People v. Taylor

564 N.W.2d 24, 454 Mich. 580

• Court: Michigan Supreme Court
• Decided: June 17, 1997
• Docket: 103347, Calendar No. 3
• Status: Published

Opinions

Cavanagh, J.

In this case we are asked to determine whether the smell of marijuana alone provides sufficient probable cause to conduct a search of a parked motor vehicle without a warrant. We hold that in making a determination of probable cause the smell of marijuana is but one factor to consider in the totality of the circumstances.

i

Defendants are five African-American males who were sitting in a parked vehicle at the Anazeh Sands Pool Hall in the City of Wyoming, on March 9, 1994. Wyoming Police Officer Walendzik was on routine patrol that night. As part of his patrol, Officer Walendzik drove through the parking lot where defendants were sitting in their vehicle. There were no specific incidents reported that evening; however, the parking lot was known as a high-crime area and was frequently the site of drug and alcohol complaints.

The parking lot was a public-access lot. There were quite a few cars parked in the lot, and defendants’ vehicle was parked two spaces away from another vehicle. Testimony at the preliminary examination indicated that all areas of the parking lot were well lit. In fact, the parking lot was so well lit that one officer testified that you could drive through the lot without headlights.

When Officer Walendzik drove through the parking lot around midnight on March 9, he observed the five defendants sitting in a parked vehicle with the engine off. While the officer observed that the defendants were eating Burger King sandwiches, he saw no unusual activity or furtive gestures by the occupants before he approached it. Furthermore, he did not see any smoke or marijuana in the car.

Nevertheless, he stated that his attention was drawn to the vehicle because, “[t]he vehicle was not running and there were five subjects just seated in the vehicle, not attempting to exit the vehicle, just sitting inside of there.” Officer Waiendzik approached the driver’s side of the vehicle on foot, and made contact with the person seated in the driver’s seat. The driver rolled down the window and the officer could smell the odor of burnt marijuana coming from inside the vehicle. Officer Waiendzik stated that he had no special training in the smell of marijuana and that he had not been administered a test regarding the smell of marijuana. However, he did testify that during his four-month training period he arrested people for possession of marijuana, and the other officers would point out the smell to him on many occasions.

Officer Waiendzik asked the occupants of the vehicle for identification and if they had been smoking marijuana. The defendants stated that they did not have identification with them and that they were not smoking marijuana, and they accused the officer of harassing them. Officer Waiendzik testified, “At that time I called dispatch and advised them that I was on a possible vcsa [violation of controlled substances act] and asked for them to send me a back-up. . . . Approximately 30 seconds later Officer Bivins arrived on the scene.”

Before Officer Bivins smelled the marijuana himself, Officer Waiendzik informed him of the circumstances and that he had smelled burnt marijuana emanating from the vehicle. Officer Waiendzik then asked Officer Bivins to confirm the smell “and help [him] getting those subjects out of the vehicle.” Officer Bivins then approached the passenger side of the vehicle. He testified that he smelled marijuana when the front seat passenger rolled down the window. Officer Bivins had no special training in the smell of marijuana; however, in his two-year career as a police officer he came in contact with the smell of marijuana “occasionally.”

After smelling the marijuana, Officer Bivins ordered the passenger, defendant Pimpleton, out of the vehicle and did a Terry¹ patdown. He immediately felt the outline of a revolver in the inside pocket of the defendant’s coat. Officer Bivins handcuffed defendant Pimpleton, yelled to Officer Walendzik that there was a gun, and ordered the defendant to the ground. Meanwhile, Officer Walendzik went to the back of the vehicle and summoned more back-up.

At that time, one of the passengers in the back seat, defendant Vazquez, jumped out of the vehicle. Defendant Vazquez got about three or four steps away from the car before Officer Bivins tackled him and handcuffed him. Shortly thereafter, more officers arrived on the scene. They ordered the remaining defendants out of the vehicle and handcuffed them. The officers conducted a search of the vehicle, which revealed three additional handguns. The officers also found pieces of a cigar on the floorboard of the vehicle that appeared to contain marijuana. The actual presence of marijuana was never confirmed.

Defendant Taylor was charged with two counts of transporting and concealing stolen firearms, MCL 750.535b; MSA 28.803(2), and with one count of carrying a concealed weapon in an automobile, MCL 750.227; MSA 28.424. Defendants Vazquez, Morgan, and Howland each were charged with one count of transporting and concealing stolen firearms, and of carrying a concealed weapon in an automobile. Defendant Pimpleton was charged with one count of carrying a concealed weapon on his person.

A joint preliminary examination was conducted for all the defendants except Taylor. At the time of the preliminary examination, Taylor had not retained an attorney, nor had one been appointed for him. On the advice of the judge, Taylor waived his preliminary examination with the right to remand should he receive an attorney.

Officer Walendzik was the first witness to testify for the prosecution. After he relayed the events leading up to his decision to call for back-up, the attorney for defendant Howland objected to any further testimony about the evidence obtained by the officers on the basis of an illegal search of the vehicle. Defense counsel asserted that the officers did not have probable cause to order any of the defendants out of the vehicle on the basis of People v Hilber, 403 Mich 312; 269 NW2d 159 (1978), and People v Chernowas, 111 Mich App 1, 5-6; 314 NW2d 505 (1981). The judge took the objection under advisement while he gave the prosecution a fifteen-minute opportunity to call the prosecutor’s office to find case law contrary to Hilber and Chemowas.

The preliminary examination continued in the meantime until the prosecution was forced to ask for an adjournment in order to bring in a key witness from Florida who was expected to testify that the weapons found in the defendants’ vehicle were stolen from him. However, the attorney for defendant Vazquez objected, stating that the question “with regard to the request for an adjournment, is whether or not that’s going to be necessary if the Court has heard sufficient testimony to rule on co-counsel’s original motion for suppression” of the evidence in light of Hilber and Chernowas. After hearing arguments from both sides, the judge dismissed the case, even though the preliminary examination had never been completed. The judge stated, “I do not know of any way I can get around [Chernowas] if I, in fact, did want to.”

On appeal by the prosecutor from the magistrate’s decision, the circuit court agreed that the searches were illegal and the charges were properly dismissed. A split panel of the Court of Appeals denied leave to appeal for lack of merit on the grounds presented.² The prosecutor appealed, and we granted leave to consider whether the odor of marijuana alone provided sufficient probable cause to search the vehicle.

n

The Fourth Amendment of the federal constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .’’US Const, Am IV.³ SThis fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by a neutral and detached judicial officer. California v Carney, 471 US 386, 390; 105 S Ct 2066; 85 L Ed 2d 406 (1985). In Carroll v United States, 267 US 132; 45 S Ct 280; 69 L Ed 543 (1925), the United States Supreme Court established an exception to the warrant requirement for vehicles, recognizing

a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. [Id. at 153.]

Thus, the Court held that a search of an automobile without a warrant, based upon probable cause to believe that the vehicle contained evidence of a crime in light of the exigency arising out of the mobility of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. Id. at 158-159.⁴

In Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970), the United States Supreme Court refined the exigency requirement, holding that the existence of exigent circumstances justifying the search of a vehicle without a warrant was to be determined at the time the automobile is seized. The Court has held that regardless of whether the vehicle was actually moving at the time it was seized is irrelevant. “The capacity to be ‘quickly moved’ was clearly the basis of the holding in Carroll, and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception.” Carney, 471 US 390.

As this Court noted in People v Shabaz, 424 Mich 42, 52; 378 NW2d 451 (1985), the Fourth Amendment does not guarantee freedom from all searches and seizures, rather only from those that are unreasonable. United States v Sharpe 470 US 675; 105 S Ct 1568; 84 L Ed 2d 605 (1985). However, the Fourth Amendment applies to all seizures, including those that involve only a brief detention, short of a traditional arrest. United States v Brignoni-Ponce, 422 US 873, 878; 95 S Ct 2574; 45 L Ed 2d 607 (1975).

In Shabaz, we noted that in Florida v Royer, 460 US 491, 497-498; 103 S Ct 1319; 75 L Ed 2d 229 (1983), Justice White, writing for a plurality of the Court, stated:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . . Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. . . . The person approached, however, need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way. ... He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Emphasis added; citations omitted.]

Determining the point when the seizure took place is crucial to a Fourth Amendment inquiry because it is at that point that the officer must have probable cause.

hi

Officer Walendzik did not violate the Fourth Amendment by merely approaching the vehicle in a public place and asking defendants if they were willing to answer some questions. While this initial encounter was justified as a mere inquiry, and thus was reasonable without a showing of probable cause, the level of intrusion upon the defendants escalated to a seizure requiring probable cause when Officer Walendzik summoned dispatch for back-up.

As stated by Justice White in Florida v Royer at 498, a person approached by an officer “may not be detained even momentarily without reasonable, objective grounds for doing so . ...” In this case, Officer Walendzik testified that when defendants answered that they had not been smoking marijuana, he “called dispatch and . . . asked for them to send me a backup.” Furthermore, Officer Walendzik testified that when Officer Bivins arrived on the scene approximately thirty seconds later, he wanted Officer Bivins to “help [him] get[] those subjects out of the vehicle.” The testimony of Officer Walendzik demonstrates that the mere inquiry had progressed to a seizure. Not only were the defendants detained for the thirty seconds it took back-up to arrive, Officer Bivins did not even have the opportunity to approach the vehicle before Officer Walendzik told him he needed help getting the suspects out of the vehicle. Therefore, it is clear that Officer Walendzik was not only calling for back-up to confirm his suspicions about the smell; rather, he was calling for back-up so that he could have assistance in ordering the defendants out of the car. This amounted to a seizure, the justification for which requires probable cause.

IV

This Court has followed federal precedent in adopting the plain view and plain touch exceptions to the warrant requirement. See, e.g., People v Champion, 452 Mich 92; 549 NW2d 849 (1996). The plain view doctrine allows police officers to seize items in plain view without first obtaining a search warrant. Id. at 101. The plain touch exception allows an object felt during an authorized patdown search to be seized without a warrant if the officer develops probable cause to believe the item felt is contraband. Id. at 105-106.

This Court, in adopting the plain feel exception in Champion stated:

We emphasize that courts applying the plain feel exception must appreciate the totality of the circumstances in the given case. [Minnesota v Dickerson, 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993)] requires an in-depth examination of probable cause. We therefore caution that our holding is limited to the facts before us. . . . It is only under the totality of the circumstances before us, i.e., the defendant’s furtive behavior, his refusal to remove his hands from his sweatpants, the officer’s recognition of defendant, and his knowledge of defendant’s past involvement in drug crimes, that we find that removal of this particular pill bottle was authorized. [Id. at 112-113.]

Later, this Court repeated, “We again emphasize that it is only under the totality of the circumstances that seizure of this pill bottle is authorized.” Id. at 113.

In this case we consider the plain smell exception to the warrant requirement. In Taylor v United States, 286 US 1, 6; 52 S Ct 466; 76 L Ed 951 (1932), the United States Supreme Court was faced with the question whether smell alone provides probable cause to search the home of an individual. While we recognize that in this case the search was not conducted in a home, but rather was a search of a vehicle, the Court’s analysis is equally applicable.⁵ The Court stated,

Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees against unreasonable search. [Id. at 6.]

Later, in Johnson v United States, 333 US 10, 13; 68 S Ct 367; 92 L Ed 436 (1948), the Court reiterated that Taylor held

only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.

Because the United States Supreme Court has held that odor alone is not sufficient to authorize a search of a building without a warrant, we hold that odor alone is not sufficient probable cause to search a vehicle. Rather, as these cases indicate, odor should be but one factor to consider in a totality of the circumstances.

Using the totality of the circumstances test to determine whether there was probable cause advances a concern associated with the reliability of smell in general. As noted by the dissent, we acknowledge that there is a difference between the plain view of an object and the plain touch and smell. With sight, the item to be seized is immediately present and no further searching is required. However, the senses of touch and smell establish the possible presence of contraband, the confirmation of which requires further searching. With the sense of smell, even more caution is required than with the senses of sight and touch. When an officer sees or feels contraband, he knows it is present and he can tell who has possession of that contraband. The same is not true with the sense of smell. The smell of smoke, whether from tobacco or from marijuana, can linger and can attach to someone coming into a vehicle, regardless of whether that person ever had possession of it, or whether it was smoked in that vehicle.

It is precisely for this reason that the Court should be even more cautious when basing probable cause on a smell. By requiring the officer to use smell as one factor in a totality of circumstances, it protects the rights of a defendant against unreasonable searches and seizures. Therefore, on the basis of both federal and state law, officers may not seize a person on the basis of odor alone.⁶

We hold that the smell of marijuana is but one factor to consider in the totality of the circumstances in determining whether probable cause exists to conduct a search of a parked vehicle without a warrant.

v

Finally, the preliminary examination in this case was never completed because the trial judge dismissed the charges against the defendants. Typically, when reviewing a decision from a preliminary examination, the preliminary examination has been fully completed before any decision is appealed. However, it is clear from the record that the preliminary examination in this case was ended prematurely when the trial judge held that he was bound by Hilber and Chemowas. Because we have expressly declined to adopt the reasoning from Hilber and Chemowas, we now remand the case to the trial court for continuation of the preliminary examination. It is up to the trial judge to make the determination whether there was probable cause to seize the defendants at the time Officer Waiendzik called for back-up. In so doing, and in accordance with United States Supreme Court case law, the trial judge should consider the special training or experience of the officer regarding his ability to identify the odor of marijuana in determining the weight to give his testimony. Furthermore, probable cause must be based on a totality of the circumstances, in which odor is but one factor to consider.

Because we sit as a reviewing court only, we cannot make the initial determination whether there was probable cause in this case. “[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. A trial judge views the facts of a particular case in light of the distinctive features and events of the community . . . .” Ornelas-Ledesma v United States, 517 US 690, _; 116 S Ct 1657; 134 L Ed 2d 911, 920-921 (1996). We should not make a determination that the decision of the trial judge was clearly erroneous until (1) he has heard all the evidence and completed the preliminary examination, and (2) he has made his ruling.

Remanded for further proceedings.

Mallett, C.J., and Brickley and Kelly, JJ., concurred with Cavanagh, J.

1 Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

2 Unpublished order, entered April 24, 1995 (Docket No. 181651).

3 The Fourth Amendment of the federal constitution is applicable to the states through the Fourteenth Amendment. Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).

4 The Michigan Constitution also prohibits unreasonable searches and seizures. Const 1963, art 1, § 11. However, the Michigan Constitution does not provide more protection than the Fourteenth Amendment under the circumstances of this case. People v Faucett, 442 Mich 153, 158; 499 NW2d 764 (1993).

5 In the case of a vehicle, because of the reduced expectation of privacy and the ready mobility of the vehicle, a search without a warrant has been found to be reasonable. The consequence of that reduced privacy has been to allow a search of the vehicle without a warrant, but only if based upon probable cause. The United States Supreme Court has never held that there should be two standards for probable cause: one lesser standard for vehicles and one greater standard for homes and buildings. In fact, the Court refers to only one standard for probable cause.

In California v Carney, supra at 392-394, the Court stated:

[T]he exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met. . . . Under the vehicle exception to the warrant requirement, “[only] the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.” [Citation omitted; bracketed words supplied.]

Furthermore, in Almeida-Sanchez v United States, 413 US 266, 269; 93 S Ct 2535; 37 L Ed 2d 596 (1973), the Court stated, “Automobile or no automobile, there must be probable cause for the search.”

Finally, in South Dakota v Opperman, 428 US 364, 386; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), Justice Marshall, in his dissent, recognized the principle that there is only one standard for determining probable cause. He stated:

The Court correctly observes that some prior cases have drawn the distinction between automobiles and homes or offices in Fourth Amendment cases; but even as the Court’s discussion makes clear, the reasons for distinction in those cases are not present here. Thus, Chambers v Maroney, 399 US 42 (1970), and Carroll v United States, 267 US 132 (1925), permitted certain probable-cause searches to be carried out without warrants in view of the exigencies created by the mobility of automobiles, but both decisions reaffirmed that the standard of probable cause necessary to authorize such a search was no less than the standard applicable to search of a home or office. Chambers at 51; Carroll at 155-156.

Therefore, while a person in a vehicle may have a diminished expectation of privacy, the fact remains that a search of the vehicle without a warrant still must be based on probable cause, the same probable cause as is needed to obtain a warrant to search a home.

6 We note that the trial judge based his determination in this case on our decision in Hilber and the decision of the Court of Appeals in Chemowas, which addressed the distinction between the odor of burned and unburned marijuana. However, Hilber did not garner a majority of this Court. Therefore, we expressly decline to adopt the distinction between unbumed and burned marijuana as the basis for our decision today.