                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     September 19, 2017
               Plaintiff-Appellee,

v                                                                    No. 332310
                                                                     Oakland Circuit Court
MICHAEL DOUGLAS NORTH,                                               LC No. 2015-255761-FH

               Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right his bench trial conviction of possession of marihuana,
second offense, MCL 333.7403(2)(d); MCL 333.7413. We affirm.

        On January 3, 2015, at about 12:30 a.m., defendant was stopped by Royal Oak Police
Officer Richard Chipman for driving 42 miles per hour in a 30-mile-per-hour zone. The traffic
stop was videotaped. Officer Chipman testified that, while speaking to defendant at defendant’s
driver’s side door, he smelled the odor of marijuana coming from defendant’s car.1 It was fresh
versus burnt marijuana, and he knew that because he had training in narcotics investigation and
had taken several classes, including a drug recognition class. He had also investigated hundreds
of cases involving suspected marijuana. When Officer Chipman asked defendant if he had
contraband in his vehicle, defendant replied that he did not. Officer Chipman then returned to
his patrol car to check defendant’s name through the computer system and issue the speeding
citation. Subsequently, Officer Chipman returned to defendant’s vehicle and asked defendant if
he could conduct a search and defendant denied consent. Officer Chipman then had defendant
step out of his vehicle and sit in the patrol car so that a free-air canine sniff could be conducted
around defendant’s vehicle. After the canine alerted at the driver’s side door of defendant’s
vehicle, Officer Chipman asked defendant if there was any contraband in the vehicle and
defendant said that he had smoked marijuana earlier. Officer Chipman then allowed the canine
to go into defendant’s vehicle. At that point, Officer Chipman told the canine: “I can smell it,


1
  By convention, this Court uses the more common spelling of “marijuana” in its opinions
instead of the statutory “marihuana.” People v Jones, 301 Mich App 566, 569 n 1; 837 NW2d 7
(2013).


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but I’m going to let you do the work,” or something along those lines. The canine alerted to the
passenger seat. When defendant was asked again if there was contraband in the vehicle,
defendant denied that there was anything in the “driver’s seat,” which caught Officer Chipman’s
attention because he had not mentioned the driver’s seat. When questioned whether defendant
meant to say there was nothing in the car, defendant admitted that there was marijuana in the car.
Thereafter, Officer Chipman searched defendant’s vehicle and located a baggie of suspected
marijuana on the front passenger seat under some miscellaneous items. Defendant was arrested
and, following testing, it was confirmed that the baggie contained marijuana.

        At the preliminary examination, defendant moved to quash the charges and objected to
the bindover, arguing that the search and seizure were illegal because Officer Chipman’s claim
that he smelled marijuana was “incredible” considering his actions. For example, he did not tell
defendant that he smelled marijuana. And if had smelled marijuana, Officer Chipman would not
have had to conduct the canine sniff because he would have had probable cause to search the
vehicle. That is, defendant argued, Officer Chipman’s actions were inconsistent with those of an
officer who had detected the odor of marijuana during a traffic stop.

        The district court, which reviewed the video of the traffic stop, rejected defendant’s claim
that Officer Chipman provided false testimony. The court noted that Officer Chipman advised
another officer who had responded to the scene that he had smelled marijuana in an “off-the-cuff
remark.” Further, the fact that Officer Chipman sought consent from defendant to search the
vehicle made sense because consent provides a better “basis for a justification” of a search than a
claim that an odor was smelled. And it appeared that Officer Chipman’s actions were designed
to either confirm his findings or find another basis to support the search of the vehicle other than
his detection of the odor. Accordingly, defendant was bound over as charged.

        Thereafter, defendant moved in the circuit court to suppress the evidence seized, arguing
that Officer Chipman’s actions were inconsistent with his testimony that he smelled the odor of
marijuana coming from defendant’s car. Following an evidentiary hearing, and after review of
the video of the traffic stop, the circuit court held that there was no evidence that contradicted or
led the court to believe that there was any basis to challenge Officer Chipman’s testimony. In
other words, the court noted, it boiled down to whether the officer smelled marijuana coming
from defendant’s car and the court had no basis to challenge that testimony; thus, the motion was
denied.

       On appeal, defendant argues that his motion to suppress the evidence should have been
granted because Officer Chipman did not have probable cause to extend the traffic stop and
conduct a search of his vehicle. We disagree.

        This Court reviews de novo the trial court’s ruling on a motion to suppress, while its
related factual findings are reviewed for clear error. People v Williams, 472 Mich 308, 313; 696
NW2d 636 (2005). Due deference is given to the trial court’s assessments of evidentiary weight
and witness credibility. People v Shipley, 256 Mich App 367, 373; 662 NW2d 856 (2003). A
finding is clearly erroneous if, after reviewing the entire record, we are left with a definite and
firm conviction that a mistake has been made. People v Dagwan, 269 Mich App 338, 342; 711
NW2d 386 (2005).


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        The United States and Michigan Constitutions protect a defendant from “unreasonable
searches and seizures.” US Const, Am IV; Const 1963, art 1, § 11. Stopping a vehicle and
detaining its occupants constitutes a seizure. People v Armendarez, 188 Mich App 61, 69; 468
NW2d 893 (1991). But “[a] traffic stop is reasonable as long as the driver is detained only for
the purpose of allowing an officer to ask reasonable questions concerning the violation of law
and its context for a reasonable period.” Williams, 472 Mich at 315. Traffic stops that evolve
into criminal investigations are lawful when circumstances provide an officer with reasonable
suspicion. Id. “The determination whether a traffic stop is reasonable must necessarily take into
account the evolving circumstances with which the officer is faced,” and “when a traffic stop
reveals a new set of circumstances, an officer is justified in extending the detention long enough
to resolve the suspicion raised.” Id.

        Further, to establish that a subsequent search of the vehicle complied with the Fourth
Amendment under the motor vehicle exception to the warrant requirement, the police must show
that “probable cause to support the search exists.” People v Kazmierczak, 461 Mich 411, 418-
419; 605 NW2d 667 (2000). 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. If that is the case, the corollary is that the
smell of marijuana creates a sufficient new circumstance that justifies extending a traffic stop.
See Williams, 472 Mich at 315.

       Here, defendant argues that Officer Chipman lied when he testified that he smelled
marijuana coming from defendant’s vehicle; thus, he had no probable cause to extend the traffic
stop to conduct a canine sniff and, then, search his vehicle. In support of this argument,
defendant merely states that Officer Chipman’s actions were “wholly inconsistent with the
actions an officer would take if, in fact, he had probable cause.” Defendant admits that his
challenge “is essentially one of credibility.” But as the circuit court held, Officer Chipman’s
testimony that he smelled the odor of marijuana coming from defendant’s vehicle was unrefuted.
Defendant failed to present any evidence that would either tend to contradict Officer Chipman’s
testimony or lead to an inference that Officer Chipman could not have smelled marijuana coming
from defendant’s vehicle. For example, there was no evidence of any variables that could have
impacted Officer Chipman’s ability to smell “fresh marijuana” located on the passenger seat,
such as: (1) environmental conditions (like cold, wind, car exhaust); (2) how far defendant’s
window was rolled down; and (3) the amount of marijuana or how it was packaged.

        Instead, defendant merely argued that, if Officer Chipman had smelled marijuana, he
would have behaved differently. That is, he would have told defendant that he smelled
marijuana and he would have immediately searched the vehicle without conducting a canine
sniff. But these claims are insufficient to establish that Officer Chipman testified falsely when
he stated that he smelled marijuana coming from defendant’s vehicle. As the circuit court noted,
Officer Chipman did not have to tell defendant that he smelled marijuana or anything else “in
terms of what he was doing if the officer is proceeding to investigate based upon his own
observations[.]” It may very well have been for safety purposes that Officer Chipman did not
tell defendant that he smelled marijuana. Further, Officer Chipman’s decision to have a canine
sniff confirm that marijuana was inside of defendant’s vehicle was reasonable and served to
strengthen his assertion that he had probable cause both to extend the traffic stop and to perform
a search of defendant’s vehicle. While defendant is correct that a canine sniff that unreasonably

                                               -3-
extends a traffic stop is unconstitutional if not supported by probable cause, in this case, Officer
Chipman’s unrefuted claim that he smelled the odor of marijuana provided the probable cause
necessary to extend the traffic stop long enough to conduct a canine sniff, which then led to the
search of defendant’s vehicle. See, e.g., Illinois v Caballes, 543 US 405, 408-409; 125 S Ct 834;
160 L Ed 2d 842 (2005).

       In summary, the circuit court properly denied defendant’s motion to suppress after
concluding that Officer Chipman’s testimony was credible.2 In short, “[d]efendant offers no
reason to second-guess the trial court’s credibility determination[.]” See People v Kimble, 252
Mich App 269, 273; 651 NW2d 798 (2002).

       Affirmed.



                                                             /s/ Mark J. Cavanagh
                                                             /s/ Brock A. Swartzle




2
  Defendant argues that the circuit court did not specifically find Officer Chipman’s testimony
credible. We disagree. The court held that it had no basis to challenge Officer Chipman’s
testimony that he smelled marijuana when he approached defendant’s vehicle which is
tantamount to a finding that the testimony was credible.


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