            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 30, 2019
               Plaintiff-Appellant,


v                                                                  No. 345459
                                                                   Roscommon Circuit Court
AARON JAMES CLARK,                                                 LC No. 18-008002-FH

               Defendant-Appellee.


Before: O’BRIEN, P.J., and FORT HOOD and CAMERON, JJ.

PER CURIAM.

        The prosecution appeals as of right the trial court’s order granting defendant’s motion to
suppress evidence and dismiss the charges against him, including one charge of possession of
less than 25 grams of hydrocodone, MCL 333.7403(2)(a)(v), and one charge of possession of
marijuana, MCL 333.7403(2)(d). The trial court ruled that Michigan State Police Trooper Karen
Roy did not have probable cause to search defendant’s vehicle after she smelled marijuana,
holding that the odor of marijuana was not indicative of criminal activity because the Michigan
Medical Marihuana Act (MMMA), MCL 333.26421 et seq., made the possession of marijuana
legal for a segment of the population. The prosecution argues on appeal that the odor of
marijuana alone justifies the warrantless search of an automobile and that, even if odor alone
were insufficient, defendant’s statements to the police preceding the search were sufficient to
establish probable cause. We reverse.

                                I. FACTUAL BACKGROUND

       In March 2018, Trooper Roy pulled defendant over for having, according to Trooper
Roy’s testimony, a loud and defective exhaust on his vehicle. Trooper Roy testified that, as she
walked up to the passenger window of defendant’s car, she smelled marijuana. Trooper Roy also
saw a small pair of scissors she believed to be consistent with marijuana use. Because defendant
kept proof of his automobile insurance on his cell phone, Trooper Roy asked defendant to sit in
the passenger seat of her patrol car while she verified his license and registration. While
defendant was in the patrol car, Trooper Roy asked defendant if he had marijuana in his car, to
which defendant initially responded that he did not. After Trooper Roy informed defendant that


                                               -1-
she had a drug-sniffing dog with her, defendant stated that he had a medical marijuana card in his
car and a “one-hitter.” Defendant added that he could produce the one-hitter, but he did not
consent to a search of his vehicle.

        Trooper Roy responded that she did not need defendant’s consent because the presence of
marijuana permitted her to search defendant’s car, explaining that she needed to verify that
defendant did not have more marijuana than he was permitted to have. Trooper Roy then asked
defendant if he had any more marijuana, to which defendant first responded in the negative
before then telling Trooper Roy that he also had a pack of cigarettes with two or three joints in it.
Defendant added that he had recently undergone a root canal, and the marijuana helped him with
the resulting pain. After two backup troopers arrived, Trooper Roy asked defendant if she was
going to find anything defendant was “not supposed to have” in his vehicle. Defendant stated
that there was medication in the vehicle for which he had a prescription.

        While the two backup troopers started searching defendant’s car, defendant presented
Trooper Roy with his medical marijuana card. Trooper Roy noted that defendant presented a
caregiver card, which only permitted possession, not use, of marijuana. Defendant failed to
produce a patient card.1 While searching defendant’s vehicle, the troopers discovered Vicodin,
for which defendant was unable to produce a prescription. Defendant told Trooper Roy that a
friend had given him the Vicodin to help with the pain from his root canal. Trooper Roy placed
defendant under arrest.

        The prosecution charged defendant with one count of possession of less than 25 grams of
hydrocodone, MCL 333.7403(2)(a)(v), and possession of marijuana, MCL 333.7403(2)(d).
Defendant moved to suppress the evidence against him and dismiss the charges, arguing that (1)
the stop was unlawful from the outset because defendant’s exhaust was functioning adequately,
(2) the smell of marijuana alone was insufficient to establish probable cause to search
defendant’s car, (3) Trooper Roy unlawfully detained defendant by removing him to the patrol
car, and (4) Trooper Roy violated defendant’s Fifth Amendment protection against self-
incrimination by failing to advise him of his rights until the end of the stop. The prosecution
opposed the motion, arguing Trooper Roy had a lawful basis to pull defendant over and that the
smell of marijuana alone established probable cause to justify the search of defendant’s car. The
trial court ruled that, because the MMMA made possession of marijuana lawful under certain
circumstances, the smell of marijuana alone was not necessarily indicative of criminal activity
and the search of defendant’s vehicle was thus unconstitutional. The court stated that, in order to
establish probable cause, Trooper Roy should have asked to see defendant’s medical marijuana
card before the search began, and then should have determined whether there was a reasonable
ground to suspect that defendant had more marijuana than the MMMA allowed him. Under
these particular circumstances, we disagree that Trooper Roy lacked probable cause and reverse.

                                          II. ANALYSIS



1
  On appeal, defendant admits that he did not have a valid patient card at the time of the stop, but
received one later.


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        This Court reviews a trial court’s ruling on a motion to suppress de novo. People v Hyde,
285 Mich App 428, 436; 775 NW2d 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 NW2d 114 (2014). “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 NW2d 753 (2011).

        The Fourth Amendment protects against unreasonable searches and seizures. People v
Jones, 260 Mich App 424, 428; 678 NW2d 627 (2004). Generally, “evidence obtained in
violation of the Fourth Amendment is inadmissible as substantive evidence in criminal
proceedings.” People v Eaton, 241 Mich App 459, 461; 617 NW2d 363 (2000). A traffic stop is
valid 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 NW2d 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 NW2d 636 (2005). Although the Fourth
Amendment generally requires a warrant to conduct a search, “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 Kazmierczak, 461 Mich 411, 418-419;
605 NW2d 667 (2000). “Probable cause exists when there is a reasonable ground of suspicion
supported by circumstances sufficiently strong to warrant a cautious person to believe that the
accused is guilty of the offense charged.” People v Carter, 250 Mich App 510, 521; 655 NW2d
236 (2002). “[T]he 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.” Kazmierczak, 461 Mich at 413.

       The prosecution contends that the odor of marijuana alone was sufficient to establish
probable cause for the warrantless search of defendant’s vehicle. Under the circumstances, we
conclude that defendant’s statements and conduct combined with the odor provided Trooper Roy
with probable cause.

        The trial court based its decision to suppress on the fact that the MMMA was enacted
after Kazmierczak, and thus, because the MMMA made possession of marijuana lawful for a
certain segment of the population, the rule stemming from Kazmierczak that the odor of
marijuana establishes probable cause was no longer applicable. The trial court relied on an
unpublished opinion of this Court, wherein, under similar factual circumstances, this Court noted
that the MMMA was enacted after Kazmierczak, and this Court chose to “assume” for the
purposes of its analysis that the odor of marijuana alone was “not sufficient to support probable
cause to conduct a search . . . .” People v Zaid, unpublished per curiam opinion of the Court of
Appeals, issued May 26, 2015 (Docket No. 320197), p 5, vacated in part on other grounds 499
Mich 933 (2016). Apart from Zaid being nonbinding under MCR 7.215(C)(1), in that case, this
Court explicitly noted: “[T]his opinion is not to be construed as holding that the odor of
marijuana, in and of itself, cannot serve as probable cause when a person holds a valid marijuana
registration card; we merely find it unnecessary to answer that question.” Zaid, unpub op at 5.



                                               -3-
        More recently, in a published opinion, this Court answered that question. In People v
Anthony, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 337793); slip op at 11,
this Court held that the enactment of the MMMA did not entirely supersede Kazmierczak, at least
to the extent that the MMMA does not authorize the smoking of marijuana in public places. In
Anthony, the defendant was approached while in a parked vehicle on a public street, and during
the approach, the arresting officer smelled “burned marijuana.” Id. at 10. This Court concluded
that, because the MMMA did not allow for the smoking of marijuana in public places, and
because the defendant was parked in a public place, the smell of burned marijuana alone
provided the arresting officer probable cause to search the defendant’s vehicle. Id. at 11. The
logic of Anthony suggests that the enactment of the MMMA did, in fact, affect the reach and
scope of Kazmierczak.

        Unlike in Anthony, the prosecution in this case did not allege that defendant smoked or
otherwise used marijuana while in a public place, nor did the prosecution allege that defendant
operated his vehicle while under the influence of marijuana. Trooper Roy testified only that she
smelled a “slight odor” of marijuana. Trooper Roy did not indicate that the marijuana smelled
burned, and in fact, specifically indicated that she did not believe defendant was intoxicated.
Given that defendant was able to produce a medical marijuana provider card, we are not
convinced under these circumstances that the “slight odor” of marijuana would have been
sufficient to establish probable cause because, essentially, it would appear under the facts that
defendant lawfully possessed the marijuana. With the passage of the MMMA and with the more
recent passage of the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL
333.27951 et seq., which further decriminalizes the possession and use of marijuana, we believe
this distinction between the present case and Anthony to be notable.

        Nevertheless, we hold that Trooper Roy had probable cause to search defendant’s vehicle
in this case. Defendant gave significant indications the he understood his own behavior to be
unlawful. Defendant first told Trooper Roy that he had a “one-hitter” in his car and a medical
marijuana card. Defendant repeated this at least two times before backtracking and stating that
he had two or three joints in his car that he used for pain associated with a root canal. Notably,
the medical marijuana provider card defendant produced might have permitted him to possess
marijuana, but it did not permit him to use it.2 Defendant then denied having anything else in his
car before again backtracking and claiming that he had multiple prescription medications.
Defendant’s evolving answers to Trooper Roy’s questions created a reasonable suspicion that
defendant was unlawfully possessing controlled substances, justifying Trooper Roy’s continued
questioning of defendant and ultimately establishing probable cause to search defendant’s
vehicle.




2
  We note that the MRTMA would now permit the generalized use of marijuana under similar
circumstances. However, the statute became effective after defendant was charged, and
defendant does not raise the MRTMA as an issue on appeal.




                                               -4-
         Because we agree with the prosecution that probable cause existed under the
circumstances, we need not address its alternative arguments that the evidence was admissible
under the inevitable-discovery doctrine or the good-faith exception to the exclusionary rule.
Additionally, we note that defendant raises several unpreserved arguments related to the corpus
delicti rule, the classification of marijuana as a Schedule 2 controlled substance, the enforcement
provisions in the MMMA, and the Medical Marihuana Facilities Licensing Act (MMFLA), MCL
333.27101 et seq. Defendant further argues that he is immune from prosecution under the
MMMA because he received a medical marijuana patient card after his arrest. Defendant did not
raise these issues in the trial court, and we decline to address them because they exceed the scope
of the questions presented on appeal. Any immunity defense properly raised in the trial court
may be addressed on remand.

        Reversed and remanded for further proceedings consistent with this opinion. On remand,
the trial court should address the issues it did not rule on from defendant’s motion to suppress,
including the argument that defendant was unlawfully detained toward the beginning of the
traffic stop, and that defendant’s Fifth Amendment protection against self-incrimination was
violated. We do not retain jurisdiction.



                                                            /s/ Colleen A. O’Brien
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Thomas C. Cameron




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