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Consensual encounters

"Don't be puffin' on a doobie in your ride" was the moral lesson applied in a pair of 8th District decisions last week.  In State v. Thompson, the police stopped a car for going through a red light, and the officer noticed the strong odor of the Demon Weed when Thompson rolled down the window of his car.  When Thompson exited the vehicle -- oops, sorry for that lapse into police jargon -- when Thompson got out of the car, the cop noticed a cellophane wrapper containing what appeared to be crack on the center console.  The inevitable inventory search discovered more grass and crack, and the circle was pretty much closed at Thompson's booking, where he was relieved of $1,800 in cash and a cellphone.  (As an aside, when are police and the courts going to stop regarding possession of a cellphone as evidence of drug trafficking?  My 80-year-old mother carries a cellphone, for God's sake.)

Anyway, the court had little difficulty affirming the denial of Thompson's motion to suppress.  The smell of marijuana gives the police probable to search a car.  (Thompson had tried to argue that this applied only to the smell of burnt mairjuana, as opposed to the smell of it in its vegetative state.  There is probably a judge out there who will buy that argument, but he's not sitting on a bench anywhere in Ohio.)  The police have the right to ask anyone to get out of a car once they stop it, and the crack was observed in plain view at that point.  And that's pretty much that.

The facts were similar in State v. Stallworth, where the police approached a parked car and smelled the strong odor of marijuana -- burning, this time -- emanating from the vehicle.  The resulting search turned up 60 grams of crack cocaine. 

The police approached the car in the first place because of an anonymous tip that the occupants were dealing drugs, and the court's opinion spends a good bit of time discussing the requirement that an anonymous tip requires the police to corroborate some criminal activity.  (I'd discussed this issue in the context of another case just a few weeks ago.)  It's a good review of the law, and the court correctly points out that the tip here was corroborated:  the police didn't move in right away, but waited until they had observed several people approach the car and engage in hand-to-hand exchanges with its occupants, conduct consistent with drug trafficking.

It's not entirely clear that such an analysis was necessary, however.  Unlike the situation in Thompson, here, the police didn't stop the car:  it was already parked.  A police officer approaching a parked car doesn't implicate the Fourth Amendment any more than an officer approaching someone standing on a street corner:  that's a consensual encounter, and you don't need probable cause, reasonable suspicion, or anything else. 

In fact, there's a decision last week out of the 12th District, State v. Potter, on that very issue, on similar facts, except for the absence of marijuana.  The officer had approached a parked car, the driver had gotten out, and one thing led to another, the "another" being the defendant's arrest for drug possession.  The defendant had argued that the officer didn't have any reason to approach his car in the first place, and the court replied that he didn't need one:

A police officer's approach and questioning of the occupant of a parked vehicle does not constitute a seizure, and therefore does not require reasonable, articulable suspicion of criminal activity.

That might be overstating it a bit, though, at least with regard to the "questioning."  The police officer has the same right as anybody else to come up to my parked car and ask me what I'm doing or where I'm going, and I have the right to tell the officer, the same as I would anybody else, to bug off.  The line between a consensual encounter and an investigative stop isn't a bright one; it basically hinges on whether a person would believe that he was free to end the encounter and leave.  If the officer starts demanding a drivers license, it's easier to argue that line's been crossed.

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