State v. Grande, Washington Supreme Court, filed July 17, 2008.
Mr. Grande was a passenger in a vehicle stopped for having very dark tinted windows. When the officer pulled the vehicle over, he detected the moderate smell of marijuana coming from the car. He arrested both the driver and Mr. Grande, the passenger. He handcuffed and searched them. He found a marijuana pipe that contained a small amount of marijuana on Mr. Grande. In the car, the officer found a burnt marijuana cigarette in the ashtray. The driver claimed the cigarette as her own. Both the driver and Mr. Grande were arrested and charged with possession of marijuana. Mr. Grande was also charged with possession of drug paraphernalia.
The Court of Appeals analyzed RCW 10.31.100 and relevant caselaw to determine whether the officer’s action in arresting both the driver and the passenger was justified. The Court determined that both the language of RCW 10.31.100 and caselaw requires individualized probable cause, as there is an individual right to privacy that is protected from police intrusion. The Court held that for police to make a lawful arrest under RCW 10.31.100, there must be a finding of individualized probable cause and that the statute is consistent with constitutional probable cause.
State v. Rankin, 151 Wn.2d 689, 92 P.3d 202 (2004), decided that law enforcement is prohibited from seizing a vehicle passenger unless the officer has an articulable suspicion that person is involved in criminal activity. State v. Mendez, 137 Wn.2d 208, 970 P.2d 722 (1999), decided that police must have a basis to believe that their safety is at risk to order passengers out of vehicles or to order them to remain in the car. The officer’s arrest of Mr. Grande was not related to officer safety concerns, but was only related to the odor of marijuana in the car. The Court reasoned that the only issue was whether the officer had an objective rationale that it was Grande committing a crime and consequently, had probable cause to support his arrest.
The Court overruled State v. Hammond, 24 Wn. App. 596, 603 P.2d 377 (1979) which previously held that the odor of burning marijuana emanating from a vehicle established probable cause to arrest the passengers and the driver. The Court held that Hammond was decided prior to the United State Supreme Court’s decision in Ybarra v. Illinois, 444 U.S. 85 (1979), that articulated the right to privacy and protections against search and seizure are possessed individually.
Ultimately, the Court held that “the smell of marijuana in the general area where an individual is located is insufficient, without more, to support probable cause to arrest.” Where no other evidence exists linking the passenger to 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 under the Fourth Amendment and Article I, section 9 of the Washington State Constitution. Mr. Grande’s arrest was unlawful and the evidence found as a result of his search was unlawfully seized.