Warrantless vehicle search; Automobile exception; Fourth Amendment; Const 1963, art 1, § 11; Probable cause; Civil infraction; Marijuana possession by person under 21; Michigan Regulation & Taxation of Marihuana Act (MRTMA); MCL 333.27965; Contraband; People v Armstrong; Carroll v United States; Terry v Ohio

The court held that the automobile exception did not permit a warrantless vehicle search based only on probable cause to believe the vehicle contained evidence of a civil infraction for marijuana possession by a person under 21. A state trooper stopped defendant for speeding, smelled marijuana, learned both occupants were under 21, searched defendant’s person, and questioned the passenger. He searched the vehicle after the passenger said she had “some shake,” and the trooper found a concealed firearm. The circuit court denied defendant’s motion to suppress, and the Court of Appeals affirmed. On appeal, the court held that the search was unlawful because the Fourth Amendment’s automobile exception requires probable cause to believe the vehicle contains “contraband or evidence of a crime,” and marijuana possession of not more than 2.5 ounces by a person under 21 is a civil infraction under MCL 333.27965. The court reasoned that a civil infraction is “of lesser severity than a criminal infraction,” and the people of Michigan showed a “reduced state interest” in enforcing low-level marijuana offenses by removing them from criminal law through the MRTMA. The court also concluded that marijuana prohibited only by civil law is not “contraband” for purposes of a warrantless automobile search because reasonableness requires proportionality between the suspected violation and the intrusion on Fourth Amendment rights. Applying that rule, the court held that the smell of marijuana, the absence of visible marijuana or signs of intoxication, and the passenger’s statement that she might have a small amount did not create probable cause to believe the vehicle contained a criminal amount of marijuana or evidence of another crime. Reversed and remanded.

Justice Welch concurred. She agreed that the Fourth Amendment did not permit the warrantless search, but would have decided the case under Article 1, § 11 of the Michigan Constitution rather than federal law. She emphasized that defendant preserved his state constitutional claim, that federal law is less helpful because marijuana remains illegal federally, and that other state supreme courts addressing marijuana legalization have generally developed their own state search-and-seizure doctrine.

Justice Zahra dissented, joined by Justice Bernstein. He would have held that the search was lawful because the trooper had probable cause to believe the vehicle contained marijuana “contraband,” regardless of whether the amount later proved to be only a civil infraction. He reasoned that the majority framed the case too narrowly, that the automobile exception has long allowed searches for “contraband or evidence of a crime,” and that marijuana remained unlawful for both occupants because they were under 21. He also emphasized that the trooper relied on more than odor because both occupants initially denied having marijuana and the passenger later admitted she had some in the vehicle.