People v. Kazmierczak

• Decision Date: 10 February 2000
• Docket Number: Docket No. 113452, Calendar No. 13.
• Citation: 461 Mich. 411,605 N.W.2d 667
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. David Edward KAZMIERCZAK, Defendant-Appellee.
• Court: Michigan Supreme Court

605 N.W.2d 667

461 Mich. 411

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. David Edward KAZMIERCZAK, Defendant-Appellee.

Docket No. 113452, Calendar No. 13.

Supreme Court of Michigan.

Argued October 14, 1999.

Decided February 10, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Daniel L. Lemisch, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, Pontiac, for the people.

Frederick M. Finn, Detroit, for the defendant-appellee.

Elwood Brown, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, for amici curiae Prosecuting Attorneys Association of Michigan.

Opinion

TAYLOR, J.

Defendant was charged with possession with intent to deliver marijuana. MCL 333.7401(2)(d)(iii); MSA 14.15(7401)(2)(d)(iii). In accordance with People v. Taylor, 454 Mich. 580, 593, 564 N.W.2d 24 (1997), which held that "odor [of marijuana] alone is not sufficient probable cause to search a vehicle," the trial court granted a motion to suppress the evidence and dismissed the charges. As explained below, we overrule Taylor, and hold that the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle, pursuant to the motor vehicle exception to the warrant requirement. We reverse the order of the trial court and remand for further proceedings.

Statement of Proceedings Below

Marijuana was found in the trunk of defendant's car after he was stopped for speeding. Defendant was bound over for trial in the circuit court after a preliminary examination. Defense counsel filed a motion in the circuit court to quash the information, arguing that the marijuana had been seized contrary to the Fourth Amendment. The trial court found that the bindover had been proper and denied the motion.

Defendant filed an interlocutory appeal in the Court of Appeals. While that appeal was pending, this Court issued its decision in People v. Taylor, supra.

Two weeks later, the Court of Appeals entered the following order:

Pursuant to MCR 7.205(D)(2) the February 13, 1997 order of the Oakland Circuit Court is vacated and the case remanded for reconsideration of defendant's motion to suppress evidence and dismiss the information in light of People v. Taylor [citation omitted], holding that the odor of marijuana alone is not sufficient probable cause to search a vehicle without a warrant, but may be one factor to consider in the totality of the circumstances. [Unpublished order, entered June 30, 1997 (Docket No. 203590).]

At a subsequent evidentiary hearing, Officer Jason Bordo testified that he stopped defendant for speeding twenty miles over the posted limit. Bordo indicated he was five to ten feet behind the rear bumper of the car when he detected "a very strong smell of marijuana emanating from the vehicle" that was "overpowering." Bordo stated that he had previously participated in fifteen to twenty cases involving marijuana and that, although he could not definitively describe the smell of marijuana, he could distinguish between burning marijuana and unburned marijuana and that the smell he detected was of unburned marijuana.

Defendant told Bordo he did not have any marijuana in the car. When Bordo's search of the inside of the car did not reveal any marijuana, he opened the trunk and observed a zippered duffle bag. A search of the duffle bag revealed a block of marijuana in a sealed clear plastic bag. Rolling papers, baggies and a scale were also found in the duffle bag.

Defense counsel's cross-examination of Bordo ended as follows:

Q. Okay. So the only basis for searching the trunk was your claim of smelling the odor of marijuana, is that true?

A. That is true.

Defense counsel thanked Bordo for his candid testimony and asked the court to suppress the evidence and dismiss the case because Bordo had admitted that the only basis for his search was the smell of marijuana and that was not enough pursuant to People v. Taylor.

The trial court concluded the evidentiary hearing by indicating that it believed Bordo had been very forthright. The court subsequently issued an opinion and order stating the case was before the court for reconsideration in light of People v. Taylor and further stating:

The Court first notes that it finds that the testimony of Troy Police Officer Jason Bordo was credible. The Court also notes that the only offense that Officer Bordo observed to warrant the traffic stop was an alleged driving in excess of the posted speed limit. In other words, this case amounted to a routine traffic stop. The Court further finds that the facts surrounding the search of Defendant's vehicle established no exception to the Fourth Amendment Warrant Clause. Officer Bordo testified that the only basis for his search of Defendant's vehicle was the smell of marijuana.

Therefore, since the odor of marijuana was the sole factor to support the search, the Court finds that there was not sufficient probable cause for the warrantless search of Defendant's vehicle.

The prosecution appealed the trial court's order to the Court of Appeals, which affirmed on the basis of People v. Taylor.¹ The Court of Appeals opinion stated as follows in a footnote:

If we were not bound by our Supreme Court's holding in Taylor, supra, we would reverse the lower court's decision and hold that odor alone is sufficient probable cause to justify the search of an automobile. Like the majority of courts in other states and jurisdictions, we are persuaded that detection of the odor of either fresh marijuana or marijuana smoke, standing alone, provides probable cause for a warrantless search. See, e.g., State v. Sarto, 195 N.J.Super. 565, 574, 481 A.2d 281 (1984) (reversing the order of suppression because "the strong odor of unburned marijuana gave police probable cause to search the trunk for evidence of contraband"); Waugh v. State, 20 Md.App. 682, 691, 318 A.2d 204 (1974) (stating that "[t]rained investigators are entitled to rely upon the sense of smell to establish probable cause, just as surely as they are entitled to rely upon the senses of sight, hearing, touch or taste"), rev'd on other grounds, 275 Md. 22, 30, 338 A.2d 268 (1975). See generally the collection of cases catalogued at 68 Am. Jur. 2d, Searches and Seizures, "Detection of Odor," § 72 (1993), and "Odor of Narcotics as Providing Probable Cause for Warrantless Search," 5 A.L.R.4th 681 (1981).

The prosecution filed an application for leave to appeal, asking this Court to revisit People v. Taylor and to rule that the odor of marijuana by itself is sufficient to provide probable cause for the search of an automobile. This Court subsequently granted the prosecution's application for leave to appeal.²

Controlling Legal Authorities

The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures. U.S. Const., Am. IV³; Const. 1963, art. 1, § 11.

The right to be secure against unreasonable searches and seizures absent a warrant based upon probable cause is subject to several specifically established and well-delineated exceptions. People v. Davis, 442 Mich. 1, 10, 497 N.W.2d 910 (1993). Probable cause to issue a search warrant exists where there is a "substantial basis" for inferring a "fair probability" that contraband or evidence of a crime will be found in a particular place. People v. Russo, 439 Mich. 584, 604, 487 N.W.2d 698 (1992).⁴ Generally, evidence obtained in violation of the Fourth Amendment is inadmissible as substantive evidence in criminal proceedings. In re Forfeiture of $176,598, 443 Mich. 261, 265, 505 N.W.2d 201 (1993).⁵

In order to show that a search was in compliance with the Fourth Amendment, the police must show either that they had a warrant or that their conduct fell within one of the narrow, specific exceptions to the warrant requirement. Davis, supra at 10, 497 N.W.2d 910.

One of the well-established exceptions to the warrant requirement is known as the automobile or motor vehicle exception. As explained in Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996), the automobile exception is premised on an automobile's ready mobility and pervasive regulation, and if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more.⁶ Thus, under the automobile exception, the police may search a motor vehicle without the necessity of first obtaining a warrant if probable cause to support the search exists.

People v. Taylor

In People v. Taylor, the four-justice majority rejected the claim that the smell of marijuana alone was sufficient to provide probable cause to conduct a search of a motor vehicle without a warrant. Rather, the majority indicated that the smell of marijuana was but one factor to consider in the totality of the circumstances.

In a key passage, the majority stated:

The [Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932)] Court stated:

"Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees against unreasonable search." [Id. at 6, 52 S.Ct. 466.]

Later, in Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the Court reiterated that Taylor held

"only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be

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