dissenting. I cannot disagree with the majority’s conclusion that the search of appellant’s person cannot be justified under Ark. R. Crim. P. 3.4, because the officer candidly stated in his testimony that he was not conducting a protective search for weapons. Nor do I disagree with the majority’s holding that the search cannot be upheld under Ark. R. Crim. P. 14.1(b), for the simple reason that the officer did not search the vehicle prior to the search of appellant’s person as is contemplated by that rule. However, I cannot agree with the majority’s decision that the odor of marijuana did not provide sufficient reasonable cause to authorize the arrest of appellant. Therefore, I dissent.
Rule 4.1(a)(iii) of the Arkansas Rules of Criminal Procedure provides that a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed any violation of the law in the officer’s presence. Reasonable, or probable, cause for a warrantless arrest exists when the facts and circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed or is being committed by the person arrested. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987). Probable cause to arrest does not require the degree of proof sufficient to sustain a conviction. Hudson v. State, supra. Our courts have committed themselves to the reasonable, common-sense approach to these determinations and arrests are to be appraised from the viewpoint of prudent and cautious police officers at the time the arrest is made. Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986). Furthermore, Rule 4.1(c) provides that an arrest shall not be deemed to have been made on insufficient cause solely on the ground that the officer is unable to determine the particular offense which may have been committed.
Rule 12.1(d) provides that an officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of the crime, or other things criminally possessed or used in conjunction with the offense. A search is valid as incident to a lawful arrest even if it is conducted before the actual arrest, provided that the arrest and search are substantially contemporaneous and there was probable cause to arrest prior to the search. Johnson v. State, 21 Ark. App. 211, 730 S.W.2d 517 (1987). Warrantless arrests are presumptively legal, Freeman v. State, 6 Ark. App. 240, 640 S.W.2d 456 (1982), and in arrest cases, all presumptions on appeal are favorable to the trial court’s ruling and the burden of establishing error rests on the appellant. Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984).
The search in this instance was substantially contemporaneous with appellant’s arrest. Therefore, the issue in this case is whether the odor of marijuana gave the officer reasonable cause to believe that appellant was committing a crime in his presence. The trial court so concluded, and in reviewing a trial court’s decision to deny an appellant’s motion to suppress evidence, this court makes an independent determination based on the totality of the circumstances and reverses only if it is clearly against the preponderance of the evidence. Bonebrake v. State, 51 Ark. App. 81, 915 S.W.2d 723 (1995).
The Supreme Court in Johnson v. United States, 333 U.S. 10 (1948), observed that probable cause can be established by a police officer relying on his sense of smell. The Court rejected the defendant’s contention:
... that odors cannot be evidence sufficient to constitute probable cause grounds for any search.... If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of the most persuasive character.
Id. at 13. Although the Johnson court was speaking in terms of probable cause sufficient to justify the issuance of a search warrant, its reasoning is not wholly inapposite here. While the two represent distinct concepts, our supreme court has recognized that the same standards govern reasonable cause or probable cause determinations, whether the question concerns the validity of an arrest or the validity of a search and seizure. Hudson v. State, supra.
Although completely ignored by the majority, there is a body of law pertaining to probable cause determinations based on the odor of marijuana. A review of these decisions reveals that there is some controversy as to whether or not the odor of burned marijuana, standing alone,1 supplies sufficient probable cause for a search of an automobile or for the arrest of its occupants. However, there appears to be less debate when the odor of unburned marijuana is at issue. In People v. Hilber, 269 N.W.2d 159 (Mich. 1978), the Supreme Court of Michigan found a distinction between the two types of odors and the inferences to be drawn from their detection. The court observed that the odor of unburned marijuana indicated the actual presence of marijuana and thus would support a finding of probable cause.2 In a plurality decision, however, the court struck down the search of a vehicle based solely upon the smell of burned marijuana, reasoning that such an odor was only indicative of the presence of marijuana some time in the past.3
Yet, a different result was reached in State v. Reuben 612 P.2d 1071 (Ariz. Ct. App. 1980), where it was held that the odor of burned marijuana provided probable cause for the search of a vehicle. The court so held in reliance on a previous decision of its own supreme court in State v. Decker, 580 P.2d 333 (Ariz. 1978), where it was said:
Even if the smell of burned marijuana has a lingering effect, as is urged, we think that a man of reasonable prudence, upon smelling the odor of burned marijuana, would believe that marijuana is present.
Id. at 335-36.
In State v. Judge, 645 A.2d 1224 (N.J. Super. Ct. App. Div. 1994), it was determined that the odor of burnt marijuana in a vehicle satisfied the requirement of probable cause for an arrest. There, the court rejected the distinction recognized in People v. Hilber, supra, and held that the odor of burned marijuana creates the inference that marijuana is physically present in the vehicle, and on the persons occupying the vehicle.
Likewise, in State v. Hammond, 603 P.2d 377 (Wash. Ct. App. 1979), it was held that probable cause existed to arrest an occupant of an automobile based on the odor of burned marijuana emanating from the vehicle. The court observed that:
An officer is entitled to rely on his senses in determining whether contraband is present in a vehicle. If the contraband is seen or smelled, the officer is not required to close his eyes or nostrils, walk away, and leave the contraband where he sees or smells it.
Id. at 378 (quoting State v. Romonto, 212 N.W.2d 641, 644 (Neb. 1973)). In concluding that the aroma of burned marijuana established probable cause for the arrest of a vehicle’s occupants, the Hammond court was also persuaded by the decision in Dixon v. State, 343 So.2d 1345 (Fla. Dist. Ct. App. 1977). There it was held that the odor of burned marijuana and smoke emanating from a vehicle constituted probable cause to believe that each occupant of the car may have had actual or constructive possession of marijuana, thus justifying the arrest of the vehicle’s occupants.4
The officer in this case testified that he smelled the odor of marijuana coming from the vehicle.5 It was 1:00 a.m., and the officer had just legitimately stopped the vehicle for playing loud music in violation of a city ordinance prohibiting raucous noise. Under the totality of the circumstances and under a practical and common-sense approach, and with due consideration of the opinions from other courts, I conclude that the officer was justified in making an arrest. The odor of marijuana arouses more than a “naked hunch” that criminal activity is afoot. As is shown here, to a trained police officer the odor of marijuana emanating from -the closed environment of an automobile gives rise to the reasonable inference that marijuana is present in the vehicle. And, operating under that rational inference, it is also logical to believe that any one of the passengers is in possession of the prohibited substance. Of course, possession of marijuana is unlawful. Ark. Code Ann. § 5-64-401 (Supp. 1995). It should not be said then that the officer did not have reasonable cause to believe that a violation of our law was being committed in his presence. It was simply not necessary for the officer to be certain beyond a reasonable doubt. Nor is it reasonable or realistic to expect an officer to be able to pinpoint the offender with the accuracy of a dog trained in the detection of narcotics. All that is required under the law is a reasonable belief as viewed from the standpoint of a prudent police officer. I cannot say that the evidence in this case does not satisfy that test; therefore, I would sustain the trial court’s denial of the motion to suppress.
Jennings, C.J., joins in this dissent.In some cases, the odor of marijuana combined with other circumstances has been deemed sufficient to support a finding of probable cause for an arrest. See e.g. State v. Valenzuela, 589 P.2d 1306 (Ariz. 1979); State v. Medders, 266 S.E.2d 331 (Ga. Ct. App. 1980). In Adams v. State, 26 Ark. App. 15, 758 S.W.2d 709 (1988), we held that the odor of marijuana and the officer’s observation of appellant stuffing something down his pants resulted in probable cause for an arrest.
We have held that the odor of marijuana emanating from a vehicle provides probable cause for the search of the vehicle. Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641 (1989). See also State v. Greenwood, 268 S.E.2d 835 (N.C. Ct. App. 1980).
See abo State v. Schoendaller, 578 P.2d 730 (Mont. 1978) (odor of burned marijuana not sufficient to support a finding of probable cause).
See also State v. Mitchell, 482 N.W.2d 364 (Wis. 1992); State v. Greenslit, 559 A.2d 672 (Vt. 1989).
Appellant has not challenged the officer’s qualifications in detecting the odor of marijuana.