ARLINGTON, Va.—Today, the Institute for Justice (IJ), together with the Cato Institute, filed an amicus brief in a case before the Michigan Supreme Court, urging the justices to hold that, following the state’s legalization of cannabis in 2018, the smell of marijuana on its own does not give police probable cause to stop, search, and seize individuals.
“Marijuana in Michigan is legal, so it makes no sense to say the mere smell of a legal product can give police a legitimate reason to think something illegal is going on,” said IJ Senior Attorney Rob Frommer. “Giving police the power to stop and search people without reasonable belief that something criminal has happened would violate the Fourth Amendment and lead to embarrassing and invasive fishing expeditions.”
On Oct. 8, 2020, five police officers were driving to conduct a “home-compliance check” in Detroit. The corporal in the group saw a black Jeep Cherokee parked on the street and claimed she smelled marijuana, which had been legalized two years prior. The police officers then surrounded the Jeep, finding a woman in the driver’s seat and Jeffrey Armstrong in the front passenger’s seat. The corporal ordered Armstrong and the woman out of the car and ultimately found a gun under the front seat. Armstrong ended up being charged with a crime for being a felon in possession of a firearm.
Although consuming marijuana in public in a vehicle is still illegal, the police had no reason to suspect anyone had consumed the marijuana in the car or out on the street. As a matter of fact, the corporal “did not see Armstrong toss out marijuana from the vehicle nor did she see any smoke emanating from either the driver or passenger side of the vehicle.”
Both the trial court and the court of appeals in Armstrong’s case ruled that the smell of marijuana, by itself, did not justify probable cause for the seizure. Now, the government is appealing to the Michigan Supreme Court.
“If police had observed Armstrong smoking in the vehicle or throwing a joint out the window, they would have had probable cause to conduct this seizure,” said IJ Attorney Mike Greenberg. “But simply smelling marijuana, in a state where it is legal, without any evidence that marijuana was consumed in the car, is not probable cause. Police need objective evidence, not personal whims, to search or seize a vehicle.”
IJ’s brief urges the Michigan Supreme Court to uphold the lower court decision for three main reasons:
- Police need “a fair probability that contraband or evidence of a crime will be found” in order to conduct a search or seizure;
- Courts must rigorously enforce the probable cause standard, because the “automobile exception” currently gives police too much power to rummage through cars on a whim;
- Police are expected to know the law, and thus should have known, that adult use and possession of marijuana was legalized two years prior to the seizure.
IJ recently argued before the Michigan Supreme Court in Long Lake Township v. Maxon, where it asked the state high court to hold that a local government’s warrantless use of drones to surveil private backyards is a “search” under the Fourth Amendment. Also in Michigan, IJ secured a victory before the 6th U.S. Circuit Court of Appeals in a challenge to Wayne County’s seizing of vehicles for forfeiture without probable cause. And in an IJ-litigated class action in California, a federal appeals court recently held that the FBI violated the Fourth Amendment rights of hundreds of people by breaking open their safe-deposit boxes without any individualized suspicion of wrongdoing. The Institute for Justice does all this work through its Project on the Fourth Amendment, by which it strives around the country to protect Americans’ right to be free from unreasonable searches and seizures.