Common scents: the intersection of the 'plain smell' and 'common enterprise' doctrines.

• Author: Goetzl, Reuben

1. INTRODUCTION

   While on patrol, a traffic officer observes a car make an illegal U-turn. He turns on his emergency lights and initiates a traffic stop. As the officer approaches the car, he notices that there are four passengers in the vehicle. When the driver rolls down his window, the officer smells a strong, distinctive odor of marijuana permeating from the vehicle. The officer asks the driver if there are any drugs in the car, to which the driver replies, "No." The passengers do not respond. The officer strongly believes that there is contraband in the car, but he does not see anything that justifies his belief.

   At this point, the officer has a few options. First, he can ask the driver for consent to search the car, but the driver can always refuse. (1) The officer can also call for a drug-sniffing canine while he enters the driver's information into his computer. If the dog alerts, then the officer can search the car. (2) The officer, however, can only detain the passengers for a reasonable time, and if a canine is not available, then the officer risks detaining the suspects for an unreasonable amount of time. (3)

   Most jurisdictions have adopted the "plain smell" doctrine, where the smell of marijuana coming from the vehicle furnishes probable cause for the officer to search the vehicle for contraband. (4) A problem arises if the search of the vehicle does not uncover any contraband. Some jurisdictions extend the "plain smell" doctrine to permit a search of the driver of the car, (5) but even in those jurisdictions, what if a search of the driver's person does not reveal any narcotics? If the officer still strongly believes that someone is in possession of marijuana, can he search or arrest the passengers?

   While the situation described above is a circumstance that police officers conducting traffic stops might face on a regular basis, (6) federal courts have not resolved the extent to which an officer has probable cause to arrest passengers. The Supreme Court has analyzed some of these issues in Wyoming v. Houghton (7) and Maryland v. Pringle, (8) In Houghton, the Supreme Court held that an officer can search a passenger's belongings when the officer has probable cause to believe that there is contraband in the vehicle because a passenger will often have the same interests in concealing evidence of a crime. (9) In Pringle, the Court expounded on Houghton, and determined that if the police have probable cause to believe that someone in the car is in possession of contraband, and there is no evidence to single out one individual, the police can arrest all of the passengers because the passengers likely are in common enterprise with the driver. (10)

   The Pringle decision was fairly short and left a number of unanswered questions. (11) The Supreme Court has yet to clarify if, in order to arrest passengers, police need probable cause to believe that the passengers are engaged in a common business enterprise with the driver, or only that they have knowledge of and can exercise control over the contraband. In Pringle, the officers actually recovered narcotics, so there was strong probable cause to believe that someone in the vehicle was in possession of contraband. Lower courts are divided as to the exact holding of Pringle, especially in the "plain smell" context, because probable cause is not as strong when an officer smells contraband as when he physically recovers it. (12) This Note will discuss the contention in the lower courts over applying the "plain smell" doctrine to the "common enterprise" doctrine of Houghton and Pringle and argue that the plain smell of contraband enables officers to arrest passengers in a vehicle.

   This Note focuses on the scope of the "plain smell" doctrine with regards to automobile passengers. Most federal and state jurisdictions have determined that the odor of contraband gives rise to probable cause for an officer to search a vehicle without the owner's consent. (13) Some state and lower federal courts have ruled that plain smell gives rise to probable cause to search a driver of a vehicle. (14) Lower courts are split, however, on whether the odor of contraband allows an officer to search or arrest car passengers' persons if searches of the car and driver do not yield contraband. (15) Courts that do not extend the "plain smell" doctrine to allow for either a search or arrest of passengers apply Pringle only where officers have probable cause to believe that there is a large quantity of drugs in a vehicle, leading to the conclusion that the passengers are involved in a common business enterprise. (16) Courts that have found that plain smell permits passenger searches focus on the Supreme Court's reasoning that passengers likely have "knowledge and [can] exercise dominion and control" over the items in the vehicle and are therefore just as likely to be in possession of contraband as the driver. (17) Although the issue in Pringle was whether officers could arrest passengers, and some lower courts have found that the odor of contraband allows the police to search passengers of a vehicle, (18) only a few courts have found that plain smell alone gives rise to probable cause to arrest passengers. (19)

   This Note will analyze the rationale of the "plain smell" doctrine and argue that the plain smell of contraband gives rise to probable cause for an officer to arrest a passenger of a vehicle. This determination is a logical extension of Pringle. Most jurisdictions maintain that plain smell is analogous to plain view, (20) so the odor of a substance should create probable cause to believe that someone is in possession of the substance. Once an officer has probable cause to believe that there is contraband in the vehicle, and the officer has no reason to particularize the probable cause to a specific person, the officer should be able to arrest all of the passengers to determine which one was in possession of the contraband. Part IIA of this Note will establish that plain smell provides probable cause equivalent to plain view by introducing the major plain view cases and explaining how the "plain smell" doctrine developed. Part IIB will argue that the "plain smell" doctrine is coextensive with the "plain view" doctrine in how it relates to the automobile exception. Part III will discuss the evolution of Supreme Court doctrine regarding particularized suspicion and show that police do need particularized suspicion to arrest in the automobile context. Part IV will show that applying the "common enterprise" doctrine of Pringle to plain smell cases is logical and leads to the conclusion that officers can arrest passengers if they smell contraband. Part V will explain and rebut the major arguments against applying Pringle to plain smell cases. It will include illustrating that "common enterprise" is not synonymous with "common business enterprise" and explaining that Pringle did not require a stronger evidential standard in order to arrest passengers. Finally, it will show that extending Pringle to plain smell cases is supported by the strong interest in law enforcement of preventing narcotics trafficking outweighing the risk of temporarily depriving a person of liberty.

2. HOW PLAIN SMELL BECAME COEXTENSIVE WITH PLAIN VIEW

   The Fourth Amendment of the United States Constitution reads:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (21) The Fourth Amendment has been interpreted to require a search warrant to protect against unreasonable searches and seizures. (22) The Supreme Court, however, has carved out some exceptions to this rule. One such exception to the warrant requirement is the "plain view" exception if an officer sees contraband. (23) An officer can immediately seize items that he has probable cause to believe are evidence of a crime or contraband. (24) Probable cause is a fluid concept; there is no exact measure of certainty that one must reach to obtain it. The Supreme Court has determined that probable cause exists when there is a "fair probability" that an officer will find contraband or evidence of a crime in a particular place. (25) Indeed, the level of suspicion one needs for probable cause is "considerably less than proof of wrongdoing by a preponderance of the evidence." (26) Lower courts have extended the reasoning of the "plain view" doctrine to allow officers to search and arrest suspects when officers smell what they have probable cause to believe is contraband emanating from the suspects' persons. (27) Courts have also allowed officers to use smell to find probable cause where the distinct odor of narcotics emanates from a vehicle. (28) This Section will examine the evolution of the plain smell doctrine and its extension to the automobile context.

   1. From Plain View to Plain Smell

      The Supreme Court first recognized the "plain view" exception to the warrant requirement in Coolidge v. New Hampshire (29) and affirmed it in Horton v. California, (30) An officer may seize an object if he lawfully arrived at the place where he sees the evidence, the incriminating nature of the evidence is immediately apparent, and he has a lawful right to access the object from the place where it is located. (31) The "immediately apparent" requirement is satisfied if there is probable cause to believe that the object is contraband. (32)

      The Supreme Court has extended the reasoning of the "plain view" doctrine to include "plain feel," (33) and although the Court has yet to decide on other senses, almost every federal and state jurisdiction has extended the "plain view" doctrine to the other senses that an officer relies on in the course of his duty, including smell. (34) Thus, an officer can seize...