165233_91_01.Pdf

• Court: Michigan Supreme Court
• Decided: April 2, 2025
• Docket: 165233
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan

Syllabus Chief Justice: Justices: Elizabeth T. Clement Brian K. Zahra Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas

This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.

PEOPLE v ARMSTRONG

Docket No. 165233. Argued on application for leave to appeal September 24, 2024. Decided April 2, 2025. Opinion of the Court and dissenting opinion as amended June 3, 2025, by order on motion for rehearing. ___ Mich ___ (2025).

Jeffery S. Armstrong was charged in the Wayne Circuit Court with carrying a concealed weapon, MCL 750.227; being a felon in possession of a firearm, MCL 750.224f; and with possession of a firearm during the commission of a felony, MCL 750.227b, after the police discovered a handgun under the passenger seat of a vehicle in which defendant was sitting. Corporal Treva Eaton claimed that she approached the vehicle, which was parked on a street, because she smelled marijuana emanating from it. Defendant moved to suppress the introduction of the gun as evidence, arguing that the gun was the fruit of a search that violated the Fourth Amendment of the United States Constitution. The prosecution responded that the smell of marijuana gave the police sufficient probable cause to search the vehicle under People v Kazmierczak, 461 Mich 411 (2000), or that the officers lawfully observed the gun in plain view during an investigatory stop pursuant to Terry v Ohio, 392 US 1 (1968). The court, Noah P. Hood, J., ruled that defendant was seized when officers surrounded the vehicle in which he was a passenger and that the officers were therefore required to have probable cause before ordering him out of the vehicle. Next, the trial court concluded that the smell of marijuana, standing alone, did not establish probable cause to search or justify the removal of defendant from the vehicle. The trial court also ruled that the plain-view exception to the warrant requirement did not apply. Accordingly, the trial court granted defendant’s motion to suppress and dismissed the case. The prosecution appealed. The Court of Appeals, GLEICHER, C.J., and SERVITTO and YATES, JJ., affirmed, holding that the rule from Kazmierczak was superseded by the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq., because, given that the MRTMA generally decriminalized the adult use of marijuana, the smell of marijuana is no longer necessarily indicative of unlawful activity. The panel further concluded that the trial court did not clearly err by finding that the gun was not discovered in plain view. Accordingly, the Court of Appeals held that the trial court properly granted defendant’s motion to suppress evidence and appropriately dismissed the charges against defendant. 344 Mich App 286 (2022). The prosecution sought leave to appeal in the Supreme Court, which ordered oral argument on the application. 513 Mich 892 (2023). In an opinion by Justice CAVANAGH, joined by Chief Justice CLEMENT and Justices BERNSTEIN, WELCH, and BOLDEN, the Supreme Court held:

The Kazmierczak rule that the smell of marijuana alone is sufficient to support a finding of probable cause to believe a crime was being committed is no longer good law in light of the MRTMA. Instead, the appropriate rule is that the smell of marijuana is one factor that may play a role in the probable-cause determination. Because the officers in this case lacked probable cause, the automobile exception to the warrant requirement did not apply. Moreover, even if the smell of marijuana gave the officers reasonable suspicion to detain and investigate defendant, the trial court did not clearly err when it concluded that the gun was discovered during a search based on the smell of burnt marijuana, not because it was seized while in plain view. A warrantless search must be based on probable cause, and the smell of marijuana is insufficient to support probable cause. Accordingly, the Court of Appeals correctly affirmed the trial court’s suppression order and dismissal of the charges.

1. A search is constitutionally reasonable where the police possess a warrant or the search falls within one of the well-established exceptions to the warrant requirement. In this case, the police relied on the automobile exception, which allows the police to conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe it contains contraband, and on Kazmierczak, which held that the smell of marijuana alone supplied probable cause in this context. When Kazmierczak was decided in 2000, Michigan law criminalized the possession, use, and transportation of marijuana without exception. Since then, the citizens of Michigan passed both the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., which authorized qualified patients to possess and use, and registered caregivers to cultivate and possess, marijuana for medicinal purposes, and also the MRTMA, the intent of which was to generally decriminalize the use and possession of marijuana in the state of Michigan. In light of these statutory changes, although certain conduct related to marijuana use is still prohibited, the smell of marijuana, standing alone, no longer constitutes probable cause sufficient to support a search for contraband. Because the alleged basis for the officers’ search of the automobile in this case was the smell of marijuana standing alone, the search was not constitutional under the automobile exception to the warrant requirement.

2. The prosecution also argued that the officers performed a valid investigatory stop under Terry based on reasonable suspicion of criminal activity, during which the police seized the gun observed in plain view. Although reasonable suspicion requires a lesser showing than probable cause, it still entails something more than an inchoate or unparticularized suspicion or hunch, and it must be evaluated by considering the totality of the circumstances. The plain-view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item’s incriminating character is immediately apparent. The trial court did not err by ruling that defendant was seized when the vehicle he was seated in was surrounded by several police officers and that, at the moment he was seized, the justification for the seizure was only the smell of burnt marijuana. However, instead of considering whether the smell of burnt marijuana emanating from a parked vehicle was sufficient on its own to support a reasonable, articulable suspicion of criminal activity under Terry, the trial court erroneously concluded that probable cause was required to seize the occupants of the vehicle, and the Court of Appeals agreed. Thus, the lower courts erred by failing to consider whether the police officers had reasonable suspicion of criminal activity that justified an investigatory Terry stop. However, it was not necessary to decide whether, in light of the enactment of the MRTMA and the overruling of Kazmierczak, the smell of marijuana provided the police officers with reasonable suspicion in this case. Assuming arguendo that Corporal Eaton had a reasonable suspicion of criminal activity at the moment she seized defendant and eventually asked him to exit the vehicle, the trial court concluded that the gun was discovered during a search, not because it was in plain view, and the Court of Appeals affirmed. The prosecution provided no compelling argument as to why the trial court’s factual finding was clearly erroneous, and the trial court’s findings of fact were consistent with the Supreme Court’s review of the body camera footage. Because the trial court concluded that the gun at issue was discovered during a search, it follows that it cannot have been found in plain view. The plain-view doctrine is exclusively a seizure rationale, whereas a search must be based on probable cause. Because the smell of marijuana was insufficient to support probable cause for a search, the prosecution’s alternative argument also failed.

Affirmed.

Justice ZAHRA, dissenting, stated that because the lower courts’ failure to consider whether the handgun could have been discovered in plain view during a Terry stop left open the possibility that the smell of marijuana was not the only valid evidence supporting probable cause, the facts of this case, as presented, did not present an opportunity to revisit Kazmierczak. He noted that the majority opinion’s deference to the trial court’s finding that the handgun was discovered through a search, meaning that plain-view discovery of the handgun was impossible, reflected a failure to recognize that the trial court’s finding was tainted by its erroneous belief that the police could not temporarily seize the vehicle and remove defendant unless they first had probable cause to search the vehicle. However, because not every use of marijuana is free from criminal liability post- MRTMA, the smell of burnt marijuana coming from an occupied vehicle on a public street might have by itself created reasonable suspicion of criminal activity that justified a Terry stop to investigate further. If so, the officers would have been able to order defendant out of the vehicle in the interest of officer safety, and the record suggests that Officer Hayley Genaw, who was standing next to the vehicle near Deputy Eaton, was able to see the handgun in plain view as defendant exited the vehicle. Further, because the lower courts applied an incorrect standard to the initial seizure, it was unknown whether the smell of marijuana was the only evidence supporting probable cause to search the vehicle. Thus, even if the handgun was discovered as part of a search, this case did not present a Kazmierczak scenario. Justice ZAHRA also disagreed with the majority’s conclusion that Kazmierczak has no continuing application after the enactment of the MRTMA. He explained that Kazmierczak’s rule regarding the smell of marijuana relates only to probable cause for searches for contraband or evidence of a crime, not to seizures, including the temporary seizure of a vehicle and its occupants based on probable cause to believe that a civil infraction has occurred. For these reasons, he would have vacated the judgments of the lower courts and remanded to the trial court for consideration of whether additional evidence supported probable cause for a search and for a new ruling on the motion to suppress under a correct understanding of the law.

Justice THOMAS did not participate because the Court considered this case before she assumed office. Michigan Supreme Court Lansing, Michigan

OPINION Chief Justice: Justices: Elizabeth T. Clement Brian K. Zahra Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas

FILED April 2, 2025

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 165233

JEFFERY SCOTT ARMSTRONG,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH (except THOMAS, J.)

CAVANAGH, J. In this case we consider whether the people’s enactment of the Michigan Regulation

and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq., in 2018 superseded

this Court’s holding in People v Kazmierczak, 461 Mich 411, 413; 605 NW2d 667 (2000),

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.” We agree with the Court of Appeals that Kazmierczak’s holding is no longer good law in light of the passage of the MRTMA. Because the smell of marijuana

was the only basis argued by the prosecutor in support of the search at issue conducted

pursuant to the motor-vehicle exception, the gun discovered by law enforcement was not

discovered during a valid search based on probable cause. To resolve this case, we must

also consider whether the gun was found in plain view during an otherwise constitutional

investigatory stop pursuant to Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889

(1968), and thus admissible under the plain-view exception to the warrant requirement.

Assuming without deciding that the smell of marijuana provided police officers with

reasonable suspicion to perform a lawful Terry stop, we hold that there is no clear error in

the trial court’s finding that the gun was not discovered in plain view. Accordingly, we

hold that the trial court properly granted defendant’s motion to suppress and we affirm the

judgment of the Court of Appeals.

I. FACTS & PROCEEDINGS

On October 8, 2020, several police officers were conducting parole compliance

checks in the city of Detroit. During those checks, Corporal Treva Eaton observed a Jeep

Cherokee parked on the side of the street and allegedly 1 smelled the scent of burnt

marijuana coming from the vehicle as she drove by. Corporal Eaton parked her patrol

vehicle and turned on her body camera. The video shows several uniformed police officers

surround the vehicle and make contact with the vehicle’s occupants. Defendant, Jeffery

1 The trial court did not make any factual findings in regard to Corporal Eaton’s credibility. We decline to make such credibility determinations.

2 Armstrong, was seated in the front passenger’s seat and a woman was seated in the driver’s

seat.

Corporal Eaton approached the passenger side and began speaking with defendant.

She asked defendant which house he lived in. Defendant said that he was just visiting the

area. Corporal Eaton asked defendant how long he had “been smoking weed in the car.”

Defendant denied smoking marijuana in the car, stating that he had just got into the vehicle.

Corporal Eaton also asked the driver if she was smoking marijuana in the car, which the

driver denied. Corporal Eaton reiterated that she could smell marijuana. She asked

defendant and the driver if they knew the man who was the subject of the officers’

compliance check. After they indicated they did not know the man, Corporal Eaton asked

defendant where he lived, and defendant pointed down the street. At that point, Corporal

Eaton asked defendant to step out of the vehicle. She patted him down and handcuffed

him. Another police officer, Officer Hayley Genaw, stepped between the open door and

the passenger compartment and looked inside the vehicle. 2 According to her later written

report, Officer Genaw recorded that she observed a black handgun under the front

passenger seat as Corporal Eaton was removing defendant from the vehicle. Based on the

body camera footage, however, the trial court determined that “the firearm was not visible

until Armstrong had already been removed from the vehicle” and that Officer Genaw did

not discover the gun until “she searched the vehicle, and under the front passenger seat.”

(Emphasis added.)

2 As Corporal Eaton patted defendant down, her body camera fell to the ground. It appears that, in response, someone bent down and positioned the camera so that it was facing up toward the interaction occurring among defendant, Corporal Eaton, and Officer Genaw.

3 Defendant was arrested and charged with carrying a concealed weapon, MCL

750.227, being a felon in possession of a firearm, MCL 750.224f, and possession of a

firearm during the commission of a felony, MCL 750.227b. Defendant moved to suppress

the introduction of the gun as evidence, arguing that the gun was the fruit of a search that

violated the Fourth Amendment of the United States Constitution.

After reviewing the evidence, 3 the trial court ruled that defendant was seized when

officers surrounded the vehicle in which defendant was a passenger. According to the trial

court, the officers were, therefore, required to possess probable cause before ordering

defendant out of the Jeep. Next, the trial court concluded that the smell of marijuana,

standing alone, did not establish probable cause to search or justify the removal of

defendant from the vehicle. The trial court also held that the plain-view exception to the

warrant requirement did not apply. The trial court, therefore, granted defendant’s motion

to suppress and dismissed the case.

The prosecution appealed, and the Court of Appeals affirmed. People v Armstrong,

344 Mich App 286; 1 NW3d 299 (2022). First, the Court of Appeals agreed that defendant

was seized “even before Corporal Eaton ordered him out of the Jeep.” Id. at 296.

Moreover, it found no clear error in the trial court’s conclusion that Corporal Eaton based

her decision to approach the Jeep solely on the smell of marijuana. Id. at 297. The Court

of Appeals then considered whether the smell of marijuana “furnishes probable cause to

3 As the Court of Appeals recognized, the record in this case is limited because the parties declined the court’s invitation to hold an evidentiary hearing. Accordingly, the trial court’s findings were based on the body camera footage and some police report excerpts that were included in the briefing. People v Armstrong, 344 Mich App 286, 291; 1 NW3d 299 (2022).

4 approach or seize a person without a warrant.” Id. at 298. The panel concluded that the

rule from Kazmierczak was superseded by the MRTMA because, given that the MRTMA

generally decriminalized the adult use of marijuana, the smell of marijuana is no longer

necessarily indicative of unlawful activity. Id. at 299. It explained that the smell of

marijuana remains a potential factor in the probable-cause determination but is insufficient

on its own to establish probable cause to support a warrantless search of a vehicle. Id. at

300. The Court of Appeals rejected the argument that factors in addition to the smell of

marijuana, such as nervousness, inconsistent answers, and furtive movements, were

sufficient to constitute probable cause because it reasoned that those additional

circumstances arose only after defendant was unconstitutionally seized. 4 Id. at 301.

Finally, the panel concluded that the trial court did not clearly err by finding that the gun

was not in plain view. Id. Accordingly, the Court of Appeals held that the trial court

properly granted defendant’s motion to suppress and appropriately dismissed the charges

against defendant. Id. at 304.

The prosecution sought leave to appeal in this Court, and we ordered oral argument

on the application. People v Armstrong, 513 Mich 892 (2023).

II. STANDARD OF REVIEW & GENERAL FOURTH AMENDMENT PRINCIPLES

We review a trial court’s findings of fact at a suppression hearing for clear error.

People v Hammerlund, 504 Mich 442, 450; 939 NW2d 129 (2019). “Clear error exists if

4 While the prosecution claimed that Corporal Eaton observed defendant lean down in his seat as she was approaching the vehicle, the Court of Appeals noted, and the prosecution conceded at oral argument in this Court, that this conduct was not captured on Corporal Eaton’s body camera.

5 the reviewing court is left with a definite and firm conviction that a mistake has been

made.” People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002). Our review of

the application of Fourth Amendment principles is de novo. Hammerlund, 504 Mich

at 451.

The Fourth Amendment of the United States Constitution guarantees the right of

persons to be secure from unreasonable searches and seizures. 5 US Const, Am IV. “The

touchstone of the Fourth Amendment is reasonableness.” Hammerlund, 504 Mich at 451.

“A warrantless search or seizure is presumed unconstitutional unless shown to be within

one of several established exceptions.” People v Lucynski, 509 Mich 618, 637; 983 NW2d

827 (2022). It is the government’s burden to prove that an exception to the warrant

requirement exists. People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975).

III. DISCUSSION

In the trial court, the prosecution raised two distinct arguments in regard to the

seizure of the gun at issue. First, the prosecution argued that the police officers had

sufficient probable cause to search the vehicle without a warrant pursuant to the automobile

exception based solely on the smell of marijuana. See Kazmierczak, 461 Mich at 426. 6

5 “Const 1963, art 1, § 11 has historically been interpreted coextensively with the Fourth Amendment, absent compelling reason to impose a different interpretation.” People v Lucynski, 509 Mich 618, 634 n 6; 983 NW2d 827 (2022) (quotation marks and citation omitted). Defendant’s motion to suppress was filed pursuant only to the Fourth Amendment and did not raise a state constitutional claim. Therefore, this opinion addresses only the Fourth Amendment. 6 The prosecution has attempted to abandon this argument on appeal in this Court. It contends that the Court of Appeals erred by deciding the continuing vitality of Kazmierczak and that appellate courts should “not be in the practice of addressing and deciding issues irrelevant and unnecessary to the resolution of the case on appeal.” However, in addition to the argument based on Kazmierczak raised in the trial court, the prosecution also argued

6 Second, the prosecution argued in the alternative—albeit in a somewhat unclear manner—

that Corporal Eaton had reasonable suspicion of criminal activity when she asked

defendant to exit the vehicle and that Corporal Eaton observed the handgun in plain view

during a lawful stop. 7 See People v Jenkins, 472 Mich 26, 32; 691 NW2d 759 (2005). On

appeal, the prosecution more directly asserted that the gun at issue had been observed in

plain view during a valid investigatory seizure justified by probable cause to believe that a

civil infraction had occurred. We address these arguments in turn. 8

in the Court of Appeals that the officers possessed probable cause to seize defendant to investigate a possible civil infraction, relying on the probable-cause standard discussed in Kazmierczak. See Plaintiff-Appellant’s Brief on Appeal, filed June 2, 2022, p 16 (“In light of the fact that the smell of marijuana alone can establish probable cause, Officer Eaton had the authority to investigate further after she drove by defendant and noticed the distinct odor of burnt marijuana.”). Given that the prosecution bears the burden of proving that an exception to the warrant requirement exists, Reed, 393 Mich at 362, the Court of Appeals reasonably addressed an argument that was specifically and repeatedly raised by the prosecution and decided by the lower courts. While the prosecution is free to make arguments in the alternative, we need not ignore issues deliberately raised in and decided by the lower courts (especially one resolved in a binding published decision) simply because the prosecution now wishes to pursue a different litigation strategy. See Three Lakes Ass’n v Whiting, 75 Mich App 564, 581; 255 NW2d 686 (1977) (noting that a litigant “may not shift ground on appeal . . . after being unsuccessful on the one presented in the trial court”). 7 The prosecution did not directly advance this argument in its response to defendant’s motion to suppress in the trial court. At the hearing on the motion, however, the prosecution argued that when Corporal Eaton “was standing next to the vehicle, she could see the bottom of a gun on the floorboard of the vehicle,” which gave her probable cause to search. The trial court later construed this as an argument that the gun was seized based on the plain-view doctrine. 8 We would generally address the constitutionality of a seizure before the constitutionality of a search. However, a conclusion that Kazmierczak remains good law—i.e., that the smell of marijuana alone supports probable cause to search—would necessarily support a conclusion that the investigatory stop at issue was also constitutional under the lesser standard of reasonable suspicion. Accordingly, we address the Kazmierczak rule first.

7 A. PROBABLE CAUSE

We first consider whether the gun at issue was discovered during a valid warrantless

search of the vehicle pursuant to the automobile exception. A search is constitutionally

reasonable where the police possess a warrant or the search falls within one of the well-

established exceptions to the warrant requirement. People v Slaughter, 489 Mich 302, 311;

803 NW2d 171 (2011). There is no dispute that the police did not obtain a warrant before

searching the vehicle in this case. Instead, the prosecution relied on the automobile

exception to the warrant requirement. That exception provides that “[i]f a car is readily

mobile and probable cause exists to believe it contains contraband, the Fourth

Amendment . . . permits police to search the vehicle without more.” Pennsylvania v

Labron, 518 US 938, 940; 116 S Ct 2485; 135 L Ed 2d 1031 (1996). Probable cause means

that there is a “ ‘substantial basis’ for inferring a ‘fair probability’ that contraband or

evidence of a crime will be found in a particular place.” Kazmierczak, 461 Mich at 417-

418 (citation omitted).

In Kazmierczak, this Court considered whether the odor of marijuana, standing

alone, constituted sufficient probable cause to support a search under the automobile

exception. Id. at 413. In that case, the police officer who searched the defendant’s car

testified that he detected “ ‘a very strong smell of marijuana emanating from the vehicle’

that was ‘overpowering.’ ” Id. at 414. Kazmierczak held that “when a qualified person

smells an odor sufficiently distinctive to identify contraband, the odor alone may provide

probable cause to believe that contraband is present.” Id. at 421. In such cases, the Court

Although the dissent clearly does not care for the order of our analysis, that does not render it legally erroneous or improper.

8 reiterated that “[p]robable cause can exist when the odor of marijuana is the only factor

indicating the presence of contraband.” Id. at 424 (emphasis added).

When Kazmierczak was decided in 2000, Michigan law criminalized the possession,

use, and transportation of marijuana without exception. Since then, there have been

significant changes to Michigan’s marijuana laws. In 2008, the citizens of Michigan passed

the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., which

authorized qualified patients to possess and use, and registered caregivers to cultivate and

possess, marijuana for medicinal purposes. See MCL 333.26424; see also People v

Anthony, 327 Mich App 24, 45; 932 NW2d 202 (2019), overruled in part on other grounds

by People v Duff, ___ Mich ___ (July 26, 2024) (Docket No. 163961). The passage of the

MMMA created confusion over the continuing viability of the Kazmierczak rule. In

Anthony, 327 Mich App at 45, for example, the defendant argued that in light of the

MMMA the smell of marijuana alone no longer established probable cause to search a

vehicle under the automobile exception. Although Kazmierczak remained binding on the

lower courts, the Anthony panel reasoned that it had the “authority to consider not adhering

to Kazmierczak’s holding if the MMMA changed the law and thereby undermined the basis

for Kazmierczak.” Id. at 44. That said, the panel did not believe that Kazmierczak had

been sufficiently undermined to warrant straying from its holding because the MMMA

only provided “limited license for qualifying patients to use marijuana . . . .” Id. at 45.

And, relevant to that case, under the MMMA smoking marijuana in public remained illegal.

Id. Therefore, “because [the] defendant used marijuana in his truck on a public street, the

protections of the MMMA did not apply to [the] defendant and Kazmierczak applied with

full force to supply probable cause for the officers to search his vehicle.” Id. Thus, the

9 panel held that Kazmierczak remained good law where the smell of marijuana pointed

directly to illegal activity, i.e., using marijuana in a public place. Id.

The Court of Appeals continued to apply Kazmierczak in People v Moorman, 331

Mich App 481, 486; 952 NW2d 597 (2020). Unlike in Anthony, the defendant in Moorman

was legally allowed to possess marijuana as a registered caregiver under the MMMA and

was suspected of possessing marijuana, not illegally using it, because of a strong odor of

fresh marijuana emanating from his vehicle. Id. at 487. Like in Anthony, however, the

panel in Moorman recognized that after enactment of the MMMA, there must exist

additional facts to support the belief “that a suspect’s actions, i.e., the use or possession of

the marijuana, fall outside the protections of the MMMA.” Id. at 490. Applying that rule

in Moorman, the panel found it significant that the defendant lied to the police officer about

possessing marijuana. Id. at 488. In other words, the Court of Appeals did not hold that

the smell of marijuana, standing alone, was sufficient to establish probable cause; rather,

the smell of marijuana in combination with the defendant’s deception gave rise to

probable cause that his possession of marijuana fell outside the protections of the

MMMA. Id. at 490.

A sea change regarding the legality of marijuana occurred in 2018 when Michigan

voters passed the MRTMA. The general intent of the MRTMA is to decriminalize the use

and possession of marijuana in the state of Michigan. See MCL 333.27952 (stating the

intent “to prevent arrest and penalty for personal possession and cultivation of marihuana

by adults 21 years of age or older”). MCL 333.27955 provides a list of permissible acts

for adults who are 21 years of age or older under the MRTMA, including possessing, using,

purchasing, transporting, or processing 2.5 to 15 grams of marijuana. Those permitted acts

10 “are not grounds for seizing or forfeiting property, are not grounds for arrest, prosecution,

or penalty in any manner, are not grounds for search or inspection, and are not grounds to

deny any other right or privilege[.]” MCL 333.27955(1). Certain conduct is still

prohibited, however, including “being in physical control of any motor vehicle . . . while

under the influence of marihuana,” MCL 333.27954(1)(a), “consuming marihuana in a

public place,” MCL 333.27954(1)(e), and “consuming marihuana while . . . being in

physical control of any motor vehicle . . . or smoking marihuana within the passenger area

of a vehicle upon a public way,” MCL 333.27954(1)(g).

This appeal is the first time that this Court has had the opportunity to consider the

continuing viability of the Kazmierczak rule following the passage of the MRTMA. 9 We

9 The dissent reasons that the facts of this case do not implicate Kazmierczak because the Court of Appeals and this Court may be “discounting other, nonmarijuana evidence that could have supported probable cause for a search.” The problem with this position is that at no time throughout this litigation did the prosecution argue that a search was justified on the basis of probable cause supported by the smell of marijuana and additional factors. In its responsive brief in the trial court, the prosecution stated that the officers “smelled a strong odor of marijuana. This alone gave officers sufficient probable cause to search the vehicle.” (Emphasis added). In subsequent filings on appeal, the prosecution has maintained that the gun was not discovered during a search at all. The dissent is correct that the Court of Appeals characterized the prosecution’s argument in that court as anticipating the “middle-ground approach by contending that additional facts coupled with the smell of marijuana constituted probable cause to justify removing defendant from the Jeep and searching the vehicle without a warrant.” Armstrong, 344 Mich App at 301. However, this was a mischaracterization by the panel. A review of the prosecution’s briefing in the Court of Appeals demonstrates that these additional factors were cited not to justify a search of the vehicle but in an attempt to justify defendant’s removal from the vehicle, which, it argued, led to the plain-view discovery. While the dissent’s position is certainly not meritless—as will be discussed, the smell of marijuana coupled with additional factors that would support illegal use may support probable cause post- MRTMA—it is the prosecutor’s burden to justify a warrantless search. We do not “brush the other evidence under the rug”; we simply decline to make arguments not advanced by the prosecution.

11 agree with the Court of Appeals that in light of the voters’ intent to legalize marijuana

usage and possession, the smell of marijuana, standing alone, no longer constitutes

probable cause sufficient to support a search for contraband.

As noted, when Kazmierczak was decided, all possession, use, and transportation of

marijuana was a crime in Michigan. Accordingly, the smell of marijuana indicated that the

criminal possession, use, or transportation of marijuana had occurred at some point. In

other words, simply smelling marijuana indicated a “substantial chance of criminal

activity . . . .” Illinois v Gates, 462 US 213, 243 n 13; 103 S Ct 2317; 76 L Ed 2d 527

(1983). In that context, a rule like the one announced in Kazmierczak was reasonable. But

now that marijuana possession and use is generally legal, the odor of marijuana does not

on its own supply a substantial basis for inferring a fair probability that contraband or

evidence of illegal activity will be found in a particular place. Id. at 238. Instead, post-

MRTMA, the smell of marijuana might just as likely indicate that the person is in

possession of a legal amount of marijuana, recently used marijuana legally, or was simply

in the presence of someone else who used marijuana. 10

However, even under the MRTMA, marijuana possession and use are not legal for

all people under all circumstances. For example, operating a motor vehicle under the

10 Additionally, it is widely understood that marijuana gives off a “powerful smell that can linger on your clothes or in your car or house after smoking for several hours or more.” Hodgman-Korth, What Do Different Drugs Smell Like? A Guide to Drugs by Smell, American Addiction Centers (last accessed December 13, 2024) [https://perma.cc/2LWS-KKA3]. Accordingly, as defense counsel asserted at oral argument, unlike with the smell of alcohol, the smell of marijuana is not particularly probative of who is consuming marijuana or how recently marijuana has been consumed.

12 influence of marijuana remains a crime, see MCL 333.27954(1) and MCL 257.625(1), and

smoking marijuana in public is a civil infraction, MCL 333.27965(1). Thus, although the

smell of marijuana is no longer sufficiently indicative of the presence of contraband or

illegal activity, that does not mean that the smell of marijuana is irrelevant to developing

probable cause concerning illegal activity. Dist of Columbia v Wesby, 583 US 48, 61; 138

S Ct 577; 199 L Ed 2d 453 (2018) (explaining that the question is not whether particular

conduct is “guilty” but whether a reasonable officer, considering all the surrounding

circumstances, could conclude that there was a substantial chance of criminal activity).

This general principle has already been recognized in cases such as Anthony and Moorman

that considered the Kazmierczak rule after the MMMA was enacted. That is, these

decisions already recognized that, given the legalization of marijuana under some

circumstances, something more than the smell of marijuana alone is needed to support

probable cause. This need for “something more” is now even more pronounced in light of

the passage of the MRTMA.

We, therefore, agree with the Court of Appeals that “ ‘the smell of marijuana may

be a factor, but not a stand-alone one, in determining whether the totality of the

circumstances established probable cause to permit a police officer to conduct a warrantless

search of a vehicle’ . . . .” Armstrong, 344 Mich App at 300, quoting Commonwealth v

Barr, 266 A3d 25, 28 (Pa, 2021). Other relevant inculpatory facts might include, for

example, an officer’s observation of evidence suggesting intoxication or the presence of

smoke. This rule is consistent with rules crafted in other states where marijuana has been

decriminalized or legalized. See, e.g., People v Zuniga, 372 P3d 1052 (Co, 2016) (holding

“that the odor of marijuana is relevant to the totality of the circumstances test and can

13 contribute to a probable cause determination”); People v Redmond, 2024 IL 129201, ¶ 54;

248 NE3d 1026 (2024) (holding that “the odor of burnt cannabis is a fact that should be

considered when determining whether police have probable cause to search a vehicle, but

the odor of burnt cannabis, standing alone without other inculpatory facts, does not provide

probable cause to search a vehicle”); State v Torgerson, 995 NW2d 164, 174 (Minn, 2023)

(holding that “the odor of marijuana is one of the circumstances in the totality of

circumstances analysis that should be considered in determining if there is a ‘fair

probability’ that contraband or evidence of a crime will be found in the location searched”).

More importantly, this rule is consistent with the Fourth Amendment principle that

“[w]here the standard is probable cause, a search or seizure of a person must be supported

by probable cause particularized with respect to that person.” Ybarra v Illinois, 444 US

85, 91; 100 S Ct 338; 62 L Ed 2d 238 (1979). The presence of other inculpatory facts that

suggest not only the illegal use of marijuana but, importantly, the where, when, and who

of that use, is critical to determining whether probable cause exists to support a search.

We, therefore, hold that Kazmierczak’s rule that the smell of marijuana, standing alone, is

sufficient to support a finding of probable cause under the automobile exception to the

warrant requirement is no longer viable in light of the enactment of the MRTMA. As

applied in the present case, because the alleged basis for the officers’ search of the

14 automobile was the smell of marijuana standing alone, 11 the search was not constitutional

under the automobile exception to the warrant requirement. 12

B. REASONABLE SUSPICION & PLAIN VIEW

Although the smell of marijuana is insufficient to supply probable cause for a

warrantless search, the prosecution also argued that the officers performed a valid

investigatory stop under Terry, 392 US 1. And, the prosecution contends, during this Terry

stop, police officers observed the gun at issue in plain view and could, therefore, seize it

pursuant to the plain-view doctrine.

“In order to be reasonable, an arrest must be justified by probable cause.”

Hammerlund, 504 Mich at 451. However, the police may briefly seize a person to

investigate possible criminal behavior even though they lack the requisite probable cause

to arrest, so long as the police possess a reasonable and particularized suspicion of criminal

activity. People v Prude, 513 Mich 377, 387; 15 NW3d 249 (2024). This so-called “Terry

11 Although this case concerns the alleged smell of burnt marijuana, we decline to make a further distinction between the smell of burnt and unburnt marijuana in this opinion. The record lacks information on whether and to what extent such a distinction exists and, if so, whether Corporal Eaton was sufficiently trained to identify the difference. 12 In the trial court, defendant argued that the evidence should be excluded pursuant to the exclusionary rule, citing Herring v United States, 555 US 135; 129 S Ct 695; 172 L Ed 2d 496 (2009). In its response to the motion, the prosecution did not address the exclusionary rule. Even after the trial court suppressed the evidence, the prosecutor did not raise the issue of the good-faith exception. People v Goldston, 470 Mich 523; 682 NW2d 479 (2004). Only in the prosecution’s application for leave to appeal in this Court did it briefly argue that suppression was inappropriate because the officers acted in reasonable reliance on Kazmierczak, citing Davis v United States, 564 US 229, 241; 131 S Ct 2419; 180 L Ed 2d 285 (2011). We decline to address the good-faith exception to the exclusionary rule in this case because the prosecution did not argue in the lower courts that the exception applied. See People v Hamacher, 432 Mich 157, 168; 438 NW2d 43 (1989).

15 stop” is a well-known exception to the warrant requirement. Lucynski, 509 Mich at 638.

Although reasonable suspicion requires “a lesser showing than probable cause, it still

entails something more than an inchoate or unparticularized suspicion or hunch . . . .”

People v Pagano, 507 Mich 26, 32; 967 NW2d 590 (2021) (quotation marks and citation

omitted).

The plain-view doctrine “allows police officers to seize, without a warrant, items in

plain view if the officers are lawfully in a position from which they view the item, and if

the item’s incriminating character is immediately apparent.” People v Champion, 452

Mich 92, 101; 549 NW2d 849 (1996). “[P]robable cause is the level of suspicion required

in the plain view context.” Id. at 103. “A fundamental characteristic of the doctrine is that

it is exclusively a seizure rationale. No searching, no matter how minimal, may be done

under the auspices of the plain view doctrine.” Id. at 101.

The trial court found that defendant was seized when the vehicle he was in was

“surrounded on all sides and front and back by Corporal Eaton and Officers Genaw, Saad,

Scott, and Kryzak”—in other words, that defendant was seized as soon as Corporal Eaton

approached the passenger side of the vehicle and made contact with defendant. The trial

court also found that Corporal Eaton approached the vehicle “solely on the basis that she

smelled marijuana emanating from the vehicle.” Like the Court of Appeals, we detect no

clear error in this finding based on our review of the record. Armstrong, 344 Mich App at

301. 13 In other words, we agree that defendant was seized when the vehicle he was seated

13 The prosecution also does not dispute this factual finding in this Court.

16 in was surrounded by several police officers and that, at the moment he was seized, the

justification for the seizure was only the smell of burnt marijuana.

Accordingly, the pertinent question is whether the police officers possessed

reasonable suspicion of criminal activity when defendant was initially seized. Lucynski,

509 Mich at 626. Unfortunately, instead of considering whether the smell of burnt

marijuana emanating from a parked vehicle was sufficient on its own to support a

reasonable, articulable suspicion of criminal activity, 14 the trial court concluded that

probable cause was required to seize the occupants of the vehicle. On appeal, the Court of

Appeals affirmed the trial court’s finding that “the officers seized defendant even before

Corporal Eaton ordered him out of the Jeep,” and it echoed the trial court’s incorrect

analysis and conclusion that the seizure was illegal because police officers lacked probable

cause. Armstrong, 344 Mich App at 296, 304. In sum, the lower courts erred by failing to

consider whether the police officers had reasonable suspicion of criminal activity that

justified an investigatory Terry stop.

In this Court, the prosecution asserts that “[s]ince the use of marijuana in public or

the consumption of marijuana while in physical control of a motor vehicle is still, even

after enactment of MRTMA, prohibited by law, the smell of burnt marijuana is sufficiently

distinctive to identify criminal behavior.” The prosecution argues, therefore, that “[t]he

14 We note that in this Court, defendant and some amici curiae have argued that a Terry stop is only constitutionally reasonable if it is based on reasonable suspicion of criminal activity—in other words, that reasonable suspicion of a civil infraction is insufficient to support a Terry stop. See, e.g., United States v Collazo, 818 F3d 247, 253 (CA 6, 2016); Commonwealth v Cruz, 459 Mass 459, 470; 945 NE2d 899 (Pa, 2011). This Court has never directly addressed this issue and, because it is unnecessary to our resolution of this appeal, we leave that question for another day.

17 smell of burnt marijuana emanating from the Jeep, in itself, provided [Corporal] Eaton with

reasonable suspicion that possible criminal behavior was occurring and that suspicion

allowed the officer to briefly detain the occupants of the Jeep for the purpose of verifying

or dispelling the suspicion that narcotic laws were being violated.” Put simply, the

prosecution argues that the smell of marijuana provided law enforcement with reasonable

suspicion to perform an investigatory Terry stop.

We need not decide whether, in light of the enactment of MRTMA and our decision

today overruling Kazmierczak, the smell of marijuana provided the police officers with

reasonable suspicion in this case. 15 Assuming arguendo that Corporal Eaton possessed

reasonable suspicion of criminal activity at the moment she seized defendant and

eventually asked him to exit the vehicle, 16 the trial court concluded that the gun was

discovered during a search, not because it was in plain view. 17 The Court of Appeals

15 Like the probable-cause determination, when determining whether reasonable suspicion of criminal activity exists, courts must look at the totality of “all the facts and circumstances” in a particular case. People v Oliver, 464 Mich 184, 192; 627 NW2d 297 (2001) (quotation marks and citation omitted). 16 “Once the police make a valid investigative stop, the insistence by the police that the occupants remove themselves from the vehicle is not a serious intrusion upon the sanctity of the person . . . .” People v Armendarez, 188 Mich App 61, 70; 468 NW2d 893 (1991); see also Pennsylvania v Mimms, 434 US 106, 111; 98 S Ct 330; 54 L Ed 2d 331 (1977). 17 The trial court found, for example, that “Corporal Eaton and [Officer] Genaw did not discover any contraband prior to a search of Armstrong’s person and the vehicle.” (Emphasis added.) Similarly, the trial court stated in its findings of fact that “[Officer] Genaw discovered the handgun . . . when she searched the vehicle, and under the front passenger seat.” (Emphasis added.) It further stated that “the gun was . . . not in plain view before the search took place.” (Emphasis added.) Finally, the trial court concluded that Corporal Eaton “did not see the handgun in plain view, but rather, discovered it . . . when [Officer] Genaw searched the vehicle.” (Emphasis added.) The dissent assumes that because the trial court applied the wrong standard of suspicion (probable cause), the trial court must have also erroneously repeatedly used the term “search” to

18 affirmed, concluding that “based on the limited factual record to which the parties

stipulated in the trial court, no finding of fact made by the trial court is clearly erroneous.”

Armstrong, 344 Mich App at 304. The prosecution provides no compelling argument as

to why the trial court’s factual finding was clearly erroneous, simply asserting that the trial

court erred. 18 The trial court’s findings of fact are, at minimum, consistent with our review

of the body camera footage. We are, therefore, not left with “a definite and firm conviction

that the trial court made a mistake.” People v Armstrong, 490 Mich 281, 289; 806 NW2d

676 (2011). 19

describe what occurred. We are not similarly convinced that the trial court’s conclusion that defendant was illegally seized necessarily tainted the trial court’s finding that the gun was discovered during a search and not in plain view after what it viewed as an illegal seizure. 18 The prosecution argues that the trial court “failed to adequately discuss in its written order . . . what information [Officer] Genaw possessed prior to entering the vehicle and recovering the firearm . . . .” However, it is unclear how the trial court would be able to glean this information and consider its credibility based solely on Corporal Eaton’s body camera footage and the snippets of the police report contained in the motion to suppress. It is the prosecution’s burden to make a sufficient factual record to establish that an exception to the warrant requirement exists. Reed, 393 Mich at 362. Despite the trial court’s invitation, the prosecution chose not to request an evidentiary hearing in which the law enforcement officers in this case could have testified about exactly what they saw and when. Because the prosecution declined such a hearing, the trial court was forced to make factual findings based on little more than stray comments in the body camera footage and a post hoc police report. As the appellate prosecutor admitted at oral argument in this Court, an evidentiary hearing would have put the prosecution “in a much better position.” On this limited record, the trial court committed no clear error in its factual findings. 19 The dissent provides its own interpretation of the evidence and notes that the record suggests that the gun may have been observed in plain view. Whether Officer Genaw “would have had an unobstructed view” into the car and whether the nature of the gun “would plausibly have been apparent” was, again, something that could have explored and fleshed out on the record. The dissent’s differing interpretation of the video footage is

19 Because the trial court concluded that the gun at issue was discovered during a

search, it follows that it cannot have been found in plain view. The plain-view doctrine is

“exclusively a seizure rationale.” Champion, 452 Mich at 101. A search must be based on

probable cause. However, as previously discussed, the smell of marijuana was insufficient

to support probable cause for a search. Accordingly, the prosecution’s alternative

argument also fails.

IV. CONCLUSION

We agree with the Court of Appeals that the Kazmierczak rule is no longer good law

in light of the MRTMA. Instead of a rule that the smell of marijuana alone may be

sufficient to support a finding of probable cause, the appropriate rule is that the smell of

marijuana is one factor that may play a role in the probable-cause determination. Because

the officers in this case lacked probable cause, the automobile exception to the warrant

requirement did not apply. Moreover, even assuming that the police officers possessed

reasonable suspicion to detain and investigate defendant based on the smell of marijuana,

the trial court did not clearly err when it held that the gun was discovered during a search

based on the smell of burnt marijuana, not because it was seized while in plain view. A

warrantless search must be based on probable cause and the smell of marijuana is

insufficient to support probable cause. Accordingly, we agree with the Court of Appeals

insufficient to constitute clear error or require a remand. In the absence of clear error, this Court accepts a trial court’s factual findings.

20 and affirm its judgment upholding the trial court’s suppression order and dismissal of the

charges.

Megan K. Cavanagh Elizabeth T. Clement Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden

21 STATE OF MICHIGAN

ZAHRA, J. (dissenting). This case requires us to consider whether the trial court erred by granting

defendant’s motion to suppress evidence of an illegal handgun that the police found

beneath his car seat. The majority opinion defers to the trial court’s finding that the

handgun was discovered through a search, meaning that plain-view discovery of the

handgun was impossible. But the majority for all intents and purposes fails to recognize

that the trial court’s finding that a search occurred was tainted by its erroneous belief that

the police could not temporarily seize the vehicle and remove defendant unless they first

had probable cause to search the vehicle. The Court of Appeals similarly erred when it

affirmed the trial court’s order. Because the challenged evidence might be admissible on

the narrower ground that it was discovered in plain view during an investigatory Terry 1

stop, I would not stretch, as the majority opinion does, to address the continuing viability

1 Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). of the rule from People v Kazmierczak that the smell of marijuana alone can justify the

warrantless search of a vehicle. 2

Further, because the lower courts held that an incorrect standard was applicable to

the initial seizure, we do not know whether the smell of marijuana was the only evidence

supporting probable cause to search the vehicle. Thus, even if the handgun was discovered

as part of a search, this case does not present a Kazmierczak scenario, making this appeal

an inappropriate vehicle through which to revisit Kazmierczak. This Court should not

address Kazmierczak but should instead remand for consideration of whether additional

evidence supported probable cause for a search. At any rate, I disagree with the majority’s

conclusion that Kazmierczak has no continuing application after the enactment of the

Michigan Regulation and Taxation of Marihuana Act (MRTMA). 3 Accordingly, I dissent.

I. BACKGROUND

This case comes to us on interlocutory appeal by the prosecution following a trial

court order suppressing the prosecution’s key evidence—an illegal handgun found under

defendant’s car seat. Five officers of the Detroit Police Department were assisting with a

parolee home-compliance check in a residential area of Detroit when they observed a Jeep

parked in the street. Defendant was sitting in the passenger’s seat, and a woman was sitting

in the driver’s seat. One of the officers, Corporal Treva Eaton, reportedly smelled burnt

marijuana that she believed was coming from the Jeep. The officers approached and

surrounded the Jeep as one officer spoke with the driver. Corporal Eaton spoke with

2 People v Kazmierczak, 461 Mich 411, 420-422; 605 NW2d 667 (2000). 3 MCL 333.27951 et seq.

2 defendant through the open passenger-side window. She later stated that, in addition to the

smell of marijuana, other evidence suggested illicit activity. Defendant exhibited

suspicious behaviors, including that his hands were shaking when she talked to him and

that, as Eaton approached the car, she saw defendant “lean to the right toward the door, and

his right shoulder dip to the front” before he sat up again.

Most of the interaction (unfortunately, not all) was captured on Corporal Eaton’s

body camera. For about 50 seconds, Corporal Eaton spoke with defendant, asking, among

other things, how long he had been smoking marijuana in the car. Defendant denied having

smoked marijuana. Corporal Eaton then asked defendant to step out of the vehicle. As

defendant opened the door and exited, Corporal Eaton had him turn around and put his

hands on the Jeep’s roof. The video shows Officer Hayley Genaw stepping forward and

stopping next to the still-open car door.

Exactly what happened immediately after this is unclear because Corporal Eaton’s

camera fell from her body onto the ground, obstructing the view for about seven seconds.

When defendant and the officers came back into the camera’s view, Corporal Eaton and

Officer Genaw were placing defendant in handcuffs. According to her police report,

Officer Genaw was standing beside the Jeep and observed the handgun underneath

defendant’s seat as defendant exited the car.

Defendant did not have a concealed pistol license (CPL). He was arrested and

charged with offenses relating to the illegal concealed possession of a handgun. He moved

to suppress the evidence of the firearm found under his seat, arguing that the police

discovered it after unlawfully seizing him in violation of the Fourth Amendment. The

prosecution argued in response that the officers had both probable cause to search the Jeep

3 for contraband and reasonable suspicion of criminal activity that allowed them to remove

defendant from the vehicle as part of an investigatory Terry stop, at which point the officers

discovered the handgun. 4

The trial court issued an opinion and order granting defendant’s motion to suppress.

The trial court found that the only evidence supporting the seizure of the Jeep was the smell

of marijuana and that police did not have probable cause to search the vehicle. However,

the trial court made no finding of whether there was reasonable suspicion to justify a Terry

stop during which the police might have lawfully discovered the handgun. The trial court

found that “[t]he search of the vehicle to recover the firearm is not covered under the plain

view exception because the firearm was not visible until [defendant] had already been

removed from the vehicle.” The trial court dismissed the case against defendant without

prejudice.

The prosecution appealed by right. In a published opinion, the Court of Appeals

affirmed the trial court, agreeing that the officers lacked probable cause to seize and search

the Jeep. The Court of Appeals noted that, under this Court’s decision in Kazmierczak, the

smell of marijuana alone could give the police probable cause to search a vehicle for

marijuana. 5 But Kazmierczak’s rule had not been revisited since the 2018 enactment of the

MRTMA, which generally decriminalized marijuana possession and use by adults of legal

4 The trial court treated this as an argument that the officers saw the handgun in plain view when defendant exited the vehicle. 5 People v Armstrong, 344 Mich App 286, 297; 1 NW3d 299 (2022), citing Kazmierczak, 461 Mich at 421-422.

4 age. 6 The Court of Appeals then held that the MRTMA’s decriminalization of marijuana

“changed the law concerning possession and use of marijuana, superseding” Kazmierczak. 7

Considering alternative approaches to determine how the smell of marijuana factors

into a probable-cause analysis, the Court of Appeals settled on a “middle-ground

approach”—that although the smell of marijuana cannot by itself create probable cause, it

may lead to probable cause if combined with other factors suggestive of criminal activity. 8

Applying that standard to the trial court’s finding that the smell of marijuana alone led to

the officers’ seizure of the Jeep, the Court of Appeals concluded that no probable cause

existed. 9 The Court of Appeals declined to consider defendant’s furtive movements as

additional factors supporting probable cause because these occurred after the police had

already seized the Jeep on the basis of the smell of marijuana alone. 10

After the prosecution filed an application for leave to appeal, the Court ordered oral

argument on the application. 11

6 Armstrong, 344 Mich App at 297-298. 7 Id. at 299. 8 Id. at 300. 9 Id. at 301. 10 Id. 11 People v Armstrong, 513 Mich 892 (2023). We ordered the parties to file supplemental briefs addressing:

(1) whether the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq., supersedes the rule 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,” People v Kazmierczak, 461 Mich 411, 426; (2000) (footnote omitted); (2) if so, whether the exclusionary rule

5 II. STANDARD OF REVIEW

A trial court’s factual findings at a suppression hearing are reviewed for clear error,

and the application of the Fourth Amendment is a question of law that this Court reviews

de novo. 12

The lower courts erred by failing to consider whether the police seized the vehicle

as part of a lawful Terry stop before discovering the handgun in plain view. Because of

this failure, the Court should vacate the lower-court judgments and remand the matter for

the trial court to consider whether it arose from a lawful Terry stop. The majority opinion

dismisses the lower-court errors by relying on the trial court’s finding that the handgun was

discovered during a search. This is legally erroneous because that finding grows out of the

trial court’s incorrect application of the law. 13

applies to searches conducted in good-faith reliance upon Kazmierczak, see Davis v United States, 564 US 229, 241 (2011); (3) alternatively, if the holding of Kazmierczak has been superseded by the MRTMA, whether the smell of marijuana alone may establish reasonable suspicion to perform an investigatory stop pursuant to Terry v Ohio, 392 US 1 (1968); and (4) if so, whether the trial court clearly erred in concluding that the firearm recovered in this case was not in plain view during an otherwise constitutional Terry stop. See People v Champion, 452 Mich 92 (1996). [Armstrong, 513 Mich at 892.] 12 People v Slaughter, 489 Mich 302, 310; 803 NW2d 171 (2011). As the majority opinion notes, defendant filed his motion to suppress in reliance on the Fourth Amendment alone and did not rely on the corresponding provision of the Michigan Constitution. 13 The majority opinion analyzes probable cause and reasonable suspicion out of order. As the majority opinion acknowledges, the Court “would generally address the constitutionality of a seizure before the constitutionality of a search.” Ante at 7 n 8. The majority goes on to state that it addresses the Kazmierczak rule first because “a conclusion that Kazmierczak remains good law . . . would necessarily support a conclusion that the investigatory stop at issue was also constitutional under the lesser standard of reasonable

6 Further, because the lower courts incorrectly deemed the entire seizure

unreasonable, they failed to consider evidence besides the smell of marijuana that would

have supported probable cause for a search. Accordingly, this is not a case that implicates

the Kazmierczak rule. Indeed, it is entirely unnecessary to reach the Kazmierczak issue.

Nonetheless, this Court has engaged in gymnastic maneuvers to conclude that the MRTMA

has abrogated Kazmierczak in its entirety, a conclusion with which I strongly disagree.

A. REASONABLE SUSPICION AND PLAIN-VIEW DISCOVERY

“Under certain circumstances, a police officer may approach and temporarily detain

a person for the purpose of investigating possible criminal behavior even though there is

no probable cause to support an arrest.” 14 This type of seizure is permissible if the officer

has reasonable suspicion, based on the totality of the circumstances, “that criminal activity

is afoot.” 15 “Reasonable suspicion entails something more than an inchoate or

unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for

probable cause.” 16 Law enforcement may “make a Terry stop and briefly detain a person

suspicion.” Ante at 7 n 8. Although framed as an explanation, this explains nothing. While it is true that the satisfaction of the higher standard would presumably mean that the lesser standard is also satisfied, this fact does not justify addressing the higher standard first. If it did, why would we ever start by considering the lesser standard? 14 People v Jenkins, 472 Mich 26, 32; 691 NW2d 759 (2005), citing Terry, 392 US at 22. 15 Id. 16 People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996).

7 who is in a motor vehicle if the officer has a reasonable, articulable suspicion that the

person is engaged in criminal activity.” 17

The trial court and the Court of Appeals both erred by failing to consider whether

the police officers had reasonable suspicion of criminal activity that justified an

investigatory Terry stop, during which they discovered the illegal handgun. Not every use

of marijuana is free from criminal liability post-MRTMA. For instance, the operation of a

motor vehicle in an area open to the public with any amount of marijuana in a person’s

body remains a criminal offense after the passage of the MRTMA. 18 And of course, it

remains a crime to operate a vehicle while intoxicated. 19 Here, the smell of burnt marijuana

coming from the occupied Jeep on a public street might have by itself created reasonable

suspicion of criminal activity that justified a Terry stop to investigate further. 20 If so, the

officers would then have been able to order defendant out of the vehicle in the interest of

officer safety. 21

The record suggests that Officer Genaw was able to see the handgun in plain view

as defendant exited the vehicle. Plain-view discovery “allows police officers to seize,

17 People v Steele, 292 Mich App 308, 314; 806 NW2d 753 (2011), citing People v Oliver, 464 Mich 184, 192; 627 NW2d 297 (2001). 18 People v Perry, 338 Mich App 363, 379; 980 NW2d 92 (2021), citing MCL 257.625(8). 19 MCL 257.625(1). 20 See Jenkins, 472 Mich at 32. 21 Maryland v Wilson, 519 US 408, 414-415; 117 S Ct 882; 137 L Ed 2d 41 (1997) (holding “that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop”). Although the United States Supreme Court addressed a traffic stop in Wilson, and the interaction here was not technically a traffic stop, the relevant officer safety concerns are identical.

8 without a warrant, items in plain view if the officers are lawfully in a position from which

they view the item, and if the item’s incriminating character is immediately apparent.” 22

As shown in the bodycam footage, Officer Genaw was standing next to the passenger’s

side door as defendant opened the door and stepped out. With the door being open and

defendant out of the way, it is possible—even probable—that she would have had an

unobstructed view through the open door and under the then-vacant passenger seat as she

stood outside the car, where she would have been lawfully entitled to stand as part of the

Terry stop. 23 Further, the incriminating nature of the handgun would plausibly have been

apparent, 24 as it is presumptively illegal to conceal a handgun in a vehicle. 25

To reject the possibility of plain-view discovery during a Terry stop, the majority

opinion relies entirely on the trial court’s finding that the police discovered the handgun

during a search. With little explanation or review of the facts, the majority concludes that

22 Champion, 452 Mich at 101. 23 Officer Genaw later attested in her report that she could see the handgun “under the front passenger seat” as Corporal Eaton “began removing defendant from the vehicle.” The bodycam footage does nothing to contradict this statement; in fact, Officer Genaw’s position in relation to the vehicle and the open door supports the plausibility of her later account. Notably, in rejecting the idea that the handgun was in plain view, the trial court cited no evidence other than that the handgun was reportedly “under” the seat. Yet the trial court never attempted to explain why the handgun’s being under the seat would have prevented Officer Genaw from seeing the handgun from outside the vehicle after defendant had exited. 24 See Champion, 452 Mich at 101. 25 See People v Williams, ___ Mich App ___; ___ NW2d ___ (April 18, 2024) (Docket No. 365299) (explaining that Michigan courts have long held that concealed possession of a handgun is presumptively illegal and that the burden is on an individual concealing a handgun to produce evidence of a CPL).

9 the prosecution has not shown this finding to be clearly erroneous. And because discovery

during a search cannot also constitute discovery in plain view, 26 the majority rejects the

argument that the handgun was found in plain view.

The problem with this line of reasoning is that the trial court’s finding that the

evidence was discovered during a search cannot be separated from the trial court’s failure

to consider whether an investigatory Terry stop occurred. For example, the trial court

emphasized that the “search of the vehicle to recover the firearm [was] not covered under

the plain view exception” because the handgun was not visible until after defendant “had

already been removed from the vehicle.” 27 The trial court also stated that “[n]either

Corporal Eaton nor [Officer] Genaw had mentioned seeing a handgun before [defendant]

had been removed from the vehicle.” 28 These statements suggest that the trial court

conflated the removal of defendant from the car with the performance of a search. 29

Because the trial court thought it was unreasonable for the officers to have defendant leave

the Jeep, the court presumably thought that it was part of a search for the officers to open

the passenger door and remove defendant from the Jeep, thereby removing the visual

obstructions that precluded a plain view of the gun. Indeed, by requiring probable cause

26 Champion, 452 Mich at 101. 27 Emphasis added. 28 Emphasis added. 29 Further, the trial court’s insistence that probable cause was needed from the very beginning of the encounter makes it difficult to discern precisely when or why the trial court thought that a search occurred.

10 to search the vehicle as the standard to justify the initial seizure, the trial court effectively

treated the entire interaction as a search of the vehicle.

As already explained, during an investigatory stop of a vehicle, the police can order

the occupants out of the vehicle as a matter of course. 30 And that is the point at which

Officer Genaw claimed to have seen the evidence from outside the vehicle. Because the

trial court failed to consider whether defendant was permissibly removed from the car and

whether Officer Genaw viewed the handgun while lawfully standing next to the open door

and empty car seat, we cannot take its finding that the weapon was discovered during a

search at face value. The trial court viewed the relevant facts through a lens of legal error.

Our resolution of the appeal should not hinge on such questionable findings. 31 It is

30 See Wilson, 519 US at 414-415. 31 Although the initial legal error means that I would not review the trial court’s findings for clear error, I note that some of the trial court’s findings of fact seem at odds with the record. Notably, because there was no hearing, the facts are presented to us in the same way that they were presented to the trial court. The trial court emphasized that during the crucial seconds when Corporal Eaton’s bodycam fell to the ground, “neither Corporal Eaton nor [Officer] Genaw verbalized that they discovered a handgun in the vehicle.” But at timestamp 1:57-1:59, while the camera lies on the ground with the view obscured, a somewhat muffled female voice can be heard saying something that could be “oh, there’s something” or “oh, a handgun.” The trial court apparently did not notice this statement, as it went unmentioned in that court’s opinion. Further, at timestamp 2:02, when defendant and the officers come back into view, both officers are placing defendant into handcuffs with a seeming sense of urgency. This contrasts with their positioning and actions only seven seconds earlier, when defendant’s hands were on top of the Jeep with the officers behind him. Next, a little more than 20 seconds after defendant was placed in handcuffs, as Corporal Eaton was taking defendant to the back of the car, Officer Genaw asked, “Do you have a CPL, sir?” Within a few seconds of reaching the rear of the vehicle Corporal Eaton told the other officers that defendant had “a pistol in the car.” When defendant started to respond, Corporal Eaton cut him off, saying, “You could see it!” The trial court did not acknowledge this last statement. The trial court also did not fully address the context and timing of the officers’ statements about the handgun. It would have been strange, to say the least, for Officer Genaw’s question about a CPL to have been the first

11 impossible to know what the trial court would have found had it properly considered

whether the officers performed an investigatory stop justified by reasonable suspicion.

Basic principles of judicial restraint demand that we obtain clarification of the facts under

the applicable law before we use this case to address the validity of a longstanding rule of

our Fourth Amendment jurisprudence.

The majority opinion does not acknowledge this problem. It instead adopts

essentially circular reasoning—that the trial court’s finding that the discovery occurred

through a search obviates any need to address the legal error that preceded and apparently

supported that finding. Because the challenged evidence could plausibly have been

discovered in plain view during an investigatory Terry stop, yet the lower courts failed to

consider this, I would remand to the trial court for consideration under the appropriate

framework.

verbalization that there was a handgun beneath the seat. Yet this was apparently what the trial court thought happened. The video also suggests that Corporal Eaton would have had no opportunity to enter the car or search it in any way, as she did not enter or search the car on video, and she seems to have been standing next to the car dealing with defendant during the seven seconds of obscured footage. Given these facts, it is hard to see how she would have known that there was a “pistol in the car” and that “you could see it” unless she herself had either seen it from outside the car or else Officer Genaw had told her about it. And the only point at which Genaw could have told her about it—other than the question about a CPL, which probably would not have given Eaton basis to say only a few seconds later that there was a pistol in the car—was at timestamp 1:57-1:59, while the bodycam was on the ground and the muffled female voice can be heard. Again, I do not believe that this Court should now address any of these factual issues. We should instead remand the case for new proceedings in the trial court. It is only because the Court’s resolution of the case forecloses further proceedings that I voice these criticisms now.

12 B. PROBABLE CAUSE AND KAZMIERCZAK

The majority opinion adopts the Court of Appeals’ conclusion that the enactment of

the MRTMA abrogated our ruling in People v Kazmierczak that the smell of marijuana

alone may create probable cause to search a vehicle. Whether the Kazmierczak rule

remains good law is a significant question that deserves our attention when properly

presented for adjudication. But this is not an appropriate case to review Kazmierczak. The

Court of Appeals reached the Kazmierczak issue because it improperly required satisfaction

of the wrong legal standard to justify the initial seizure of the Jeep, thereby discounting

other, nonmarijuana evidence that could have supported probable cause for a search. The

majority opinion commits the same error.

1. THE COURT OF APPEALS MISTAKENLY APPLIED KAZMIERCZAK TO AN INAPT SITUATION

To begin, it is helpful to explain the “probable cause” that is relevant to

Kazmierczak. There are different, albeit related, contexts in which we use the term

“probable cause.” Some of the most common are probable cause for a search warrant, 32

probable cause for a warrantless search under an exception to the warrant requirement, 33

and probable cause for an arrest. 34 These contexts involve probable cause to believe that

See People v Brown, 297 Mich App 670, 675; 825 NW2d 91 (2012) (“A search warrant 32

may only be issued upon a showing of probable cause.”). 33 See, e.g., Pennsylvania v Labron, 518 US 938, 940; 116 S Ct 2485; 135 L Ed 2d 1031 (1996) (explaining in relation to the motor-vehicle exception to the warrant requirement, “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more”). 34 See Champion, 452 Mich at 115 (“Probable cause to arrest exists where the facts and circumstances within an officer’s knowledge and of which he has reasonably trustworthy

13 criminal activity is afoot and that evidence will be found in a certain place 35 or that a

specific individual is responsible. 36

The Kazmierczak rule relates to probable cause to conduct a warrantless search of a

vehicle. Under the motor-vehicle exception to the Fourth Amendment’s warrant

requirement, the police may search a vehicle without obtaining a warrant if probable cause

exists to believe that the vehicle contains evidence of a crime. 37 There is probable cause

to search a vehicle if the facts justify the issuance of a warrant, 38 meaning “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.” 39 In Kazmierczak, this 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.” 40 The Kazmierczak rule thus applies in the context of a vehicle search.

information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”). 35 People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992). 36 Champion, 452 Mich at 115. 37 United States v Ross, 456 US 798, 808; 102 S Ct 2157; 72 L Ed 2d 572 (1982), citing Carroll v United States, 267 US 132, 153-154; 45 S Ct 280; 69 L Ed 543 (1925). 38 People v Levine, 461 Mich 172, 179; 600 NW2d 622 (1999), citing Ross, 456 US at 809. 39 Kazmierczak, 461 Mich at 417-418, quoting Russo, 439 Mich at 604. 40 Kazmierczak, 461 Mich at 413.

14 But in another context, “probable cause” has been used as the standard for temporary

seizures based on civil infractions. 41 The police may temporarily seize a vehicle based on

probable cause that a traffic violation has occurred. 42 Similarly, under Michigan statute, a

police officer who witnesses a civil infraction may stop and temporarily detain the offender

for the purpose of issuing a written citation. 43 Such situations have nothing to do with a

search or with criminal activity. Yet the Court of Appeals missed this distinction,

conflating probable cause for a seizure based on a civil infraction with probable cause for

a motor-vehicle search under Kazmierczak. Notably, the MRTMA expressly does not

authorize smoking marijuana in the passenger area of a vehicle on a public street 44 or

consuming marijuana in a public place. 45 Accordingly, these acts are at least civil

infractions. 46

41 As the majority opinion notes, we have never addressed whether reasonable suspicion of a civil infraction can justify a Terry stop. 42 See People v Davis, 250 Mich App 357, 363; 649 NW2d 94 (2002) (“Because Officer Hopkins had probable cause to believe defendant was in violation of three traffic laws, the stop was permissible.”). See also Whren v United States, 517 US 806, 810; 116 S Ct 1769; 135 L Ed 2d 89 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”). 43 People v Chapo, 283 Mich App 360, 366; 770 NW2d 68 (2009), citing MCL 257.742(1). 44 MCL 333.27954(1)(g). 45 MCL 333.27954(1)(e). 46 Arguably, these acts can also constitute criminal offenses. MCL 333.7404(1) provides: “A person shall not use a controlled substance or controlled substance analogue unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article.” Part of the next subsection, MCL 333.7404(2)(d), states that a “person who violates this section as to . . . [m]arihuana . . . is guilty of a

15 The Court of Appeals observed that the prosecution had cited People v Davis—

which involved a temporary seizure based on probable cause for a civil infraction 47—as

justification for the five officers surrounding the Jeep and engaging with the occupants

based on the smell of burnt marijuana alone. 48 Taking this position as its foil, the Court of

Appeals then launched into its analysis of Kazmierczak and the MRTMA, ultimately

holding that the underlying change in criminal law as to the legality of marijuana meant

that Kazmierczak no longer governed the “analysis of whether the smell of marijuana,

standing alone, constitutes probable cause to search for that substance.” 49 From there, the

Court of Appeals concluded that the officers lacked probable cause to seize defendant by

surrounding the Jeep, meaning that every discovery that followed was unlawfully

obtained. 50

The problem with this analysis is that Kazmierczak’s rule regarding the smell of

marijuana relates only to probable cause for searches for contraband or evidence of a

crime. 51 It does not relate to the temporary seizure of a vehicle and its occupants based on

misdemeanor . . . .” Because MCL 333.27954 lists several acts that the MRTMA “does not authorize,” including smoking marijuana in the passenger area of a vehicle on a public way or consuming marijuana in a public place, it is possible that a person who does those things while also violating the restrictions of MCL 333.7404(1) and (2)(d) commits a misdemeanor, even post-MRTMA. This appeal, however, does not require us to address that question. 47 Davis, 250 Mich App at 363. 48 Armstrong, 344 Mich App at 296. 49 Id. at 299 (emphasis added). 50 Id. at 301. 51 See Kazmierczak, 461 Mich at 419-423.

16 probable cause to believe that a civil infraction has occurred, which is what the prosecution

argued by invoking Davis. Indeed, Kazmierczak’s rule does not relate to seizures at all. 52

The smell of marijuana alone can plausibly give the police probable cause to believe

that a civil violation has occurred; nothing about the MRTMA’s decriminalization of

marijuana alters this fact. And of course, reasonable suspicion can also justify a seizure

and investigation. 53 Yet the Court of Appeals appeared to believe that the standard to

search a vehicle without a warrant needed to be satisfied before the police could seize the

vehicle and investigate. In other words, the Court of Appeals demanded satisfaction of the

wrong standard. Regardless of whether Kazmierczak remains good law, that case does not

control whether the police in this case were lawfully authorized to seize the vehicle or its

occupants. To the extent that the Court of Appeals believed that the continuing validity of

the Kazmierczak rule was necessary to justify the officers’ initial seizure of the Jeep and

contact with defendant, the panel made a mistake of law. This, in turn, confused the rest

of the Court of Appeals’ analysis.

Because the Court of Appeals demanded satisfaction of the wrong standard

(probable cause for a warrantless search of a vehicle) for the relevant action (the officers’

seizure of the vehicle), it required probable cause before it should have. As a result, the

Court of Appeals refused to consider additional probable-cause factors raised by the

prosecution. 54 If the officers validly seized the vehicle and engaged with defendant, these

52 See id. 53 See Part III(A) of this opinion. 54 See Armstrong, 344 Mich App at 301.

17 other factors would be relevant to the analysis, and the smell of marijuana smoke would no

longer be the sole factor supporting probable cause for a search. Even if the Court of

Appeals could have properly reached the Kazmierczak issue and adopted its “middle-

ground approach”—that the smell of marijuana may be a factor supporting probable cause,

even if it cannot alone establish probable cause—there might have been probable cause for

a search here given the additional evidence.

2. THE MAJORITY OPINION REPEATS THE COURT OF APPEALS’ ERROR

The majority opinion makes the same mistake by treating the marijuana smell as the

only valid factor supporting probable cause for the alleged search. 55 Corporal Eaton

reported that defendant made a furtive gesture toward the floor of the Jeep. She also stated

that defendant’s hands were shaking as she spoke with him. The trial court did not consider

these facts. And the Court of Appeals expressly refused to consider them on the basis of

its erroneous view of the law. 56 Without the erroneous seizure analysis, it is at least

possible that this evidence, combined with the marijuana smell, might have provided

probable cause to search the Jeep. That would be for the trial court to decide in the first

instance, if necessary. 57

More important for our present purpose is that the lower courts refused to consider

this other evidence because they erroneously deemed the entire seizure illicit from the start

55 Ante at 14-15 (“As applied in the present case, because the alleged basis for the officers’ search of the automobile was the smell of marijuana standing alone, the search was not constitutional under the automobile exception to the warrant requirement.”). 56 See Armstrong, 344 Mich App at 301. 57 As explained in Part III(A) of this opinion, there might have been no search at all.

18 for lack of probable cause to search the vehicle. 58 Without that error, the “smell of

marijuana alone” 59 was potentially not the only evidence supporting probable cause to

search. This, therefore, is not necessarily a Kazmierczak scenario. 60 Only by ignoring the

lower courts’ application of the wrong standard for seizing a vehicle can the majority

opinion brush the other evidence under the rug and claim that “the smell of marijuana

alone” supported any search that might have occurred. 61 The majority opinion takes this

approach even though it elsewhere concedes that the lower courts erred by not considering

whether the seizure was justified by reasonable suspicion.

This case, properly construed under the correct legal standard, neither requires nor

allows us presently to decide whether Kazmierczak remains good law. The majority

opinion decides an issue not properly before the Court rather than the issue that is. Even

58 See id. 59 Kazmierczak, 461 Mich at 426. 60 See id. 61 The majority opinion claims that it is not disregarding this evidence but simply declining to address arguments not made by the prosecution. This argument fails to appreciate that the existence of additional evidence supporting probable cause fundamentally undermines the analyses of both the Court of Appeals and the majority opinion. Reaching the Kazmierczak issue requires the marijuana smell to have been the only valid evidence supporting probable cause. The Court of Appeals concluded that the marijuana smell was the only valid evidence because the other evidence arose after the unreasonable seizure was initiated. But as explained, the Court of Appeals applied the wrong standard for justifying the seizure. The majority opinion accepts the Court of Appeals’ mistaken premise for reaching Kazmierczak while ignoring the error. The Court of Appeals’ opinion also contradicts the majority opinion’s assertion that the prosecution has never contended that the additional facts were relevant for probable cause. See Armstrong, 344 Mich App at 301 (“The prosecution has anticipated our middle-ground approach by contending that additional facts coupled with the smell of marijuana constituted probable cause to justify removing defendant from the Jeep and searching the vehicle without a warrant.”).

19 if the majority opinion is correct that the trial court’s findings preclude the possibility of

plain-view discovery during a Terry stop, the proper course is to remand this case for the

trial court to consider all the factors supporting probable cause. 62

Because the majority holds that Kazmierczak’s rule has been superseded, however,

a response on the merits is warranted. Although passage of the MRTMA may have limited

Kazmierczak’s scope, I am skeptical that the Court’s rule has no continuing application.

True enough, evidence of the mere possession or use of marijuana no longer automatically

suggests criminal activity in the same way that it did when we decided Kazmierczak. But

marijuana use can still be criminal in numerous situations, particularly in relation to motor

vehicles. For example, operation of a vehicle with any amount of marijuana in a person’s

body remains a crime, 63 as does operating a vehicle while intoxicated. 64

With this in mind, I am not convinced that there are no remaining situations where

the smell of marijuana coming from a vehicle could by itself provide “a ‘substantial basis’

for inferring a ‘fair probability’ that contraband or evidence of a crime will be found” in

62 Because the prosecution did not preserve the issue in the trial court, the majority opinion declines to address one of the issues on which we heard oral argument: whether the good- faith exception to the exclusionary rule should apply on the basis of the police officers’ reliance on Kazmierczak. See ante at 15 n 12, citing People v Hamacher, 432 Mich 157, 168; 438 NW2d 43 (1989) (declining to address an unpreserved issue). Given that the majority opinion does not remand the case, as I would, I agree with the decision not to address this unpreserved issue. That said, the majority opinion’s invocation of preservation here is notable, as the Court has not been a stickler for preservation requirements in recent years. See, e.g., People v Gafken, 510 Mich 503, 537 n 1; 990 NW2d 826 (2022) (ZAHRA, J., dissenting). I can only hope that this case signals a commitment to abiding by traditional principles of preservation in future cases. 63 Perry, 338 Mich App at 379. 64 MCL 257.625(1).

20 the vehicle. 65 Although a narrower version of the Kazmierczak rule makes sense post-

MRTMA, the majority does not justify its wholesale repudiation of basing probable cause

on the smell of marijuana alone in any instance. Even if this case allowed us to consider

Kazmierczak, I see no reason to adopt such a categorical rule.

The lower courts erred by failing to consider whether the handgun could have been

discovered in plain view during a Terry stop. The lower courts’ errors leave open the

possibility that the smell of marijuana was not the only valid evidence supporting probable

cause. Accordingly, the facts of this case, as presented, do not allow us to revisit

Kazmierczak. For these reasons, I dissent. I would vacate the judgments of the lower

courts and remand to the trial court for a new ruling on the motion to suppress under a

correct understanding of the law.

Brian K. Zahra

THOMAS, J., did not participate because the Court considered this case before she assumed office.

65 Kazmierczak, 461 Mich at 421.