Common Scents: The Intersection of the "Plain Smell" and "Common Enterprise" Doctrines

Article excerpt

I. 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. …