Can’t You Smell That Smell
Simple Justice:
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…