People v. Hilber, 2
| Decision Date | 30 August 1978 |
| Docket Number | No. 2,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jeffrey Lee HILBER, Defendant-Appellee. 403 Mich. 312, 269 N.W.2d 159 |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert E. Goebel, Jr., Pros. Atty., Thomas C. Nelson, Asst. Atty. Gen., Dept. of Attorney General Prosecuting Attorneys, Appellate Service, Lansing, Robert B. Kane, Research Assistant, for plaintiff-appellant.
Green, Renner, Weisse, Rettig, Rademacher & Clark by James A. Rademacher, Escanaba, for defendant-appellee.
Before the Entire Bench
Jeffrey Lee Hilber was convicted of possession of amphetamines 1 and possession of marijuana with intent to deliver. 2
The contraband was seized following a warrantless search of an automobile Hilber had been driving.
The circuit judge found that "the strong odor of marijuana" emanating from the automobile provided probable cause for the search. The Court of Appeals suppressed the seized evidence and reversed the conviction. We affirm its decision.
The questions are
i) whether there was probable cause to search the automobile for marijuana and
ii) if so, whether a warrantless search was justified. 3
Our disposition makes it unnecessary to reach the second question.
On April 19, 1975 Hilber was stopped for speeding by the state police. Two officers approached the automobile. Trooper Olson asked Hilber for his driver's license and registration. Olson smelled an odor of burned marijuana. After receiving and examining the license and registration, he asked Hilber if he had marijuana in the automobile. Hilber took a cigarette package from the dashboard, got out of the automobile and handed it to Olson. The package contained four hand-rolled cigarettes that appeared to Olson, based on his training and experience, to be marijuana cigarettes.
Trooper Lahde escorted Hilber to the scout car, and arrested him. Olson searched the automobile and found marijuana paraphernalia and the amphetamines in a jacket lying on the front passenger seat. He also found a plastic container containing marijuana cigarette butts and a paper bag containing about five pounds of marijuana.
Hilber moved to suppress the evidence seized in the search. The circuit judge suppressed the marijuana cigarettes because he found a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), but further found that the odor of marijuana justified the search of the automobile and denied the motion to suppress the other evidence that had been seized.
Hilber's appeal to the Court of Appeals raised six issues. The Court of Appeals, addressing only one issue, agreed that the marijuana cigarettes had been properly suppressed, but disagreed with the judge's ruling that the search was justified, and reversed Hilber's conviction.
The people do not challenge the suppression of the marijuana cigarettes, and do not claim that the cigarettes justified the search. Nor do they claim that the search was an incident of Hilber's arrest. 4
The people contend, rather, that the odor of burned marijuana provided reasonable cause to believe that Hilber had smoked the marijuana that caused the odor and that there was unsmoked marijuana in the automobile.
Hilber contends that, while the odor of Burning marijuana indicates the presence of marijuana, the odor of Burned marijuana indicates only the presence of marijuana in the past and does not alone establish probable cause.
Cases in other jurisdictions 5 where the officer smelled unburned marijuana and upon a search discovered a large quantity are not in point. The odor of Unburned marijuana indicates the actual presence of marijuana; the odor of Burned marijuana indicates only that at some time in the past marijuana was present and burned.
In still other cases, however, courts have held that the odor of burned marijuana may provide probable cause for an arrest or search. 6 We share the view that the odor of burned marijuana, in some circumstances, may provide reason to believe that a particular person smoked it (probable cause for arrest) or that there is a quantity of unsmoked marijuana (probable cause to search for it). In this case, however, the record supports neither conclusion.
Olson testified that he smelled "a distinct, strong odor of marijuana coming from the car," 7 and that in his opinion the marijuana had been smoked "quite recently." When asked whether "it could have been burned a day ago" and "be in the seats, in the fabric itself?" he responded: "It could be, but it was stronger."
Olson had attended lectures on narcotics "at which time they burned marijuana." He had an opportunity to smell its "distinct odor all of its own." He acknowledged, however, that he had not been trained in determining the length of time a residual marijuana odor has lingered:
Hilber did not appear to Olson to be under the influence of marijuana. 8
" Probable cause" has been restated as "reasonable cause." Reasonable cause is cause based on reason deemed adequate. The adequacy of the cause and reason depends on a balancing of the needs of law enforcement and of the individual's right to be protected against undue invasion of reasonable expectations of privacy and on an appraisal of how a prudent person would view the factual circumstances.
The inquiry is not subjective, into the officer's good faith, but, rather, objective, measured by a standard determined by the court based on its balancing of all the factors and its appraisal of how a prudent person would view the factual circumstances.
The people have the burden of proof on the probable cause issue. 9
In contending that it was proper to conclude, from the odor of burned marijuana alone, that Hilber smoked the marijuana and that there was unsmoked marijuana in the automobile the people rely on multiple inferences:
an inference that, where there is an odor of burned marijuana in an automobile, a driver/sole occupant smoked the marijuana, and
an inference that a marijuana smoker carries a supply.
Because most or all of us have no first-hand experience with marijuana, there may be a tendency to appraise the reasonableness of those inferences based on our knowledge of the habits of tobacco smokers still another inference in this chain of inferences.
Even if it is reasonable to infer that a tobacco odor in an automobile was caused by the driver/owner/sole occupant, although tobacco odor and other odors (E. g., beer and alcohol) are commonly caused by someone not the driver or other occupant at the time the odor is detected, 10 it may be unsound to assume that marijuana smokers have the same smoking habits as tobacco smokers and therefore it may be unsound to appraise evidence relating to the conduct of marijuana smokers by standards of reference inferred from the habits of tobacco smokers:
Marijuana, because it is a prohibited substance, is less available and more costly than tobacco. A marijuana smoker may therefore be less likely to have a supply of unsmoked marijuana and more likely to have run out than a tobacco smoker.
Marijuana, like alcohol, dulls the senses. While persons who drink drive, generally they do not drink while driving. It may easily be that marijuana smokers do not generally smoke marijuana while driving even if passengers are smoking marijuana. If that be the case, an inference that a marijuana odor was caused by the driver, rather than some other occupant no longer in the automobile, 11 may not be reasonable.
We conclude, because of the multiple inferences involved and the uncertainty of the analogy to tobacco smokers, no other basis having been proffered, that it has not been made to appear that it is reasonable to infer that the driver/sole occupant smoked marijuana solely from a residual odor of marijuana.
The people rely, in addition to the multiple inferences, on Olson's testimony that the odor was "strong" and "quite recent" as other evidence that Hilber was the person who smoked the marijuana and that there was a supply of unburned marijuana in the automobile.
Testimony of Olson's sensory perceptions is clearly admissible. Most often sensory perception testimony relates to visual and auditory perceptions. In contrast with sight and hearing, however, for which persons are tested and provided correctional aids, there is no standard or norm for the sense of smell. Additionally, again in contrast with sight and hearing, the sense of smell adapts to odors with the result that one person's perception may differ significantly from another's.
Most persons recognize the odors of intoxicating liquor, beer and tobacco without special training. Many recognize the odors of burning and unburned marijuana. It is also commonplace to recognize the residual odors of spilled beverages and burned tobacco and perhaps even burned marijuana. It is, however, beyond ordinary experience to be able to determine with reasonable accuracy the length of time a persistent odor has lingered.
A persistent automobile odor may be strong and appear to be recent although it has lingered for hours, days or even longer. (Where, for example, beer has been spilled or a large number of cigars have been smoked in an automobile there will be a strong odor even though no beer or cigars have been consumed for a considerable time.)
Evidence of a person's past use of marijuana would not alone furnish probable cause to stop him on the street and search him for marijuana. Nor would it alone justify issuance of a warrant to search him, his residence or automobile for marijuana. It would,...
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