(concurring in part and dissenting in part). While I agree with the majority that there whs probable cause to search the automobile, I disagree and accordingly dissent as to the probable cause to search the person of the defendant.
There are three prongs as to this particular search:
(1) Did the officers have a right to stop the automobile? The answer is obviously “ yes ”.
(2) Did the officers have a right, based on the odor of burned marijuana, tb search the automobile? Under the present circumstances the answer is “ yes ” and the search revealed on the floor of the automobile two or three cold butts of marijuana cigarettes.
(3) After stopping the automobile, having detected the odor of marijuana and thereafter finding butts on the floor of the automobile, but not having made an arrest, did the officers have probable cause for searching the person of the defendant? The answer is “ no ”.
While the record establishes probable cause that someone in the automobile had been in possession of marijuana, there is no probable cause for present possession since none of the occupants was smoking when the troopers stopped and approached the automobile. It was a past tense possession for probable cause. There was no bvidence that the odor of marijuana came from the person of the defendant. Under such circumstances, the frisk and search of the defendant was not justified and, accordingly, the investigation Of the closed envelope and cigarette package was without probable cause. In fact, it was without justification, and an invasion of privacy which should not be permitted or tolerated.
The judgment should be reversed, and the marijuana found as a result of the search of the defendant should be suppressed.
Cooke, Sweeney and Kane, JJ., concur with Main, J.; Herlihy, P. J., concurs in part and dissents in part in a separate opinion.
Judgment affirmed.