No Probable Cause to Search Vehicle Occupant Based Solely on Generalized Odor of Marijuana Emanating From Vehicle

The existence of probable cause to search a vehicle and probable cause to search a vehicle occupant based on an odor of marijuana emanating from a vehicle present separate legal issues. The North Carolina Court of Appeals on August 2, 2016, ruled in State v. Pigford that although an officer had probable cause to search a vehicle, he did not have probable cause to search a vehicle occupant based on the marijuana odor. However, another theory mentioned by the court may ultimately support the admission of the illegally-seized evidence at the retrial of the case.

Facts and trial court ruling. The defendant was driving a vehicle with one front seat passenger and was stopped at a motor vehicle checkpoint. The stopping officer detected the odor of marijuana emanating from the vehicle’s front driver-side window, but he was unable to establish the odor’s exact location. The officer ordered the defendant out of the vehicle and searched him, finding cocaine and a straw located in the defendant’s back pocket. The officer arrested the defendant, placed him in a patrol car, and a search of the vehicle discovered a bag of marijuana under the driver’s seat and a stolen handgun on the back passenger seat. The trial court denied the defendant’s motion to suppress, concluding that the odor of marijuana established probable cause to search the defendant. The defendant was convicted of possession of cocaine and possession of a firearm by a felon.

Court of Appeals ruling. The court first noted that it was not contested that the officer had probable cause to search the defendant’s vehicle, including possessions within it. United States v. Di Re, 332 U.S. 581 (1948), Wyoming v. Houghton, 526 U.S. 295 (1999). [For a list of cases that have ruled the odor of marijuana emanating from a vehicle authorizes a warrantless search of the vehicle, see Arrest, Search, and Investigation in North Carolina, p. 182, n. 56 (4th ed. 2011).]

The court stated, however, that under State v. Malunda, 230 N.C. App. 355 (2013), probable cause to search the vehicle and its possessions based on the generalized odor of marijuana emanating from a vehicle does not include a search of the passengers, absent additional facts linking marijuana to a particular passenger. In Malunda, officers during a lawful traffic stop ordered the defendant-passenger out of the car and detained him on the curb. They went back to the driver side of the vehicle and noticed a strong odor of marijuana that they had not smelled on the passenger side. They removed the driver and searched the vehicle, and they found marijuana in the driver-side door. Officers then searched the defendant-passenger and found crack cocaine on him. The Malunda court ruled that the odor of marijuana provided probable cause to search the vehicle, but not the defendant-passenger. And because there was nothing linking the marijuana to the defendant-passenger beside his presence in the vehicle, the search of his person was not supported by probable cause particularized to him.

The court distinguished the ruling in State v. Yates, 162 N.C. App. 118 (2004), in which the odor of marijuana on the defendant supported probable cause to search his person. There the defendant walked by an officer twice, each time emanating a strong odor of marijuana. The court in Pigford noted that, unlike in Yates, the State did not offer any evidence that the marijuana odor was attributable to the defendant. The officer testified that when he stood next to the driver-side window, he smelled marijuana “inside the car,” though his description of the source of the odor was no more precise. He could not recall whether the other vehicle windows were rolled down, nor did he approach the passenger-side window where the odor could have been just as potent. He did not testify whether he smelled marijuana on the defendant after ordering him out of the car. The court stated that to the extent the odor could have been attributed to the defendant, it could have been equally attributable to the front-seat passenger or somewhere else inside the vehicle. Thus the court concluded that although the officer may have had probable cause to search the vehicle, he did not have probable cause to search the defendant.

Despite the defendant’s winning argument on the search issue and being awarded a new trial, it was not a compete win. The court of appeals on its own raised the issue whether the inevitable discovery exception to the Fourth Amendment’s exclusionary rule applied to make the illegally-seized evidence admissible at the new trial. The inevitable discovery rule, set out in Nix v. Williams, 467 U.S. 431 (1984), provides that unlawfully-obtained evidence may nevertheless be admitted at trial if the government proves by a preponderance of the evidence that the evidence ultimately would have been discovered through lawful means. In this case, because the officer had probable cause to search the vehicle, which contained marijuana and a stolen gun, the issue is whether the state can prove that the cocaine on the defendant’s person would have been inevitably discovered through a search of the defendant incident to his arrest for possessing marijuana.

Comments. It is always easy to say in hindsight what could have been done to seize the evidence legally in Pigford. Because the officer had probable cause to search the vehicle based on the odor of marijuana, if that had been done initially instead of searching the defendant, then the officer would have discovered the bag of marijuana under the driver’s seat. And then the officer would have had probable cause to arrest the defendant-driver and search him incident to arrest, resulting in the lawful discovery of the cocaine in the defendant’s back pocket.

So if there is a generalized odor of marijuana from the vehicle and no other incriminating facts (e.g., incriminating evidence in the vehicle or incriminating statements or behavior by a vehicle occupant) to point to an occupant’s connection to the marijuana, then it is unlikely that a court will find probable cause to uphold a search of that occupant. Under these circumstances, an officer may detain the occupant(s), conduct a frisk if justified, and search the vehicle for marijuana. Depending what, if anything, is found will guide the officer concerning what additional actions are justified.