Police love the scent of marijuana. If they detect the odor during traffic stops in jurisdictions where cannabis is illegal, they can search the vehicle and seize any cash they find. They can even take the car.
Once the government has possession, it can start civil forfeiture, a law enforcement maneuver that allows agencies to keep seized assets permanently. It works like highway robbery, except with court permission.
No arrest or conviction is necessary. Once the process ends, participating agencies can split the proceeds among themselves. State and federal forfeiture revenue topped $439 million in Michigan during the 20 years from 2000 to 2019.
Civil forfeiture is big business, and paydays often start with the wafts of weed. But police have a problem in Michigan. Voters legalized cannabis for recreational use in 2018.
Consuming marijuana in a car remains illegal. But drivers can possess the drug, killing the best excuse officers had to open doors, rummage through trunks, and look in gloveboxes without a warrant.
The Detroit Police Department is having a hard time accepting the new normal.
On Oct. 8, 2020, five Detroit officers were driving to a home compliance check when they passed a parked Jeep Cherokee. One police corporal said she smelled marijuana coming from the vehicle, so she stopped and initiated a roadside interrogation with the driver and her passenger, Jeffery Scott Armstrong.
“How long you been smoking weed in the car?” the corporal says in a transcription of bodycam video. “I can smell it from outside. Don’t act shocked. I can smell it.”
Prior to 2018, a confrontation like this would have been fine. But smelling marijuana, by itself, no longer signals a crime. So, the corporal should have kept driving.
Her decision to stop and search the Cherokee violated the occupants’ Fourth Amendment guarantees against unreasonable search and seizure. Officers did not care. They ordered Armstrong out of the vehicle, revealing a gun under his seat, and they arrested him for being a felon in possession of a firearm.
The police found nothing else illegal. They did not even find marijuana, which is not surprising. The odor can linger on a person long after they have lawfully smoked it or been around someone else using it. Officers can also lie or be mistaken. One study shows that in 3,300 marijuana odor-based vehicle searches in Philadelphia, police found contraband less than 10% of the time.
Despite the poor track record, police take pride in their sense of smell. Three Indiana officers even testified in 2019 that they detected less than 1 gram of unlit marijuana in a closed container in a moving car over 100 yards away, while a breeze cut across traffic.
Even drug-sniffing dogs are wrong more than half the time. They are trained to detect weed, but they cannot distinguish between fully legal hemp cigarettes and semi-legal marijuana. Nor can K9s communicate when they detect marijuana versus some other narcotic like cocaine. They give one-size-fits-all alerts, which makes them useless in states like Michigan.
All marijuana sniffers — human and canine — must adjust. Armstrong gave Michigan courts a chance to provide guidance when he filed a motion to suppress evidence from the 2020 search. A trial court granted his motion and the Court of Appeals of Michigan upheld the decision in 2022. Unsatisfied, the state petitioned the Michigan Supreme Court to intervene, and the justices have agreed.
Our public interest law firm, the Institute for Justice, together with the Cato Institute, filed a friend-of-the court brief in the case. Our position is simple: If a substance is legal, then its odor cannot create probable cause for a search.
More broadly, Armstrong’s case provides an opportunity for robust judicial review of probable cause determinations that officers make in the field. Civil forfeiture can taint these decisions, creating financial incentives for aggressive policing.
Armstrong did not lose cash during his police encounter, and officers did not seize the Cherokee. But many cases go differently, and innocent property owners can suffer. Cases we have litigated in Wayne and Oakland counties show how.
Anyone can look guilty — or smell guilty — when officers need an excuse for a warrantless search.
Robert Frommer is a senior attorney and director of the Project on the Fourth Amendment at the Institute for Justice in Arlington, Va. Daryl James is an Institute for Justice writer.
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