W.D.N.Y.: Smell of burnt MJ didn’t justify searching all four occupants or the whole car

“[T]he smell of burnt marijuana in the vehicle, without more, [doesn’t] provide[] probable cause to search each of the occupants for marijuana.” Otherwise it’s guilt by association. The officers needed to do more to isolate the smell of marijuana as to whom. The search of the whole car was thus unreasonable. United States v. Brock, 2015 U.S. Dist. LEXIS 167482 (W.D.N.Y. Dec. 11, 2015):

In this case, no evidence was adduced that the troopers observed any or all of the occupants smoking marijuana or holding a joint, blunt, roach or other form of burning marijuana. None of the troopers testified that the scent was especially strong in the driver’s area of the car or on Brock’s person or clothing when he was removed from the vehicle. Nor did any of the troopers testify that Brock’s appearance or behavior suggested that he was under the influence of marijuana or unusually nervous. None apparently questioned Brock or his passengers about the smell or the presence of marijuana. Finally, the search of the vehicle did not yield any marijuana or marijuana residue, which might have provided probable cause to believe that Brock constructively possessed marijuana.

Instead, the testimony demonstrates that during a routine traffic stop of individuals unfamiliar to them, the troopers detected the scent of marijuana in the automobile. Without any additional grounds to suspect that any occupant in particular, or all of them as a group, possessed marijuana and, without investigating further, the troopers searched Brock for drugs. Under the totality of the circumstances, I conclude that the troopers lacked probable cause to believe that Brock possessed marijuana and therefore conclude that Salamone’s search was unconstitutional. …