The “Plain Smell Doctrine” is a concept that that taken on a life of its own within the state of Michigan. In what may shock the conscience, Michigan law recognizes that the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle, under the motor vehicle exception to the warrant requirement. This has led to a great deal of concern in the criminal law section of our state. The leader in criminal defense in our state is Scott Grabel of Grabel and Associates. Grabel weighed in on the topic of the “Plain Smell Doctrine” for this article.
Grabel stated, “The Kazmierczak case changed the face of criminal litigation. That case provided that burned, unburned and the burning of marijuana could lead to a justification of the police searching the entire vehicle. This is stating that the officer is qualified based upon one of his senses to “create probable cause” and having that theory in place puts everyone in jeopardy. It is as if the medical cannabis user is becoming a target even while having a valid Michigan Medical Marijuana Card on their person.”
Grabel added that the theory plain smell is in contradiction to Michigan law. “If a party has a valid cannabis card they are allowed to use the plant within the state but there is still a global perspective of federal violations. The protection that one feels they are afforded in the state can be washed away by an officer on a fishing expedition. It is quite possible that an officer can argue they smell cannabis but what if the defendant is legally allowed to use marijuana and this is a pretext for a search of other material? As litigators, we have to be on top of our game to protect these situations.”
While Scott Grabel has continuously won cases involving the “Plain Smell Doctrine” the danger that is present to citizens of the state of Michigan is growing on a daily basis. The amount of bad prosecutions is on the rise and the only way this will stop will be through improved lawyering. Litigators will need to improve their study of the topic or jail and prison cells will continue to fill up.
William Amadeo is a partner at the law firm Ann Arbor Legal in Ann Arbor, Michigan. Amadeo is also an Associate Attorney for Grabel and Associates. Along with his litigation duties, Amadeo is a journalist for “The Chronicle News” and owns BAT Tutoring in Lansing, Michigan. Amadeo can be reached at Amadeo@McManuspllc.com.