I thought this was an easily answered questions but a fellow prosecutor and I are coming up with opposite conclusions.

Hypo: Three teenagers in an SUV. Deputy sees a baggie in plain view by the front passenger. Deputy has all three exit the vehicle. Before deciding who to arrest, he searches the occupants and finds a baggie of marijuana in the driver's front pocket.

Was the search legal?

When the officer, based on his training and experience, saw in plain view what he believed to be marihuana, he had probable cause to search the car and the passengers within it. The driver has affirmative links to the marihuana due to him being the driver (having care, custody, control or management over the car) and proximity to the marihuana. I would say the officer can get everyone out, especially driver and passenger, and search them. The officer can probably articulate that the defendant looks like a POTHEAD too! That's my take.

Take a look at this case: Herrera v. State 745 s.w.2d 527 February 11, 1988. It seems similar to your facts. In addition, get the details from the officer as to exactly what led to the search. You may have some "plain feel" as a result of a pat search. Hope this helps.

UNITED STATES v. Di RE 332 U.S. 581

"The U.S. Supreme Court held that a person, by mere presence in a suspected car, did not lose immunities from search of his person to which he would otherwise be entitled. "

I'm sure there has to be a more recent case then this one.

The driver looked stoned. Passenger claimed the first baggie found was his before the deputy searched the pocket.

You may want to look at Maryland v. Pringle. It is a 2003 Supreme Court case. In that case the officer finds cocaine under the back seat armrest and arrested the three occupants of the car. The Supreme Court said that "as it is an entirely reasonable inference from the facts that any or all of the car's occupants had knowledge of and exercised dominion and control over the cocaine a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly".

If the officer found the baggie of marijuana in plain view in the car, under the Pringle case, he would have probable cause to arreest all of the occupants and his search of each of them would be incident to their arrest.

That would be the position that I would take with your facts.