UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Harry Carl Johnson, Jr., 

Plaintiff, 

v. 

Derek Williams, et al., 

Defendants. 

________________________________/

Case No. 14-cv-12790 

Hon. Judith E. Levy 

Mag. Judge R. Steven Whalen 

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT 

AND RECOMMENDATION [46] AND GRANTING SGT. JACOB 

GULICK’S MOTION FOR SUMMARY JUDGMENT [36] 

 On February 23, 2016, Magistrate Judge R. Steven Whalen 

entered a Report and Recommendation (Dkt. 46) recommending that 

the Court grant the motion for summary judgment filed by the only 

remaining defendant in this case, Sgt. Jacob Gulick of the Alma Police 

Department. (Dkt. 36.) Following an extension of the time to file 

objections to the Report and Recommendation, plaintiff Harry Carl 

Johnson, Jr. timely filed a single objection. (Dkt. 49.) 

Summary judgment is proper where “the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled 

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to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may 

not grant summary judgment if “the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248. The Court “views the evidence, 

all facts, and any inferences that may be drawn from the facts in the 

light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. 

Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing 

Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)). 

 This case involves a warrantless police search of a hotel room 

following two officers’ alleged identification of strong marijuana smells 

emanating from a room that plaintiff, along with others, occupied. For 

the purposes of analyzing plaintiff’s objection, the Court will adopt the 

statement of facts in the Report and Recommendation. (Dkt. 46 at 2-3.) 

 In determining whether an officer is entitled to qualified 

immunity, a court must determine 1) whether the facts alleged or 

shown by the plaintiff make out a violation of a constitutional right, and 

2) if so, whether that right was clearly established at the time of the 

officer’s alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). 

Courts may address either prong of this inquiry first. Pearson v. 

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Callahan, 555 U.S. 223, 236 (2009). Judge Whalen found that 

defendant was entitled to qualified immunity because exigent 

circumstances justified warrantless entry into the hotel room – namely, 

that defendant detected a strong odor of marijuana emanating from the 

room, plaintiff admitted there was marijuana in the room (which was 

registered in plaintiff’s name), plaintiff could not produce a medical 

marijuana registration card, although another occupant of the room 

could produce a medical marijuana card, and that in conducting the 

search, the officers seized drugs and money, but did not arrest plaintiff 

at the scene. (Id. at 7.) 

Judge Whalen based his analysis that the warrantless search was 

justified on defendant’s assertion that he sought to prevent the 

imminent destruction of evidence – in this case, the marijuana creating 

the strong odor emanating from the room. (Id. at 7-8 (citing Kentucky v. 

King, ___ U.S. _____, 131 S.Ct. 1849, 1858 (2011))). In particular, Judge 

Whalen relied on United States v. McMillion, 472 F. App’x 138 (3d Cir. 

2012), in which the Third Circuit upheld a similar warrantless search 

based on the exigent circumstances doctrine. In that case, the Third 

Circuit held that a warrantless search was justified where officers 

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detected the odor of marijuana, which got stronger after the occupant of 

an apartment opened the door. Id. at 140-41. There, it was “reasonable 

for the officers to suspect that there was ongoing drug activity, and, 

particularly in light of McMillion's admission to smoking marijuana, it 

was also reasonable for the officers to conclude that contraband was 

being destroyed and would continue to be destroyed or removed if they 

did not act immediately.” Id. at 141. 

Plaintiff responds by indicating that McMillion differs from this 

case because of Michigan’s Medical Marijuana Act (“MMMA”). He 

makes two arguments against the finding that exigent circumstances 

existed: first, plaintiff points out that another person in the room, 

Danyell Thomas, possessed an MMMA registration card, and plaintiff 

possessed an application and certification for a registration card; 

second, plaintiff argues that the search became unjustified after the 

police entered the room and detained plaintiff, Thomas, and the other 

occupant, Mirysa Audrey McElwee. 

Plaintiff’s first argument is unsuccessful because the protections 

of the MMMA do not extend so far as to completely decriminalize the 

possession and use of marijuana in Michigan, or prohibit searches when 

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a valid MMMA card is a potential defense to arrest or other 

punishment. The MMMA creates a “very limited, highly restricted 

exception to the statutory proscription against the manufacture and use 

of marijuana in Michigan.” People v. King, 291 Mich. App. 503, 509 

(2011). As Judge Whalen indicated, M.C.L. § 333.26424 states that a 

“qualifying patient who has been issued and possesses a registry 

identification card shall not be subject to arrest, prosecution, or penalty 

in any manner . . . for the medical use of marihuana in accordance with 

this act, provided that the qualifying patient possesses an amount of 

marihuana that does not exceed 2.5 ounces of usable marihuana[.]” 

This section of the MMMA does not address (and certainly does not 

prohibit) searches of spaces for marijuana. 

As Judge Whalen also indicated, the Sixth Circuit has stated that 

probable cause justifying a search (and, by extension, the exigent 

circumstances justifying a warrantless search) may be determined 

without anticipating or investigating “a defendant’s possible defenses to 

apparent illegality,” including protection under the MMMA. United 

States v. Ashbourne, 571 F. App’x 422, 425 (6th Cir. 2014). Even where 

such protection might apply, it would only apply where there was “clear 

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and uncontroverted evidence” that a suspect was in full compliance with 

the MMMA. United States v. Duval, 742 F.3d 246, 252 (6th Cir. 2014). 

Plaintiff was not arrested following the search of the room, even 

though he lacked a registration card. Further, plaintiff was not in full 

compliance with the MMMA precisely because he lacked a registration 

card. As Michigan courts have set forth, “[t]he MMMA does not 

abrogate state criminal prohibitions related to marijuana[.]” People v. 

Brown, 297 Mich. App. 670, 674 (2012). The warrantless search was 

justified under the circumstances, particularly where plaintiff himself 

was not protected from arrest (which did not occur) under the MMMA, 

plaintiff admitted there was marijuana in a room under his name, and 

the police could smell the odor of marijuana, which increased when the 

door opened.1

Plaintiff’s second argument effectively stipulates to the 

reasonableness of the warrantless search, but only as to the detention of 

the room’s occupants. Plaintiff theorizes that the exigent circumstances 

justifying a warrantless search based on the presence and potential 

 

1 Judge Whalen also correctly stated that even if this search violated a 

constitutional right, it was not clearly established at the time of the alleged 

violation, because the right was not established in the particularized sense 

necessary for defendant to understand that his actions would have violated that 

right. (Dkt. 46 at 11.) 

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destruction of drugs disappeared when the people in the room who 

could have destroyed the drugs were detained, although plaintiff does 

not state in his complaint, response to the motion for summary 

judgment, or the attached declarations that the police had detained, 

secured, or otherwise restrained the occupants of the room. Instead, 

plaintiff only states that the occupants were in the room at the same 

time as the officers. 

“Whether exigent circumstances exist is determined at the 

moment of the warrantless entry by the officers.” United States v. 

Ponder, 240 F. App’x 17, 20 (6th Cir. 2007) (citing United States v. 

Killebrew, 560 F.2d 729, 733 (6th Cir. 1977) (internal quote marks 

omitted). Here, plaintiff appears to agree that at the moment of entry, 

exigent circumstances did exist, but that the police should immediately 

cease all searching when the risk motivating the search is allegedly 

negated. In Kentucky v. King, the Supreme Court held that a 

warrantless search based on similar exigent circumstances was 

constitutional, and that both a “protective sweep” and “subsequent 

search” that unveiled “crack cocaine, cash, and drug paraphernalia” 

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were justified pursuant to that warrantless search. King, 563 U.S. at 

457. 

 Here, the police searched the room, based in part on the 

occupants’ admission that drugs were inside, and found both drugs and 

money. The purpose of the warrantless search was to prevent the 

destruction of evidence that was admittedly in the room; it would make 

little sense that a warrantless search could be constitutional, but only 

up to the point where the search would actually occur. Even if a 

constitutional violation of some sort occurred, it was not clearly 

established at the time that a justified warrantless search based on 

potential destruction of evidence was required to end at the point all 

occupants of the room were detained, when plaintiff admitted there 

were drugs in the room, and after the police entered the room, plaintiff 

identified the location of the drugs. (See Dkt. 42 at 20.) 

 Because defendant is entitled to qualified immunity, and the 

reasons for that immunity are clearly and correctly set forth in Judge 

Whalen’s Report and Recommendation, it is hereby ordered that: 

 

 

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The Court ADOPTS Judge Whalen’s Report and Recommendation 

(Dkt. 46); 

 Sgt. Jacob Gulick’s motion for summary judgment (Dkt. 36) is 

GRANTED; and 

 This case is DISMISSED WITH PREJUDICE. 

 The Court further certifies that an appeal of this opinion would 

not be taken in good faith. 

 IT IS SO ORDERED.

Dated: April 12, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on April 12, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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