FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 6, 2021
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
STATE OF NORTH DAKOTA
2021 ND 79
In the Interest of K.V., a Child
State of North Dakota, Petitioner and Appellee
v.
K.V., said child, Respondent and Appellant
and
A.V., mother of said child; and
E.D., father of said child, Respondents
No. 20200257
Appeal from the Juvenile Court of Ramsey County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.
REVERSED.
Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen,
Justice Crothers, and Justice Tufte joined, and Justice VandeWalle concurred
in the result.
Maren H. Halbach, Assistant State’s Attorney, Devils Lake, ND, for petitioner
and appellee; submitted on brief.
Ulysses S. Jones, Devils Lake, ND, for respondent and appellant; submitted on
brief.
Interest of K.V.
No. 20200257
McEvers, Justice.
[¶1] K.V. appeals from a juvenile court memorandum opinion, issued after
remand, denying his motion to suppress evidence. K.V. argues the court erred
in denying his motion to suppress by concluding there was probable cause to
search him for illegal drugs and that the warrantless search of his person was
reasonable under the circumstances. We reverse.
I
[¶2] K.V. was charged and adjudicated a delinquent child for possession of a
controlled substance and possession of drug paraphernalia in January 2019.
K.V. moved to suppress the evidence gathered after the stop. Following a
hearing on the motion to suppress, the juvenile court issued an order denying
K.V.’s motion. K.V. appealed, arguing the warrantless search violated the
Fourth Amendment. This Court reversed and remanded for reconsideration
because the juvenile court did not make specific findings on the reasonableness
of the pat down and did not identify what exception to the warrant requirement
justified the search. Interest of K.V., 2020 ND 169, ¶¶ 13-14, 946 N.W.2d 518.
[¶3] The facts of this case were explained in Interest of K.V., 2020 ND 169,
and will only be repeated as necessary to explain the resolution of issues in
this appeal. On January 6, 2019, K.V. was a passenger in a vehicle stopped by
law enforcement for erratic driving and attempting to flee the police. After the
stop, K.V. was searched and both drugs and drug paraphernalia were
recovered.
[¶4] At the hearing on K.V.’s motion to suppress, Devils Lake Police Officer
Gilbertson testified he feared for his safety as he approached the truck. He
testified that he approached the driver’s side of the truck and could smell a
strong odor of marijuana coming from the vehicle, and stated he assumed there
was illegal activity going on in the vehicle based on the smell of marijuana.
Gilbertson testified he handcuffed the driver after he got out of the truck.
Gilbertson stated he did not interact with K.V.
1
[¶5] Officer Engen testified he approached the passenger side of the truck
and made contact with K.V. Engen asked K.V. to get out of the vehicle, and he
did so. Engen testified they did not know whether K.V. had weapons on him
and there was a strong odor of marijuana coming from the vehicle. When K.V.
exited the vehicle, Engen stated he conducted a pat down search and found a
bong and a small bag of methamphetamine in K.V.’s jacket pocket. Engen
testified he did not ask for permission to search K.V. and acknowledged they
did not obtain a warrant prior to the search. Engen then placed K.V. under
arrest. Engen also testified that at no point did he see K.V. commit a criminal
offense, qualifying his statement, “[o]ther than the smell of marijuana coming
from the vehicle.” He further testified K.V. did not act as if he were creating a
dangerous situation. Engen testified he patted down K.V. for his own safety,
to check for weapons, and to search for illegal drugs.
[¶6] On September 1, 2020, following remand, the juvenile court issued a
memorandum opinion on the search of K.V. The court noted that the vehicle
was stopped after fleeing law enforcement. The court found the officers
observed the driver appeared to be under the influence, and there was a strong
odor of marijuana coming from the vehicle. The court concluded the pat down
was justified based on officer safety, but determined the further search was not
supported by the record for officer safety, because the officer did not identify
what he felt during the pat down. However, relying on precedent from another
jurisdiction that does not require individualized suspicion to search a
passenger when the odor of marijuana is emanating from a vehicle, the court
found, that based on what he saw, heard and smelled, Engen believed he had
probable cause to search K.V. for marijuana and related paraphernalia. The
court concluded, “based on the totality of the circumstances that Officer Engen
had probable cause to search the person of K.V. for illegal drugs and the search
was legal.”
II
[¶7] On appeal, K.V. argues the juvenile court erred in determining the
warrantless search was reasonable under the totality of the circumstances.
“The Fourth Amendment of the United States Constitution, applicable to the
2
states through the Fourteenth Amendment, protects individuals from
unreasonable searches and seizure.” State v. Guscette, 2004 ND 71, ¶ 7, 678
N.W.2d 126. A warrant is required for a search to be reasonable under the
Fourth Amendment, unless a valid exception applies. State v. Daniels, 2014
ND 124, ¶ 6, 848 N.W.2d 670. We examine the totality of the circumstances to
determine whether a search was reasonable under the Fourth Amendment.
State v. Ballard, 2016 ND 8, ¶ 8, 874 N.W.2d 61.
[¶8] This Court will reverse a juvenile court’s decision on a motion to suppress
only if there is insufficient competent evidence fairly capable of supporting the
court’s determination and the decision is contrary to the manifest weight of the
evidence after resolving any testimony in favor of affirmance. State v. Webster,
2013 ND 119, ¶ 7, 834 N.W.2d 283. This Court shows deference to the juvenile
court’s assessment of the credibility of witnesses. State v. Zearley, 444 N.W.2d
353, 359 (N.D. 1989). Questions of law are fully reviewable. State v. Overby,
1999 ND 47, ¶ 5, 590 N.W.2d 703.
[¶9] Under N.D.R.Juv.P. 14(d), when factual issues are involved in deciding
a motion, the juvenile court must state its essential findings on the record. This
Court has applied the rules of civil procedure to reviewing the court’s factual
findings, stating:
Under N.D.R.Civ.P. 52(a), this Court reviews a juvenile court’s
factual findings under a clearly erroneous standard of review, with
due regard given to the opportunity of the juvenile court to judge
the credibility of the witnesses. A finding of fact is clearly
erroneous if there is no evidence to support it, if the reviewing
court is left with a definite and firm conviction that a mistake has
been made, or if the finding was induced by an erroneous view of
the law. This Court reviews questions of law de novo.
Interest of D.O., 2013 ND 247, ¶ 6, 840 N.W.2d 641 (quoting Interest of R.A.,
2011 ND 119, ¶ 4, 799 N.W.2d 332); see also Interest of K.V., 2020 ND 169, ¶ 7
(applying N.D.R.Civ.P. 52 in juvenile matters because it does not conflict with
North Dakota Rules of Juvenile Procedure).
3
A
[¶10] “A law enforcement officer may conduct a frisk or a pat down search of a
person only when the officer possesses an articulable suspicion the individual
is armed and dangerous.” State v. Tognotti, 2003 ND 99, ¶ 16, 663 N.W.2d 642.
While a pat down may often be reasonable for safety, the following pocket
search must also be based on the same safety reasons, because they are distinct
efforts and each must be reasonable. Zearley, 444 N.W.2d at 359. A pat down
may justify a pocket search if the officer’s tactile perceptions lead to the
conclusion that the subject possesses a weapon or it is clear from the plain feel
of objects during the pat down that the subject is carrying contraband. Id. at
358. See also Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993) (establishing
“plain touch” or “plain feel” concept as analogous to the plain view exception to
the Fourth Amendment when an officer discovers contraband through sense of
touch during an otherwise lawful search).
[¶11] The juvenile court found the officer safety exception justified the pat
down, but the record did not support the further warrantless search of K.V.
based on the officer safety exception to the warrant requirement because the
officer did not identify what he felt in K.V.’s pockets. We agree with the court
the record does not support the search based on the officer safety exception.
B
[¶12] Nonetheless, the juvenile court concluded, based on the totality of the
circumstances, the search was legal. The court did not mention the plain-smell
doctrine by name, but appears to have substantively relied upon the strong
odor of marijuana emanating from the vehicle in weighing the totality of the
circumstances.
[¶13] In its memorandum opinion, the juvenile court cited to cases from two
other jurisdictions as a basis for its decision. In the first case, State v. Grande,
the Washington Supreme Court held:
[T]he smell of marijuana in the general area where an individual
is located is insufficient, without more, to support probable cause
4
for arrest. Where no other evidence exists linking the passenger to
any criminal activity, an arrest of the passenger on the suspicion
of possession of illegal substances, and any subsequent searches,
is invalid and an unconstitutional invasion of that individual’s
privacy.
187 P.3d 248, 254 (Wash. 2008). In Grande, the defendant was a passenger in
a car when an officer detected a “moderate smell of marijuana coming from the
car” Id. at 250. The court in Grande focused on the requirement that there be
individualized probable cause of the person being arrested. Id. at 253 (relying
in part on Washington’s state constitution for providing additional protections
not provided by the United States Constitution). Here, the officers testified to
a strong odor of marijuana, rather than a moderate odor, and K.V. has not
argued the North Dakota constitution provides greater protection than the
United States Constitution.
[¶14] While the juvenile court provided no in-depth analysis of either case, it
appears that the court relied on Adams v. State, 815 So.2d 578, 581-82 (Ala.
2001), quoting the following:
[W]here two persons were sitting in the front seat of an
automobile, we do not believe that individualized suspicion was
required to arrest either [the defendant] or his passenger. To
require such individualized suspicion in all cases would be to say
that even where the odor of burning marijuana is emanating from
the relatively closed confines of an automobile—therefore clearly
justifying the search of the automobile—if the occupants of the
vehicle have the foresight to quickly secrete the controlled
substance in their pockets, they may drive away after the search
of the vehicle proves fruitless.
The juvenile court here went on to find:
Engen continued to detect a strong odor of marijuana coming from
the vehicle. Based on facts as he understood them and what he
saw, heard and smelled, Officer Engen believed he had probable
cause to search K.V. for marijuana and related paraphernalia. . . .
He also observed that the driver of the vehicle was more likely than
5
not to be under the influence and that the driver fled in a vehicle
from law enforcement.
[¶15] Further review of the Adams case relied on by the juvenile court is
necessary to discern the rationale for the juvenile court’s ruling. In Adams, the
Alabama Supreme Court held that where the totality of the facts and
circumstances were sufficient to believe the defendant (the passenger in the
vehicle) possessed marijuana, there was probable cause to arrest. 815 So.2d at
582. The court in Adams relied on a number of courts, including ours, in
concluding that where police smell the odor of burning marijuana coming from
a legally stopped automobile, there may be probable cause to arrest all the
occupants of the automobile. See id. at n.4 (relying in part on Overby, 1999 ND
47). The court in Adams further concluded the search of the passenger prior to
the arrest was a search incident to arrest because it followed quickly on the
heels of the challenged search. Adams, at 582.
[¶16] One exception to the warrant requirement is a search incident to arrest.
State v. Mercier, 2016 ND 160, ¶ 20, 883 N.W.2d 478. Here, law enforcement
had probable cause to arrest the driver based on his fleeing, driving under the
influence, and the odor of marijuana. However, this Court has stated there is
no automatic search rule for companions of an arrestee. State v. Heitzmann,
2001 ND 136, ¶ 11, 632 N.W.2d 1. “[M]ere association with a known or
suspected criminal, or mere presence in that person’s automobile, does not
create probable cause to arrest.” United States v. Caves, 890 F.2d 87, 94 (8th
Cir. 1989); State v. Gilberts, 497 N.W.2d 93, 97 (N.D. 1993). This Court has
previously said the smell of marijuana may establish probable cause. State v.
Schmalz, 2008 ND 27, ¶ 20, 744 N.W.2d 734; Overby, 1999 ND 47, ¶ 13. Review
of the record shows the officer who patted down K.V. did not testify that the
search was conducted incident to arrest.
[¶17] Regardless of the officers’ subjective reasons for conducting the search of
K.V., the juvenile court determined the odor emanating from the vehicle
justified the search. See State v. Deviley, 2011 ND 182, ¶ 11, 803 N.W.2d 561
(stating officer’s subjective basis for an action does not vitiate probable cause).
The issue here is whether the totality of the circumstances, including the odor
6
of marijuana emanating from the vehicle, is sufficient to justify a warrantless
search of K.V., who was a passenger of the vehicle. While this Court has not
specifically ruled on this issue, a number of courts have held the odor of
marijuana coming from a vehicle provides probable cause to search the
passengers inside the vehicle. See Adams, 815 So.2d at 582 (discussing the odor
of burned marijuana emanating from an automobile may be enough to provide
probable cause to arrest the occupants, and a search of clothing sufficiently
contemporaneous to the arrest was a valid search incident to arrest). See also
State v. Perryman, 2004 WL 443394 (Ohio Ct. App. 2004); People v. Hansen,
761 N.E.2d 376 (Ill. App. Ct. 2001); State v. Chambliss, 752 So.2d 114 (Fla.
Dist. Ct. App. 2000); State v. Wilson, 520 So.2d 864 (La. Ct. App. 1987); Acosta
v. State, 640 S.W.2d 381 (Tex. App. 1982).
[¶18] Other courts have held that the odor of marijuana alone does not
necessarily provide probable cause to search a passenger. See State v. Grande,
187 P.3d 248 (Wash. 2008) (holding moderate smell of marijuana emanating
from a vehicle, without more, does not establish probable cause to search a
passenger); State v. Bradley, 2003 WL 22501501 (Ohio Ct. App. 2003)
(reversing denial of motion to suppress where there was no evidence presented
at the suppression hearing that the troopers were qualified to recognize the
odor of marijuana); Green v. State, 831 So.2d 1243 (Fla. Dist. Ct. App. 2002).
[¶19] The rationale for allowing the search of a passenger based on the odor of
marijuana emanating from a vehicle is similar to the rationale used by this
Court in allowing an arrest of a driver based on the smell of marijuana under
similar circumstances, the “officer, through his sense of smell, had reasonable
cause to believe that the person arrested had committed a public offense . . .
under [N.D.C.C.] § 29-06-15(1)(a).” Overby, 1999 ND 47, ¶ 12 (discussing State
v. Binns, 194 N.W.2d 756, 759 (N.D. 1972)). Examination of Binns and Overby
is necessary to understand this Court’s stance on the odor of marijuana
establishing probable cause.
[¶20] In Binns, the defendant was a passenger in a vehicle from which an
officer smelled the odor of marijuana. Binns, 194 N.W.2d 756, 758. The officer
requested the occupants get out of the car so he could search the vehicle. Id. A
7
plastic bag containing marijuana was found on the seat near when the
defendant had been seated. Id. This Court held the circumstances justified a
warrantless search of the vehicle based on the odor of burning marijuana. Id.
(relying on Chambers v. Maroney, 399 U.S. 42 (1970)). After concluding there
was probable cause to search the vehicle, this Court further concluded, “[w]hen
his search produced material which the officer knew was marijuana, he had
probable cause for making the arrests.” Id. This Court in Binns also concluded
the officer, through his sense of smell, had reasonable cause to believe the
person arrested had committed a public offense under N.D.C.C. § 29-06-15(1),
which allowed a peace officer to arrest a person for a public offense committed
in his presence. Id. at 759. This case is distinguishable from Binns, where the
odor of burning marijuana justified the search of a vehicle, and it was not until
after marijuana was found in the vehicle that there was probable cause to
arrest. Here, no drugs were recovered from the search of the vehicle, and the
officers did not indicate whether the odor was from burning marijuana or raw
marijuana.
[¶21] In Overby, this Court held a search of a person prior to arrest would be
considered a search incident to arrest when probable cause to arrest existed
prior to the search, and the arrest and the search were contemporaneous. 1999
ND 47. ¶ 13 (relying on Rawlings v. Kentucky, 448 U.S. 98, 110-11 (1980)). The
defendant in Overby was the sole occupant of his vehicle where the officer
smelled a very strong odor of marijuana, and the officer had no doubt
marijuana had just been smoked inside the vehicle. Overby, at ¶ 2. In
determining whether probable cause existed to arrest Overby, this Court
discussed Binns, stating the arrest in Binns was justified for two reasons: the
officer had the requisite probable cause to arrest Binns either because (1) the
search of the vehicle (valid under the automobile exception) discovered
marijuana, or (2) the officer, through his sense of smell, had reasonable cause
to believe that the person arrested had committed a public offense under
N.D.C.C. § 29-06-15(1). Overby, at ¶ 12 (emphasis added). Thus, under the
particular facts of Binns, the odor of marijuana emanating from the suspects’
vehicle not only provided probable cause triggering the automobile exception,
but it also authorized the officer to make a warrantless arrest under N.D.C.C.
§ 29-06-15(1)(a). Id. The Court then discussed that a police officer assessing
8
whether there is probable cause to arrest needs to have knowledge that would
give a prudent person reasonable grounds to believe an offense has been or is
being committed. Id. The Court concluded probable cause existed when the
record reflected Overby was alone in his vehicle, no other vehicles or people
were in the vicinity, the vehicle’s door was open when the officer approached,
and the officer who detected the odor of marijuana emanating from the vehicle
was well trained in identifying the odor of marijuana. Id. Here, K.V. was not
the sole occupant of a vehicle and there was no testimony regarding the
training or experience of the officers relating to the odor of marijuana, or that
marijuana had just been smoked in the vehicle.
[¶22] In addition, the Overby Court’s reading of Binns is not in accord with the
syllabus provided in Binns. 1 Rather, the syllabus, which is the holding of the
Court, at paragraph 4 states: “Where the search of an automobile produces
material which the officer recognizes as marijuana, such material, together
with the odor of burning marijuana emanating from the car, constitutes
probable cause for making an arrest of the occupants for possession of
marijuana.” Binns, 194 N.W.2d 756, 757, syll. 4 (emphasis added). To the
extent that Overby may be read to say that the odor of marijuana alone
provides probable cause to arrest passengers of a vehicle without more, it is
dicta and not the basis for the holding in Binns.
[¶23] Probable cause to search a car does not necessarily justify a search of a
passenger. Wyoming v. Houghton, 526 U.S. 295, 303 (1999) (discussing United
States v. Di Re, 332 U.S. 581 (1948)). A passenger has a diminished expectation
of privacy in their property in a car, and law enforcement can search a
passenger’s personal belongings when there is reason to believe contraband or
evidence of criminal wrongdoing is hidden in the car. Id. at 304. In State v.
Gefroh, this Court held the automobile exception did not justify the search of a
driver’s person. 2011 ND 153, ¶¶ 12-13, 801 N.W.2d 429 (discussing the
distinction between the possessions of an occupant within a vehicle and the
1At the time Binns was written in 1972, Section 102 of the North Dakota Constitution, then in effect,
directed the Supreme Court to prepare a syllabus of points adjudicated. Section 102 was repealed by
art. amend. 97, approved September 7, 1976 (S.L. 1975, ch. 615, § 2).
9
occupant’s person). In Gefroh, a drug sniffing dog indicated the presence of
controlled substances in a vehicle driven by Gefroh. Id. at ¶ 2. After Gefroh
made furtive movements, reached for his jacket pocket several times, and
refused to keep his hands on the vehicle as directed, the officer conducted a pat
down and searched Gefroh’s pockets. Id. at ¶¶ 4-5. This Court held in Gefroh,
the automobile exception did not justify the warrantless search of Gefroh’s
person. Id. at ¶ 13.
[¶24] Under North Dakota law, a law enforcement officer is authorized to
arrest a person without a warrant under various circumstances, including:
For a public offense, committed or attempted in the officer’s
presence and for the purpose of this subdivision, a crime must be
deemed committed or attempted in the officer’s presence when
what the officer observes through the officer’s senses reasonably
indicates to the officer that a crime was in fact committed or
attempted in the officer’s presence by the person arrested.
N.D.C.C. § 29-06-15(1)(a) (emphasis added). Upon smelling the odor of
marijuana emanating from the vehicle, the officers had probable cause to
believe that some marijuana related crime was either being committed or
attempted in the vehicle. See State v. Linghor, 2004 ND 224, ¶ 8, 690 N.W.2d
201 (stating upon seeing drug paraphernalia in plain view in an automobile,
officers had probable cause to believe some drug-related crime was either
committed or attempted).
[¶25] In Linghor, following a traffic stop of a vehicle in which Linghor was a
passenger, the officer detected an odor of anhydrous ammonia coming from the
automobile. 2004 ND 224, ¶ 2. The officer also saw paraphernalia to make
drugs in plain view in the back seat. Id. The officer questioned the driver, who
indicated that part of the alleged paraphernalia belonged to Linghor. Id.
Following a pat-down search of Linghor, which revealed no evidence of a
weapon, the officer had Linghor empty his pockets which contained a receipt
for items that could be used to manufacture methamphetamine, and the items
were in the vehicle. Id. Linghor argued his presence in the automobile was not
enough to suspect him of criminal activity or to search his person. Id. at ¶ 6.
10
The primary issue was whether officers had probable cause to believe Linghor
had committed a crime. Id. at ¶ 8. In Linghor, we viewed the case of Maryland
v. Pringle, 540 U.S. 266 (2003) as dispositive, noting:
In Pringle, a police officer stopped an automobile for speeding and
obtained the driver’s consent to search the car. The car had three
occupants. The search revealed the presence of a large amount of
cash in the glovebox and five plastic baggies containing cocaine
behind the back-seat armrest. Pringle was a front-seat passenger
in the car. None of the automobile occupants admitted ownership
of the drugs and all three were arrested. The Maryland Court of
Appeals held that, “absent facts tending to show Pringle’s
knowledge and dominion or control over the drugs, ‘the mere
finding of cocaine in the back armrest when [Pringle] was a front
seat passenger in a car being driven by its owner is insufficient to
establish probable cause for an arrest for possession.’”
Linghor, at ¶ 9 (discussing Pringle, at 369-370) (cleaned up, internal citations
omitted). As further noted in Linghor, in Maryland v. Pringle, the United
States Supreme Court discussed the probable cause standard as follows:
The long-prevailing standard of probable cause protects citizens
from rash and unreasonable interferences with privacy and from
unfounded charges of crime, while giving fair leeway for enforcing
the law in the community’s protection. On many occasions, we
have reiterated that the probable-cause standard is a practical,
nontechnical conception that deals with the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act. Probable cause is a fluid concept—
turning on the assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced to a neat set of
legal rules.
The probable-cause standard is incapable of precise definition or
quantification into percentages because it deals with probabilities
and depends on the totality of the circumstances. We have stated,
however, that the substance of all the definitions of probable cause
is a reasonable ground for belief of guilt, and that the belief of guilt
must be particularized with respect to the person to be searched or
seized.
11
Linghor, at ¶ 10 (quoting Pringle, at 370-371) (internal citations and
quotations omitted).
[¶26] We also considered in Linghor that the Supreme Court in Pringle noted
passengers in a relatively small automobile will often be engaged in a common
enterprise with the driver, and have the same interest in concealing the fruits
or the evidence of their wrongdoing. 2004 ND 224, ¶ 11 (relying on Pringle, 540
U.S. at 373 (quoting Houghton, 526 U.S. 295). Under the facts of Pringle, the
Supreme Court determined it was reasonable for the officer to infer a common
enterprise among the three men based on the quantity of drugs and cash in the
car, which indicated a likelihood of drug dealing, and it would be unlikely a
dealer would include a passenger who was innocent of the operation, because
they could furnish evidence against the dealer. Linghor, at ¶ 11 (citations
omitted). In Linghor, this Court held there was probable cause to believe
Linghor was involved in a conspiracy to manufacture methamphetamine and
it was objectively reasonable to infer a common enterprise between Linghor
and the driver. Id. at ¶ 13.
[¶27] The facts of this case are distinguishable from Linghor, 2004 ND 224,
where the officers could (1) smell anhydrous ammonia, a component of drug
manufacturing, (2) see in plain view evidence of methamphetamine
manufacturing, and (3) the driver identified some of the items associated with
the paraphernalia as Linghor’s. Here, there was no implicating statement by
the driver, no plain view or plain feel of paraphernalia, and no marijuana or
other drugs were found in the vehicle.
[¶28] The juvenile court had the opportunity to hear and observe the witnesses
and we generally recognize and defer to the court’s assessment of credibility.
Zearley, 444 N.W.2d at 359. The court received testimony about the officers’
concern for their own safety, the erratic behavior of the driver, and the strong
odor of marijuana emanating from the vehicle. The court made extensive
findings about the driver’s behavior leading up to the driver’s arrest, but that
does not resolve the question whether probable cause existed to search K.V.
The court found “[o]ne can infer in this case if the driver is under the influence
of drugs or alcohol it is likely the passenger would also have been ingesting
12
marijuana.” While not a distinct finding of engaging in a common enterprise,
the record does not support a finding of a common enterprise. To the extent a
driver’s behavior may contribute to probable cause to the search of a passenger,
in this case the court made no findings about interaction between the driver
and K.V. or furtive movements occurring in the vehicle. The court found Officer
Gilbertson yelled some commands, stating the record was unclear what the
orders were, but found a person could infer that the occupants did not comply
with the commands. Upon review of the record we cannot discern how an
unknown command supports such an inference. The testimony regarding K.V.
was that he exited the vehicle when he was asked. Therefore, probable cause
to search K.V. must come from the second officer’s interaction with K.V.
[¶29] The court found that K.V. was a passenger in a vehicle that fled the
police, which raised suspicion of illegal activity within the truck. There is no
evidence that police officers found evidence of drugs in the vehicle, other than
the smell, either before or after searching K.V. There was no testimony that
K.V. was arrested for committing a public offense. There was no testimony that
K.V. and the driver were engaged in a common enterprise. When asked if he
saw K.V. commit any criminal offense, Officer Gilbertson testified “I don’t
know. I cannot—he was an occupant in a vehicle that was involved in a
purs[uit] [sic]. . . . I do not know what he was doing while he was in the vehicle.”
Gilbertson further testified he smelled marijuana coming from the vehicle and
the driver, but he had no interaction with K.V. Officer Engen, who had contact
with K.V., testified he could smell marijuana from the vehicle, but did not state
the odor was coming from K.V., and did not indicate whether the odor was of
burning marijuana or raw marijuana.
[¶30] These facts do not support a conclusion of law, based on the totality of
the circumstances, that probable cause, based on individualized suspicion,
existed that would justify an arrest of K.V., therefore, the search of his person
was unlawful.
13
III
[¶31] We conclude the juvenile court erred in concluding the officers had
probable cause to conduct a warrantless search of K.V. under the totality of the
circumstances, and reverse the juvenile court’s memorandum opinion denying
K.V.’s motion to suppress and the order adjudicating K.V. a delinquent child.
[¶32] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
I concur in the result.
Gerald W. VandeWalle
14