U.S. v. Nielsen

• Decision Date: 22 November 1993
• Docket Number: No. 92-4204,92-4204
• Citation: 9 F.3d 1487
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Merrill NIELSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1487

9 F.3d 1487

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Merrill NIELSEN, Defendant-Appellant.

No. 92-4204.

United States Court of Appeals Tenth Circuit.

Nov. 22, 1993.

Ronald J. Yengich of Yengich, Rich & Xaiz, Salt Lake City, UT, for defendant-appellant.

Bruce C. Lubeck, Asst. U.S. Atty. (David J. Jordon, U.S. Atty., with him on the brief), Salt Lake City, UT, for plaintiff-appellee.

Before LOGAN, SEYMOUR and MOORE, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Douglas Merrill Nielsen entered a conditional guilty plea to possessing in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), after the court denied his motion to suppress cocaine obtained during a nonconsensual warrantless search of the trunk of his automobile. The only issue on appeal is whether a police officer's alleged smell of burnt marijuana gave probable cause to search the trunk of the car, when there was no corroborating evidence that defendant had recently smoked marijuana and no marijuana was found in the vehicle.

I

The district court succinctly summarized the facts as follows:

At approximately 4:30 p.m. on April 22, 1992, Bushnell stopped Nielsen for a speeding violation on I-35 near Nephi, Utah. Bushnell claimed that as he spoke with Nielsen, he immediately recognized the smell of burned marijuana coming from the open window of Nielsen's vehicle. According to Bushnell, he could not tell if the odor came from Nielsen's person or the vehicle. Bushnell asked Nielsen about the marijuana, and Nielsen said he had none. Bushnell then asked if he could search the interior of the vehicle, and Nielsen consented. Bushnell searched the interior of the vehicle but found nothing that could have been the source of the odor.

Bushnell then ran a radio check on Nielsen which indicated that Nielsen had been arrested for a misdemeanor marijuana offense in 1977. Thereafter, Bushnell told Nielsen that he believed there was marijuana in the car and that he was going to search the trunk. Nielsen did not consent to the search of the trunk. Bushnell then removed the keys to Nielsen's car from the ignition, opened the trunk, and found a set of scales and approximately two (2) kilograms of cocaine. Nielsen was then arrested, placed in Bushnell's vehicle and given Miranda warnings.

Appellant's App. Doc. 3. The district court believed Officer Bushnell's claims that he smelled marijuana emanating from defendant's vehicle and found Bushnell's testimony credible.

The court then considered whether Bushnell had probable cause to conduct a warrantless search of defendant's trunk.

The United States Court of Appeals for the Tenth Circuit has noted that " '[w]here an officer legitimately stops a car, and has probable cause to believe drugs are concealed in that car, he may conduct a warrantless search of the car and the containers within it that could conceal the object of the search'...." [United States v.] Loucks, 806 F.2d at 209 [ (10th Cir.1986) ]. Similarly, the Tenth Circuit stated that "[o]nce probable cause exists for a search, the police have authority to search the entire vehicle." United States v. Ashby, 864 F.2d 690, 692 (10th Cir.1988) (citing Loucks, 806 F.2d at 209). Furthermore, the United States Supreme Court has stated that, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825 [102 S.Ct. 2157, 2173, 72 L.Ed.2d 572] (1982). Accordingly, the Tenth Circuit and the United States Supreme Court have made it clear that " '[w]hen a legitimate search is underway ... nice distinctions between ... glove compartments, upholstered seats, trunks, and wrapped packages ... must give way to the interest in the prompt and efficient completion of the task at hand.' " Loucks, 806 F.2d at 210 (quoting Ross, 456 U.S. at 821, 102 S.Ct. at 2171).

Id. Thus, the district court determined that probable cause existed to search the trunk and denied defendant's motion to suppress.

II

In reviewing the denial of a motion to suppress evidence, we must accept the trial court's findings of fact unless they are clearly erroneous. United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). The district court's factual findings are that the officer smelled burnt marijuana, obtained consent to search the passenger compartment and found nothing. When defendant refused consent to search the trunk, ¹ the officer conducted a warrantless search of the trunk in which he found only cocaine. Defendant introduced into evidence the negative results of a urine test that should have indicated whether he had used marijuana within the time frame of the stop. Appellant's App.Doc. 2.

The rational explanations for these incongruous facts suggest the following possibilities: (1) Bushnell did smell marijuana--someone else had recently smoked marijuana in defendant's car, ² or, less likely, defendant had smoked marijuana in the car, disposed the remains out the window, and the urine test result was invalid; (2) Bushnell thought he smelled marijuana, but was mistaken; or (3) Bushnell fabricated his testimony that he detected the smell of marijuana. The district court believed the officer's testimony, thus, apparently it accepted the first possibility. Based upon the cold record we would not have made the same determination; but, as is the case with essentially all factual findings based upon credibility, we cannot hold that the district court's factual finding is clearly erroneous.

III

We still must address the legal issue whether, based on the facts found by the district court, there was probable cause to search the trunk. We review de novo the trial court's legal conclusion that the search was reasonable under the Fourth Amendment. United States v. Zapata, 997 F.2d 751, 756 (10th Cir.1993). Probable cause to search a vehicle is established if, under the "totality of the circumstances " there is a "fair probability" that the car contains contraband or evidence. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (emphasis added).

The district court relied on our opinions in United States v. Ashby, 864 F.2d 690, 692 (10th Cir.1988), cert. denied, 494 U.S. 1070, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990), and United States v. Loucks, 806 F.2d 208, 209-11 (10th Cir.1986), in ruling that Officer Bushnell's detection of the odor of burnt marijuana provided probable cause to search the trunk.

In Loucks, an officer who had made a legal traffic stop noticed that both the defendant's person and the passenger compartment smelled of burnt marijuana. 806 F.2d at 209. The officer searched the car interior and found marijuana cigarette butts and a small bag of marijuana. The officer then searched the trunk and found bags containing twenty-five pounds of marijuana. The defendant asserted that probable cause to search the passenger compartment did not extend to the trunk, even after the bag of marijuana was discovered in the passenger area. We rejected this "personal use" argument and held that once the officer found contraband, he had probable cause to search the trunk. Id. at 210-11 (citing United States v. Burnett, 791 F.2d 64, 67 (6th Cir.1986)). ³ Similarly, in Ashby we determined that there was probable cause to search a trunk based on "[t]estimony regarding the ability of an experienced officer to recognize the smell of marijuana, the officer's view of marijuana in the car's interior, and the odor which sixty-eight pounds of partially unwrapped marijuana may emit." Ashby, 864 F.2d at 692; see also United States v. Sperow, 551 F.2d 808, 809-11 (10th Cir.) (police stopped heavily loaded truck with camper near border on reasonable suspicion of "illegally smuggling or transporting persons from Mexico," once stopped, officer smelled marijuana and searched back of truck; found large quantity of marijuana), cert. denied, 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245 (1977).

Loucks and Ashby are factually distinguishable from the instant case because in those cases the officers not only detected the odor of burnt marijuana, they also found marijuana in the passenger compartment before searching the trunk. Nevertheless, we have construed our opinion in United States v. Bowman, 487 F.2d 1229, 1231 (10th Cir.1973), as holding that "the odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage." United States v. Morin, 949 F.2d 297, 300 (10th Cir.1991). ⁴

In Bowman, a United States Border Patrol Agent stopped the defendant at a checkpoint station and questioned him concerning his citizenship. "During the course of this conversation [the agent] detected the odor of marijuana. He directed Bowman to pull off to the side of the traffic lane and open his trunk. When the trunk was found empty, [the agent] proceeded to the interior of the vehicle and noticed a footlocker and a suitcase. A search of the footlocker uncovered twenty-five bricks of marijuana." 487 F.2d at 1230. We concluded that "probable cause for the search of the vehicle arose upon [the agent's] detection of the odor of marijuana." Id. at 1231.

In Bowman, as here, the district court relied on the officer's detection of the odor of marijuana in determining there was probable cause to search the trunk. Thus, as the district court in the instant case recognized, we have made unqualified statements that the smell of marijuana is sufficient to establish probable cause to search. In all of the cases in our circuit, however, the search itself established the validity of the smell. ⁵ In all of the searches pursuant to the smell, marijuana was found in the area it would be expected to be found. The case before us is the first in which there was no corroboration of the smell. If this were a case of an alert by a...