Search didn't violate driver's rights

July 14, 2011

The smell of burnt marijuana on a person alone may constitute probable cause to support an arrest and search incident to arrest, the Indiana Court of Appeals held in a case of first impression.

Shon Edmond was pulled over by police officer David Drennan of the Indianapolis Metropolitan Police Department after he saw Edmond disregard a stop sign. The officer could smell burnt marijuana coming from the car and Edmond’s breath. Edmond only had a learner’s permit, and wasn’t accompanied by a licensed driver, so Drennan was going to tow the car. Edmond was cooperative throughout the stop. Drennan did a pat-down search of Edmond and felt a bulge in his pocket, which turned out to be a baggie of marijuana.

Edmond tried to have the drug evidence suppressed, but the trial court denied the motion. He was convicted of Class A misdemeanor possession of marijuana.

In Shon L. Edmond v. State of Indiana, No. 49A04-1012-CR-756, Edmond argued the search violated his federal and state constitutional rights. He conceded that the smell of burnt marijuana coming from his car would have established probable cause to search the car, but he argues he shouldn’t have been searched. The COA has previously held the odor of burnt marijuana establishes probable cause to search a car, but not whether the smell alone may constitute probable cause to support an arrest and search incident to arrest.

“Because the odor of burnt marijuana might linger in a vehicle for a period of time, that odor does not necessarily indicate illegal activity by a current occupant; however, we note that Officer Drennan specifically smelled marijuana on Edmond’s breath in addition to the odor coming from his vehicle. Furthermore, Edmond was alone in the vehicle. Under these circumstances, we conclude that a person of reasonable caution would be warranted in the belief that Edmond possessed marijuana; therefore, Officer Drennan had probable cause to arrest him and had a lawful basis to search his person,” wrote Judge Terry Crone, noting their holding is consistent with decisions from several other jurisdictions.
The COA also held that the pat-down search did not violate Edmond’s rights under Article I, Section 11 of the Indiana Constitution. There was probable cause for arrest, and Drennan conducted only a pat-down search of Edmond’s clothing, so the degree of intrusion was minimal under the circumstances, wrote the judge. Plus, this search is important in ensuring that the arrestee is unarmed and won’t bring contraband into jail.

In a footnote, Judge Crone wrote “Nevertheless, we would caution police officers against routinely searching people stopped for traffic violations; it is not inevitable that there will always be a valid basis for doing so.”


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