Michigan statute says lawful cannabis is not grounds to search your car

The Michigan Regulation and Taxation of Marihuana Act was proposed by initiative petition, submitted as Proposal 18-1 and approved on November 6, 2018 by 2,356,422 votes to 1,859,675, taking effect December 6, 2018. Its section 5 is the operative provision for a traffic stop. It opens with the words notwithstanding any other law or provision of this act, then lists what an adult of 21 or over may do and states that those acts are not grounds for search or inspection. Subdivision (a) covers possessing, using or consuming, internally possessing, purchasing, transporting, or processing 2.5 ounces or less of marihuana, with no more than 15 grams in the form of concentrate. Subdivision (b) covers up to 10 ounces within a residence plus up to 12 plants. Subdivision (d) permits giving away up to 2.5 ounces without payment to another adult.

That wording is materially stronger than what most legalising states enacted. Michigan did not write an odour rule or a sealed container rule for adult use, and it did not merely decriminalise; it removed the conduct from the list of things that can justify an inspection at all. Compare Illinois, which legalised and then made cannabis in a vehicle an offence unless it sits in an odour proof container, and Ohio, whose legalisation act contains no search provision. Michigan's search language is a term of the initiated law itself, and section 4(5) adds that all other laws inconsistent with this act do not apply to conduct that is permitted by it.

The carve outs in section 4(1) are where drivers lose the protection. The act does not authorise operating, navigating or being in physical control of any motor vehicle while under the influence of marihuana. It does not authorise consuming marihuana while operating a vehicle, or smoking marihuana within the passenger area of a vehicle upon a public way. It does not authorise butane or other sub 100 degree Fahrenheit resin extraction in a motor vehicle. It does not authorise anyone under 21 to possess, transport or use at all, and it does not authorise possession on school grounds or in a school bus. Conduct in any of those categories is outside section 5 and the search shield does not attach to it.

Michigan's older transport rules survive for medical patients and caregivers. MCL 750.474 makes it a 93 day misdemeanor with a fine of up to $500 to transport or possess usable marihuana as defined in the Michigan Medical Marihuana Act in a vehicle unless it is enclosed in a case carried in the trunk, or, where the vehicle has no trunk, in a case not readily accessible from the interior. MCL 333.26424b applies the same trunk rule to marihuana infused products for qualifying patients and primary caregivers, with a labelling requirement covering weight in ounces, manufacturer, date of manufacture and source, and a civil fine of not more than $250 for a breach. A caregiver additionally needs an accurate marihuana transportation manifest.

For phones and data the governing text is Michigan Constitution 1963, article I, section 11. Michigan voters amended it by Senate Joint Resolution G, approved November 3, 2020 and effective December 19, 2020, to add electronic data and electronic communications to the list of things secure from unreasonable search, and to require that a warrant to access electronic data or electronic communications describe them and rest on probable cause supported by oath or affirmation. Michigan is one of a small number of states whose constitution names electronic data expressly. The section's final sentence, which purports to admit narcotics, firearms, bombs and explosives seized outside the curtilage of a dwelling, was held invalid as conflicting with the Fourth Amendment in People v Pennington, 383 Mich 611 (1970), and in Lucas v People, 420 F2d 259 (CA 6, 1970), and the Legislature prints that annotation with the section.

One thing Michigan does not have: a statutory duty on officers to ask for consent in a particular form, to record that consent was requested and given, or to advise you that you may refuse. A full text search of the Michigan Compiled Laws for the phrase consent to search returns no results. Texas and Illinois impose logging duties of that kind; Michigan does not.

There is no penalty for refusing consent, and no Michigan statute makes refusal evidence of anything. The consequences run the other way. If a search happens anyway and the state cannot justify it, the remedy is a motion to suppress in the circuit or district court where the case is charged, argued under article I, section 11 and the Fourth Amendment. 27955(1) supplies a statutory answer independent of the constitutional argument, because the act declares that conduct not to be grounds for search or inspection or for seizing or forfeiting property.

26424b. 479 carrying up to two years and $2,000, because that section defines obstruct to include a knowing failure to comply with a lawful command.