U.S. v. McSween

• Decision Date: 19 May 1995
• Docket Number: No. 94-50586,94-50586
• Citation: 53 F.3d 684
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerry Carlyle McSWEEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 684

53 F.3d 684

UNITED STATES of America, Plaintiff-Appellee, v. Gerry Carlyle McSWEEN, Defendant-Appellant.

No. 94-50586.

United States Court of Appeals Fifth Circuit.

May 19, 1995.

Richard G. Ferguson (Court-appointed), Waco, TX, for appellant.

Joseph H. Gay, Jr., Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD and BARKSDALE, Circuit Judges, and BRAMLETTE, District Judge. ^*

GARWOOD, Circuit Judge:

Defendant-appellant Gerry Carlyle McSween (McSween) appeals his conviction on a conditional plea of guilty to possession with intent to distribute crack cocaine after the district court denied his motion to suppress the drugs recovered from under the hood of his car. We affirm.

Facts and Proceedings Below

On February 26, 1994, Texas Department of Public Safety Officers Ralph Billings (Billings) and Larry Price (Price) stopped McSween for driving 87 mph in a 65-mph zone. As Price conducted a computer check, Billings began to write a speeding ticket. Noticing a cellular phone and radar detector in the car's interior, Billings asked McSween if he could look in the car and trunk. McSween consented, and Billings opened the hatchback. McSween then helped Billings remove, with screwdrivers, the hatchback's interior panels.

Meanwhile, Price had completed his computer check, which indicated that McSween had four prior arrests on narcotics charges. After informing Billings of McSween's record, Price moved to the car's passenger side and asked McSween if he had any objection to his searching the vehicle. McSween consented. While searching the passenger area, Price noticed the smell of burnt marihuana, which he at first suspected was emanating from the ashtray. Finding no drugs in the ashtray or passenger area, Price opened the hood and noticed a red rag sticking out of a hole in the car's fire wall. Price removed the rag and saw in the hole what appeared to be a brown plastic bag. Fingering the bag, Price concluded that it felt like it contained a "small bale" of marihuana. Price then replaced the rag and arrested McSween. After the car was impounded, troopers inspected the hole and found a bag of marihuana and a shoulder sling of crack cocaine.

A grand jury indictment returned March 8, 1994, charged McSween with possession with intent to distribute 50 or more grams of crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1). McSween moved to suppress the evidence seized from his car, arguing that the officers lacked probable cause and exceeded the scope of his consent. After a suppression hearing, at which McSween did not testify, the district court denied the motion, concluding that the initial stop was justified, that McSween's consent to search was voluntary and the search within its scope, and that the subsequent arrest was supported by probable cause. Thereafter, on May 19, 1994, McSween entered a conditional plea of guilty, preserving the suppression issue for appeal. Fed.R.Crim.P. 11(a)(2). The district court sentenced McSween to 136 months in prison and 5 years of supervised release. McSween now appeals.

Discussion

McSween argues that the district court erred in denying his motion to suppress because there was neither probable cause nor consent to search under the hood of his vehicle, nor probable cause to arrest him. Viewing the evidence in the light most favorable to the government, the prevailing party, United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984), we hold that Price had both probable cause and consent to search the area under the hood of McSween's vehicle. See United States v. Sutton, 850 F.2d 1083, 1085 (5th Cir.1988) (either consent or probable cause may independently support a warrantless vehicle search). We further hold that the officers had probable cause to arrest McSween and to perform a subsequent warrantless search of the car after it was impounded.

I. Probable Cause for the Search

It is well settled that warrantless searches of automobiles are permitted by the Fourth Amendment if the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime. See United States v. Ross, 456 U.S. 798, 809-10, 102 S.Ct. 2157, 2164-65, 72 L.Ed.2d 572 (1982); United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1331, 127 L.Ed.2d 378 (1994); United States v. Kelly, 961 F.2d 524, 527 (5th Cir.1992). Whether an officer has probable cause to search a vehicle depends on the totality of the circumstances viewed "in light of the observations, knowledge, and training of the law enforcement officers involved in the warrantless search." United States v. Muniz-Melchor, 894 F.2d 1430, 1438 (5th Cir.), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).

It is undisputed that Price had McSween's consent to search inside the passenger compartment of McSween's new rental car. At the suppression hearing, Price testified that, when he entered the car, he noticed "the odor of what I thought was burned marijuana." Price testified that he based this conclusion on his twenty-two years of experience and training in the detection of marihuana by its odor. He further testified that the smell appeared to be coming from the ashtray, but he discovered nothing there or anywhere else inside the vehicle's passenger compartment. He then decided to look under the hood. At this point, Price had smelled but not located marihuana and knew of McSween's four prior arrests on narcotics charges. ¹ Together these facts, viewed in light of Price's experience, justify a finding of probable cause to search the entire vehicle. Indeed, the smell of marihuana alone may be ground enough for a finding of probable cause, as this Court has held many times. See, e.g., United States v. Reed, 882 F.2d 147, 149 (5th Cir.1989) (the officer's detection of marihuana "in itself ... justified the subsequent search of [the defendant's] vehicle"); United States v. Henke, 775 F.2d 641, 645 (5th Cir.1985) ("Once the officer smelled the marijuana, he had probable cause to search the vehicle."); United States v. Gordon, 722 F.2d 112, 114 (5th Cir.1983) (same); United States v. McLaughlin, 578 F.2d 1180, 1183 (5th Cir.1978) (same).

McSween contends that, even if the odor of marihuana gave Price probable cause to search, the search should have been limited to the passenger area, where Price detected the smell. We disagree. It is well settled that, in a case such as this, the detection of the odor of marihuana justifies "a search of the entire vehicle." Reed, 882 F.2d at 149. As the Supreme Court stated in Ross, "If 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." 456 U.S. at 825, 102 S.Ct. at 2173. See also United States v. Johns, 469 U.S. 478, 482, 105 S.Ct. 881, 884, 83 L.Ed.2d 890 (1985). The Court further observed that, if there is probable cause to suspect that the vehicle contains contraband, then the search may extend not only to closed containers, but also to a "car's trunk or glove compartment." Ross, 456 U.S. at 823, 102 S.Ct. at 2172. The same reasoning applies to the area under the hood, where drugs may also be concealed. ² We therefore reject McSween's contention that Price lacked probable cause to search under the hood of his rental car. ³

II. Consent for the Search

In the alternative, we agree with the district court that the search under the hood was within the scope of McSween's consent. Under the Fourth Amendment, "[t]he standard for measuring the scope of a suspect's consent ... is that of 'objective' reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). McSween argues that his consent to search should be construed to extend only to the trunk and passenger areas and not to the area under the hood. ⁴ In his brief, McSween contends that the troopers' words--their requests to "look in" the car and trunk--would indicate to a reasonable person that the search was so limited. At oral argument, however, McSween conceded that he did not draw a distinction between a request to "look in" a car and one to "search" it.

Viewing the testimony at the suppression hearing in the light most favorable to the government, we conclude that Price asked McSween for general permission to search his vehicle. Price testified, "I asked ... if ... [McSween] had any objection of [sic] me searching his vehicle." Asked then if that was "more or less the language ... used," Price responded, "Yes." Even if Price actually asked to "look in" McSween's vehicle, we would still conclude that in these circumstances Price effectively asked for a general consent to search. In United States v. Crain, 33 F.3d 480 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1142, 130 L.Ed.2d 1102 (1995), this Court held "that an individual's consent to an officer's request to 'look inside' his vehicle is equivalent to general consent to search the vehicle and its contents...." Id. at 484; see also Rich, 992 F.2d at 506. We therefore conclude that Price asked for and received from McSween general consent to search the vehicle.

The question, then, is whether it was reasonable to interpret McSween's general oral consent to search the car as authority to search under the hood. Although the "scope of a search is generally defined by its expressed object," Jimeno, 500 U.S. at 251, 111 S.Ct. at 1804, the officers here never told McSween the purpose of their search. The failure to specify the object of the search, however, is not dispositive if the circumstances could otherwise lead a reasonable person to conclude that the search might...