Pre-Arrest Search of Driver After a Traffic Stop Valid as a Search Incident to Arrest Where Police Smell “Fresh” Marijuana in the Car and the Driver Is the Sole Occupant

Thomas Butler v. United States, No. 11-CM-985 (decided November 6, 2014)

Players:  Blackburne-Rigsby, Beckwith, Belson.  Opinion by Judge Blackburne-Rigsby.  Dissent by Judge Beckwith.  Thomas T. Heslep for Mr. Butler.  Trial judge:  Herbert B. Dixon.

Facts:  Police stopped Thomas Butler’s car because it had broken brake lights, and when Butler lowered his window to speak with the officer, the officer smelled “the strong odor of ‘fresh’ marijuana coming from inside the vehicle.”  The officer asked Thomas to get out of the car and then searched him.  During the search, the officer pulled up Thomas’s pant leg and found a bag of pills and a bag of marijuana “wedged between the sock and shoe.”  The officer then arrested Thomas and searched the vehicle for more drugs, but found nothing.    

           

Issue:  Was the pre-arrest search of a driver following a traffic stop a lawful search incident to arrest where police smelled the odor of “fresh” marijuana emanating from the vehicle in which the driver was the sole occupant?                                      

Holding:  Yes.  Police had probable cause to arrest Mr. Butler because he was the sole occupant of the vehicle and because the odor was of “fresh” marijuana, and under Millet v. United States, 977 A.2d 932, 935 (D.C. 2009), “[a] search incident to arrest may precede the actual arrest if probable cause exists, independent of the search, to justify the arrest, and if the arrest follows ‘quickly on the heels’ of the search.”

Of Note:

• The court rejected the government’s argument that the odor of marijuana was itself sufficient to provide probable cause to arrest and search.       
• “[T]he calculus of probable cause in future cases such as this may change” as a result of the Marijuana Possession Decriminalization Amendment Act of 2014.  Slip op. at 2.
• The majority maintains that “our case law does not approve—and indeed actively guards against—‘fishing expeditions’ for contraband.”  Id. at 7 n.6. 
• But it also asserts that its opinion “is in accord with” the “holding and reasoning” of United States v. Nash, --- A.3d ---, Nos. 13-CO-1299  & 13-C)-1456 (Sept. 25, 2014), which held “that a search incident to arrest is lawful even if, at the time of the search, the police had not yet arrested the suspect and did not subjectively intend to do so.”  Slip op. at 7 n.6. 

 The Dissent:

• In dissent, Judge Beckwith states that she “would reverse Mr. Butler’s convictions on the ground that the search of his person was not incident to any arrest.  That is, the record is devoid of signs that the officer was arresting Mr. Butler for possession of marijuana when he conducted the search and instead indicates that he was conducting an investigative search not incident to any arrest.”  Slip op. at 15 (Beckwith, J., dissenting).
• The dissent sharply disagrees with both Nash and the majority’s acceptance of it on the ground that it “flatly defies the U.S. Supreme Court’s Fourth Amendment jurisprudence, including precedent, such as Knowles v. Iowa, 525 U.S. 113 (1998), in which the fact that an officer did not intend to arrest a suspect was what made a purported search incident to arrest illegal.”  Slip op. at 14. 
• Taking issue with the Nash Court’s (and the majority’s) reliance on Millet, the dissent contends that “Millet cannot have intended a holding that so offhandedly brings such a fundamental change to the law governing the search-incident-to-arrest exception to the warrant requirement.”  Id. at 23-24.  MW.

Read full opinion here.