WA Supreme Court: Not Exigent Circumstance Just Because You Smell Ganja
Can I just say that Tibbles is a pretty darned cute name. This may as well be State v. Mr. Fuzzy-Lumpkins III. Anyhow, as you well-know by now, the police can't go searching you all willy-nilly. Even when incident to arrest, they can only go in the proximity to look for something used in the crime. Arrested for drugs, they can look for drugs. Warrant 4 days ago for domestic violence, they can't go look for drugs.
Here, the officer smelled pot and did a warrantless search of the vehicle. Guess what he came up with? It wasn't oregano. However, there's nothing exigent about smelling pot. You can detain the person and they can't really get rid of it. Its not like if you search the car after an odor of pot, that you can prevent a baby from dying. [HT to Eugene Mirman *Warning: NSFW*].
The court reversed the conviction:
Considering the relevant factors in determining an exigency, the State has not shown that exigent circumstances justified the warrantless search of Tibbles's car. See Hendrickson, 129 Wn.2d at 71. The situation in this case stands in sharp contrast to other situations in which we have held exigent circumstances to exist. In Patterson, we concluded that exigent circumstances justified entry into a parked vehicle where a burglary had very recently been committed, the suspect was likely in the immediate vicinity of the vehicle because the officers discovered the vehicle a mere five minutes after the robbery, information in the automobile could help identify and locate the suspect, and a delay in searching the vehicle could have allowed the suspect to flee the area. 112 Wn.2d at 735-36. Similarly, we found exigencies in Smith where there was a tanker truck filled with 1,000 gallons of a dangerous chemical parked next to a house, a rifle had been seen in the house, the rifle went missing, and the two known occupants of the house did not possess the rifle. 165 Wn.2d at 518.
On the stipulated facts in this case, the State has not shown any need for particular haste. The suspect was not fleeing, nor has there been any showing that he presented a risk of flight. While there was probable cause that evidence of contraband existed in the vehicle, Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent. Additionally, the State has not established that obtaining a warrant was otherwise impracticable. For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant. The record contains no evidence of what Larsen would have had to do to procure a warrant at the time of the search.
Mr. Tibbles has used up one of his lives.