U.S. v. Loucks, 86-1448

Decision Date25 November 1986
Docket NumberNo. 86-1448,86-1448
Citation806 F.2d 208
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dean C. LOUCKS, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Jeffrey A. Springer (Thomas A. Ballantine III, with him on brief), Denver, Colo., for defendant-appellant.

Carol A. Statkus, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., Dist. of Wyoming with her on brief), Cheyenne, Wyo., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and BALDOCK and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

The issue in this case is whether a search of the trunk of an automobile and the seizure therefrom of 25 pounds of marijuana violated the Fourth Amendment. Loucks, the defendant, filed a pretrial motion to suppress the use at trial of the 25 pounds of marijuana taken from the trunk of his automobile. The district court denied the motion. Thereafter, Loucks, pursuant to Fed.R.Crim.P. 11(a)(2), entered a conditional plea of guilty, reserving the right to appeal from the sentence imposed and obtain review of the order of the district court denying his motion to suppress.

On appeal, Loucks contends that the district court erred in denying his motion to suppress, and, in support thereof, Loucks argues that although the facts and circumstances justified a warrantless search of the interior of his automobile, they did not justify a warrantless search of the trunk of his vehicle. We do not agree.

While driving his automobile in Wyoming on October 30, 1985, Loucks was stopped for speeding by a Wyoming State Highway patrolman. The officer testified at a preliminary hearing before a magistrate that according to his radar equipment, Loucks was driving at a speed of 73 miles per hour. Immediately after the stopping, Loucks got out of his vehicle and walked towards the officer's patrol car. Loucks was asked by the officer to take a seat in the patrol car while the officer wrote a traffic ticket. It was in this setting that the officer noticed a strong odor of marijuana on Loucks, "reeking" being the word used by the officer. The arresting officer, incidentally, testified that he had extensive experience with marijuana arrests, gained while serving as a patrolman for the Missouri Highway Patrol and as Chief of Police in Gower, Missouri, and, more recently, on the Wyoming Highway Patrol.

As they were seated in the patrol car, the officer asked Loucks if he had been smoking marijuana, and Loucks denied it. The officer asked Loucks to empty his pockets, which the latter did, and the officer then checked Loucks for weapons. The officer next walked to Loucks' car, and opened the door on the driver's side. Leaning into the car, the officer smelled what he thought was still-burning marijuana. He then proceeded to search the interior of the vehicle which yielded a small wooden box containing what appeared to be marijuana, a few marijuana cigarette butts from the car's ashtray and a small brown paper bag which also contained marijuana. The officer then took the keys from the ignition and opened the trunk. Inside the trunk was an orange laundry bag. The officer felt the orange bag, opened it and smelled it. Inside the orange bag was a plastic garbage bag containing marijuana. In the trunk the officer also found a nylon utility bag which contained marijuana. Altogether, the officer found, and seized, approximately 25 pounds of marijuana in the trunk. Based on the chronology above outlined, Loucks was charged with the possession with an intent to distribute approximately 25 pounds of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1).

In denying Loucks' motion to dismiss, the district court stated 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," citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We agree.

Loucks concedes that the officer had probable cause to make a warrantless search of the passenger compartment of his vehicle, but argues that there was no such probable cause to search the trunk. 1 The government's position is that, under the facts and circumstances outlined above, the officer had probable cause to search the entire vehicle for marijuana, and the fact that in the interior of the automobile he found marijuana, or evidences thereof, did not require him to call off the search. Both Loucks and the government rely heavily on their reading of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

The facts of Ross are somewhat different from those in the instant case, although language used in Ross has present pertinency. Ross does not involve the stopping of an automobile because the operator was driving erratically. Rather, in Ross, the police had information from a reliable informant that Ross was selling narcotics on the street and that the narcotics were kept in the trunk of his automobile. So, in Ross, it was quite apparent that there was probable cause to search the trunk of the Ross vehicle without a warrant. The issue in Ross was whether the officers could thereafter lawfully search, without a warrant, containers found within the vehicle, namely, an opaque paper bag and a leather pouch located in the trunk, the paper bag containing heroin and the leather pouch containing $3,200 in cash. In Ross, the Supreme Court upheld the validity of the warrantless search of the paper bag and the leather pouch, holding that where police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages that might conceal the object of the search. Ross, supra, at 825, 102 S.Ct. at 2173. In so holding, the Supreme Court commented as follows:

A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient...

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