Smell of Pot Smoke Does Not Equal Probable Cause
By: Gerri L. Elder
The Supreme Court in the state of Washington has decided that just because a police officer may smell and see marijuana smoke billowing out of a vehicle, that is not a good enough reason to arrest everyone inside the car. The marijuana smoke may be enough reason for a thorough search of the vehicle though, according to the court’s unanimous decision.
This decision throws an almost 30-year-old legal precedent in Washington in reverse. The state’s constitution provides a great deal of protection of privacy, but these privacy protections have been largely ignored in some cases – specifically ones involving drug smells – until now.
The court found that in cases where the officer smells marijuana smoke coming from a car full of people, there is not cause to arrest all of the occupants of the vehicle. However, the justices indicated that if only one person is in a car and the smell of marijuana smoke is detected, there might be cause for an arrest. The reasoning behind this is that police must have evidence that an individual has broken the law in order to arrest them. In cases where there are more than one person in a vehicle with the pot smoke, there is not strong enough evidence that all of the people were using the drug.
Washington Supreme Court Justice Charles Johnson wrote for the court, “Our cases have strongly and rightfully protected our constitution’s protection of individual privacy. The protections … do not fade away or disappear within the confines of an automobile.”
The case that the court considered involved two people who were inside a car that was pulled over by State Patrol Trooper Brent Hanger in 2006. Hanger arrested both the driver, Lacee Hurley, and the passenger, Jeremy Grande, based on a “moderate” smell of marijuana smoke coming from the car, according to a report by the Associated Press.
Hanger searched both Hurley and Grande and found a small amount of pot on Grande. He also discovered a burnt joint in the car’s ashtray during a search of the car. When questioned, Hurley said that the joint belonged to her. Hurley and Grande were charged with marijuana possession and Grande faced an additional charge for having drug paraphernalia.
During a pretrial hearing for Grande, his criminal defense attorney argued that there was no specific probable cause to justify his arrest, and the evidence was suppressed. However, the Skagit County Superior Court overturned the district judge’s ruling, citing a 1979 state Court of Appeals decision that found that the scent of marijuana smoke coming from a vehicle was probable cause to arrest the driver and any passengers.
When the Washington Supreme Court heard the case, the justices decided that federal case law since 1979 has voided the validity of the 1979 state Court of Appeals decision. The court said that since privacy rights are more broadly recognized today than they were nearly 30 years ago, the smell of marijuana smoke alone does not create probable cause to suspect each individual in a vehicle of drug possession.