The smell test

Court:?Probable cause to search a vehicle doesn’t justify search of passenger

By Phillip Bantz
The Daily Record Newswire
RALEIGH, NC — Cruising around in a ride that smells like Cheech & Chong’s van isn’t the smartest idea in North Carolina, or any other state where marijuana is still illegal. But that distinctive odor does not give law enforcement the probable cause they need to search Cheech or Chong, the North Carolina Court of Appeals found in a novel decision.

In deciding State v. Pigford, a unanimous three-judge appellate panel for the court declined an invitation from the state attorney general’s office to expand the reach of a 2004 opinion. That case, State v. Yates, held that an officer did not need a warrant to search a defendant who walked by reeking of pot.

“There was no testimony that this individual [Michael Pigford] had the smell of marijuana on him,” said Pigford’s appellate attorney, William Spivey of Rocky Mount. “That’s the distinction.”

Had the court applied Yates to Pigford, the decision could have opened the door for officers to search everyone inside a house that smelled of marijuana, Spivey added.

George Laughrun, a criminal defense lawyer at Goodman, Carr, Laughrun, Levine & Greene in Charlotte who was not involved with the case, noted that police officers could get around Pigford simply by identifying a person as the source of the odor, rather than a vehicle.

Still, he was interested in the decision because it could be used to defeat certain DWI prosecutions, but only when the defendant had at least one passenger in the car during the stop.

“You could use this to say that just because there’s odor [alcohol] in the car it doesn’t give the officer the right to say get out and blow” into a breath-testing device, he said.

The deputy sheriff who searched Pigford had testified that he detected marijuana emanating from somewhere inside Pigford’s vehicle while it was stopped at a license checkpoint in Lenoir County. Pigford had a passenger.

The deputy ordered Pigford to step out of the vehicle and found cocaine residue on a dollar bill and straw in his back pocket, according to the appellate opinion. A search of the car allegedly revealed a bag of marijuana and a stolen handgun.

Lenoir County Superior Court Judge Paul Jones denied Pigford’s motion to suppress the cocaine evidence, ruling that the marijuana odor wafting from the driver’s window established probable cause.

Pigford was subsequently convicted of cocaine possession and possession of a firearm by a felon. He was sentenced to three to 4 ½ years on the cocaine charge and given a consecutive sentence of eight to 11 years on the gun charge.

On appeal, Pigford argued that the deputy lacked probable cause to search him because he had no idea whether the pot smell was coming from Pigford or his passenger or somewhere else. The state contended that the smell justified an immediate search of the vehicle and Pigford.

Noting that the case raised an issue of first impression, Court of Appeals Judge Rick Elmore wrote in the opinion that “probable cause to search a vehicle does not justify a search of a passenger.” He added that Yates was inapplicable to Pigford because the state failed to connect the odor to Pigford.

However, Ellmore also said that the “inevitable discovery” doctrine might have allowed for the warrantless search of Pigford – but the prosecutor never raised the argument.

“Given that [the deputy] had probable cause to search the vehicle, which contained marijuana and a stolen gun, we might wonder whether the cocaine inevitably would have been discovered through a search incident to a lawful arrest,” Ellmore said.

Judge Douglas McCullough wrote a separate concurring opinion to stress that prosecutors could still raise the inevitable discovery argument during Pigford’s retrial.

The attorney general’s office planned to petition the state Supreme Court to consider the case, according to Noelle Talley, a spokeswoman for the state Department of Justice.