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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED May 26, 2015

v No. 320197
Oakland Circuit Court ALI ZAID, LC No. 2013-009924-AR

Defendant-Appellee.

Before: M URPHY , P.J., and S TEPHENS and G ADOLA , JJ.

P ER C URIAM

.

The prosecution appeals by leave granted the circuit court’s o rder that affirmed the
district court’s decision not to bind defendant over on the cha rge of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)( iii ). The basis for the district court’s ruling was that the searc h of defendant’s vehicle that led to the discovery of the marijuana was unconstitutional, in that there was an underlying Miranda 1 violation and the police lacked probable cause to conduct the search under the ci rcumstances presented. And absent consideration of the marijuana and other potentially inc riminating evidence found during the search, the district court c oncluded that there was no prob able cause to bind defendant over on the drug charge. We reverse and remand for reinstatement of the charge and arraignment in the circuit court on the felony information.

On October 16, 2012, a veteran Tr oy police officer pulled defe ndant’s car over for a traffic violation, and there is no dispute that the officer had the legal authority to make the stop. Defendant was the lone occupant o f the vehicle. The police off icer claimed that during the stop he smelled “an overpowering odor of [unburned] marijuana” emana ting from defendant’s car, which odor the officer was quite familiar with due to his exper iences as an officer for over 25 years. The officer also took no tice of a backpack on the front passenger seat and pointedly asked defendant how much marijuana he possessed in the car. Defendan t informed the police officer that he had medical marijuana cards issued under the Michigan M edical Marihuana Act (MMMA), MCL 333.26421 et seq. 2 Defendant presented the officer with three cards showing

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

2 This opinion will use an “h” when spelling marihuana only when directly quoting from the MMMA; otherwise, we will empl oy its more common spelling using a “j.”-2- defendant’s designation as a medical marijuana primary caregive r for a male and two females, but one of the cards had expired. See MCL 333.26423(h) (defini ng “primary caregiver”). Defendant also gave the police officer his own medical marijuan a card, showing defendant to be a qualifying patient. See MCL 333.26423(i) (defining “qualifyi ng patient”).

The officer and defendant proceed ed to discuss medical marijua na and the amount of marijuana that defendant could legally possess under the law. Generally speaking, defendant was allowed to possess 7.5 ounces of usable marijuana based on the three valid cards. See MCL 333.26424(a) (a qualifying patient may possess “an amount of ma rihuana that does not exceed 2.5 ounces of usable marihuana”); MCL 333.26424(b) (a primary c aregiver may possess an amount of marijuana that does not exceed “2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process”). 3 Defendant, who had been ordered by the officer to keep his hand s hanging outside of the driver’s side window, told the officer that he indeed possessed marijuan a in the car that he had purchased for $2,000 and that while he did not know the total weight of t he marijuana, it was more than he was permitted to possess under the law

. 4

The police officer then awaited backup, and when it arrived, t he officer conducted a
search of defendant’s car. Defe ndant was told to step out of h is car, and he was placed in the backseat of a police cruiser. In searching defendant’s vehicle , the officer found marijuana in the backpack, packaged in various-sized plastic baggies. The quant ity of marijuana totaled 1.6 pounds or about 25 ounces; more than three times the amount def endant was legally entitled to possess. The officer also discover ed a scale and a box contain ing Ziploc baggies. He additionally found a firearm mag azine holding 13 bullets in the center console of the car, but a
firearm was not located. The police officer also discovered a marijuana “roach” in the ashtray of
the car. Defendant was then arre sted, and a search of his pers on produced $1,143 in cash. A field test conducted at the police station confirmed that the s ubstance found in defendant’s car was marijuana.

A police lieutenant testified at the preliminary examination a s an expert in street-level narcotics trafficking, opining that defendant had been engaged in the sale and trafficking of marijuana, as based on the discovery of the marijuana, the amou nt of marijuana, the use and sizes of the plastic baggies, the scale, and the large amount o f cash.

During the preliminary examination, defendant argued, contrary to the claim of the police officer who conducted the stop and search of defendant’s car, t hat there was evidence suggesting that the officer did not truly detect the odor of marijuana, e. g., video/audio reco rdings reflecting no mention of a marijuana odor to a dispatcher or the backup of ficer, and therefore the search

3 Usable marijuana is defined as “the dried leaves and flowers o f the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.” MCL 333.26423(k).

4 At the preliminary examination, the police officer testified, “He [defendant] told me he had more marijuana tha[n] he was allowed.” At another point in the hearing, the officer similarly testified, “He, eventually, told me he had more than he was sup posed to have.”-3- was not actually conducted on that basis. Defendant further co ntended that his statement about having more marijuana than permitted by law could not be consid ered, given that the statement
was made in violation of defendant’s Miranda rights, where it was elicited as part of a custodial interrogation. Defendant maintai ned that absent the statement, and considering that the claim by the officer that he detected the odor of unburned marijuana was not credible, there was a lack of probable cause to justify the search. And absent consideration of the fruits of the
unconstitutional search – the mar ijuana and related items – the re was no probable cause to bind defendant over to the circuit court for trial on the drug charg e. The prosecutor agreed that
defendant’s Miranda rights were violated and that defendant’s statement about havin g too much marijuana was subject to suppression. However, the prosecutor argued that the officer’s detection of the strong odor of marijuana provided probable cau se to conduct the search and that the evidence was more than sufficient to establish probable cau se that a crime was committed and that defendant committed the crime, thereby mandating a bin dover.

The district court refused to bind defendant over to the circu it court on the charge of possession with intent to deliver less than 5 kilograms of mari juana, MCL 333.7401(2)(d)( iii ). With very little elaboration, the district court concluded that without defendant’s statement that he had more marijuana than was permissible, the case should not be bound over. The prosecution appealed the district court’s decision to the circu it court. Most of the parties’ arguments were the same as those made to the district court, bu t defendant now also argued that, with respect to the alleged odor of marijuana detected by the o fficer, the odor did not support a finding of probable cause to sear ch, given that the officer kne w based on the medical marijuana cards that defendant was legally allowed to possess marijuana. The circuit court affirmed the district court’s decision, primarily on the basis of its belief that the district court had made a credibility determination that rejected the officer’s testimony about smelling the marijuana, which credibility assessment the circuit court was not prepared to second-guess. The prosecution appeals by leave granted.

Ultimately, this appeal concerns whether the search of defenda nt’s car was constitutionally sound, such that the marijuana and other items found as a result of the search can be considered in determining whether there existed probable cau se to bind defendant over on the drug charge. We hold that the search did not violate defendant ’s constitutional rights and that
there was sufficient evidence to bind defendant over to the cir cuit court. We decline to address whether the mere odor of marijuana can justify a search of a mo tor vehicle when an occupant holds a valid medical marijuana card and is permitted to posses s a certain amount of marijuana. 5 Rather, we conclude that defendant’s statement that he had more marijuana than legally allowed provided probable cause to search defendant’s vehicle regardles s of any Miranda violation. We note that this opinion does not examine the correctness of the district court’s Miranda ruling, only the implications flo wing from that ruling.

5 We note that a couple of months after the vehicle stop involve d here, the Legislature enacted MCL 750.474, which makes it a misdemeanor to transport or posse ss usable marijuana, as defined in the MMMA, in a motor vehicle unless it is “[e]nclose d in a case that is carried in the trunk of the vehicle” or “[e]nclosed in a case that is not read ily accessible from the interior of the vehicle, if the vehicle . . . does not have a trunk.” 2012 PA 460, effective December 27, 2012.-4- A trial court's factual findings at a suppression hearing are reviewed for clear error. People v Williams , 472 Mich 308, 313; 696 NW2d 636 (2005). 6 “Clear error exists when the reviewing court is left with a definite and firm conviction tha t a mistake was made.” People v Hornsby , 251 Mich App 462, 466; 650 NW2d 700 (2002). We give deferenc e to a trial court’s credibility determinations regarding witnesses testifying on a suppression issue. People v Galloway , 259 Mich App 634, 638; 675 NW2d 883 (2003). “But the applica tion of constitutional standards regarding searches and seizures to ess entially uncontested facts is entitled to less deference; for this reason, we review de novo the trial court's ultimate ruling on the motion to suppress.” Williams , 472 Mich at 313. The Fourth Amendment of the United States Constitution and Const 1963, art 1, § 11, secure the rig ht of the people to be free from
unreasonable searches and seizures. People v Brown , 279 Mich App 116, 130; 755 NW2d 664 (2008). The touchtone of any Fourth Amendment analysis is reas onableness, and reasonableness is measured by examination of the t otality of the circumstances

. Williams , 472 Mich at 314.

There was no search warrant involved in this case, but “[o]ne of the well-established exceptions to the warrant requirement is known as the automobil e or motor vehicle exception,” which “is premised on an automobile's ready mobility and pervas ive regulation[.]” People v
Kazmierczak , 461 Mich 411, 418; 605 NW2d 667 ( 2000). “A police officer wh o witnesses a person violating . . . [the Mot or Vehicle Code] . . ., which vi olation is a civil infraction, may stop the person, detain the person temporarily for purposes of makin g a record of vehicle check, and prepare and subscribe, as soon as possible and as completely as possible, an orig inal and 3 copies of a written citation[.]” MCL 257.742(1). A traffic stop is g enerally not unlawful and does not violate the Fourth Amendment if the officer conducting the stop has probable cause or a reasonable and articulable suspicion to believe that a violatio n of the Motor Vehicle Code had been committed or was occurring. People v Davis , 250 Mich App 357, 363; 649 NW2d 94 (2002); People v Williams , 236 Mich App 610, 612; 601 NW2d 138 (1999). Again, there is no dispute here that the officer h ad a valid basis to stop defenda nt’s vehicle predicated on a
violation of the Motor Vehicle Code.

In Williams , 472 Mich at 315, our Supreme Court discussed the nature and s cope of a valid traffic stop, recognizing that circumstances can evolve o nce a motorist is stopped for a traffic violation that may justify further inquiry:

A traffic stop is reasonable as long as the driver is detained only for the purpose of allowing an officer to ask reasonable questions conc erning the violation of law and its context for a reasonable period. The d etermination whether a traffic stop is reasonable must necessarily take into account the evolving circumstances with which the officer is faced. . . . [ W]hen a traffic stop reveals a new set of circumstances, an officer is justified in extending the detention long enough to resolve t he suspicion raised. [Citati ons omitted.]

6 Although technically there was n ot a “suppression” hearing, th e district court relied on the testimony presented at the preliminary examination, which is an evidentiary hearing, in making a suppression ruling.-5- In the present case, a new set of circumstances developed or e volved after the valid stop, where the officer smelled unburned marijuana, defendant present ed medical marijuana cards, the officer and defendant discussed medical marijuana and permissib le quantities under the MMMA, and where defendant expressed that he had more marijuana than p ermitted by law. This ultimately led to the search of defendant’s car and the discove ry of an excessive amount of marijuana and alleged drug paraphernalia. The question becomes whether the police officer had probable cause to conduct the s earch as based on the evolving s et of circumstances. See
Kazmierczak , 461 Mich at 420-421, 420 n 8 (given that the traffic stop was permissible when the
officer observed a traffic viola tion, the next question to ask is whether there was probable cause to search the vehicle).

“Probable cause exists when the facts and circumstances known to the police officers at the time of the search would lead a reasonably prudent person t o believe that a crime has been or is being committed and that evidence will be found in a particu lar place.” People v Beuschlein

, 245 Mich App 744, 750; 630 NW2d 921 (2001). An officer’s ulter ior motives or subjective intentions generally play no role in analyzing whether probable cause existed under the Fourth Amendment; rather, the analysis entails an objective review of the facts and circumstances, and an objectively valid search rema ins legal regardless of subject ive motives or intentions. People v

Wilson , 257 Mich App 337, 355-356; 668 NW2d 371 (2003), vacated in pa rt on other grounds 469 Mich 1018 (2004). When a police officer with previous expe rience in marijuana investigations credibly testif ies to smelling a strong odor of marijuana emanating from a vehicle, probable cause to search the vehicle exists. Kazmierczak , 461 Mich at 421-422. Kazmierczak

, however, was decided before the e lectorate approved the MMMA in 2008 pursuant to a citizen’s
initiative. See People v Kolanek , 491 Mich 382, 393; 817 NW2d 528 (2012). For purposes of our analysis, we shall assume that the odor of marijuana is not sufficient to support probab le cause to conduct a search if possession of some amount of marij uana is permissible under the MMMA. To emphasize, we make no ruling on this matter, and this opinion is not to be construed as holding that the odo r of marijuana, in and of itse lf, cannot serve as probable cause when a person holds a valid marijuana registration card; we mer ely find it unnecessary to answer that question. 7

7 We are compelled to discuss the issue regarding the credibilit y of the police officer’s testimony about smelling marijuana. The district court did not expressly indicate that it found the officer’s testimony lacking in credibility on the issue, although perhaps it might be implied, given that the district court appeared to give no weight or consideration to t he officer’s testimony concerning the odor of marijuana in ruling that the exclusion of defendant ’s incriminating statement fully justified its decision not to bind over defendant. It is equal ly possible that the district court believed the officer about the marijuana odor, but concluded, w ithout stating so on the record,
that the odor alone was not suffi cient to support the search. This situation shows why it is important for lower courts to provide some minimal elaboration on their rulings so as to allow sound appellate review. Considerin g that there is no dispute t hat the officer asked defendant how much marijuana he had in his possession, that the officer and d efendant engaged in a discussion of medical marijuana and allowa ble quantities, and that defenda nt provided the officer with his registration cards, we find it in conceivable that the officer h ad not smelled any marijuana, otherwise what else could possibl y have triggered the whole mar ijuana question and discussion-6- We conclude that probable cause to search defendant’s vehicle arose on the basis of
defendant’s concession that he had more marijuana than legally permissible under the MMMA.

In Kolanek , 491 Mich at 394, the Michigan Supreme Court analyzed the MMMA , stating:

The MMMA does not create a general right for individuals to use and possess marijuana in Michigan. Possession, manufacture, and del ivery of marijuana remain punishable offenses under Michigan law. Rather , the MMMA's protections are limited to individuals suffering from serious o r debilitating medical conditions or symptoms, to the extent that the individu als' marijuana use “is carried out in accordance with the provisions of [the MMMA] .” [Citations omitted; alteration and emphasis in original.]

Accordingly, by indicating to the police officer that he had a n amount of marijuana that was not in accordance with the MMMA, defendant provided the off icer with probable cause to search the vehicle. The question becomes whether the Miranda violation in connection with the elicitation of the statement of admission precludes considerati on of the statement in the context of determining whether probabl e cause existe d to conduct the ve hicle search.

In People v Melotik , 221 Mich App 190, 199; 561 NW2d 453 (1997), this Court favorably quoted United States v Patterson , 812 F2d 1188, 1193 (CA 9, 1987), stating:

“Patterson's statements were elicited even though Patterson wa s not advised of his Miranda rights. Miranda violations do not abridge the Fifth Amendment constitutional privilege against self-incrimination, but instead involve prophylactic standards laid down to safeguard that priv ilege. Statements
obtained in violation of Miranda may not be admitted against the accused, at least in the prosecution's case in chief. ‘But the Miranda presumption, though irrebuttable for purposes of th e prosecution's case in chief, d oes not require that the statements and their fruits be discarded as inherently tain ted.’ The . . . ‘fruits of the poisonous tree’ doctrine does not control where there is no constitutional
violation.”

In United States v Patane , 542 US 630, 636-637, 641-642; 124 S Ct 2620; 159 L Ed 2d 667 (2004), the United States Supr eme Court similarly held:

As we explain below, the Miranda rule is a prophylactic employed to protect against violations of th e Self–Incrimination Clause. Th e Self–

and the presentation of the regis tration cards. We thus tend t o believe that the district court accepted the testimony of the officer that he smelled marijuana on arriving at defendant’s
vehicle. But assuming that the district court dismisse d the officer’s testimony on t he matter as not being credible, and appreciating that we generally defer to a factfinder’s assessment of credibility, this is one instance in which the presumed credibi lity assessment is not entitled to deference, as it is inherently implausible and illogical. See People v Lemmon , 456 Mich 625, 643-644; 576 NW2d 129 (1998) (discu ssing exceptions to the gene ral rule of deference regarding credibility determinations).-7- Incrimination Clause, however, is not implicated by the admissi on into evidence of the physical fruit of a volunt ary statement. Accordingly, th ere is no justification for extending the Miranda rule to this context. And just as the Self–Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule.
The Miranda rule is not a code of police conduct, and police do not violat e the Constitution . . . by mere failures to warn. For this reason, t he exclusionary rule . . . does not apply.

. . .

Our cases . . . make clear . . . that a mere failure to give Miranda warnings does not, by itself, violate a suspect's constitutional rights or even the Miranda rule. . . .

It follows that police do not violate a suspect's constitution al rights . . . by negligent or even deliberate failures to provide the suspect wi th the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon
the admission of unwarned statements into evidence at trial. An d, at that point, “[t]he exclusion of unwarned stat ements is a complete and suffi cient remedy” for any perceived Miranda violation. [Citations omitted; alteration in original.]

Here, there is no claim or evidence that defendant’s statement about possessing too much marijuana was involuntary or coe rced; therefore, there was no c onstitutional violation and the sole remedy for the Miranda violation is exclusion of the statement at trial. The statemen t is not otherwise to be discarded, as, fo r example, in relation to prov iding probable cause to search defendant’s car, and the ultimate physical fruits of the statem ent, i.e., the marijuana and other potentially incriminating eviden ce, are admissible in court. O bjectively viewed and regardless of the officer’s subjective motivation or intentions, probable cau se to search defendant’s car flowed or arose from defendant’s statement that he indeed possessed mo re marijuana than permitted by law, which in turn led to the discovery of the marijuana and ot her evidence. If physical evidence
discovered as a result of a sta tement given in violation of Miranda is admissible, such a statement can certainly also se rve as a basis to find the under lying probable cause necessary to conduct the search that led to the discovery of the physical ev idence. It would be nonsensical and wholly undermine the principles set forth in Melotik and Patane to conclude that an unMirandized statement, for example one that informs police that a murder weapon was discarded in a certain location, cannot be considered in determining whet her there is probable cause to
search that location in the fir st place. In sum, defendant’s s tatement here that he had more marijuana than permitted by law should have been considered by the district court in determining whether there was probable cause to search defendant’s car. We note that defendant never argued that he did not make the statement. Further, the statem ent clearly provided probable
cause for the officer to search defendant’s car. The district court erred in ruling otherwise, and
the circuit court er red in affirming the di strict court’s erron eous decision.

Finally, taking into considera tion the marijuana found in defe ndant’s car, the weight of the marijuana, which exceeded the permissible amount under the MMMA, and the other evidence discovered in defendant’s car that suggested he was en gaged in the illegal trafficking and sale of marijuana, all provided more than sufficient eviden ce to conclude that there was probable cause that the charged drug offense was committed and that defendant committed the-8- offense. Accordingly, the district court abused its discretion in failing to bind defendant over for trial in the circuit court, and the circuit court erred in affi rming the district court’s erroneous
decision. 8

Reversed and remanded for reinstatement of the charge under MC L 333.7401(2)(d)( iii ) and arraignment in the circuit court on the felony information. We do not retain jurisdiction.

/s/ William B. Murphy /s/ Cynthia Diane Stephens
/s/ Michael F. Gadola

8 A district court’s decision to b ind a defendant over for trial is reviewed for an abuse of
discretion. People v Yamat , 475 Mich 49, 52; 714 NW2d 335 (2006). “An abuse of discretio n occurs when the decision results in an outcome f alling outside the principled range of outcomes.”

Woodard v Custer , 476 Mich 545, 557; 719 NW2d 842 (2006); see also People v Carnicom , 272 Mich App 614, 617; 727 NW2d 399 (2006). A circuit court’s deci sion concerning a district court’s bindover ruling is reviewed de novo. People v Crippen , 242 Mich App 278, 282; 617 NW2d 760 (2000). Therefore, this Court “gives no deference to the circuit cour t’s decision.” People v Henderson , 282 Mich App 307, 313; 765 NW2d 619 (2009). Rather, this Cou rt “reviews the bindover decision de novo to determine whether the district court abused its
discretion.” Id . The purpose of a preliminary examination is to determine whe ther there is probable cause to believe both that an offense has been committ ed and that it was committed by the defendant. MCL 766.13; MCR 6.110(E). Probable cause is es tablished by evidence “sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief” that a crime was committed and committed by the defendant. People v Yost

, 468 Mich 122, 126; 659 NW2d 604 (2003) (quotations and citation omitted). The prosecutor must present evidence showing each element of the crime charged or evidence from which the elements can be inferred, although the evidence need not establ ish guilt beyond a reasonable
doubt. People v McBride, 204 Mich App 678, 681; 516 NW2d 148 (1994).