U.S. v. Turner

• Decision Date: 25 July 1997
• Docket Number: No. 96-3096,96-3096
• Citation: 119 F.3d 18
• Parties: UNITED STATES of America, Appellee, v. Warren D. TURNER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 18

119 F.3d 18

326 U.S.App.D.C. 219

UNITED STATES of America, Appellee, v. Warren D. TURNER, Appellant.

No. 96-3096.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 7, 1997.

Decided July 25, 1997.

Appeal from the United States District Court for the District of Columbia (No. 96cr00005-01).

David B. Smith, appointed by the court, argued the cause and filed the briefs for appellant.

Theodore C. Marcus, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher and Roy W. McLeese, III, Assistant U.S. Attorneys, Washington, DC, were on the brief.

Before: SILBERMAN, WILLIAMS and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

After losing a motion to suppress evidence found in the trunk of his car, appellant Warren Turner entered a conditional plea of guilty to one count of possession with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). As part of his plea agreement, Turner preserved his right to appeal the district court's denial of his motion to suppress. The issue presented on this appeal is whether United States Park Police officers lawfully searched the trunk in which the evidence was found. We conclude that they did and affirm the district court's denial of appellant's motion to suppress.

I

On December 6, 1995, United States Park Police Officer William Sepeck stopped Mr. Turner's car because it did not have a license plate on its front bumper. As Officer Sepeck approached the car, Turner rolled down the window, and the officer noticed a strong odor of burnt marijuana emanating from inside. Officer Sepeck asked Turner to produce his driver's license and registration. Turner produced a temporary registration, but could not produce his license.

Looking through Turner's open window, Officer Sepeck saw torn pieces of cigar tobacco in Turner's lap, on the seat between Turner's legs, and on the floor at Turner's feet. In the officer's experience, these observations were consistent with marijuana use. He believed they indicated that a hollowed out cigar "blunt" had been used as a receptacle for smoking marijuana. Through another window, Sepeck also observed on the floor directly behind Turner's seat a clear plastic bag of green, weed-like material, which he believed to be marijuana itself.

Based on these observations, Officer Sepeck asked Turner for his car keys. After obtaining the keys, Sepeck tossed them to a second officer who had arrived on the scene, and asked that officer to search the car's trunk for more marijuana. When the second officer discovered there was no trunk key on the ring, Officer Sepeck asked Turner to take off his shoes. At the hearing on the motion to suppress, Officer Sepeck testified that in his experience, when a trunk key is missing, it often is concealed on the person's body, including in his shoes. Tr. at 12. As Officer Sepeck predicted, the trunk key was in the sole of Turner's left shoe. The second officer then searched the trunk, finding $825 in small bills and a 62-gram chunk of cocaine base ("crack").

Appellant moved to suppress the evidence found in the trunk. He argued that the traffic stop leading to the search had been pretextual, and that the search had been made without a warrant. At the close of the suppression hearing, Turner largely abandoned the pretext argument, and asserted instead that the shoe search that produced the trunk key had been conducted without probable cause. The government argued that the car had not been stopped on pretext; that the key was found as part of a lawful search incident to arrest; and that the trunk search came within the scope of warrantless automobile searches authorized by the Supreme Court in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Tr. at 45. The district court agreed, and denied Turner's motion to suppress. Id. at 46. Thereafter, Turner entered a conditional plea of guilty, preserving the right to appeal the denial of his motion to suppress.

II

On appeal, Turner does not renew the arguments he made below. Instead, he argues that the search of his trunk exceeded the scope of warrantless searches authorized in Ross, because the officers lacked probable cause to believe there would be contraband in the trunk. ¹ The government argues that, because Turner failed to raise this particular Fourth Amendment challenge in the district court, the court's ruling should be affirmed unless it was "plain error"--that is, an error "so obvious and substantial" or so "serious and manifest that it affects the very integrity of the trial process." See In re Sealed Case, 99 F.3d 1175, 1177 (D.C.Cir.1996).

While conceding that he did not make this particular challenge below, Turner argues it was sufficient that he moved for suppression of the evidence based on the absence of a warrant. Once he did so, Turner contends, it was the government's burden to show the search came within the scope of warrantless searches authorized by Ross, not his burden to show it did not. Appellant's Reply Br. at 1 (citing United States v. Hough, 944 F.Supp. 20, 22 (D.D.C.1996)). Moreover, he notes, the government did in fact argue that the search came within the scope of Ross and the district court so held. Id. at 2 (citing Tr. at 45). Under these circumstances, Turner contends, this Court should determine de novo whether the search of the trunk was lawful. See generally United States v. Taylor, 997 F.2d 1551, 1553 (D.C.Cir.1993).

This dispute over the appropriate standard of review need not detain us, however, as we find no error, plain or otherwise, in the district court's determination.

III

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Supreme Court established an exception to the Fourth Amendment's warrant requirement, holding that a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband, was not unreasonable within the meaning of the Fourth Amendment. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Court considered the breadth of that exception, holding that the "scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found." Ross, 456 U.S. at 824, 102 S.Ct. at 2172. "If probable cause justifies the search of a lawfully stopped vehicle," the Court stated, "it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id. at 825, 102 S.Ct. at 2173. See also California v. Acevedo, 500 U.S. 565, 570, 579-80, 111 S.Ct. 1982, 1986, 1990-91, 114 L.Ed.2d 619 (1991). Thus, the question for consideration here is whether the police had probable cause to believe that contraband may have been in the trunk of Mr. Turner's car or, as the Ross Court put it, whether the trunk was one of several parts of the vehicle that "might contain the object of the search." 456 U.S. at 821, 102 S.Ct. at 2171.

On appeal, the government relies on three pieces of evidence to establish probable cause: the smell of burnt marijuana emanating from the car, the pieces of torn cigar paper arrayed around Turner, and the ziplock bag of green weed material found on the floor behind his seat. Government's Br. at 11-12. ² The government argues that these three pieces of evidence, together with Officer Sepeck's experience and training in traffic and narcotics enforcement, formed a "totality of circumstances" sufficient to meet the requirements of probable cause: that is, "a fair probability that contraband or evidence of a crime [would] be found," Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), elsewhere in the car, including in its trunk.

Turner does not dispute the legality of the manner in which any of these pieces of evidence came to the officer's attention. Nor does he dispute that these facts established probable cause to believe additional marijuana might be found elsewhere in the passenger compartment of the car, or that if another kind of evidence (for example, a larger quantity of narcotics) had been found in the passenger compartment, it could have constituted probable cause to believe additional contraband might be found in the trunk. Appellant's Br. at 6. Turner argues, however, that the observations made by Officer Sepeck constituted evidence of nothing more than personal use of marijuana, and that a person who uses rather than distributes drugs would keep them within his control, either on his person or in his immediate vicinity, and not in his trunk. Id. at 6-7. Hence, he contends, in this case there was no probable cause to believe additional drugs would be found in the trunk.

The line appellant seeks to draw is too fine. While it may be true that evidence of narcotics distribution would constitute even stronger cause to believe additional contraband had been secreted in the trunk, the evidence in this case was sufficient to establish a "fair probability" that Turner might have hidden additional drugs not necessary for his current consumption in areas out of plain sight, including the trunk of the car. The testimony of Officer Sepeck at the suppression hearing, based on his experience in narcotics and traffic enforcement, supports that conclusion. Tr. at 11, 24-25.

Those federal courts that have considered the "personal use" argument have rejected it, and have upheld trunk searches on evidence similar to that found here. See United States v. Loucks, 806 F.2d 208, 210-11 (10th Cir.1986) (smell of still-burning marijuana cigarette butts and a small bag of marijuana supported trunk search); United States v. Burnett, 791 F.2d 64, 67 (6th Cir.1986) (small amount of marijuana on...