W.D.N.Y.: Smell of MJ on one in car doesn’t justify search of other two

Where the smell of marijuana came from one person in a car of three, searching all three was unreasonable. United States v. Brock, 2016 U.S. Dist. LEXIS 90990 (W.D.N.Y. July 12, 2016):

Second, the Court does not agree that the generalized smell of marijuana coming from a multi-occupant vehicle provides probable cause to arrest everyone in the vehicle for the offense of possessing marijuana, and thus justifies the full blown search of the defendant here as incident to a lawful arrest. That is, the mere scent of marijuana coming from a group of individuals without more, whatever their location, does not by itself provide the police probable cause to arrest and search incident to such arrest any particular individual in the group. As indicated previously, a finding of probable cause must be particularized to a specific individual. Ybarra, 444 U.S. at 91 (where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person). In this case, the fact that the defendant was the driver of a vehicle that contained two other occupants seems to the Court a distinction without a difference. Nothing in the evidence adduced at the hearing pointed to the defendant as the source of the marijuana smell as opposed to any other occupant in the vehicle, so as to justify his, rather than anyone else’s, arrest for unlawful possession of marijuana and authorize his search incidental to such arrest.