Court: Can't arrest all in car based on drug smell

The scent of marijuana wafting from a car isn't enough reason for police to arrest everyone inside, but officers can still follow their noses to search a vehicle, Washington's Supreme Court ruled Thursday.

The unanimous decision overturns a nearly 30-year-old legal precedent in Washington and again recognizes the state constitution's robust privacy protections, which in some cases are stronger than federal privacy rights.

Officers still may search a car based solely on the smell of drugs, the court said, and justices indicated that a drug smell might be stronger evidence supporting arrest if there were only one person in a vehicle.

But when it comes to multiple people in a car, the scent of pot alone isn't a cloud of probable cause that subjects everyone in the car to arrest, because police must have stronger evidence that an individual may have broken 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."

The case involved two people in a car pulled over in Skagit County by State Patrol Trooper Brent Hanger in 2006. Based on the "moderate" smell of pot coming from the car, Hanger arrested both driver Lacee Hurley and passenger Jeremy Grande.

He searched both of them, and found a pipe and small amount of pot on Grande. Hanger also found a burnt joint in the car's ashtray, and Hurley said the joint was hers.

Both were charged with marijuana possession, and Grande also was charged with having drug paraphernalia. But in a pretrial hearing for Grande, the district judge found there was not specific probable cause to justify his arrest, and suppressed the evidence.

Skagit County Superior Court overturned that ruling, pointing to a 1979 state Court of Appeals decision that found the smell of pot coming from a car was probable cause to arrest the passengers and driver.

But on Thursday, the Supreme Court said subsequent federal case law has wiped away the legal footing of that 1979 decision.

Under today's broader recognition of personal privacy rights, the smell of drugs alone does not establish probable cause directly tying everyone in a car to drug possession, the court said.

Skagit County prosecutors argued that the rules of individual probable cause are different in a vehicle, pointing to federal case law that says contraband may be tied to a carload of people as evidence of a "common criminal enterprise."

But the state Supreme Court rejected that argument, saying Washington's privacy laws are stronger: "Our constitution requires individual probable cause that the defendant committed some specific crime."

In Grande's case, the trooper had probable cause to search the car for more evidence of drug possession. But arresting both people in the car before doing so was illegal.

Law enforcement officials said Thursday's ruling should have a minimal effect on day-to-day policing in the state, since officers are generally trained to look for more than one piece of evidence in making arrests.

"This is just going to require a little more investigation on the part of our officers on the street, to develop some additional probable cause," said Don Pierce, director of the Washington Association of Sheriffs and Police Chiefs.

Grande's attorney, David Zuckerman, said it was "unfortunate" that the previous state case law on drug-smell arrests stayed on the books for so long, particularly since the Supreme Court unanimously rejected its legal reasoning.

"I think it's led to an awful lot of innocent people getting handcuffed by the side of the road just because they happened to be in a car that smells of marijuana," Zuckerman said.

Pierce, however, said the fact that a 1979 precedent was only being overturned now means drug-smell arrests probably haven't been a huge problem. Otherwise, he said, the courts likely would have considered the issue sooner.

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The case is State v. Grande, case no. 81068-1

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Supreme Court: http://www.courts.wa.gov