The odor of burning marijuana has long been a telltale sign of . . . burning marijuana. It reminds some of rock concerts. Others are reminded of youthful indiscretions of political candidates. But to Washington State Trooper Brent Hanger, it was the smell of . . . arrest.
Via Arbitrary & Capricious, and later the WSJ Law Blog (stealing Skelly’s Cheech & Chong theme without any attribution at all), the Supreme Court of Washington did something that I haven’t seen in quite a while in State v. Grande. The Court held that the rights afforded under the state Constitution were more protective of individual freedom from arrest than under the United States Constitution.
Trooper Hanger pulled over a car with an unhappy Lacee Hurley driving and Jeremy Grande in the passenger seat. Hanger “detected the ‘moderate’ smell of marijuana coming from the car.” After taking several deep breaths to make absolutely sure (this isn’t in the decision, but a figment of my vivid imagination), he arrested both driver and passenger. This was where he went wrong.
Subsequent to arrest, he searched Grande and found a pipe with remnants of pot, as well as the burnt end of a joint in the car. But this came after the arrest, and there’s the rub.
The police officer’s arrest of Grande was not predicated on safety concerns, but on the odor of marijuana emanating from the vehicle. As a result, the question is whether the police officer had an objective rationale that it was Grande committing a crime and consequently, probable cause for his arrest.
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 “alleviate[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.
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.
Cheech and Chong aside, this was a bit of a strange scenario. Had Hanger not arrested first and search later, it seems that all would have been well with the bust. He would have found the “roach”, then had probable cause to arrest and perform a search incident, then found the pipe and remaining pot. Apparently, Trooper Hanger missed “how to sequence your search/arrest” class in trooper school, not to mention the “how to tailor your testimony” seminar.
So the real lesson of this decision is to search first and arrest later, not that passengers can’t be arrested for the smell of pot. Which, incidentally, raises another question: What was Hanger arresting the pair for? It’s the possession of marijuana, not the use of marijuana, that’s a crime. As the trooper arrested Hurley and Grande before he found any pot in the car, were they arrested for smelling like Eau du Cannabis?
What stands out about this decision is that Supreme Court of Washington used the opportunity to make a statements about its view of the Supreme Court trend to enhance certain constitutional rights while denigrating others.
Our cases have strongly and rightfully protected our constitution’s protection of individual privacy. The protections of article I, section 7 do not fade away or disappear within the confines of an automobile. Parker, 139 Wn.2d at 505. We have always been careful to balance an individual’s privacy concerns with the safety concerns and law enforcement duties of police officers. Within this balance, we have carefully safeguarded constitutional privacy rights by adherence to the requirement of an individualized determination before those rights can be infringed.
Now this is a sentiment that brings back memories. Kudos to the Court for refusing to let your Constitution be dragged into the gutter by other courts that have lost their concern and focus on the protection of individual privacy in their enabling the paramounts interest of order over law.