Court says pot smell in car doesn’t justify arresting all

OLYMPIA – 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 burned 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.