            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 10, 2019
              Plaintiff-Appellee,

v                                                                  No. 346234
                                                                   Oakland Circuit Court
KEVIN JOHN CARLSON,                                                LC No. 2018-266958-FH

              Defendant-Appellant.


Before: CAVANAGH, P.J., and BECKERING and GADOLA, JJ.

PER CURIAM.

       In this interlocutory appeal, defendant appeals as on leave granted the order of the trial
court denying his motions to quash a search warrant and suppress evidence. We affirm.

                                           I. FACTS

        This matter arises from the January 17, 2018 search of defendant’s home in Bloomfield
Township, Michigan. On that date, police officers were dispatched to defendant’s home after
receiving a tip that there was an odor of marijuana coming from the home. Upon arriving at the
home, the investigating officer, who had received training in the identification and odor of
marijuana, detected the odor of marijuana while still in the roadway, then walked up the
driveway where he detected a very strong odor of marijuana coming from the home while
standing approximately 20 feet from defendant’s garage. The officer attempted to contact the
resident of the home by knocking at both front doors for several minutes, but received no
response. He continued to smell the odor of marijuana while at the doors of the residence. The
officer also observed that there were four vehicles in the driveway of the home, one of which had
an Ohio license plate that was registered to defendant. A search of the Law Enforcement data
base revealed an arrest report for defendant on November 19, 2017, for possession of marijuana;
the report indicated that defendant had given the home as his address. Based upon the affidavit
of the investigating officer that he detected the strong odor of marijuana emanating from
defendant’s home and observed defendant’s car in the driveway, the magistrate issued a search
warrant for the home.




                                               -1-
        When the police executed the search warrant, they discovered 155 pounds of marijuana in
the house packaged in various bags and jars, nine marijuana plants, plastic bags, digital scales,
and a safe containing $82,000 in cash. The police also discovered three tablets of 4-
methamphetamine, also known as ecstasy or MDMA, inside the house. At the time of the
search, defendant held a valid medical marijuana patient card and five valid caregiver cards,
which indicated that defendant was both a patient and a caregiver under the Michigan Medical
Marihuana Act (MMMA), MCL 333.26421 et seq. Defendant was charged with possession with
intent to deliver 45 kilograms or more of marijuana, MCL 333.7401(2)(d)(i), possession of a
controlled substance (methamphetamine/ecstasy), MCL 333.7403(2)(b)(i), manufacture of a
controlled substance (marijuana), MCL 333.7401(2)(d)(iii), and maintaining a drug house, MCL
333.7405(1)(d).

        Before the trial court, defendant moved to quash the search warrant and suppress the
evidence discovered in his home. Defendant argued that the odor of marijuana alone is
insufficient to establish probable cause and that under the MMMA1 it was lawful for him to grow
and use medical marijuana. The trial court denied defendant’s motions, holding that the odor of
marijuana alone was sufficient to establish probable cause, and the police were not required to
determine whether defendant’s possession of marijuana was legal before seeking a search
warrant. The trial court concluded that there was probable cause to obtain a search warrant on
the basis of the information in the officer’s affidavit. The trial court stayed its proceedings to
permit defendant to pursue an interlocutory appeal to this Court, challenging the trial court’s
denial of his motions to quash the search warrant and suppress the evidence. This Court initially
denied defendant’s application for leave to appeal,2 and our Supreme Court remanded the matter
to us for review as on leave granted. 3

                                        II. DISCUSSION

        Defendant contends that any evidence discovered in his home by police executing the
search warrant is inadmissible under the Fourth Amendment because the odor of marijuana alone
is insufficient evidence of criminality to give rise to probable cause for a search warrant, and
therefore, the search was constitutionally invalid. We disagree.

                                 A. STANDARD OF REVIEW

        We review de novo the trial court’s ruling on a motion to suppress evidence, and its
determinations whether the Fourth Amendment was violated and whether the exclusionary rule
applies. People v Woodard, 321 Mich App 377, 382-383; 909 NW2d 299 (2017). We review


1
  The Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq.,
which decriminalizes the possession and use of marijuana, was not in effect at the times relevant
to this case.
2
  People v Carlson, unpublished order of the Court of Appeals, entered December 12, 2018
(Docket No. 346234).
3
    People v Carlson, 503 Mich 1035 (2019).


                                               -2-
the trial court’s factual findings for clear error. Id. at 382. Clear error exists when this Court is
left with a definite and firm conviction that the trial court has made a mistake. People v
Barbarich, 291 Mich App 468, 471; 807 NW2d 56 (2011).

        When determining whether probable cause supported a search warrant, we review the
issuance of a search warrant in the context of the facts and circumstances supporting the
magistrate’s determination that probable cause existed. People v Martin, 271 Mich App 280,
298; 721 NW2d 815 (2006). Both the search warrant and supporting affidavit are reviewed “in a
commonsense and realistic manner to determine whether a reasonably cautious person could
have concluded that there was a substantial basis for finding probable cause.” Id. In so doing,
we defer to the magistrate’s decision. People v James, ___ Mich App ___, ___; 932 NW2d 248,
255 (2019). We will only disturb a magistrate’s finding of probable cause and decision to issue a
search warrant in limited circumstances. People v Franklin, 500 Mich 92, 101; 894 NW2d 561
(2017).

                      B. ODOR OF MARIJUANA AS PROBABLE CAUSE

       Defendant first argues that the trial court erred by not quashing the search warrant
because, although the odor of marijuana alone may be sufficient to establish probable cause to
search a vehicle, it is insufficient to establish probable cause to search a home. We disagree.

        The Fourth Amendment of the United States Constitution guarantees the right of the
people to be secure against unreasonable searches and seizures. US Const, Am IV. The
Michigan Constitution guarantees the same rights. Const 1963, art 1, § 11. In light of the
prohibition against unreasonable searches and seizures, a search warrant may only be issued
when there is a showing of probable cause sufficient to justify the search. MCL 780.651(1);4
Franklin, 500 Mich at 100. “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 Kazmierczak, 461 Mich 411, 417-418; 605 NW2d 667
(2000), quoting People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992). “Probable cause
must be supported by an oath or affirmation” that includes facts within the affiant’s knowledge.
People v Martin, 271 Mich App 280, 298; 721 NW2d 815 (2006) (citations omitted). Evidence
that is obtained in violation of the Fourth Amendment generally is inadmissible in a criminal
proceeding. Kazmierczak, 461 Mich at 418.




4
    MCL 780.651(1) states:
         When an affidavit is made on oath to a judge or district court magistrate
         authorized to issue warrants in criminal cases, and the affidavit establishes
         grounds for issuing a warrant under this act, the judge or district court magistrate,
         if he or she is satisfied that there is probable cause for the search, shall issue a
         warrant to search the house, building, or other location or place where the person,
         property, or thing to be searched for and seized is situated.



                                                 -3-
        To comply with the Fourth Amendment prohibition against unreasonable searches and
seizures, police must establish probable cause, and that they either obtained a warrant to search,
or that their search fell within an exception to the search warrant requirement. Id. at 418, 420-
422. In this case, the trial court determined that probable cause was established because, as in
Kazmierczak, the officer could smell the strong odor of marijuana while standing outside
defendant’s home. Defendant argues, however, that our Supreme Court’s determination in
Kazmierczak is inapplicable here because the search in this case involved a home and not a
vehicle. That argument, however, conflates the concept of probable cause and how it may be
established, with the concept of search warrant exceptions and when they exist. See id. at 420.

        In Kazmierczak, police conducted a warrantless search of the trunk of the defendant’s
vehicle after stopping the car for speeding. One of the arresting officers testified that he smelled
an odor of “unburned marijuana” emanating from the defendant’s trunk. Id. at 414. The
defendant sought to suppress the marijuana discovered inside his trunk, arguing that the police
lacked probable cause to search his vehicle. Id. Our Supreme Court explained that the first
inquiry was whether probable cause to search existed. Id. at 420-421. The Court determined
that in that case, there was probable cause to search because “[p]robable cause can exist when
the odor of marijuana [detected by a person qualified to know the odor] is the only factor
indicating the presence of contraband.” Id. at 424. Having determined that probable cause
existed, the Court then turned to the next inquiry, being whether a search warrant was obtained,
and if not, whether the search fell within an exception to the search warrant requirement. Id. at
422. The Court concluded that although a search warrant had not been obtained in that case, the
search fell within the automobile exception to the warrant requirement, and therefore was valid.
Id.

        Thus, the initial inquiry is whether the police had probable cause to search. Here, the
investigating officer asserted that he smelled the strong odor of marijuana emanating from the
home. As noted, “[p]robable cause can exist when the odor of marijuana is the only factor
indicating the presence of contraband.” Id. at 424. Whether the suspected contraband is in a
house or a vehicle is irrelevant during the initial inquiry regarding whether probable cause exists.
That information is not relevant until the next inquiry, which is whether the police obtained a
warrant before searching. If not, then the police must demonstrate that their search fell within a
valid exception to the search warrant requirement, at which point the location of the contraband
in a home rather than a vehicle would be a relevant inquiry. Because in this case it is undisputed
that the police obtained a warrant to search defendant’s home, the situs of the search being a
home rather than a vehicle is not relevant to the determination of the validity of the search. In
light of Kazmierczak, the strong odor of marijuana that the officer smelled provided a substantial
basis to infer a fair probability that contraband or evidence of a crime would be found inside
defendant’s home. See id. at 417-418. Because police then obtained a warrant before searching,
the location of the contraband in a home rather than in a car is inapposite.

 C. ODOR OF MARIJUANA AS PROBABLE CAUSE AFTER THE ENACTMENT OF THE
                               MMMA

       Our Supreme Court issued its decision in Kazmierczak before the MMMA was enacted.
Defendant suggests that because the MMMA makes the possession of marijuana legal in some
circumstances, and because the MRTMA further decriminalized the possession and use of

                                                -4-
marijuana, the mere odor of marijuana is no longer sufficient to establish probable cause of
criminal activity. We disagree.

       Defendant concedes that the MRTMA was not in effect at the times relevant to this case,
and therefore is not applicable, but urges this Court to consider that statute. We decline to do so.
By contrast, the MMMA became effective on December 4, 2008. People v Kolanek, 491 Mich
382, 393; 817 NW2d 528 (2012). The intent of the MMMA was to permit a limited class of
individuals the medical use of marijuana. Id. “The MMMA defines the parameters of legal
medical-marijuana use, promulgates a scheme for regulating registered patient use and
administering the act, and provides for an affirmative defense, as well as penalties for violating
the MMMA.” Id. at 394. The MMMA did not legalize marijuana; in addition to providing for
an affirmative defense, it also provided qualified registered patients with immunity from
prosecution for the medical use of marijuana. People v Koon, 494 Mich 1, 5; 832 NW2d 724
(2013). The possession, manufacture, and delivery of marijuana remained punishable offenses
under Michigan law after the enactment of the MMMA. Kolanek, 491 Mich at 394.

        After the enactment of the MMMA, this Court addressed the continued viability of
Kazmierczak in People v Brown, 297 Mich App 670, 674-675; 825 NW2d 91 (2012). In that
case, the defendant was a qualified patient under the MMMA at the time the police sought to
obtain a search warrant for his home. The police officer who completed the search-warrant
affidavit did not inquire into the defendant’s potential status as a qualifying MMMA patient or
primary caregiver. Following his arrest for manufacturing marijuana, the defendant argued that
the search warrant was invalid because the MMMA made it legal to possess and grow a limited
amount of marijuana. Id. at 673. This Court disagreed, holding that “to establish probable
cause, a search-warrant affidavit need not provide facts from which a magistrate could conclude
that a suspect’s marijuana-related activities are specifically not legal under the MMMA.” Id. at
677.

        This Court in Brown relied on the probable-cause standard articulated in Kazmierczak to
hold that there was probable cause to search the defendant’s home. Id., citing Kazmierczak, 461
Mich at 417-418. This Court again observed that Kazmierczak remains good law, despite the
enactment of the MMMA, in People v Anthony, 327 Mich App 24, 44-45; 932 NW2d 202 (2019)
(rejecting the argument that the MMMA changed the applicability of Kazmierczak and
concluding that a license issued under the MMMA is limited and does not permit the use of
medical marijuana in all public places).

       In sum, the officer’s observation of the strong odor of marijuana emanating from
defendant’s home was sufficient to provide the requisite probable cause to support the warrant
issued. See Kazmierczak, 461 Mich at 424. Further, the police were not obligated to determine,
before obtaining a search warrant, the legality of the marijuana-related activities inside
defendant’s home or whether defendant’s activities complied with the MMMA. Brown, 297
Mich App at 677.

       We also reject defendant’s argument that marijuana has been effectively reclassified as a
Schedule 2 controlled substance because of alleged inconsistencies between the Medical
Marihuana Facilities Licensing Act, MCL 333.27101 et seq., and §7212 of the Michigan
Controlled Substances Act, MCL 333.7212. That argument is not relevant here when the

                                                -5-
question before us is whether the trial court properly denied the motions to quash the search
warrant and suppress the evidence seized. After the enactment of the MMMA, the possession,
manufacture, and delivery of marijuana remained punishable under Michigan law. Kolanek, 491
Mich at 394. The magistrate therefore issued a search warrant upon being presented with
evidence of those offenses. Defendant’s argument is not relevant to the inquiry of whether the
search warrant was supported by probable cause, and we conclude that the trial court did not err
in denying defendant’s motions to quash the search warrant and suppress the evidence in
question.

       Affirmed.



                                                           /s/ Mark J. Cavanagh
                                                           /s/ Jane M. Beckering
                                                           /s/ Michael F. Gadola




                                              -6-
