COA: Marijuana smell not enough for probable cause in juvenile’s handgun possession arrest

The Indiana Court of Appeals reversed Friday a delinquent finding for possession of a handgun after law enforcement searched a teen during a traffic stop when they smelled marijuana, ruling the odor wasn’t enough to establish probable cause for the juvenile’s arrest.

Police officers in December 2020 pulled over a vehicle with three people inside, including 15-year-old I.G. After smelling burnt and raw marijuana, police ran the occupants IDs and discovered the driver had a warrant for his arrest for a “traffic offense.”

When asked to exit the vehicle, all three occupants were “calm” and “[a]bsolutely cooperative,” and didn’t make any furtive movements or give the officer “any cause or concern” for his safety. Regardless, a pat down of I.G. was conducted for officer “safety,” revealing a handgun and extra magazine.

I.G. was arrested and determined by the Marion Superior Court to be a delinquent child for committing what would be Class A misdemeanor carrying a handgun without a license if committed by an adult.

The trial court had overruled an objection from I.G. about the admission of the handgun on the ground that the search violated his Fourth Amendment rights. He also argued that there were no “articulable facts to support a reasonable belief by [Officer Harvey] that [I.G. was] armed and dangerous.”

In reversing the trial court’s admittance of the weapon and true finding entry for I.G., the Indiana Court of Appeals held that the smell of marijuana alone was not enough for to establish probable cause.

“Just as our Supreme Court found in (Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017)) that a canine alert, by itself, was not enough to establish probable cause, here too the odor of burnt and raw marijuana, by itself, was not enough to establish probable cause to arrest I.G. for possessing marijuana,” Judge Nancy Vaidik wrote. “The search of I.G. was not a valid search incident to arrest, and the juvenile court erred in admitting the handgun into evidence.”

In a footnote, the appellate court pointed out that the Indiana Supreme Court in Bunnell v. State, 21S-CR-139, slip op. at 4 (Ind. Sept. 2, 2021), ruled that a police officer’s detection of the scent of raw marijuana can supply probable cause for a search warrant if the detection is based on the officer’s training and experience.

“The issue in this case, however, is whether Officer (De’marquies) Harvey had probable cause to arrest I.G. for possession of marijuana based on the odor of raw and burnt marijuana in a car with three occupants,” the footnote states.

The case is I.G. v. State of Indiana, 21A-JV-00479.

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