CA10: PC isn’t viewed in hindsight; officers had qualified immunity for believing car contained marijuana, even though it didn’t

Plaintiff sued two Wyoming state troopers for a search of his car because they thought they could smell marijuana with a masking smell. After patting plaintiff and his passenger down, the car was searched, and nothing was found. The case was decided on qualified immunity rather than probable cause because nothing was found. Yet, the question of probable cause is not viewed in hindsight, based on what is found. The officers don’t have to find marijuana to be entitled to qualified immunity. They were entitled to qualified immunity based on what the two officers independently smelled. Abbo v. Wyoming, 2014 U.S. App. LEXIS 24614 (10th Cir. December 30, 2014):

Although the governing case law likely supports a finding of probable cause, we begin and end our inquiry by asking whether the alleged infringed right was so clearly established that every reasonable official would have understood the troopers’ actions violated the law. We conclude it was not.

The troopers testified they smelled what they believed to be raw marijuana in Mr. Abbo’s vehicle, and determined this gave them probable cause to search. Indeed, this court has repeatedly recognized the odor of raw marijuana establishes probable cause for a search. See [five cases]. Once probable cause is established, troopers may search an entire vehicle. …

We have noted “for a right to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Cortez v. McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2007) (quotations omitted). Mr. Abbo cites two of our previous rulings to support his claim the troopers lacked probable cause for the search and seizure. First, he invokes United States v. Nielsen, 9 F.3d 1487 (10th Cir. 1993), which concluded probable cause did not exist when officers smelled burnt marijuana in a vehicle, searched the passenger compartment but found nothing, and then proceeded to search the trunk of the vehicle, where they found cocaine but did not find marijuana. Id. Mr. Abbo argues Nielsen stands for the principle “that marijuana smell alone is not grounds to uphold a search, absent the ‘corroboration’ of a finding of marijuana.” Aplt. Br. at 20. Second, Mr. Abbo contends searches based on the odor of raw marijuana are unreasonable when confounding smells are present, citing United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998). He argues a confounding smell in his case called for further investigation to confirm or dispel the troopers’ reasonable suspicion, and suggests the troopers should have called a drug dog for that purpose.

… Mr. Abbo argues Nielsen stands for the principle “that marijuana smell alone is not grounds to uphold a search, absent the ‘corroboration’ of a finding of marijuana.” Aplt. Br. at 20. Second, Mr. Abbo contends searches based on the odor of raw marijuana are unreasonable when confounding smells are present, citing United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998). He argues a confounding smell in his case called for further investigation to confirm or dispel the troopers’ reasonable suspicion, and suggests the troopers should have called a drug dog for that purpose. Mr. Abbo has misconstrued both opinions. Neither decision is on point for the circumstances at hand, and neither would put a reasonable officer on notice that she or he was violating Mr. Abbo’s rights. First, Nielsen did not hold that probable cause depends on whether contraband is actually found in a search. “[W]e do not evaluate probable cause in hindsight, based on what a search does or does not turn up.” Florida v. Harris, 133 S. Ct. 1050, 1059 (2013).

. . .

Second, we have not held or implied confounding smells defeat a probable cause determination. Salzano is off point because the officers in that stop alleged they smelled only a masking agent and did not also smell what they believed to be drugs. Salzano, 158 F.3d at 1114. Here, however, the troopers believed they smelled raw marijuana as well as a potential masking agent. Furthermore, we have held confounding smells are often used as masking agents to conceal the odor of drugs and therefore bolster, rather than defeat, a finding of probable cause to search. United States v. West, 219 F.3d 1171, 1178-79 (10th Cir. 2000). The smell of other plant odors, which Mr. Abbo concedes were in the vehicle, would in fact strengthen a reasonable officer’s determination she or he had probable cause to search.

For purposes of qualified immunity, we need not definitively resolve whether the officers had probable cause to search Mr. Abbo’s car based on these precedents. We need only conclude Mr. Abbo has not demonstrated the law was so clearly established that reasonable officers would have known they were violating Mr. Abbo’s rights by searching his car and seizing his person after smelling what they believed to be raw marijuana. Without such a showing, the district court was correct to grant the troopers qualified immunity.