UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-50586
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERRY CARLYLE McSWEEN,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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(May 19, 1995)
Before GARWOOD and BARKSDALE, Circuit Judges, and BRAMLETTE,
District Judge.*
GARWOOD, Circuit Judge:
Defendant-appellant Gerry Carlyle McSween (McSween) appeals
his conviction on a conditional plea of guilty to possession with
intent to distribute crack cocaine after the district court denied
his motion to suppress the drugs recovered from under the hood of
his car. We affirm.
*
David Bramlette, United States District Judge for the
Southern District of Mississippi, sitting by designation.
Facts and Proceedings Below
On February 26, 1994, Texas Department of Public Safety
Officers Ralph Billings (Billings) and Larry Price (Price) stopped
McSween for driving 87 mph in a 65-mph zone. As Price conducted a
computer check, Billings began to write a speeding ticket.
Noticing a cellular phone and radar detector in the car's interior,
Billings asked McSween if he could look in the car and trunk.
McSween consented, and Billings opened the hatchback. McSween then
helped Billings remove, with screwdrivers, the hatchback's interior
panels.
Meanwhile, Price had completed his computer check, which
indicated that McSween had four prior arrests on narcotics charges.
After informing Billings of McSween's record, Price moved to the
car's passenger side and asked McSween if he had any objection to
his searching the vehicle. McSween consented. While searching the
passenger area, Price noticed the smell of burnt marihuana, which
he at first suspected was emanating from the ashtray. Finding no
drugs in the ashtray or passenger area, Price opened the hood and
noticed a red rag sticking out of a hole in the car's fire wall.
Price removed the rag and saw in the hole what appeared to be a
brown plastic bag. Fingering the bag, Price concluded that it felt
like it contained a "small bale" of marihuana. Price then replaced
the rag and arrested McSween. After the car was impounded,
troopers inspected the hole and found a bag of marihuana and a
shoulder sling of crack cocaine.
A grand jury indictment returned March 8, 1994, charged
McSween with possession with intent to distribute 50 or more grams
2
of crack cocaine in violation of 21 U.S.C. § 841(a)(1). McSween
moved to suppress the evidence seized from his car, arguing that
the officers lacked probable cause and exceeded the scope of his
consent. After a suppression hearing, at which McSween did not
testify, the district court denied the motion, concluding that the
initial stop was justified, that McSween's consent to search was
voluntary and the search within its scope, and that the subsequent
arrest was supported by probable cause. Thereafter, on May 19,
1994, McSween entered a conditional plea of guilty, preserving the
suppression issue for appeal. Fed. R. Crim. P. 11(a)(2). The
district court sentenced McSween to 136 months in prison and 5
years of supervised release. McSween now appeals.
Discussion
McSween argues that the district court erred in denying his
motion to suppress because there was neither probable cause nor
consent to search under the hood of his vehicle, nor probable cause
to arrest him. Viewing the evidence in the light most favorable to
the government, the prevailing party, United States v. Maldonado,
735 F.2d 809, 814 (5th Cir. 1984), we hold that Price had both
probable cause and consent to search the area under the hood of
McSween's vehicle. See United States v. Sutton, 850 F.2d 1083,
1085 (5th Cir. 1988) (either consent or probable cause may
independently support a warrantless vehicle search). We further
hold that the officers had probable cause to arrest McSween and to
perform a subsequent warrantless search of the car after it was
impounded.
3
I. Probable Cause for the Search
It is well settled that warrantless searches of automobiles
are permitted by the Fourth Amendment if the officers have probable
cause to believe that the vehicle contains contraband or other
evidence of a crime. See United States v. Ross, 102 S.Ct. 2157,
2164-65 (1982); United States v. Buchner, 7 F.3d 1149, 1154 (5th
Cir. 1993), cert. denied, 114 S.Ct. 1331 (1994); United States v.
Kelly, 961 F.2d 524, 527 (5th Cir. 1992). Whether an officer has
probable cause to search a vehicle depends on the totality of the
circumstances viewed "in light of the observations, knowledge, and
training of the law enforcement officers involved in the
warrantless search." United States v. Muniz-Melchor, 894 F.2d
1430, 1438 (5th Cir.), cert. denied, 110 S.Ct. 1957 (1990).
It is undisputed that Price had McSween's consent to search
inside the passenger compartment of McSween's new rental car. At
the suppression hearing, Price testified that, when he entered the
car, he noticed "the odor of what I thought was burned marijuana."
Price testified that he based this conclusion on his twenty-two
years of experience and training in the detection of marihuana by
its odor. He further testified that the smell appeared to be
coming from the ashtray, but he discovered nothing there or
anywhere else inside the vehicle's passenger compartment. He then
decided to look under the hood. At this point, Price had smelled
but not located marihuana and knew of McSween's four prior arrests
on narcotics charges.1 Together these facts, viewed in light of
1
Also, though of at most entirely minimal relevance, McSween
had a cellular phone and radar detector.
4
Price's experience, justify a finding of probable cause to search
the entire vehicle. Indeed, the smell of marihuana alone may be
ground enough for a finding of probable cause, as this Court has
held many times. See, e.g., United States v. Reed, 882 F.2d 147,
149 (5th Cir. 1989) (the officer's detection of marihuana "in
itself . . . justified the subsequent search of [the defendant's]
vehicle"); United States v. Henke, 775 F.2d 641, 645 (5th Cir.
1985) ("Once the officer smelled the marijuana, he had probable
cause to search the vehicle."); United States v. Gordon, 722 F.2d
112, 114 (5th Cir. 1983) (same); United States v. McLaughlin, 578
F.2d 1180, 1183 (5th Cir. 1978) (same).
McSween contends that, even if the odor of marihuana gave
Price probable cause to search, the search should have been limited
to the passenger area, where Price detected the smell. We
disagree. It is well settled that, in a case such as this, the
detection of the odor of marihuana justifies "a search of the
entire vehicle." Reed, 882 F.2d at 149. As the Supreme Court
stated in Ross, "If probable cause justifies the search of a
lawfully stopped vehicle, it justifies the search of every part of
the vehicle and its contents that may conceal the object of the
search." 102 S.Ct. at 2173. See also United States v. Johns, 105
S.Ct. 881, 884 (1985). The Court further observed that, if there
is probable cause to suspect that the vehicle contains contraband,
then the search may extend not only to closed containers, but also
to a "car's trunk or glove compartment." Ross, 102 S.Ct. at 2172.
The same reasoning applies to the area under the hood, where drugs
5
may also be concealed.2 We therefore reject McSween's contention
that Price lacked probable cause to search under the hood of his
rental car.3
II. Consent for the Search
In the alternative, we agree with the district court that the
search under the hood was within the scope of McSween's consent.
Under the Fourth Amendment, "[t]he standard for measuring the scope
of a suspect's consent . . . is that of `objective'
reasonablenessSQwhat would the typical reasonable person have
understood by the exchange between the officer and the suspect?"
Florida v. Jimeno, 111 S.Ct. 1801, 1803-04 (1991). McSween argues
2
This is simply not a case such as United States v. Chadwick,
97 S.Ct. 2476 (1977), or Arkansas v. Sanders, 99 S.Ct. 2586
(1979), in which the officers had probable cause to believe that
narcotics were stowed in a particular container (a footlocker in
Chadwick, a green suitcase in Sanders) but did not have probable
cause to search the automobiles in which the containers were
later placed:
"[I]t was the luggage being transported by respondent
at the time of the arrest, not the automobile in which
it was being carried, that was the suspected locus of
the contraband. The relationship between the
automobile and the contraband was purely coincidental,
as in Chadwick." Ross, 102 S.Ct. at 2167 (quoting
Sanders, 99 S.Ct. at 2594 (Burger, C.J., concurring)).
In Ross, the Supreme Court clearly limited these two cases to
their facts, Ross, 102 S.Ct. at 2165-67, 2172, and overruled an
earlier plurality opinion in Robbins v. California, 101 S.Ct.
2841 (1981), as an incorrectly broad interpretation of them.
3
Although the district court rested the constitutionality of
the warrantless search on McSween's consent, we can affirm the
lower court's decision on any grounds supported by the record.
Bramblett v. Commissioner of Internal Revenue, 960 F.2d 526, 530
(5th Cir. 1992). On the facts as found by the district court (or
established without dispute in the record), the question of
probable cause is a question of law. See Blackwell v. Barton, 34
F.3d 298, 305 (5th Cir. 1994).
6
that his consent to search should be construed to extend only to
the trunk and passenger areas and not to the area under the hood.4
In his brief, McSween contends that the troopers' wordsSQtheir
requests to "look in" the car and trunkSQwould indicate to a
reasonable person that the search was so limited. At oral
argument, however, McSween conceded that he did not draw a
distinction between a request to "look in" a car and one to
"search" it.
Viewing the testimony at the suppression hearing in the light
most favorable to the government, we conclude that Price asked
McSween for general permission to search his vehicle. Price
testified, "I asked . . . if . . . [McSween] had any objection of
[sic] me searching his vehicle." Asked then if that was "more or
less the language . . . used," Price responded, "Yes." Even if
Price actually asked to "look in" McSween's vehicle, we would still
conclude that in these circumstances Price effectively asked for a
general consent to search. In United States v. Crain, 33 F.3d 480
(5th Cir. 1994), cert. denied, 115 S.Ct. 1142 (1995), this Court
held "that an individual's consent to an officer's request to `look
inside' his vehicle is equivalent to general consent to search the
vehicle and its contents . . . ." Id. at 484; see also Rich, 992
F.2d at 506. We therefore conclude that Price asked for and
4
McSween does not contest the district court's finding that
the consent in this case was voluntary. Nor does McSween
challenge any other factual findings made by the district court.
The only remaining question, the scope of consent, is considered
a question of law in this Circuit and is, accordingly, reviewed
de novo. United States v. Rich, 992 F.2d 502, 505 (5th Cir.),
cert. denied, 114 S.Ct. 348 (1993).
7
received from McSween general consent to search the vehicle.
The question, then, is whether it was reasonable to interpret
McSween's general oral consent to search the car as authority to
search under the hood. Although the "scope of a search is
generally defined by its expressed object," Jimeno, 111 S.Ct. at
1804, the officers here never told McSween the purpose of their
search. The failure to specify the object of the search, however,
is not dispositive if the circumstances could otherwise lead a
reasonable person to conclude that the search might include the
area under the hood. In Crain, the defendant argued that, because
the officers never indicated the purpose of their search, an
objectively reasonable person would not consider their consent to
include the opening of a "closed paper bag shoved under the [car's]
seat." 33 F.3d at 484. Rejecting this argument, we held that a
general consent to search a car includes consent to open a paper
bag inside it, at least when the defendant does not attempt to
limit the scope of the search. Id.; accord United States v. Snow,
44 F.3d 133, 135 (2d Cir. 1995). As in Crain, although the
officers here made a general request for a search without
identifying their objective, McSween never objected to the scope of
the search.5
5
McSween did not testify at the suppression hearing. Defense
counsel, however, suggested that it may have been difficult for
McSween to object because of the speed and obscurity of the
search. The district court did not clearly err in finding this
suggestion incredible, especially as counsel's claim is pure
hypothesis. The only evidence at the hearing related to this
claim supports the district court's finding. Billings, who was
standing with McSween at the rear of the vehicle during Price's
search, testified that he was aware Price had opened the hood and
was searching that area. In any event, as we stated in Rich,
8
In such circumstances, a failure to object to the breadth of
the search is properly considered "an indication that the search
was within the scope of the initial consent." United States v.
Cannon, 29 F.3d 472, 477 (9th Cir. 1994) (citation and internal
quotation marks omitted). As this Court stated in Rich, the
defendant, as the individual "knowing the contents of the vehicle,"
has the "responsibility to limit the scope of the consent." Rich,
992 F.2d at 507. Because McSween knew at the time of the search
what the fire wall hid, he should have limited his consent, "if he
deemed it necessary to do so," id., to clarify any ambiguity from
which he now seeks to benefit. Further supporting this conclusion
is the fact that McSween gave Price his consent after helping
Billings remove interior panelling in the hatchback. This sort of
behavior could indicate to a reasonable officer that McSween meant
to consent to more than a superficial search of his vehicle.6
In United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.),
cert. denied, 99 S.Ct. 333 (1978), the Ninth Circuit confronted a
factually indistinguishable situation. There, the defendant gave
the officer permission to "look inside" his truck. After searching
"[W]e are unwilling to read Jimeno to hold . . . that enforcement
officials must conduct all searches in plain view of the suspect,
and in a manner slowly enough that he may withdraw or delimit his
consent at any time during the search." Rich, 992 F.2d at 507.
6
This case is not one in which the officers interpret a
general consent to search the vehicle as authority to inflict
damage on the vehicle or its contents. United States v.
Strickland, 902 F.2d 937, 941-42 (10th Cir. 1990); cf. Jimeno,
111 S.Ct. at 1804 ("It is very unreasonable to think that a
suspect, by consenting to the search of his trunk, has agreed to
the breaking open of a locked briefcase within the trunk, but it
is otherwise with respect to a closed paper bag.").
9
the truck's cab and cargo areas, the officer opened the hood and
found marihuana. In his motion to suppress, the defendant argued
that the officer exceeded the scope of his consent when he opened
the hood. The district court denied the motion, and the Ninth
Circuit affirmed. The court determined that the defendant's
permission to search both the cab and cargo areas, combined with
his failure to object to the continuation of the search under the
hood, made the evidence admissible.7 We believe the same result
should obtain here.
III. Probable Cause for the Arrest and Subsequent Search
McSween next argues that the officers lacked probable cause to
arrest him, impound the vehicle, and conduct a further search.
McSween claims that the cocaine should be suppressed "because the
only thing that was determined during the . . . search on the
highway was that there was an object wrapped in plastic in the hole
under the hood." An officer has probable cause for an arrest when
"the facts and circumstances within the knowledge of the arresting
officer are sufficient to cause a person of reasonable caution to
believe that an offense has been or is being committed." United
States v. Walker, 960 F.2d 409, 416 (5th Cir.), cert. denied, 113
S.Ct. 443 (1992). With the knowledge that McSween had four prior
arrests on narcotics charges and that the interior of his car
smelled of burnt marihuana, Price opened the hood and found a
7
McSween attempts to distinguish this case by arguing that
here there were circumstances that would make a reasonable
officer realize the "initial consent" was limited. As pointed
out earlier, however, the consent given in this case authorized a
general search of the car.
10
plastic bag hidden behind a rag in the fire wall of a new rental
car.8 Price testified that, after touching the bag and looking at
it, he concluded that, based on his experience, it "felt" like it
contained a "small bale" of marihuana. Given these circumstances,
Price had probable cause for the arrest.
Finally, we must reject McSween's suggestion that, even if the
arrest and initial search were supported by probable cause, the
second search of the car at the sheriff's office, where the cocaine
was discovered, required a warrant. If probable cause justified a
warrantless search on the roadside, it likewise justified one at
the station after the car was impounded. See Ross, 102 S.Ct. at
2163-64 n.9 ("[I]f an immediate search on the street is permissible
without a warrant, a search soon thereafter at the police station
is permissible if the vehicle is impounded.").
Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
8
When asked whether he thought there was anything unusual
about a rag sticking out of a fire wall, Price testified, "A
brand-new vehicle like that, a rental car, it was unusual that
you would see a rag stuffed in behind there, I felt it was."
11