People v. Moorman

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM.
• Citation: People v. Moorman, 331 Mich.App. 481, 952 N.W.2d 597 (Mich. App. 2020)
• Decision Date: 13 February 2020
• Docket Number: No. 349282,349282
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas MOORMAN, Defendant-Appellant.

331 Mich.App. 481

952 N.W.2d 597

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Thomas MOORMAN, Defendant-Appellant.

No. 349282

Court of Appeals of Michigan.

Submitted February 5, 2020, at Grand Rapids.

Decided February 13, 2020, 9:05 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Robert T. Steinhoff, Prosecuting Attorney, for the people.

Superior Law, PLLC, Ironwood (by Antonio Ruiz ) for defendant.

Before: Sawyer, P.J., and Markey and Stephens, JJ.

Per Curiam.

Defendant, Thomas Moorman, appeals by leave granted an order denying his motion to suppress the evidence and dismiss the charges against him, including possession of alprazolam, MCL 333.7403(2)(b)(ii ) ; possession of Ultram, MCL 333.7403(2)(b)(ii ) ; obtaining a pistol without a license, MCL 750.232a(1) ; and carrying a concealed weapon (CCW), MCL 750.227. Defendant argues that the trial court erred by denying his motion to suppress pursuant to our recent decision, People v. Anthony , 327 Mich. App. 24, 932 N.W.2d 202 (2019), because the odor of marijuana alone was insufficient to establish probable cause when defendant possessed a medical marijuana card in accordance with the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. We affirm.

I. FACTUAL BACKGROUND

In November 2018, Trooper Alan Park of the Michigan State Police stopped defendant's vehicle for speeding. Park testified that when he approached defendant's vehicle, he smelled a strong odor of fresh marijuana emanating from the vehicle, which indicated to him that there was a "good quantity" of marijuana in the vehicle.

Defendant initially denied having any marijuana in the car. However, upon Park's further questioning, defendant stated that he had harvested marijuana earlier that day. Park testified that defendant claimed to have a medical marijuana card, but Park could not recall whether defendant presented the card to him during the traffic stop. Defendant testified that he had produced a valid medical marijuana caregiver card to Park during the traffic stop and that he had five patients at the time. Park affirmed that the card's registration number was listed in the police report. The police report did not indicate when the card was presented.

Park testified that a search of the vehicle was performed to verify that defendant was within the regulated amount of 2.5 ounces of medical marijuana. When asked what justification Park had for the search, he responded, "Just the odor of marijuana." After Park stated to defendant that he was going to search the vehicle because of the odor of marijuana, he asked whether defendant had any weapons in the vehicle. Defendant replied that he had a handgun and "slap[ped] it on the dash of his truck." Park determined that defendant did not have a Michigan permit for the gun; however, defendant claimed that he had a concealed pistol license (CPL) in Indiana. Defendant presented a Michigan driver's license and stated that he had lived in Michigan for at least a year. Park informed defendant that he was required to have a Michigan permit for the handgun and that Park would be seizing it. Defendant consented to a search of his person, which did not reveal any illegal contraband. Park then searched defendant's vehicle and found pills for which defendant did not have a prescription.

Defendant moved to suppress the evidence against him, arguing that the smell of marijuana alone does not provide probable cause to search a vehicle without other circumstances indicating that an individual possesses marijuana outside the allowable limits under the MMMA. Defendant further argued that the possession of a valid medical marijuana card eliminated any suspicion of criminal activity. Following a hearing and supplemental briefing concerning this Court's recent decision in Anthony , 327 Mich. App. 24, 932 N.W.2d 202, the trial court denied the motion, concluding that Anthony was dispositive.

II. ANALYSIS

This Court reviews de novo a trial court's ruling on a motion to suppress.

People v. Hyde , 285 Mich. App. 428, 436, 775 N.W.2d 833 (2009). "The trial court's factual findings are reviewed for clear error, and the underlying constitutional issues, including whether a Fourth Amendment violation occurred, are reviewed de novo." People v. Henry (After Remand) , 305 Mich. App. 127, 137, 854 N.W.2d 114 (2014) (citation omitted). "A factual finding is clearly erroneous if it leaves the Court with a definite and firm conviction that the trial court made a mistake." People v. Steele , 292 Mich. App. 308, 313, 806 N.W.2d 753 (2011).

Both the United States Constitution and the Michigan Constitution guarantee the right of the people to be free from unreasonable searches and seizures. U.S. Const., Am. IV ; Const. 1963, art. 1, § 11 ; People v. Kazmierczak , 461 Mich. 411, 417, 605 N.W.2d 667 (2000). "The lawfulness of a search or seizure depends on its reasonableness." People v. Beuschlein , 245 Mich. App. 744, 749, 630 N.W.2d 921 (2001). Searches or seizures conducted without a warrant are per se unreasonable, subject to several well-delineated exceptions. People v. Champion , 452 Mich. 92, 98, 549 N.W.2d 849 (1996). Therefore, "[i]n 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." Kazmierczak , 461 Mich. at 418, 605 N.W.2d 667. Generally, "evidence that is obtained in violation of the Fourth Amendment is inadmissible as substantive evidence in criminal proceedings." People v. Eaton , 241 Mich. App. 459, 461, 617 N.W.2d 363 (2000).

A traffic stop does not violate the Fourth Amendment when a police officer has "an articulable and reasonable suspicion that a vehicle or one of its occupants is subject to seizure for a violation of law."

People v. Williams , 236 Mich. App. 610, 612, 601 N.W.2d 138 (1999). "[W]hen a traffic stop reveals a new set of circumstances, an officer is justified in extending the detention long enough to resolve the suspicion raised." People v. Williams , 472 Mich. 308, 315, 696 N.W.2d 636 (2005). "[U]nder 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." Kazmierczak , 461 Mich. at 418-419, 605 N.W.2d 667. In Kazmierczak , our Supreme Court held 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." Id. at 413, 605 N.W.2d 667.

Defendant contends that the smell of marijuana alone was insufficient to establish probable cause for the warrantless search of defendant's vehicle when defendant presented a medical marijuana caregiver card to the officer and that the trial court erred by relying solely on Anthony to support its denial of defendant's motion to suppress. Under the circumstances, we agree that the trial court erred by relying on Anthony , but we conclude that the trial court's decision was nonetheless proper under Kazmierczak .

In Anthony , we held that a police officer had probable cause to search a publicly parked vehicle when the strong odor of burned marijuana emanating from the vehicle suggested that the defendant had been using marijuana. Anthony , 327 Mich. App. at 45, 932 N.W.2d 202. We concluded that

if the MMMA does not apply to a parked vehicle in a parking lot open to the public, then it likewise could not apply to a parked vehicle on a public street. Thus, because defendant used marijuana in his truck on a public street, the protections of the MMMA did not apply to defendant and Kazmierczak applied with full force to supply probable cause for the officers to search his vehicle. [Id. ]

Defendant argues that this case is distinguishable from Anthony , and we agree. Anthony specifically involved the defendant's unprotected conduct of using marijuana in a public place, whereas defendant in this case was in possession of marijuana in accordance with his caregiver card. Thus, further analysis is required.

In this case, defendant was a verified marijuana caregiver, which qualified defendant for protection under the MMMA. Defendant was in possession of marijuana in a permitted area. Park conducted a traffic stop after observing defendant speeding on a public highway. The MMMA appears to allow an individual to possess marijuana so long as the individual is not in a school bus, on the grounds of a preschool or primary or secondary school, or in any correction facility. See MCL 333.26427(b)(2)(A) through (C). Defendant was pulled over at a "pump station area," and the record does not indicate that defendant was present at any of these prohibited locations.

Thus, unlike in Anthony , the activity (possession versus use) was not inherently unprotected under the MMMA. But the analysis must then move to a second question: Did the trooper have probable cause to believe that the possession was unlawful because of the quantity involved? As a caregiver, defendant was allowed to possess a maximum amount of 2.5 ounces of marijuana per patient. MCL 333.26424(b)(1). Defendant made no statements indicating that he possessed marijuana over his limit.¹ But we think that there exists an important fact that does give rise to probable cause to believe that defendant's possession was not in conformity with the MMMA.

As noted earlier, defendant initially denied the presence of any marijuana in the vehicle. This claim was inconsistent with Park's testimony that he smelled the odor of fresh marijuana. Accordingly, under Kazmierczak , Park had probable cause to believe that defendant did possess marijuana and that defendant lied about it. Furthermore, we believe that defendant's deception about the presence of marijuana in the vehicle would give rise to probable cause to believe that the amount possessed was greater...