The Michigan Supreme Court ruled Tuesday that police cannot conduct a warrantless vehicle search based solely on probable cause that someone committed a civil marijuana violation, finding that officers must have reason to believe the vehicle contains evidence of a crime.

In a 5 to 2 decision issued July 22, the court reversed a lower court ruling that allowed evidence discovered after a Michigan State Police trooper searched a vehicle occupied by two people under the age of 21.

“The smell of marijuana is not enough,” Justice Kimberly Thomas wrote for the majority.

The case, *People v. Wilkins*, began in January 2023, when a state trooper stopped Freddie Wilkins III for speeding. The trooper smelled marijuana through an open passenger-side window and learned that Wilkins and his passenger were both younger than 21.

The trooper did not see marijuana, observe anyone smoking or notice signs that either occupant was intoxicated. Both initially denied having marijuana, although the passenger later said she had some “shake,” which the trooper understood to mean a small amount.

The trooper searched the vehicle and found a loaded semiautomatic pistol with an extended magazine inside a backpack. Wilkins said the gun belonged to him and was charged with carrying a concealed weapon in a vehicle.

Under the Michigan Regulation and Taxation of Marihuana Act, possession of no more than 2.5 ounces of marijuana by someone under 21 is generally a civil infraction for a first or second violation. Possession of larger amounts can result in criminal penalties.

The court ruled that probable cause to believe someone committed only a civil infraction does not satisfy the automobile exception to the Fourth Amendment’s warrant requirement.

“Because the amount of marijuana present defines the distinction between a civil infraction and a crime, the officer must have probable cause to believe that a criminal amount of marijuana is present,” the court said.

The majority also rejected the argument that marijuana possessed by someone under 21 automatically qualifies as contraband permitting a search, concluding that substances prohibited only under civil law are not contraband for purposes of the automobile exception.

The court noted that marijuana odor may still contribute to probable cause when combined with other evidence, such as marijuana smoke, signs of intoxication, marijuana in plain view or evidence of an amount exceeding the legal threshold.

However, the smell in this case, combined with the passenger’s admission that she had a small amount, did not establish probable cause that the vehicle contained more than 2.5 ounces or evidence of another crime.

Justice Elizabeth Welch joined the majority but wrote separately that she would have decided the case under the Michigan Constitution rather than federal law.

Justice Brian Zahra, joined by Justice Richard Bernstein, dissented. Zahra argued that the trooper had probable cause to believe marijuana contraband would be found because neither occupant could legally possess marijuana and the passenger admitted marijuana was inside the vehicle.

The Supreme Court reversed the Michigan Court of Appeals and sent the case back to Kent County Circuit Court for further proceedings.