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Originally published Friday, July 18, 2008 at 12:00 AM

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State Supreme Court narrows probable-cause grounds in pot case

Law-enforcement officers who smell marijuana coming from a vehicle can't arrest all of the occupants, the state Supreme Court ruled Thursday.

Seattle Times staff reporter

Law-enforcement officers who detect the odor of marijuana from a vehicle can't arrest all of the occupants, the state Supreme Court ruled Thursday.

In a unanimous ruling, the court determined the smell of pot isn't enough probable cause to warrant the arrest and search of everyone inside a car. While smell alone may be reason for a vehicle search, the court determined, it doesn't warrant handcuffing passengers without other supporting evidence.

Defense attorneys on Thursday called it a right-to-privacy victory. Law-enforcement officers say it won't greatly affect the way they make arrests.

The ruling stems from a traffic stop in April 2006 in Skagit County.

Jeremy Grande was riding in a car driven by Lacee Hurley when they were pulled over by State Patrol Trooper Brent Hanger, court documents said. Hanger stopped the car for windows too darkly tinted, he testified.

Hanger said he smelled pot in the car, so he arrested and handcuffed Grande and Hurley, court documents said.

A search of Grande revealed a glass pipe with marijuana in his pocket, according to court papers. Hanger searched the car and found a joint in an ashtray, which Hurley said belonged to her, court documents said. Both were charged with marijuana possession. Grande was also charged with possession of drug paraphernalia, court documents said.

The case initially came before the Skagit County District Court, which found there was no probable cause for Grande's arrest. But the state appealed the ruling and the county's Superior Court reversed the order, court documents said. The case was appealed to the state Supreme Court.

Summing up the state Supreme Court's decision, Justice Charles W. Johnson wrote: "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." In the case of the Skagit County traffic stop, the court found the mere presence of the odor of marijuana was not enough probable cause to warrant the arrest of Grande.

Attorney David Zuckerman, who brought the case before the state Supreme Court, said the problem is that arresting someone based solely on the odor of marijuana can affect innocents.

"The smell of marijuana smoke can linger for weeks," Zuckerman said. "You could have a perfectly innocent citizen get into a car where somebody smoked marijuana at some point ... and an officer can just pull you out of a car and book you based on that."

Zuckerman said Grande was delighted with the decision.

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The decision doesn't mean an officer must walk away from a vehicle that smells of pot. Trooper Hanger did have probable cause to search the car, the state Supreme Court decision said, just not to arrest Grande.

"What this means is officers are going to have to be a little more keen in their investigative skills," said Don Pierce, executive director of the Washington Association of Sheriffs and Police Chiefs.

"Normally, if you come across the odor of marijuana ... there's something else going on that helps you identify who the responsible person or persons is."

Thursday's decision overturned a 1979 state Court of Appeals decision that the smell of marijuana in a car established cause to arrest passengers and driver. But that decision was made three weeks before the U.S. Supreme Court held that the search of a person must be supported by probable cause that's specific to that person.

Leslie Anne Jones: 206-464-2745 or ljones@seattletimes.com

Copyright © 2008 The Seattle Times Company

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