Nearly a year after voters approved adult use of recreational marijuana, Oakland County resident Kevin John Carlson continues to fight a possession/intent to deliver case, which he believes stems from a search warrant that should never have been granted.

Carlson, 30, was charged in early 2018 after police searched his Bloomfield Township home and reportedly found marijuana and other evidence months prior to cannabis being legalized in Michigan. At the time Carlson was a registered marijuana patient and caregiver, legally allowed to have a certain amount of cannabis.

The magistrate who issued the search warrant based on police reportedly smelling marijuana outside the home was wrong to do so because it wasnt based on probable cause, Carlson claimed.

When police executed the search warrant, they reportedly found much more than the allowable amounts 155 pounds of marijuana in packages and jars, scales, $82,000 in cash and other evidence to pin the possession and drug delivery/manufacturing charges on Carlson. Yet Carlsons trial in Oakland County Circuit Court was put on hold last year while he appealed Judge Phyllis McMillens ruling there was no issue with the search warrant, and the evidence that turned up was admissible.

Carlsons claim that the smell alone wasnt sufficient for a search warrant recently got shot down by the Michigan Court of Appeals, who sided with McMillens decision not to quash the evidence.

The opinion, in part, states: the strong odor of marijuana that the officer smelled provided a substantial basis to infer a fair probability that contraband or evidence of a crime would be found inside the defendants home.

The court further found that the 2008 Michigan Medical Marihuana Act didnt shield Carlson from the search, stating the police were not obligated to determine, before obtaining a search warrant, the legality of the marijuana-related activities inside the defendants home and whether the defendants activities complied with the MMMA.

The opinion was signed by COA Judges Mark J. Cavanaugh, Jane M. Beckering and Michael F. Gadola.

However, Carlsons defense attorney Michael Komorn said the judges failed to address if current Michigan marijuana law can be applied retroactively and are wrong in not considering its relevancy, as well as the state reclassification of medical marijuana as a Schedule II drug permitted for some use. Carlsons case is next headed to the Michigan Supreme Court for consideration, which earlier had remanded it to the Court of Appeals.

This case is important for Fourth Amendment issues (regarding protection against unreasonable search and seizure) for constitutional reasons, Komorn said, and for the citizens of Michigan...just because somebody is doing something suspicious, thats not enough for probable cause.

Komorn also said with police often relying on smell in dealing with citizens and the law regarding marijuana and alcohol, for example how this case ultimately plays out will have pervasive impact.

People have a right to know what to expect...certainly, they should have a definite answer, he said.

It will likely be several months or more before the Supreme Court decides whether or not to take Carlson's case. That keeps it pending in Oakland County Circuit Court.

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Is smell enough to justify search warrant? Bloomfield Township man appealing decision on marijuana case - The Oakland Press