Odor of burnt marijuana from passenger compartment permitted search of trunk

Defendant was stopped as a potential suspect in a bank robbery, and, when the car door opened, the officer smelled burnt marijuana. The officer quickly determined that defendant was not involved in the robbery, but a search of the trunk was justified on the smell alone. United States v. Jennings, 2007 U.S. App. LEXIS 18007 (8th Cir. July 27, 2007) (unpublished):

Jennings then argues that even if the officers had probable cause to conduct the search, they were not entitled to search the compartment in the cargo area of the vehicle because their detection of the odor of burnt marijuana only permitted them to search areas where burnt marijuana may be found. However, since the officers had probable cause to search for drugs, Officer Wylie properly searched the compartment within the cargo area of the vehicle. See Caves, 890 F.2d at 90 (stating that an officer “may examine the contents of all containers, packages and compartments located in the vehicle, provided that there is probable cause to believe that the object of the search will be found there”); Neumann, 183 F.3d at 756 (stating that the “smell of burnt marijuana … gave [the officer] probable cause to search the entire vehicle for drugs”) (emphasis added).

Since the officers had probable cause to search the vehicle for drugs based on the odor of burnt marijuana, we find no merit in Jennings’s argument about his continued detention. See United States v. Gipp, 147 F.3d 680, 685 (8th Cir. 1998) (finding that a continued stop based on an officer’s detection of the odor of burnt marijuana on a person is not unlawful because the odor gives the officer a “particularized and objective basis for suspecting [the person] was or had recently engaged in criminal activity”) (internal quotation omitted). Therefore, the officers did not unlawfully detain Jennings while they searched the vehicle for drugs.

Comment: The smell of burnt marijuana to me is probable cause to believe that only a small quantity is in the car, and it would only permit a search where something that small could logically be found. For instance, what if the defendant got into the car with one joint or a blunt and was smoking it alone or with friends and he gets stopped. What is the probable cause to believe that there is a larger quantity in the trunk? This is a bright line rule because courts don’t want to have to think about it.

The defendant’s consent was found voluntary on the totality and not clearly erroneous. “Mr. Johnson is 48 years of age and of at least average intelligence. He testified at the suppression hearing that he understood the consent form, that he never felt coerced or threatened and that he understood he was waiving his Fourth Amendment rights. The interview was calm and professional at all times.” Inevitable discovery also would apply because the officers already had probable cause and were pursuing the investigation, and certainly had probable cause to obtain a search warrant. “This information would more than suffice to establish probable cause upon which to issue a search warrant. Therefore, the deterrence rationale of the exclusionary rule would not apply, and the evidence would be admissible under the inevitable discovery doctrine.” United States v. Johnson, 495 F.3d 536 (7th Cir. 2007).* Comment: Defendant’s argument was “buyer’s remorse” where he realized when it was too late that he should not have consented, and it really was not worth pursuing on appeal, in my opinion.

Defendant was stopped at an immigration checkpoint, and was diverted for a secondary inspection because of reasonable suspicion. The entire stop took 2-3 minutes and was reasonable, and the cocaine found was admissible. United States v. Reyes, 243 Fed. Appx. 858 (5th Cir. 2007)* (per curiam).