WA Supreme Court: Pot Smell Not Cause For Warrantless Search


Photo: Criminal Justice Collaboratory

​The strong odor of marijuana coming from a stopped vehicle is not sufficient cause for a warrantless search, the Washington Supreme Court ruled by a 5-4 majority on Thursday.

Six years of pro bono work by attorney Sharon Blackford paid off, as the court reversed rulings that had been made at the District Court, Superior Court, and Court of Appeals, all of which had upheld the search under the “exigent circumstances” exception to the search warrant requirement.
“We hold the search State v. Tibbles… was not justified by exigent circumstances and the evidence obtained as a result of the search should have been suppressed,” the court ruled. “Accordingly, we reverse the Court of Appeals.”

According to the Supreme Court ruling, officers who detect the smell of marijuana coming from vehicles must first either obtain a search warrant, or actually arrest the suspect, at which time a vehicle search would become permissible under the “search incident to a lawful arrest” rule.
Unfortunately, the smell of pot is still probable cause to do either of those things (get a search warrant, or arrest the driver of a vehicle, if he is the lone occupant).

Graphic: Cannabis Culture

Case Began Six Years Ago
The case began just before midnight on October 28, 2004, when Micah Tibbles was stopped by a Washington state trooper. During the stop, Trooper Norman Larsen detected “a strong odor of marijuana” coming from Tibbles’s car, according to court documents.
At the trooper’s request, Tibbles provided his license, but could not find his vehicle registration. Trooper Larsen asked Tibbles to step out of his vehicle, and Tibbles complied.
The trooper told Tibbles he could smell marijuana; Tibbles replied that he did not have any in his possession. Trooper Larsen then patted Tibbles down, but found neither marijuana nor drug paraphernalia.
In response to the trooper’s questioning, Tibbles denied smoking marijuana that day.
Though Trooper Larsen did not arrest Tibbles or seek a search warrant, he searched the car.
Under the front passenger seat, the trooper discovered a brown paper bag containing a glass pipe, a glass container with what he believed was marijuana, a knife, and two lighters. Tibbles denied the marijuana belonged to him.
Trooper Larsen did not arrest Tibbles, but cited and released him after confiscating the suspected marijuana and drug paraphernalia. Subsequent testing by the Washington State Patrol verified that the substance in the glass container was marijuana.
The State charged Tibbles with misdemeanor marijuana possession and with possession of drug paraphernalia.
Before his trial in District Court, Tibbles moved to suppress the evidence seized by Trooper Larsen as the poisonous fruits of an illegal search. The District Court denied his motion, concluding that exigent circumstances justified the warrantless automobile search.
Tibbles was convicted following a stipulated facts trial. He then appealed the denial of his motion to suppress, and lost at each step of the appeals process until his victory in Washington Supreme Court today.
“The question before us is whether the warrantless search of Tibbles’s car violated his right to privacy under Article I, Section 7 of the Washington State Constitution,” the court ruled.
“We begin with the presumption that warrantless searches are per se unreasonable under our state constitution,” the court ruled. “And, we have recognized that ‘the right to be free from unreasonable governmental intrusion into one’s ‘private affairs’ encompasses automobiles and their contents.”
The court ruled that while the smell of marijuana was indeed probable cause for a search, “Tibbles does not appear to challenge the existence of probable cause to search.”
“Nor does he dispute that the odor of marijuana in a vehicle may provide probable cause to arrest the sole occupant,” the court ruled.
“But the existence of probable cause, standing alone, does not justify a warrantless search,” the court ruled. “Probable cause is not a recognized exception to the warrant requirement, but rather the necessary basis for obtaining a warrant.”
“Considering the relevant factors in determining an exigency, the State has not shown that exigent circumstances justified the warrantless search of Tibbles’s car,” the court ruled.
The court decided that since Tibbles complied with all the trooper’s requests, there was no hot pursuit or similar situations presenting a risk to officer safety, that Trooper Larsen should have obtained a warrant prior to the search.
“It should be noted that Trooper Larsen likely had probable cause to arrest Tibbles based on the strong odor of marijuana coming from the car,” the court ruled.
Because the trooper did not do so, but instead released Tibbles, the customary  ‘search incident to a lawful arrest’ exception to the warrant requirement does not apply, the court ruled.
Justices Gerry Alexander, Richard Sanders, Tom Chambers, and Mary Fairhurst signed the majority opinion authored by Justice Debra Stephens.
Justices Charles Johnson and Susan Owens signed the dissent written by Chief Justice Barbara Madsen, while Justice James Johnson wrote a separate dissenting opinion.