United States v. Burrow

• Decision Date: 12 June 1975
• Docket Number: Crim. No. HM75-0302.
• Citation: 396 F. Supp. 890
• Parties: UNITED STATES of America v. Dennis A. BURROW et al.
• Court: U.S. District Court — District of Maryland

396 F. Supp. 890

UNITED STATES of America v. Dennis A. BURROW et al.

Crim. No. HM75-0302.

United States District Court, D. Maryland.

June 12, 1975.

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Jervis S. Finney, U. S. Atty., for the District of Maryland, and Herbert Better, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

Andrew Jay Graham, Baltimore, Md., for defendant Burrow; Michael E. Marr, and Phillip M. Sutley, Baltimore, Md., for defendant Sherman; and Michael S. Frisch, Asst. Federal Public Defender, Baltimore, Md., for defendant Fisher.

HERBERT F. MURRAY, District Judge.

Defendants are charged in a four-count indictment with conspiracy to distribute cocaine, LSD and marijuana and possession with intent to distribute cocaine, LSD and marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2.

The matter is presently before the Court on the motions of defendants Sherman and Fisher to suppress any and all tangible evidence seized from their persons and the vehicle which they occupied at the time of their arrest. The basis for their joint motion is that the search and seizure was performed without a warrant in violation of the Fourth Amendment, and that such search was conducted without probable cause, without consent and in the absence of any exigent circumstances which might serve as a legal basis for a warrantless search.

Facts

At approximately 6:15 p. m. on April 1, 1975, at Fort Meade, Maryland, military policemen John Watson and Kenneth Rath, while on routine foot patrol in the area of a post sports auditorium known as Murphy Field House, observed a blue van bearing Michigan license plates, in the parking lot directly behind the post field house. Earlier the military police had received a request by the Department of Motor Vehicles to be on the look-out for a vehicle bearing Michigan plates.¹ Rath observed that the van did not have a post registration sticker. Both military policemen approached the van. Rath, dressed in his military uniform bearing an "MP" designation, passed in front of the vehicle and was seen by the driver. He went to the passenger side of the vehicle while Watson approached the driver. Rath testified that upon reaching the passenger's side, he detected a weak scent of burned marijuana coming from the van and observed a brass smoking pipe in the partially opened ash tray. From his training and experience² he recognized the brass pipe as being the type of instrument used to smoke marijuana. P.F.C. Watson, who had assumed his duties as a military policeman the previous month, also noted an odor of burned marijuana coming from the van as he approached; he characterized the intensity of the odor as being "moderate."³ As to the individuals inside the van, according to the testimony of both M.P.s, the driver was holding a map, the occupant of the front passenger seat was described as being drowsy or sleepy, and the third individual was lying on the back seat asleep.⁴ In response to an inquiry by Watson as to whether everything was all right, the driver responded that they had come to see a friend in the 76th Engineers.⁵

The two military policemen then withdrew from the van to the area of Murphy Field House where they radioed for a backup unit. In approximately five to ten minutes another two-man foot patrol unit and the duty officer, Staff Sergeant O. B. Andrews, arrived. The five-man military team then approached the van, instructed the occupants to get out of the vehicle, and placed them under "apprehension" (the military term for arrest). After the defendants had alighted from the vehicle, P.F.C. Watson, without entering the van, made a visual observation of its interior through the window and a door that had been left open. He observed incense, some cigarette rolling paper and an eighth of an inch residue of a burned marijuana cigarette ("roach") on the front floor of the passenger side of the vehicle.

After defendants were properly advised of their rights and their persons searched for weapons, Rath requested of the driver, defendant Dennis A. Burrow, permission to search the van, which he refused. Rath then requested that Burrow secure the vehicle; Burrow responded that this couldn't be done. A guard was left with the vehicle and the defendants were then transported to the Provost Marshal's office.

Because of the observations made in connection with the apprehension, Sgt. Andrews then called Colonel Clyde H. Patterson, Jr., the Post Commander, in order to obtain the latter's permission to search the vehicle. Patterson in turn contacted Lieutenant Colonel Jack Marden, the Staff Judge Advocate, and relayed the information he had obtained from Andrews. Within approximately five minutes of Andrews' initial call, Patterson contacted Andrews and instructed him that permission to search the vehicle was granted.⁶

The military policemen then proceeded to search the van's interior. At the rear of the driver's side of the vehicle, Rath located a space in the panelling from which he removed a ten inch square plastic bag, containing suspected marijuana. He also located thirty-one packets of tinfoil containing white powder.⁷ Watson, who also participated in the search, located a cigarette roller, papers and a bag of marijuana wrapped in plastic under a mat by the engine compartment.⁸

The government, in responding to the motion to suppress, admits the fact that this was a warrantless search; however, it asserts inter alia that it was based on probable cause, and as such was a valid search pursuant to regulations concerning the search and seizure of possessions under the control of civilians on a military post. The government also contends that the search falls within the automobile exception to the warrant requirement of the Fourth Amendment.

Probable Cause

In dealing with probable cause, a court must deal with probabilities. "These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), reh. den., 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513 (1949). While probable cause means more than bare suspicion, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Day, 455 F.2d 454, 456 (3d Cir. 1972), it also requires less than evidence which would justify condemnation or conviction. Brinegar v. United States, 338 U.S. at 175, 69 S.Ct. at 1310, citing Locke v. United States, 7 Cranch 339, 348, 11 U.S. 339, 3 L.Ed. 364. As stated in Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), probable cause exists where "the facts and circumstances within the officer's knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. The Court finds that the military police, under the facts and circumstances of this case, had probable cause to believe that the vehicle contained contraband and that a crime had been or was being committed, and that the van contained the instrumentalities or fruits of that crime.

Both Rath and Watson smelled the odor of marijuana coming from the truck. It is well settled, at least within the Ninth Circuit, that smell alone is sufficient to constitute probable cause for a subsequent search for marijuana. United States v. Barron, 472 F.3d 1215 (9th Cir. 1973); United States v. Leazar, 460 F.2d 982 (9th Cir. 1972); United States v. Campos, 471 F.2d 296 (9th Cir. 1972); and Fernandez v. United States, 321 F.2d 283 (9th Cir. 1963); such also now seems to be the law in the Tenth Circuit, see United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973), relying on United States v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1361, 35 L. Ed.2d 588 (1973). In other circuits, the smell of marijuana constitutes a valid factor in making a probable cause determination, see, e.g., United States v. Halliday, 487 F.2d 1215 (5th Cir. 1973).⁹

Under either principle, it is clear that probable cause for conducting a search existed under the facts of this case. In addition to smelling the odor of marijuana, Rath observed a brass smoking pipe which he recognized from his training and experience as being an instrument used for smoking marijuana. Furthermore, while not sufficient by itself, the demeanor of two of the defendants, one sleeping on the back seat and the front seat passenger appearing drowsy or sleepy, would, in this Court's estimation, be an additional relevant circumstance justifying a reasonable belief that the crime charged had been or was being committed. Finally, after defendants alighted from the vehicle, but before the search, Watson observed what he believed was a "roach" on the front passenger side of the floor and roll paper.¹⁰ Taking all these circumstances into consideration, even if the odor of marijuana were to be treated merely as a valid factor rather than dispositive of the issue, this Court is of the opinion that probable cause to search clearly existed in the present case.

Search Pursuant to Military Regulations

Army Regulation No. 210-10, Paragraph 1-15, provides in pertinent part that:

The installation commander will establish rules governing the entry into and exit from the installation, and the search of persons and possessions as limited in a through e below:

a. The installation commander may direct authorized guard personnel, while in the performance of assigned duty, to search the persons and possessions, including vehicles, or any persons (including military personnel, employees, and visitors) upon their entering, during their stay on, or upon leaving facilities over which the Army has responsibility. Such searches are authorized when based upon probable cause that an offense has been committed or upon military

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