U.S.A. v. Wald

• Decision Date: 10 April 2000
• Docket Number: No. 99-4044,99-4044
• Citation: 208 F.3d 902
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STEVEN ALLEN WALD, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 902

208 F.3d 902 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STEVEN ALLEN WALD, Defendant-Appellant.

No. 99-4044

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 10, 2000

Appeal from the United States District Court for the District of Utah (D.C. No. 98-CR-417-K) Lynn Clark Donaldson, of Salt Lake City, Utah, for Appellant.

Leshia Marie Lee-Dixon, Assistant United States Attorney, Salt Lake City, Utah, (Paul M. Warner, United States Attorney, with her on the brief), for Appellee.

Before MURPHY, ALARCON,^* and PORFILIO, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

After conditionally pleading guilty to possession with intent to distribute methamphetamine, Steven Allen Wald now challenges the district court's denial of his motion to suppress both the methamphetamine discovered in the trunk of his vehicle and his post-arrest statements. Wald's appeal presents the following issue: whether probable cause to search a car's trunk exists when a law enforcement officer smells burnt methamphetamine in the vehicle but the officer finds only evidence which is as consistent with innocent activity as with the suspicion of drug usage. Exercising jurisdiction pursuant to 28 U.S.C. 1291, this court answers that question in the negative. We thus reverse the district court's denial of Wald's suppression motion and remand to vacate his conviction and sentence.

II. BACKGROUND

Wald was indicted on one count of possession with intent to distribute methamphetamine. He moved to suppress both the methamphetamine found in the trunk of his car and statements made following his arrest. After conducting an evidentiary hearing on those motions, the district court made the following findings of fact:

1. On August 10, 1998, at approximately 7:25 a.m., Sgt. Paul Mangelson of the Utah Highway Patrol was stationary in his patrol vehicle on Interstate I-15 near milepost 215 facing north-bound traffic. While in his vehicle Sgt. Mangelson's attention was drawn to a blue sedan traveling north-bound. Mangelson noticed that the vehicle had a badly cracked front windshield. The crack went almost the full width of the windshield. Based upon the concern of an equipment violation, that is the cracked windshield, Sgt. Mangelson effectuated a stop of the vehicle. When Sgt. Mangelson activated his overhead lights, a video camera in his vehicle was also activated. The video camera recorded the remainder of the encounter.

2. The vehicle pulled over without incident and Sgt. Mangelson approached the vehicle and viewed the windshield. As he had previously observed, the windshield was in fact cracked.

3. The driver of the vehicle was Mr. Ramirez and Mr. Wald was in the passenger's seat. Sgt. Mangelson requested a driver's license and registration and asked where the defendants were coming from and where they were going. Mr. Ramirez was quite talkative and told Mangelson that they were on their way home from a weekend in Las Vegas. Mr. Ramirez's license was valid and the registration showed that the vehicle belonged to Mr. Wald. Sgt. Mangelson asked the defendants about the cracked windshield to which they replied that it had happened on the trip and they had not had a chance to fix it.

4. Sgt. Mangelson observed at this time that both Ramirez and Wald appeared to be nervous. Further, Wald had bloodshot and glassy eyes and Sgt. Mangelson detected an odor emanating from the vehicle which he believed, based upon his experience, to be burnt methamphetamine. Further, he noticed visine and a road atlas in the vehicle, which in his experience, when combined with the scent of drugs, are items associated with drug trafficking. Based upon the totality of the circumstances, Mangelson asked if he could take a quick look in the vehicle.

5. Defendant Wald gave his consent to Mangelson to take a quick look at the interior of the vehicle. At this time both defendants exited the vehicle. A search of the interior of the vehicle did not reveal any contraband.

6. Sgt. Mangelson then did a pat-down search of defendant Wald. The purpose of this search was primarily to look for drugs. During the search he found two pipes in the defendant's pocket which he told the defendant to remove.

7. Sgt. Mangelson asked Wald if the pipes had been used for either marijuana or cocaine to which Wald told him no. At this time Mangelson proceeded to search the trunk of the vehicle. He found a couple of items of luggage and an ice chest. In the luggage Mangelson found two torches used in smoking methamphetamine.

8. Sgt. Mangelson then noticed that the speakers in the trunk had outside screws that were marked up. The screws appeared to have fresh marks indicating that they had been removed. Mangelson then obtained a Phillips screwdriver and opened the side of the speaker. Inside he discovered two packages that had an apparent odor of methamphetamine. The packages later tested positive for methamphetamine.

9. Upon discovering the methamphetamine, Sgt. Mangelson arrested the occupants of the vehicle and administered Miranda warnings. Defendant Wald admitted that he had been smoking methamphetamine that morning. Both defendants denied any knowledge of the drugs in the speakers.

Based on these factual findings, the district court issued the following rulings relevant to this appeal: (1) the vehicle stop was constitutionally permissible; (2) Wald gave Mangelson consent to quickly search the passenger compartment only; (3) the pat-down search of Wald which revealed drug paraphernalia violated the Fourth Amendment as interpreted in Terry v. Ohio, 392 U.S. 1 (1968), because it was aimed at finding drugs, not weapons; (4) the drugs found in the trunk were nonetheless admissible, because Mangelson had probable cause to search the trunk based on circumstances which existed prior to the illegal pat-down, i.e., the odor of methamphetamine which "could permeate from the trunk," the defendants' nervousness, the appearance of Wald's eyes, and the presence of visine and a road atlas in the passenger compartment; and (5) Wald's statements were admissible because Mangelson gave him proper Miranda warnings prior to any custodial interrogation.

Subsequently, Wald entered a guilty plea conditional on his appeal of the district court's suppression rulings. The district court then sentenced Wald to seventy months imprisonment followed by thirty-six months supervised release and imposed a $100 assessment and $350 fine.

III. DISCUSSION

In reviewing the denial of a motion to suppress, "this court accepts the district court's factual findings unless clearly erroneous." United States v. Downs, 151 F.3d 1301, 1302 (10th Cir. 1998). The district court's determination of reasonableness under the Fourth Amendment, however, is reviewed de novo. See United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir. 1997).

In United States v. Ross, the Supreme Court determined that the permissible scope of a warrantless automobile search "is defined by the object of the search and the places in which there is probable cause to believe it may be found." 456 U.S. 798, 824 (1982). Relying on this principle, this court has held that although the smell of burnt marijuana emanating from a vehicle provides probable cause to search the passenger compartment of that vehicle, if that search fails to uncover corroborating evidence of contraband, probable cause to search the trunk of the vehicle does not exist. See United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993); United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995); Downs, 151 F.3d at 1303. This rule is premised on the common-sense proposition that the smell of burnt marijuana is indicative of drug usage, rather than drug trafficking, and because it is unreasonable to believe people smoke marijuana in the trunks of cars, the mere smell of burnt marijuana does not create the fair probability that the trunk contains marijuana. See Downs, 151 F.3d at 1303.

According to the district court's factual findings, when first speaking with Wald and Ramirez, "Mangelson observed . . . that both Ramirez and Wald appeared to be nervous [and that] Wald had bloodshot and glassy eyes. [Additionally,] Mangelson detected an odor emanating from the vehicle which he believed, based upon his experience, to be burnt methamphetamine."¹ Mangelson further noticed at that time the presence of Visine, a road atlas, a couple of pieces of luggage, and a couple of wine coolers in the passenger compartment. [Vol. II at 16] He testified that based on these observations, he suspected "drug usage." [id] Under Nielsen, the mere odor of burnt methamphetamine did not provide Mangelson probable cause to search the trunk of Wald's car; a trunk search would be justified only if the other evidence which Mangelson observed amounted to corroborating evidence of contraband or if a subsequent lawful search of the passenger compartment yielded such corroborating evidence.²

The government contends that sufficient corroborating evidence existed to provide the requisite probable cause for the trunk search. Specifically, the government argues the following evidence constituted corroboration of contraband possession: (1) the presence of Visine, a road atlas, and wine coolers in the passenger compartment; (2) the presence of only two pieces of luggage in the vehicle; (3) the bloodshot, glassy appearance of Wald's eyes; (4) nervousness exhibited by both Wald and Ramirez; (5) Wald's difficulty in producing the vehicle's registration; and (6) the pipes found during the pat-down search of Wald.

Although the discovery of drug paraphernalia might provide probable cause to search the trunk of a vehicle, the district court concluded that the pipes found on Wald's person were uncovered during an unconstitutional pat-down search. A law enforcement officer may constitutionally conduct a warrantless pat-down search of a person if the officer harbors an articulable and reasonable...