Vaidik, J.
While conducting a traffic stop of a car with three occupants, a police officer smelled burnt and raw marijuana. The officer searched I.G., finding a handgun on his person. The State alleged I.G. was a delinquent child for committing what would be Class A misdemeanor carrying a handgun without a license if committed by an adult. At the fact-finding hearing, I.G. objected to the admission of the handgun, arguing the search violated his rights under the Fourth Amendment of the United States Constitution. The juvenile court overruled his objection, admitted the handgun, and entered a true finding.
I.G. now appeals. The State asks us to affirm the juvenile court because the officer had probable cause to arrest I.G. for possession of marijuana based on the odor of marijuana in the car (although no evidence was presented that marijuana was found) and therefore properly conducted a search incident to arrest. We, however, find that the odor of marijuana, by itself, was not enough to establish probable cause to arrest I.G. for possessing marijuana. The search of I.G. was not a valid search incident to arrest, and the court erred in admitting the handgun into evidence. We therefore reverse I.G.’s true finding.
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I.G. contends the juvenile court erred in admitting the handgun because the pat-down search violated his Fourth Amendment rights.
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Here, Officer Harvey testified the occupants did not give him any reason to fear for his safety; however, he patted down I.G. anyway because he pats everyone down. Appropriately, the State has abandoned this theory on appeal.
Instead, the State contends a different exception applies: search incident to arrest. Specifically, the State argues Officer Harvey had probable cause to arrest I.G. for possessing marijuana based on the odor of marijuana in the car and therefore “the pat-down search of [I.G.’s] outer clothing was a valid search incident to arrest.”
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In support of its argument that Officer Harvey had probable cause to arrest I.G. for possessing marijuana and therefore properly conducted a search incident to arrest, the State relies on two cases, Maryland v. Pringle, 540 U.S. 366 (2003), and Richard v. State, 7 N.E.3d 347 (Ind. Ct. App. 2014), trans. denied. In Pringle, a car with three occupants was stopped in the early-morning hours for speeding. Joseph Pringle was sitting in the front-passenger seat. During the stop, the officer received consent to search the car and found a large sum of rolled-up cash in the glove compartment “directly in front of Pringle” and five baggies of cocaine behind the backseat armrest and “accessible to all three men.” Pringle, 540 U.S. at 372. “[A]ll three men denied ownership of the cocaine and money” and were arrested. Id. at 368. Pringle later confessed that the cocaine belonged to him. Pringle moved to suppress his confession on the ground it was the product of an illegal arrest. The trial court denied Pringle’s motion, finding the officer had probable cause to arrest him.
The sole question addressed by the United States Supreme Court was whether the officer had probable cause to believe Pringle had committed a crime. The Court concluded:
We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.
Id. at 372. The Court noted the result might have been different had one man admitted owning the money and cocaine. See id. at 374 (“No . . . singling out occurred in this case; none of the three men provided information with respect to the ownership of the cocaine or money.”).
Pringle doesn’t support the proposition that the odor of marijuana, by itself, provides probable cause to arrest the occupants of a car for possessing marijuana. Unlike Pringle, where money and cocaine were found in a car before the front-seat passenger was arrested, here no evidence was admitted that marijuana was found.
In the second case, Richard, a police officer pulled over a car for crossing the center line. The car had two occupants, the driver and Charla Richard. The officer arrested the driver on an outstanding warrant and then had his trained canine walk around the car. When the canine alerted, the officer asked Richard to step out of the car. In searching Richard, the officer noticed she appeared to favor one side. When the officer asked Richard to raise her arm, a tin containing methamphetamine fell to the ground. Richard was arrested for possessing methamphetamine.
On appeal, Richard argued “her mere presence as a passenger in the suspected vehicle was not enough to establish probable cause” to arrest her and conduct a search incident to arrest. Richard, 7 N.E.3d at 349. A panel of this Court found the canine’s “positive alert provided probable cause to believe there were drugs in the vehicle” and there was “no indication that [the driver], and only [the driver], was involved in narcotics activity.” Id. at 349-50. The panel held it was “an entirely reasonable inference that any of the vehicle’s occupants had at least constructive possession of drugs” and therefore Richard’s arrest and the subsequent search were constitutional. Id. at 350.
However, the Indiana Supreme Court later disagreed with the result in Richard. In Thomas, police officers with a drug task force received a tip from “a credible confidential informant” that two men from Chicago were traveling to Grant County in a white minivan with a temporary Illinois license plate to sell drugs and could be found at Comfort Suites in Marion. 81 N.E.3d at 622…The officers pulled over the minivan for changing lanes without signaling and asked the driver and front-seat passenger, Will Thomas, for their identifications and why they were driving through Marion. Although the men told the officers they were visiting family, neither man could identify where in Indiana their family lived. In addition, the driver had no form of identification. During the stop, the officers had a trained canine walk around the minivan. When the canine alerted, the officers removed the men from the minivan and conducted a pat down for officer safety. No drugs or weapons were found during the pat down.
The driver gave the officers permission to search the minivan. The canine was brought back to the minivan but no longer alerted. The officers searched the minivan but found no drugs. The officers then asked the men if they would consent to a strip search. The driver agreed, but Thomas did not. The officers took Thomas to the police station while they applied for a search warrant. The officers put Thomas in an interview room by himself and watched him on video-monitoring equipment. When Thomas removed something from his jacket pocket and put it in his mouth, the officers entered the room, forced his mouth open, and retrieved a small plastic baggie containing heroin. Thomas was convicted of Class A felony dealing in a narcotic drug.
On appeal, the issue was whether probable cause to detain Thomas and transport him to the police station arose at any point during the traffic stop…The Court responded:
To the extent that this is the rule in Richard, we are inclined to agree with the State, but we depart from the Richard panel on the amount of evidence needed to establish probable cause. We rely on numerous facts to make a probable cause determination, not just the canine’s alert. In fact, we believe it is unlikely that any of the facts presented here would have on their own, armed officers with the probable cause necessary to conduct a lawful arrest. The case we are presented with, however, offers much more than a single canine alert to support a probable cause finding.
Id. (emphasis added). The Court determined the officers had “knowledge of facts and circumstances which would warrant a person of reasonable caution to believe that Thomas was in possession of narcotics.” Id.
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The facts and circumstances that established probable cause in Thomas are simply not present here. Here, the only fact to warrant a person of reasonable caution to believe that I.G. possessed marijuana was the odor of burnt and raw marijuana in the car. But there were three people in the car, and no evidence was presented that the odor of marijuana was strong or came from I.G.’s person Cf. Parrott, 69 N.E.3d at 544 (concluding a police officer had probable cause to arrest the defendant for possessing marijuana because he was the only person in the car and the odor of raw marijuana was strong); Edmond v. State, 951 N.E.2d 585, 591 (Ind. Ct. App. 2011) (concluding a police officer had probable cause to arrest the defendant for possessing marijuana because he was the only person in the car and the officer smelled marijuana on his breath). Just as our Supreme Court found in Thomas 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. 2 The search of I.G. was not a valid search incident to arrest, and the juvenile court erred in admitting the handgun into evidence. We therefore reverse I.G.’s true finding.
Reversed
Kirsch, J., and May, J., concur.