Wednesday, August 20, 2008

Court: Smell of pot doesn't justify arrest

POSTED July 17, 12:31 PM
The Supreme Court of Washington ruled unanimously today that a police officer acted improperly by arresting all occupants of a vehicle after detecting a “moderate” smell of marijuana coming from the car. The Court ruled the constitution requires individualized probable cause to justify an arrest and search of each occupant of a vehicle.

On April 6, 2006, a state trooper followed and pulled over a vehicle with dark, tinted windows. Both occupants of the car recognized the trooper, “presumably based on prior encounters,” the court opinion dryly notes.

The trooper detected a smell of marijuana coming from the car and arrested the driver and the passenger, Jeremy Grande. A subsequent search of Grande revealed a marijuana pipe with a small amount of marijuana. A search of the car turned up a joint in the car’s ashtray which the driver claimed as hers. The driver and Grande were arrested; Grande was charged with possession of marijuana and drug paraphernalia. At a pretrial hearing Grande argued that probable cause did not exist to arrest him for possession. The district court agreed. The case eventually went to the Supreme Court.

Article I, section 7 of the Washington Constitution states: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” A police officer must have probable cause for a warrantless arrest, and a valid arrest generally gives the officer authority to conduct a search.

The question in this case was whether the smell of marijuana justified the trooper’s intrusion into Grande’s privacy as a vehicle passenger. The Supreme Court pointed out that the right to privacy is individually held, and requires an individual finding of probable cause:

Each individual possesses the right to privacy, meaning that person has the right to be left alone by police unless there is probable cause based on objective facts that the person is committing a crime. In other settings, 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 under article I, section 7.

In a prior case the smell of marijuana was sufficient cause, as the driver was the only occupant of the car. In Grande’s case, however, the court reasoned the mere smell of pot did not sufficiently point to either individual.

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. We cannot wait until the people we are associating with “alleviat[e] the suspicion” from us. Unless there is specific evidence pinpointing the crime on a person, that person has a right to their own privacy and constitutional protection against police searches and seizures.

The court pointed out that the trooper acted improperly by arresting both occupants without establishing sufficient individual justifications.

This does not mean, however, that a law enforcement officer must simply walk away from a vehicle from which the odor of marijuana emanates and in which more than one occupant is present if the officer cannot determine which occupant possessed or used the illegal drug. In this case, because the officer had training and experience to identify the odor of marijuana and smelled this odor emanating from the vehicle, he had probable cause to search the vehicle. Instead, here the police officer arrested both occupants without first establishing individualized probable cause. Thus, Grande’s warrantless arrest was invalid.

Ultimately, the Supreme Court ruled the arrest and search of Jeremy Grande were improper.

We hold that the smell of marijuana in the general area where an individual is located is insufficient, without more, to support probable cause for arrest. Where no other evidence exists linking the passenger to any criminal activity, an arrest of the passenger on the suspicion of possession of illegal substances, and any subsequent searches, is invalid and an unconstitutional invasion of that individual's right to privacy.

Justice Charles W. Johnson wrote the unanimous ruling.

For more info: State v. Grande. The information contained in this article should not be construed as legal advice.

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