concurring in part and dissenting in part. I agree with the majority that the smell of marijuana, alone, can be sufficient to establish probable cause to conduct a search. I also agree that there was, in this case, probable cause to search Moore’s vehicle based on the automobile exception to the warrant requirement. I further agree that the only exception to the warrant requirement that can apply to this case is the exigent-circumstances exception. However, given the facts of this case, the exception is not applicable.
The majority cites three United States Supreme Court eases to justify its conclusion that “a warrantless search is also justified if there is imminent danger that evidence will be lost or destroyed if a search is not immediately conducted.” Each of the three is patently distinguishable.
In Cupp v. Murphy (1973), 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900, a warrantless search was permitted in part because there was probable cause to believe that murder had been committed. The court has since stated that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” Welsh v. Wisconsin (1984), 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732, 745. The case before us involves probable cause to believe that someone had been smoking marijuana, a misdemeanor. The gravity of this offense is not sufficient to overcome the presumption of unreasonableness that attaches to every warrantless search. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585; Minnesota v. Dickerson (1993), 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334, 343-344.
*54Further, in Cupp, the court sanctioned only the “very limited search necessary to preserve the highly evanescent evidence they found under his fingernails.”. Cupp, 412 U.S. at 296, 93 S.Ct. at 2004, 36 L.Ed.2d at 906. Here, the officer conducted a full body search. Cupp does not authorize the search that took place in this case.
The majority also relies upon Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, and Ker v. California (1963), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. In Schmerber, the court stated, “we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920. In Ker, the challenged search was conducted incident to an arrest, and at the conclusion of extensive surveillance that provided probable cause to believe that a crime had been committed. Ker, 374 U.S. at 25-30, 41-43, 83 S.Ct. at 1625-1628, 1634-1635, 10 L.Ed.2d at 733-735, 742-744. The case before us is clearly inapposite to Schmerber and Ker.
The search of the car here was reasonable because given the smell of marijuana smoke emanating from the car there was probable cause to believe that a crime was occurring or had occurred in the car. The smell of marijuana smoke on a person is entirely different; it provides probable cause that marijuana has been smoked not that the person smoked it. (Everyone in a smoke-filled room smells of smoke whether or not they actually smoked.) The fact that evidence of a crime may be easily disposed of cannot justify this search; if it did, the Fourth Amendment would be eviscerated and no one would be safe from warrantless searches. The state has not overcome the presumption that the warrantless search was unreasonable as to Moore’s person. Accordingly, I concur in part and dissent in part.
Douglas, J., concurs in the foregoing opinion.