An Important Court Ruling For Potheads

Volume 83 Number 17 Wednesday, July 30, 2008	Page 667
ISSN 1525-2213
Court Decisions
Search and Seizure Arresting Everyone in Vehicle on Basis Of Pot Aroma Violates State Constitution

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    The Washington Supreme Court July 17 relied on the privacy guarantee in its state constitution to hold that a police officer’s detection of the odor of marijuana emanating from a vehicle with multiple occupants does not provide probable cause to arrest all of them. The court, which has frequently found the state constitution more protective than the Fourth Amendment, declined to embrace what it called the “‘common criminal enterprise’ inference” endorsed by the U.S. Supreme Court in Maryland v. Pringle, 540 U.S. 366, 74 CrL 183 (2003). (State v. Grande, Wash., No. 81068-1, 7/17/08)In this case, a police officer noticed a car with very darkly tinted windows and pulled it over. On smelling the scent of marijuana coming from the vehicle, the officer placed both the driver and her passenger–the defendant–under arrest and searched their persons. He found a pipe with a small amount of marijuana on the defendant. 

    The defendant moved to suppress the marijuana and paraphernalia on the ground that there was no probable cause to arrest him. The trial court found there was no probable cause specific to him and suppressed the evidence, but an intermediate appellate court reversed.

    On appeal, the state supreme court held that the state constitution required suppression.

    Right to Privacy

    The requirement that searches and seizures be supported by probable cause springs from the Fourth Amendment as well as Article I, Section 7, of the Washington Constitution, which provides: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The state high court, in an opinion by Justice Charles W. Johnson, noted that unless the state can prove that an exception applies, Washington courts must presume that warrantless searches and seizures are invalid. The court has previously identified a number of areas in which the state privacy guarantee places stricter limits on law enforcement than its federal counterpart. For instance, in State v. Rankin, 92 P.3d 202, 75 CrL 296 (Wash. 2004), the court held that the Washington Constitution affords automobile passengers a right of privacy that is violated when an officer performing a traffic stop requests identification from a passenger without an independent basis for doing so. See also, e.g., York v. Wahkiakum School District No. 200, 83 CrL 5 (Wash. 2008) (random, suspicionless drug testing of student athletes violates state privacy guarantee); State v. Eisfeldt, 83 CrL 382 (Wash. 2008) (relying on state constitution to reject Fourth Amendment doctrine that relieves police of need to obtain search warrant to look at evidence already observed by private informer).

    In the recent case before the court, the issue was whether the aroma of marijuana by itself gave the officer “an objective rationale that it was [defendant] Grande committing a crime and consequently, probable cause for his arrest.”

    Individualized Right

    In Ybarra v. Illinois, 444 U.S. 85 (1979), the U.S. Supreme Court rejected the notion that a customer’s presence on premises for which police had probable cause to search for drugs provided the individualized suspicion required by the Fourth Amendment to justify the search of the customer. Washington prosecutors argued, however, that Pringle established a different rule with respect to vehicles. In that case, police found drugs hidden in a backseat armrest next to a passenger, within reach of all three occupants of the vehicle. When none of the three admitted ownership, all were arrested. The Supreme Court held that the fact that the occupants were in the small space of an automobile, their denials of ownership of the drugs, and the quantities of drugs and cash involved supported a reasonable belief that all of the occupants were involved in a common drug-trafficking enterprise.The Washington high court found it significant that the officers found the drugs in Pringle prior to making arrests, but it went on to say, “Regardless, our probable cause determination has not embraced the ‘common criminal enterprise’ inference of the United States Supreme Court. Our constitution requires individual probable cause that the defendant committed some specific crime.”

    The intermediate appellate court reasoned that, unless the odor of marijuana can be tied to one individual, thus freeing the others of suspicion, an officer possesses probable cause with respect to all occupants. The state high court, however, decided that “the reverse of this holds true”: The state constitution demands that unless the police can clearly associate a crime with a particular person, all the occupants are to remain “free from unnecessary police intrusion.” The court said, “The protections of [the state constitution] do not fade away or disappear within the confines of an automobile.”

    This does not leave the police powerless in such situations, the court stressed. An officer who has training and experience in identifying the odor of marijuana and who smells it emanating from a car has probable cause at that point to search the vehicle, it said. What the police may not do, the court ruled, is arrest all the occupants without first establishing individualized probable cause.

    David Zuckerman, Seattle, represented the defendant. Toni Guzzo Montgomery and Erik Pedersen, of the Skagit County Prosecutor’s Office, Mount Vernon, Wash., represented the state.

    Full text at https://pub.bna.com/cl/sc810681.pdf

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