyance doctrine” or the “probable cause and exigent circumstances” exception) permits a police officer to search for contraband or evidence in a vehicle when that police officer has probable cause. However, that exception only applies where there is probable cause to believe that the vehicle contains contraband that is a crime, or evidence of a crime, and not merely a civil offense or infraction. Where there is probable cause to believe that a vehicle contains contraband that is a civil infraction, or that the vehicle contains evidence of a civil infraction, this is insufficient to support a warrantless search under the automobile exception.
The automobile exception, an exception to the search warrant requirement, is founded on criminal violations, and does not apply to mere civil violations or civil infractions.
Furthermore, where there is an odor of marijuana alone, with nothing more, this is not sufficient to establish probable cause to support a search, because the possession and consumption of marijuana is generally lawful under the Michigan Regulation and Taxation of Marihuana Act (MRTMA). See People v. Armstrong and MSP Legal Update No. 153.
Merely smelling marijuana, burnt or unburnt, does not reliably predict the amount of marijuana present, and consequently, the smell of marijuana, by itself, does not provide probable cause regarding possession of a criminal amount.
In this case, the passenger’s statement that she had a small amount of marijuana, coupled with the odor of marijuana, did not provide probable cause that there was a criminal amount of marijuana present in the vehicle. Furthermore, the initial deception by the passenger as to any marijuana possession did not reasonably suggest that she was in possession of a criminal amount of marijuana.
Although the odor of marijuana by itself is not conclusive, it may contribute to a probable-cause determination as to whether there is a criminal amount of marijuana or evidence of a crime. For example, if a police officer had seen a criminal amount of marijuana in plain view, or had seen the driver smoking marijuana, dissipating marijuana smoke, or exhibiting signs of intoxication, the smell of the marijuana combined with one or more of those other factors may well have established probable cause to search the vehicle.
However, in this case, under the totality of the circumstances, the smell and the admission to having marijuana “shake” (a small quantity) was insufficient to provide probable cause to believe that the vehicle’s occupants were in possession of a criminal amount of marijuana.
The designation of an activity as a civil offense demonstrates a reduced governmental interest that renders a warrantless search under the automobile exception based on probable cause unreasonable under the Fourth Amendment.
Officers should be aware this holding is not limited to civil infractions involving marijuana but would similarly prohibit a warrantless search of any vehicle based solely on probable cause to believe it contains evidence of any civil infraction or contraband related to that civil infraction.
