Marijuana Scent is not Enough

In what is seen as a victory for the right-to-privacy, the Washington State Supreme Court decided that the scent of marijuana coming from a vehicle is not sufficient reason to arrest all the occupants of that vehicle. The decision was unanimous. They did however uphold the right of the police to stop and search a vehicle that smelled of marijuana but without further evidence they could not arrest nor search all the occupants.

.....we have concluded that where officers do not have anything to independently connect an individual to illegal activity, no probable cause exists and an arrest or search of that person is invalid....the arrest of one or more vehicle occupants does not, without more, provide "'authority of law' under article I, section 7 of our state constitution to search other, non-arrested vehicle passengers, including personal belongings."

This ruling resulted from a case that had been brought up through the lower courts with split decisions. It involved two people, Jeremy Grande and Lacee Hurley, who were in a car which was stopped by the police in April 2006 in Skagit County. The car was driven by Lacee Hurley when they were pulled over by State Patrol Trooper Brent Hanger. Trooper Hanger said he stopped the car because the windows were too darkly tinted. He said he smelled pot in the car, so he arrested and handcuffed Grande and Hurley.

A search of Grande revealed a glass pipe with marijuana in his pocket. Hanger searched the car and found a joint in an ashtray, which Hurley said belonged to her. Both were charged with marijuana possession and Grande was also charged with possession of drug paraphernalia.

The case initially came before the Skagit County District Court, which found there was no probable cause for Grande's arrest. But the state appealed the ruling and the county's Superior Court reversed the order. The case was then appealed to the state Supreme Court.

Summing up the state Supreme Court's decision, Justice Charles W. Johnson wrote:

"Our state constitution protects our individual privacy, meaning that we are free from unnecessary police intrusion into our private affairs unless a police officer can clearly associate the crime with the individual." In the case of the Skagit County traffic stop, the court found the mere presence of the odor of marijuana was not enough probable cause to warrant the arrest of Grande.

Attorney David Zuckerman, who brought the case before the state Supreme Court, said the problem is that arresting someone based solely on the odor of marijuana can affect innocents.

"The smell of marijuana smoke can linger for weeks," Zuckerman said. "You could have a perfectly innocent citizen get into a car where somebody smoked marijuana at some point ... and an officer can just pull you out of a car and book you based on that."

The decision doesn't mean an officer must walk away from a vehicle that smells of pot. Trooper Hanger did have probable cause to search the car, the state Supreme Court decision said, just not to arrest Grande. Law-enforcement officers say it won't greatly affect the way they make arrests.

"What this means is officers are going to have to be a little more keen in their investigative skills," said Don Pierce, executive director of the Washington Association of Sheriffs and Police Chiefs.

"Normally, if you come across the odor of marijuana ... there's something else going on that helps you identify who the responsible person or persons is."

Advocates for drug-law reform cheered the ruling as a long overdue step in the right direction.

"As a general statement, it's a step back from the direction that our government has been going as we're veering into a sort of surveillance society," said Alison Holcomb of the American Civil Liberties Union's Washington chapter. "It strikes me as refreshing that the court has reaffirmed the values that our constitution calls for."

When it comes to passengers, though, the scent of pot alone doesn't give probable cause to arrest everyone in the car. Officers need additional evidence that each individual broke the law.

"Our cases have strongly and rightfully protected our constitution's protection of individual privacy," Justice Charles Johnson wrote for the court. "The protections ... do not fade away or disappear within the confines of an automobile."

In a pretrial hearing for Grande, the district judge found there was not specific probable cause to justify his arrest, and suppressed the evidence. But the Skagit County Superior Court overturned that ruling, pointing to a 1979 appellate ruling that said the smell of pot coming from a car was probable cause to arrest the passengers and driver. The State Supreme Court said subsequent federal case law has wiped away the legal footing of that 1979 decision.

I guess it goes without saying but Attorney David Zuckerman said Jeremy Grande was delighted with the decision.