¶ 22. concurring. Although I agree that the community living exception does not apply on the facts of this case, I find the much closer question to be whether the discovery of marijuana in the common area supplied probable cause for a search of each of the bedrooms. On this point, the fact that defendant’s bedroom was locked is not decisive.
¶ 23.1 believe that the issue reduces to the application of State v. Towne, 158 Vt. 607, 615 A.2d 484 (1992), to the situation where there are multiple places to search. Towne overruled State v. Brown, 151 Vt. 533, 562 A.2d 1057 (1989), a case in which the police had obtained a search warrant to search the defendant’s house by relying primarily on evidence that the defendant was growing marijuana on a neighbor’s land. In affirming the decision not to suppress the fruits of the search, we held in Brown that the standard was “whether, taking the information [in the affidavits] as true, marijuana or indicia of its use or sale would more likely than not be found at defendant’s residence.” 151 Vt. at 535, 562 A.2d at 1058. In Towne, we abandoned the “more likely than not” standard of Brown: “To the extent that Brown requires a rigid quantitative analysis for determining probable cause, we agree that it is not the correct stan*574dard and now overrule that portion of Brown.” 158 Vt. at 613, 615 A.2d at 487. Although we did not explicitly adopt any alternative test, we upheld the search in Towne because there was a “reasonable probability” that the murder weapon would be found in the location covered by the warrant. Id. at 618, 615 A.2d at 490.
¶ 24. The circumstances in this case are such that there is a reasonable probability that evidence of drug use or sale would be found in the bedroom of the owner of the drugs found in plain view in the common area. Although we know that there is evidence of marijuana use by the deceased roommate, no evidence suggests the marijuana found in the common area belonged to that roommate as opposed to the others. I note that we do not usually divide up the spaces in a dwelling for purposes of probable cause analysis. Thus, in State v. Melchior, 172 Vt. 248, 252, 775 A.2d 901, 905 (2001), evidence of marijuana growing in the backyard created probable cause to search the entire house.
¶25. The issue is whether after contraband is discovered and it remains uncertain which suspect in a group owns the discovered contraband, a reasonable probability exists that further evidence regarding illegal substances will be found in a search of all of the suspects. The United States Supreme Court faced this issue in the arrest context in Maryland v. Pringle. 540 U.S. 366 (2003). In Pringle, three men were present in an automobile and, during a routine traffic stop, police found rolled-up cash in the glove compartment the driver had opened to get his registration and, thereafter, found cocaine in the armrest. Eventually, the front seat passenger confessed to owning the cash and drugs, but he subsequently attacked the confession as the fruit of an arrest unsupported by probable cause. In language supportive of the State’s position here, the Court noted:
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 [t]he 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....
We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe [defendant] committed the crime of possession of cocaine, either solely or jointly.
Id. at 371-72 (citations and quotations omitted) (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). The Court, however, ultimately adopted a rationale that helps little in answering the question before us:
[Defendant] and his two companions were in a relatively small automobile .... [W]e think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.
Id. at 373 (citations omitted).
*575¶ 26. After a long analysis of circumstances similar to those present in this case, Professor LaFave argues for a rule on probable cause that depends primarily on whether there is a risk that the privacy of an innocent person will be invaded. See 2 W. LaFave, Search & Seizure § 3.2(e), at 78-84 (4th ed. 2004). Certainly, some of the few cases on point support Professor LaFave’s distinction. See United States v. Shamaeizadeh, 80 F.3d 1131, 1137 (6th Cir. 1996) (holding that, where one resident of house claims that some of other occupants are growing marijuana inside house and house in question is divided into separate living units, no probable cause exists for searching basement apartment); State v. Robinette, 270 N.W.2d 573, 577-78 (S.D. 1978). Robinette is probably closest to the facts before us. In that case, marijuana plants were found growing in the common yard of two buildings that contained a total of four apartments, and there was no evidence that occupants of a particular apartment were more likely than others to be the growers. The South Dakota Supreme Court suppressed the evidence found in a search of one of the apartments, concluding that “[suspicions do not amount to probable cause for the issuance of a search warrant.” 270 N.W.2d at 578.
¶ 27. But there are also decisions pointing in the opposite direction. For example, the South Dakota Supreme Court, without distinguishing Robinette, held in State v. Smith, 344 N.W.2d 505, 508-09 (S.D. 1984), that police could search for the perpetrator of a robbery in both apartments of a duplex based on tracks in the snow from the robbery site to the duplex’s front door, but with no evidence as to which apartment the perpetrator entered. The court reasoned:
We do not mean to say, of course, that one search warrant may be used in all cases to justify the search of all living units in a multiple-residence structure, for in most situations probable cause would not exist for such a blanket authorization and thus the warrant would not pass constitutional muster. When considered in the light of the totality of the circumstances, however, we do not view the warrant in the instant case as being beyond the pale of particularity. There were only two living units within the structure located at 407 Dorothy Street. There apparently was no separate entry dedicated to each apartment. The probable cause to believe that the fruits of the break-in were in the structure was overwhelming. The possible intrusion upon the privacy of the occupants of both units was thus reasonable within any fair interpretation of the Fourth Amendment. In a word, we must draw a distinction between the warrant in the instant case and one that would purport to authorize a search of all units in a large apartment complex based upon tracks leading to the front door of the complex. That distinction made, the ghost of seriatim kick-ins is laid.
Id. (citations omitted); see also State v. Thomas, 421 S.E.2d 227, 236 (W. Va. 1992) (“Because there should be no ‘numerically precise’ probability, it is possible to have probable cause based on the same facts to search more than one person.”). Not surprisingly, both Robinette, 270 N.W.2d at 580, and Smith, 344 N.W.2d at 509-12, have dissents. Of. R. Gould & S. Stem, Catastrophic Threats and the Fourth Amendment, 77 S. Cal. L. Rev. 777, 805 (2004) (“[I]n cases of search of multiple persons, there may be sharply divergent views and probable *576dissent because courts recognize that these are very difficult cases, no matter the outcome.”).
¶ 28. For two main reasons, I conclude that on the current unsettled state of the law the search of defendant’s bedroom cannot be justified by the presence of drugs in the common area. First, I agree with Professor LaFave that we should be more hesitant to find probable cause in searches of multiple places, controlled by different persons, where a serious risk of invading the privacy of an innocent person exists. Second, in this case, the presence of drugs in the bedroom of the deceased roommate explains the presence of drugs in the common area. While the common area drugs could have been the property of one of the two other roommates, it is entirely possible that neither of these roommates were involved in the drug use and both were innocent. Thus, the probability of drugs being present in their bedrooms is lower than the probability that evidence would be found in one of the apartments in Smith, where one of the two apartments was almost certain to contain the stolen property or evidence of the crime.
¶ 29. For this reason, I concur in the result reached by the majority.