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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11852
Non-Argument Calendar
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D.C. Docket No. 8:13-cr-00476-RAL-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL BRUCE SMITH, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 5, 2015)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Carl B. Smith, Jr., appeals his conviction for possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), after the district court
denied his motion to suppress evidence found during a warrantless search of his
car. Smith argues that the police did not have probable cause to search the car, so
the gun found during the search should have been suppressed. After careful
review, we affirm.
I.
On the night of Smith’s arrest, Officer Scott Durivou was on patrol alone in
the vicinity of an apartment complex whose residents had complained of ongoing
drug activity in the area. Around 11:00 p.m., Durivou saw Smith and another man
on a picnic table outside the complex. From a distance of about one hundred feet,
and over the course of about thirty minutes, Durivou observed Smith get up several
times from the picnic table to access the interior cabin and the trunk of a car, which
was about six to eight feet away.
Durivou approached the men and, on the way, observed them lighting
something repeatedly in a way that led Durivou to believe that they were doing
drugs, rather than, say, lighting a cigarette. As Durivou got closer, he could smell
burnt marijuana, and he saw Smith quickly put down what looked like a hand-
rolled “blunt.” After confronting the two men, Durivou broke open the blunt,
which contained marijuana, and then arrested Smith. A search incident to arrest
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revealed that Smith had no contraband on his person, but Durivou did find keys to
the car.
Durivou then requested, but was denied, permission from Smith to search
the car, the front windows of which were about halfway down. According to
Durivou, he proceeded to search the car, notwithstanding the lack of consent and
without waiting for a drug dog, because he could smell the odor of fresh marijuana
coming from inside the car. Once inside the car, he found that the marijuana odor
was stronger in the back seat, which led him to open and search the trunk. In the
trunk, Durivou observed in plain view a clear baggie containing about ten grams of
marijuana, and a further search of the trunk revealed a firearm and loaded
magazine hidden in a sweatshirt.
A federal grand jury indicted Smith on one count of possessing a firearm as
a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Smith filed a motion to
suppress evidence obtained from the warrantless search of the car, arguing that the
search of the car was not supported by probable cause.
At a suppression hearing before the district court, Durivou testified to the
facts detailed above. Smith in turn contended that Durivou’s testimony that he
could smell, from outside of the car and through the halfway-open front windows,
the odor of a small amount of marijuana in the trunk of the car was “just
incredulous.” Smith also challenged Durivou’s testimony on the basis that the
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police report he filed after the incident stated that he smelled burnt marijuana
coming from inside the car, rather than fresh marijuana. At the suppression
hearing, Durivou stated that he had made a mistake in the report and clarified that
he had smelled fresh marijuana inside the car.
After hearing arguments from the parties, the district court orally denied the
motion to suppress. In relevant part, the court concluded:
With regard to Officer Durivou, it’s true he made
what could be considered a mistake in his report, calling
it burnt as opposed to fresh, but the thrust of his
testimony is that he smelled marijuana. All right. He’s
corrected that today. I don’t find that he’s in any way
misrepresented or deceived this court in his testimony.
There is nothing here that would support the
premise that he was unable to smell marijuana when he
was in the back seat of the car, so I don’t find anything
improbable or unbelievable about his testimony. And I
reject any notion that he would get up here and perjure
himself for a case like this. So I’ll find that he had
probable cause to go inside the vehicle. While in there,
he also, having smelled the odor of marijuana in the back
seat in the proximity of the trunk, he then had probable
cause to go in the trunk and seize the marijuana as well
as the firearm.
Following the denial of his motion to suppress, Smith was found guilty at a
bench trial based on stipulated facts. He was sentenced to 27 months of
imprisonment. This appeal followed.
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II.
When reviewing a district court’s denial of a motion to suppress, we review
findings of fact for clear error and the court’s application of law to those facts de
novo. United States v. Ransfer, 749 F.3d 914, 921 (11th Cir.), cert. denied, 135 S.
Ct. 392 (2014). The facts are construed in the light most favorable to the party
prevailing in the district court—here, the government. Id. We must defer to the
district court’s credibility determinations unless the testimony is “contrary to the
laws of nature, or is so inconsistent or improbable on its face that no reasonable
factfinder could accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002) (quotation marks omitted).
III.
A warrantless search of an automobile is constitutional if (1) the automobile
is readily mobile and (2) there is probable cause to believe that it contains
contraband or evidence of a crime. United States v. Lanzon, 639 F.3d 1293, 1299-
1300 (11th Cir. 2011). The first prong is satisfied if the car is operational, which is
not contested here. United States v. Watts, 329 F.3d 1282, 1286 (11th Cir. 2003).
Regarding the second prong, probable cause exists when, under the totality of the
circumstances, there is a fair probability that contraband or evidence of a crime
will be found in the vehicle. Lanzon, 639 F.3d at 1300. Probable cause may arise
when an officer, through training or experience, detects the smell of marijuana.
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United States v. Tobin, 923 F.2d 1506, 1512 (1991) (en banc); United States v.
Lueck, 678 F.2d 895, 903 (11th Cir. 1982).
The only issue on appeal in this case is whether the warrantless search of the
car was supported by probable cause. Probable cause in turn depends on whether
Durivou’s testimony that he smelled marijuana coming from the car is creditable.
At the suppression hearing, Durivou testified that, based on his training and
experience, he recognized the smell of fresh marijuana coming from inside the car.
That training and experience included working on hundreds of cases involving
marijuana, receiving training in detecting marijuana, and personally smoking
marijuana in the twelfth grade. Recognizing that there “may be some troubling
aspects” about Durivou’s testimony, the district court, nevertheless, credited
Durivou’s testimony that he could smell the odor of marijuana coming from inside
the car, and we must defer to the court’s credibility determination unless no
reasonable factfinder could accept the testimony. Ramirez-Chilel, 289 F.3d at 749.
Even if we thought that it would have been unlikely for the odor of
marijuana in the trunk to be detectable from outside the car, which we need not
decide, it is entirely possible that the marijuana was located in the passenger cabin
immediately before Durivou approached Smith, leaving a lingering odor. Indeed,
Durivou observed Smith accessing both the interior of the car and the trunk several
times before Smith was caught with the hand-rolled blunt. So Smith could have
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moved the marijuana from the interior of the car to the trunk before smoking the
blunt on the picnic table. Consequently, nothing about Durivou’s testimony that he
smelled the odor of fresh marijuana coming from the interior of the car strikes us
as contrary to the laws of nature, inconsistent, or improbable on its face.
Because Durivou detected marijuana in the vehicle, and because the district
court credited Durivou’s testimony and we do not find his testimony in this respect
to be contrary to the laws of nature or otherwise so improbable that no reasonable
factfinder could accept it, he had probable cause to conduct a warrantless search of
the car. See Lanzon, 639 F.3d at 1300; Tobin, 923 F.2d at 1512; Lueck, 678 F.2d at
903. The permissible scope of the search included the trunk, particularly in light of
Durivou’s testimony that the smell of marijuana was stronger in the back seat. As
the Supreme Court has explained, “If there is probable cause to believe a vehicle
contains evidence of criminal activity, [the Court’s case law] authorizes a search of
any area of the vehicle in which the evidence might be found.” Arizona v. Gant,
556 U.S. 332, 347, 129 S. Ct. 1710, 1721 (2009) (citation omitted). Here, that
included the trunk. Accordingly, based on its credibility determination, the district
court did not err in denying Smith’s motion to suppress.
Smith’s conviction is, therefore, AFFIRMED.
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