People v. Hilber

269 N.W.2d 159, 403 Mich. 312, 1978 Mich. LEXIS 343

• Court: Michigan Supreme Court
• Decided: August 30, 1978
• Docket: Docket Nos. 58883, 58884. (Calendar No. 2)
• Status: Published

Opinions

Levin, J.

Jeffrey Lee Hilber was convicted of possession of amphetamines¹ and possession of marijuana with intent to deliver.²

The contraband was seized following a warrant-less search of an automobile Hilber had been driving.

The circuit judge found that "the strong odor of marijuana” emanating from the automobile provided probable cause for the search. The Court of Appeals suppressed the seized evidence and reversed the conviction. We affirm its decision.

The questions are

i) whether there was probable cause to search the automobile for marijuana and

ii) if so, whether a warrantless search was justified.³

Our disposition makes it unnecessary to reach the second question.

I

On April 19, 1975 Hilber was stopped for speeding by the state police. Two officers approached the automobile. Trooper Olson asked Hilber for his driver’s license and registration. Olson smelled an odor of burned marijuana. After receiving and examining the license and registration, he asked Hilber if he had marijuana in the automobile. Hilber took a cigarette package from the dashboard, got out of the automobile and handed it to Olson. The package contained four hand-rolled cigarettes that appeared to Olson, based on his training and experience, to be marijuana cigarettes.

Trooper Lahde escorted Hilber to the scout car, and arrested him. Olson searched the automobile and found marijuana paraphernalia and the amphetamines in a jacket lying on the front passenger seat. He also found a plastic container containing marijuana cigarette butts and a paper bag containing about five pounds of marijuana.

Hilber moved to suppress the evidence seized in the search. The circuit judge suppressed the marijuana cigarettes because he found a violation of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), but further found that the odor of marijuana justified the search of the automobile and denied the motion to suppress the other evidence that had been seized.

Hilber’s appeal to the Court of Appeals raised six issues. The Court of Appeals, addressing only one issue, agreed that the marijuana cigarettes had been properly suppressed, but disagreed with the judge’s ruling that the search was justified, and reversed Hilber’s conviction.

The people do not challenge the suppression of the marijuana cigarettes, and do not claim that the cigarettes justified the search. Nor do they claim that the search was an incident of Hilber’s arrest.⁴

The people contend, rather, that the odor of burned marijuana provided reasonable cause to believe that Hilber had smoked the marijuana that caused the odor and that there was unsmoked marijuana in the automobile.

Hilber contends that, while the odor of burning marijuana indicates the presence of marijuana, the odor of burned marijuana indicates only the presence of marijuana in the past and does not alone establish probable cause.

II

Cases in other jurisdictions⁵ where the officer smelled unburned marijuana and upon a search discovered a large quantity are not in point. The odor of unburned marijuana indicates the actual presence of marijuana; the odor of burned marijuana indicates only that at some time in the past marijuana was present and burned.

In still other cases, however, courts have held that the odor of burned marijuana may provide probable cause for an arrest or search.⁶ We share the view that the odor of burned marijuana, in some circumstances, may provide reason to believe that a particular person smoked it (probable cause for arrest) or that there is a quantity of unsmoked marijuana (probable cause to search for it). In this case, however, the record supports neither conclusion.

Olson testified that he smelled "a distinct, strong odor of marijuana coming from the car”,⁷ and that in his opinion the marijuana had been smoked "quite recently”. When asked whether "it could have been burned a day ago” and "be in the seats, in the fabric itself?” he responded: "It could be, but it was stronger”.

Olsoh had attended lectures on narcotics "at which time they burned marijuana”. He had an opportunity to smell its "distinct odor all of its own”. He acknowledged, however, that he had not been trained in determining the length of time a residual marijuana odor has lingered:

“Q. * * * In your training, you — the only marijuana that you smelled was that burning directly in the room, is that correct? No residual odor of something that had been burnt prior?

"A. That’s correct.

”Q. Did you have any training for that?

"A. No, sir.

"Q. As to how recently it had been burned?

"A. No, sir.”

Hilber did not appear to Olson to be under the influence of marijuana.⁸

Ill

"Probable cause” has been restated as "reasonable cause”. Reasonable cause is cause based on reason deemed adequate. The adequacy of the cause and reason depends on a balancing of the needs of law enforcement and of the individual’s right to be protected against undue invasion of reasonable expectations of privacy and on an appraisal of how a prudent person would view the factual circumstances.

The inquiry is not subjective, into the officer’s good faith, but, rather, objective, measured by a standard determined by the court based on its balancing of all the factors and its appraisal of how a prudent person would view the factual circumstances.

The people have the burden of proof on the probable cause issue.⁹

In contending that it was proper to conclude, from the odor of burned marijuana alone, that Hilber smoked the marijuana and that there was unsmoked marijuana in the automobile the people rely on multiple inferences:

—an inference that, where there is an odor of burned marijuana in an automobile, a driver/sole occupant smoked the marijuana, and

—an inference that a marijuana smoker carries a supply.

Because most or all of us have no first-hand experience with marijuana, there may be a tendency to appraise the reasonableness of those inferences based on' our knowledge of the habits of tobacco smokers — still another inference in this chain of inferences.

Even if it is reasonable to infer that a tobacco odor in an automobile was caused by the driver/ owner/sole occupant, although tobacco odor and other odors (e.g., beer and alcohol) are commonly caused by someone not the driver or other occupant at the time the odor is detected,¹⁰ it may be unsound to assume that marijuana smokers have the same smoking habits as tobacco smokers and therefore it may be unsound to appraise evidence relating to the conduct of marijuana smokers by standards of reference inferred from the habits of tobacco smokers:

—Marijuana, because it is a prohibited substance, is less available and more costly than tobacco. A marijuana smoker may therefore be less likely to have a supply of unsmoked marijuana and more likely to have run out than a tobacco smoker.

—Marijuana, like alcohol, dulls the senses. While persons who drink drive, generally they do not drink while driving. It may easily be that marijuana smokers do not generally smoke marijuana while driving even if passengers are smoking marijuana. If that be the case, an inference that a marijuana odor was caused by the driver, rather than some other occupant no longer in the automobile,¹¹ may not be reasonable.

We conclude, because of the multiple inferences involved and the uncertainty of the analogy to tobacco smokers, no other basis having been proffered, that it has not been made to appear that it is reasonable to infer that the driver/sole occupant smoked marijuana solely from a residual odor of marijuana.

IV

The people rely, in addition to the multiple inferences, on Olson’s testimony that the odor was "strong” and "quite recent” as other evidence that Hilber was the person who smoked the marijuana and that there was a supply of unburned marijuana in the automobile.

Testimony of Olson’s sensory perceptions is clearly admissible. Most often sensory perception testimony relates to visual and auditory perceptions. In contrast with sight and hearing, however, for which persons are tested and provided correctional aids, there is no standard or norm for the sense of smell. Additionally, again in contrast with sight and hearing, the sense of smell adapts to odors with the result that one person’s perception may differ significantly from another’s.

Most persons recognize the odors of intoxicating liquor, beer and tobacco without special training. Many recognize the odors of burning and unburned marijuana. It is also commonplace to recognize the residual odors of spilled beverages and burned tobacco and perhaps even burned marijuana. It is, however, beyond ordinary experience to be able to determine with reasonable accuracy the length of time a persistent odor has lingered.

A persistent automobile odor may be strong and appear to be recent although it has lingered for hours, days or even longer. (Where, for example, beer has been spilled or a large number of cigars have been smoked in an automobile there will be a strong odor even though no beer or cigars have been consumed for a considerable time.)

Evidence of a person’s past use of marijuana would not alone furnish probable cause to stop him on the street and search him for marijuana. Nor would it alone justify issuance of a warrant to search him, his residence or automobile for marijuana. It would, additionally, be necessary to establish when in the past the marijuana was used in relation to the time it is sought to conduct the search.¹² Similarly, it is not reasonable to infer present use of marijuana, or to conduct a search for it, on the basis of past use of marijuana evidenced solely by a residual odor of marijuana in an automobile occupied by the defendant, absent determination with reasonable accuracy of the time frame of use in relation to defendant’s occupancy.

Since an occupant of an automobile cannot be arrested simply because there is an odor of burned marijuana, and probable cause depends on other circumstances indicating that he is the smoker, the officer’s opinion regarding the length of time the odor has been present should be an informed opinion.¹³

V

Olson’s statements that the odor was stronger than a day old, and that it was "strong” and "quite recent”, are indefinite and indeterminate of the length of time the odor lingered.

Officers may rely on their special training or experience, but Olson acknowledged that he had no training, and the record does not indicate that he had any experience, which would enable him accurately to determine whether the marijuana was burned within a relevant time frame.¹⁴

Because Olson was without training and, so far as the record shows, without experience regarding residual marijuana odor, the judge had no basis for determining the reliability of his statements that the odor was strong and quite recent. And because of Olson’s indefinite and indeterminate terminology, the judge had no basis for determining the time frame in which the marijuana was burned.

The oificers observed Hilber’s automobile for only a few minutes before stopping it.¹⁵

No circumstance, other than the odor, is relied on as supportive of a finding of probable cause.

We conclude that the people did not discharge their burden of establishing the reasonableness of Olson’s conclusion that it was Hilber who smoked the marijuana in the automobile.¹⁶

VI

Even if it is reasonable to believe that a marijuana smoker would have in his possession or in his automobile a supply of unsmoked marijuana, since in this case it was not reasonable to conclude that Hilber was the smoker, Olson was not justified in searching the automobile on an assumption that any additional supply a smoker would carry would be found on Hilber or in the automobile.¹⁷

While some tobacco smokers leave their supply in an automobile and so may marijuana smokers,¹⁸ most tobacco smokers take their supply with them when they leave an automobile. Whatever may be the similarities and disparities in the habits of tobacco and marijuana smokers, it has not been shown that it is reasonable to expect to find unsmoked marijuana in an automobile apart from its occupancy by the marijuana user.

We conclude that the odor of smoked marijuana does not provide probable cause for a search of an automobile separate and apart from a search of the smoker and of the automobile he is occupying or has just occupied following his reasonable identification as the smoker.

The Court of Appeals is affirmed.

Kavanagh, C.J., concurred with Levin, J.

1 MCL 335.341(4)(b); MSA 18.1070(41)(4)(b).

2 MCL 335.341(l)(c); MSA 18.1070(41)(l)(c).

3 Hilber was under arrest at the time of the search and could not destroy evidence or move the automobile.

In Chambers v Maroney, 399 US 42, 52; 90 S Ct 1975; 26 L Ed 2d 419 (1970), there had been an armed robbery. The defendants’ automobile was stopped on a radioed description of the robbers. The defendants were arrested and the automobile was driven to the police station and there searched. The Court declared that while the search could not be justified as an incident of the arrest, the circumstances furnishing probable cause for the arrest also furnished probable cause for a search of the automobile, and that there was probable cause to search the automobile for guns and money. The Court further reasoned that a warrantless search at the police station was justified because the car "could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search”.

The people contend that this is the "on the spot” search impliedly approved in Chambers.

Hilber relies on Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971), and People v White, 392 Mich 404; 221 NW2d 357 (1974). In those cases, however, the defendant was arrested at his residence and not after his automobile had been stopped. He had not been driving his automobile; it had been parked a considerable period of time before the arrest.

4 See Chambers v Maroney, supra, p 47.

5 See, e.g., United States v Barnard, 553 F2d 389 (CA 5, 1977); United States v Andrade, 545 F2d 1032 (CA 5, 1977); United States v Stricklin, 534 F2d 1386 (CA 10, 1976); State v Houlf, 27 Ariz App 633; 557 P2d 565 (1976); People v Maier, 366 NYS2d 660; 47 App Div 2d 344 (1975); Commonwealth v Stoner, 236 Pa Super 161; 344 A2d 633 (1975).

6 Generally, there were factors in addition to the odor of burned marijuana which, in combination, were held to constitute probable cause. See, e.g., Wimberly v Superior Court of San Bernardino County, 16 Cal 3d 557; 128 Cal Rptr 641; 547 P2d 417 (1976) (the officers observed the defendant driving erratically and after stopping him detected an odor of burned marijuana and saw a pipe and seeds believed to be marijuana seeds lying by the defendant’s feet); Gray v State, 561 P2d 83 (Okla Crim App, 1977) (unclear whether the odor was of burned or unburned marijuana; in addition to odor, the officers observed a hand-rolled cigarette in plain view in the automobile ashtray and described the occupants as appearing to be under the influence of marijuana); State v Wicklund, 295 Minn 403; 205 NW2d 509 (1973) (odor of burned marijuana along with furtive movement furnished probable cause); Ford v State, 37 Md App 373; 377 A2d 577 (1977) (the odor was coming from the clothes of defendant as well as the automobile).

See, also, State v Hughes, 544 SW2d 99 (Tenn, 1976) (there were no other factors; it is unclear, however, whether the officers detected burned, burning or unburned marijuana; upon search they found 22 pounds of unburned marijuana).

See, also, State v Compton, 13 Wash App 863; 538 P2d 861 (1975), and People v Laird, 11 Ill App 3d 414; 296 NE2d 864 (1973) (unclear, in both cases, whether officers detected odor of burned or unburned marijuana).

7 Officer Lahde did not testify at the preliminary examination upon which record the suppression motion was decided.

8 Olson was asked whether Hilber appeared to be under the influence of marijuana. The tendency of his testimony was that he could not say that he was.

9 People v White, 392 Mich 404, 410; 221 NW2d 357 (1974).

10 The automobiles of non-smoking drivers frequently have a “strong” cigar or cigarette odor — or so it may seem to non-smokers— caused by passengers who smoke.

11 It is because of the mobility of automobiles and the ease with which persons enter and leave them that warrantless searches of automobiles are allowed in circumstances where, if an automobile were not involved, a warrantless search would not be permitted.

12 The inference of present possession from known past use is more direct and trustworthy than where, as here, past use is itself an inference from an odor.

13 If an officer has been trained, or otherwise has become experienced, in determining the length of time marijuana odor has been present, and is able to state on the basis of such training or experience that the strength of the odor indicates a particular time frame and that his observation of the automobile in that time frame or other circumstances are such as to justify the conclusion that the occupant was the person who smoked the marijuana, a conclusion that the occupant was the smoker would be reasonable.

The reasonableness of such a conclusion might also be established by other evidence, e.g., smoke or smoking paraphernalia in plain view which is still warm from use.

14 The Montana Supreme Court found that police officers did not have probable cause to search an automobile although they detected a strong odor of marijuana. The court declared:

“Additional case authority cited by the State involves warrantless searches conducted after investigatory officials under different circumstances detected the odor of presently burning marijuana. Here, Officer LaBane testified at the suppression hearing: T asked for Mr. Schultz’s driver’s license and at the same time I smelled a strong odor of marijuana in the car along with that of some incense or something, and * * *.’ Officer LaBane further testiffed that although marijuana has a very distinctive• odor, he could not determine whether defendants were smoking marijuana when the police officers came upon them or whether marijuana had been smoked in the automobile within the previous hour or more. Officer LaBane did agree that the mere odor of marijuana might linger in an automobile for more than a day [emphasis in original].

"* * * We do not deny police officers the right to rely on their sense of smell to confirm their observations. However, to hold that an odor alone, absent evidence of visible contents, is deemed equivalent to plain view might very easily mislead officers into fruitless invasions of privacy where there is no contraband.” State v Schoendaller, — Mont —, —; 578 P2d 730, 733-734 (1978).

15 The automobile had Wisconsin license plates and was registered to Hilber’s brother. It was stopped approximately 90 miles from the Wisconsin border. The record does not indicate how long Hilber had been traveling east on US 2 or whether he had made a direct trip from Wisconsin.

16 It appears that under the statute an officer may arrest for possession of marijuana although the offense is not committed in his presence. The Controlled Substances Act provides:

"Any sheriff, deputy sheriff, local or state police officer, if he has reasonable cause to believe that a violation of this act punishable by imprisonment for 1 year or more has taken place or is taking place and reasonable cause to believe that a person has committed or is committing the violation, may arrest that person without a warrant for that violation irrespective of whether the violation was committed in his presence." MCL 335.351(1); MSA 18.1070(51X1) (emphasis supplied).

Possession of marijuana is a misdemeanor punishable by imprisonment in the county jail for not more than one year. MCL 335.341(4)(d); MSA 18.1070(41)(4)(d).

The marijuana odor indicated that the offense of possession of marijuana "ha[d] taken place”. Because of the uncertainty of the time frame in which the marijuana was smoked and the proximity to the Wisconsin border, it is unclear whether the marijuana was smoked in Michigan or Wisconsin and therefore whether the possession offense thereby indicated was committed in this state. Hilber’s convictions do not depend on possession of the marijuana that was smoked.

17 In this case there was a supply, four marijuana cigarettes in a package, which tends only to show that this user had a supply and not whether it is reasonable to expect from a residual odor that there is a supply. Additionally, there were five pounds in a paper, bag and eight butts in a plastic container, but that, again, does not tend to show that from the odor of burned marijuana it is reasonable to expect to find butts or unrolled marijuana in small or large quantity, only that this user had such a supply.

18 Officer Olson testified that he had arrested five persons because he smelled the odor of marijuana, but not whether it was the odor of burned, burning or unburned marijuana. He did not testify whether those were automobile arrests or whether he had conducted a search following the arrests and, if there was a search, whether he found marijuana on the person or in any automobile that may have been searched. He did not say that he expected to find marijuana either because of the habits of marijuana users or for some other reason.