United States v. Wald

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 99-4044
v.

STEVEN ALLEN WALD,

Defendant-Appellant.

ORDER
Filed July 10, 2000

Before MURPHY, ALARCON, * and PORFILIO, Circuit Judges.

This matter is before the court on appellee’s petition for rehearing with

suggestion for rehearing en banc and appellant’s response. The panel votes to

grant the petition for rehearing and a revised opinion is attached to this order.

The suggestion for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service as required by Fed. R. App. P. 35. A

member of the active court called for a poll of the court pursuant to Fed. R. App.

Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of
*

Appeals for the Ninth Circuit, sitting by designation.
P. 35(f). Judges Tacha, Baldock, Ebel, Kelly and Henry voted to grant rehearing

en banc. Five remaining active judges voted to deny rehearing en banc.

Consequently, the petition for rehearing en banc is denied. See Fed R. App. P.

35(a).

Entered for the Court
PATRICK FISHER, Clerk of Court

By:
Keith Nelson
Deputy Clerk

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 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 10 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.
No. 99-4044
STEVEN ALLEN WALD,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 98-CR-417-K)

Lynn Clark Donaldson, of Salt Lake City, Utah, for Appellant.

Leshia Marie Lee-Dixon, Assistant United States Attorney, Salt Lake City, Utah,
(Paul M. Warner, United States Attorney, with her on the brief), for Appellee.

Before MURPHY, ALARCON, * and PORFILIO, Circuit Judges.

MURPHY, Circuit Judge.

Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of
*

Appeals for the Ninth Circuit, sitting by designation.
I. INTRODUCTION

After conditionally pleading guilty to possession with intent to distribute

methamphetamine, Steven Allen Wald now challenges the district court’s denial

of his motion to suppress both the methamphetamine discovered in the trunk of

his vehicle and his post-arrest statements. Wald’s appeal presents the following

issue: whether probable cause to search a car’s trunk exists when a law

enforcement officer smells burnt methamphetamine in the vehicle but the officer

finds only evidence which is as consistent with innocent activity as with the

suspicion of drug usage. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

this court answers that question in the negative. We thus reverse the district

court’s denial of Wald’s suppression motion and remand to vacate his conviction

and sentence.

II. BACKGROUND

Wald was indicted on one count of possession with intent to distribute

methamphetamine. He moved to suppress both the methamphetamine found in the

trunk of his car and statements made following his arrest. After conducting an

evidentiary hearing on those motions, the district court made the following

findings of fact:

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1. On August 10, 1998, at approximately 7:25 a.m., Sgt. Paul
Mangelson of the Utah Highway Patrol was stationary in his
patrol vehicle on Interstate I-15 near milepost 215 facing
north-bound traffic. While in his vehicle Sgt. Mangelson’s
attention was drawn to a blue sedan traveling north-bound.
Mangelson noticed that the vehicle had a badly cracked front
windshield. The crack went almost the full width of the
windshield. Based upon the concern of an equipment
violation, that is the cracked windshield, Sgt. Mangelson
effectuated a stop of the vehicle. When Sgt. Mangelson
activated his overhead lights, a video camera in his vehicle
was also activated. The video camera recorded the remainder
of the encounter.

2. The vehicle pulled over without incident and Sgt. Mangelson
approached the vehicle and viewed the windshield. As he had
previously observed, the windshield was in fact cracked.

3. The driver of the vehicle was Mr. Ramirez and Mr. Wald was
in the passenger’s seat. Sgt. Mangelson requested a driver’s
license and registration and asked where the defendants were
coming from and where they were going. Mr. Ramirez was
quite talkative and told Mangelson that they were on their way
home from a weekend in Las Vegas. Mr. Ramirez’s license
was valid and the registration showed that the vehicle belonged
to Mr. Wald. Sgt. Mangelson asked the defendants about the
cracked windshield to which they replied that it had happened
on the trip and they had not had a chance to fix it.

4. Sgt. Mangelson observed at this time that both Ramirez and
Wald appeared to be nervous. Further, Wald had bloodshot
and glassy eyes and Sgt. Mangelson detected an odor
emanating from the vehicle which he believed, based upon his
experience, to be burnt methamphetamine. Further, he noticed
visine and a road atlas in the vehicle, which in his experience,
when combined with the scent of drugs, are items associated
with drug trafficking. Based upon the totality of the
circumstances, Mangelson asked if he could take a quick look
in the vehicle.

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 5. Defendant Wald gave his consent to Mangelson to take a quick
look at the interior of the vehicle. At this time both defendants
exited the vehicle. A search of the interior of the vehicle did
not reveal any contraband.

6. Sgt. Mangelson then did a pat-down search of defendant Wald.
The purpose of this search was primarily to look for drugs.
During the search he found two pipes in the defendant’s pocket
which he told the defendant to remove.

7. Sgt. Mangelson asked Wald if the pipes had been used for
either marijuana or cocaine to which Wald told him no. At this
time Mangelson proceeded to search the trunk of the vehicle.
He found a couple of items of luggage and an ice chest. In the
luggage Mangelson found two torches used in smoking
methamphetamine.

8. Sgt. Mangelson then noticed that the speakers in the trunk had
outside screws that were marked up. The screws appeared to
have fresh marks indicating that they had been removed.
Mangelson then obtained a Phillips screwdriver and opened the
side of the speaker. Inside he discovered two packages that
had an apparent odor of methamphetamine. The packages later
tested positive for methamphetamine.

9. Upon discovering the methamphetamine, Sgt. Mangelson
arrested the occupants of the vehicle and administered
Miranda warnings. Defendant Wald admitted that he had been
smoking methamphetamine that morning. Both defendants
denied any knowledge of the drugs in the speakers.

Based on these factual findings, the district court issued the following

rulings relevant to this appeal: (1) the vehicle stop was constitutionally

permissible; (2) Wald gave Mangelson consent to quickly search the passenger

compartment only; (3) the pat-down search of Wald which revealed drug

paraphernalia violated the Fourth Amendment as interpreted in Terry v. Ohio, 392

-4-
U.S. 1 (1968), because it was aimed at finding drugs, not weapons; (4) the drugs

found in the trunk were nonetheless admissible, because Mangelson had probable

cause to search the trunk based on circumstances which existed prior to the illegal

pat-down, i.e., the odor of methamphetamine which “could permeate from the

trunk,” the defendants’ nervousness, the appearance of Wald’s eyes, and the

presence of visine and a road atlas in the passenger compartment; and (5) Wald’s

statements were admissible because Mangelson gave him proper Miranda

warnings prior to any custodial interrogation.

Subsequently, Wald entered a guilty plea conditional on his appeal of the

district court’s suppression rulings. The district court then sentenced Wald to

seventy months imprisonment followed by thirty-six months supervised release

and imposed a $100 assessment and $350 fine.

III. DISCUSSION

In reviewing the denial of a motion to suppress, “this court accepts the

district court’s factual findings unless clearly erroneous.” United States v.

Downs, 151 F.3d 1301, 1302 (10th Cir. 1998). The district court’s determination

of reasonableness under the Fourth Amendment, however, is reviewed de novo.

See United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir. 1997).

-5-
 In United States v. Ross, the Supreme Court determined that the permissible

scope of a warrantless automobile search “is defined by the object of the search

and the places in which there is probable cause to believe it may be found.” 456

U.S. 798, 824 (1982). Relying on this principle, this court has held that although

the smell of burnt marijuana emanating from a vehicle provides probable cause to

search the passenger compartment of that vehicle, if that search fails to uncover

corroborating evidence of contraband, probable cause to search the trunk of the

vehicle does not exist. See United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir.

1993); United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995); Downs, 151

F.3d at 1303. This rule is premised on the common-sense proposition that the

smell of burnt marijuana is indicative of drug usage, rather than drug trafficking,

and because it is unreasonable to believe people smoke marijuana in the trunks of

cars, the mere smell of burnt marijuana does not create the fair probability that

the trunk contains marijuana. See Downs, 151 F.3d at 1303.

According to the district court’s factual findings, when first speaking with

Wald and Ramirez, “Mangelson observed . . . that both Ramirez and Wald

appeared to be nervous [and that] Wald had bloodshot and glassy eyes.

[Additionally,] Mangelson detected an odor emanating from the vehicle which he

-6-
believed, based upon his experience, to be burnt methamphetamine.” 1 Mangelson

further noticed at that time the presence of Visine, a road atlas, a couple of pieces

of luggage, and a couple of wine coolers in the passenger compartment. [Vol. II at

16] He testified that based on these observations, he suspected “drug usage.” [id]

Under Nielsen, the mere odor of burnt methamphetamine did not provide

Mangelson probable cause to search the trunk of Wald’s car; a trunk search would

be justified only if the other evidence which Mangelson observed amounted to

corroborating evidence of contraband or if a subsequent lawful search of the

passenger compartment yielded such corroborating evidence. 2

The government contends that sufficient corroborating evidence existed to

provide the requisite probable cause for the trunk search. Specifically, the

government argues the following evidence constituted corroboration of

contraband possession: (1) the presence of Visine, a road atlas, and wine coolers

in the passenger compartment; (2) the presence of only two pieces of luggage in

1
Wald challenges as clearly erroneous the district court’s factual finding
that Mangelson smelled burnt methamphetamine. Because this court concludes
that probable cause did not exist to search the trunk even if Mangelson did detect
an odor of burnt methamphetamine, we need not resolve whether the district
court’s factual finding was clearly erroneous. This court also need not address
Wald’s alternative argument that the scope of his detention exceeded permissible
bounds due to the illegal pat-down.
2
After obtaining Wald’s consent, Mangelson did in fact perform a
subsequent search of the passenger compartment, but found nothing of
significance.

-7-
the vehicle; (3) the bloodshot, glassy appearance of Wald’s eyes; (4) nervousness

exhibited by both Wald and Ramirez; (5) Wald’s difficulty in producing the

vehicle’s registration; and (6) the pipes found during the pat-down search of

Wald.

Although the discovery of drug paraphernalia might provide probable cause

to search the trunk of a vehicle, the district court concluded that the pipes found

on Wald’s person were uncovered during an unconstitutional pat-down search. A

law enforcement officer may constitutionally conduct a warrantless pat-down

search of a person if the officer harbors an articulable and reasonable suspicion

that the person is presently armed and dangerous. See Terry, 392 U.S. at 21, 27;

United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996). The district court

specifically found that Mangelson’s purpose in frisking Wald “was not to look for

weapons but to look for drugs.” Altho

ugh

this

court

has

never

direct

ly

-8-
addre

ssed

the

questi

on of

wheth

er an

office

r’s

subje

ctive

motiv

ation

is at

all

releva

nt to

a

Terry

analys

-9-
is,

other

circui

ts are

split

on the

issue.

Comp

are U

nited

States

v.

Brow

n, 188

F.3d

860,

866

(7th

Cir.

1999)

-10-
(holdi

ng

that

an

office

r’s

motiv

ation

is

irrele

vant

becau

se the

test is

purely

object

ive);

Unite

d

States

-11-
v.

Cum

mins ,

920

F.2d

498,

502

(8th

Cir.

1990)

(same

) with

Unite

d

States

v.

Lott ,

870

F.2d

778,

-12-
783-

84

(1st

Cir.

1989)

(holdi

ng a

frisk

violat

es the

Fourt

h

Amen

dment

if

“the

office

rs in

the

field

-13-
were

not

actual

ly

conce

rned

for

their

safety

”);

Unite

d

States

v.

Prim ,

698

F.2d

972,

975

(9th

-14-
Cir.

1983)

(statin

g that

the

Terry

reaso

nable

ness

stand

ard is

“appli

ed to

the

actual

and/o

r

percei

ved

belief

-15-
of the

law

enfor

ceme

nt

office

r as

he

either

stops

and

detain

s or

engag

es in

a

searc

h and

seizur

e”).

-16-
We

need

not

resolv

e that

questi

on in

the

instan

t case,

howe

ver,

becau

se the

circu

mstan

ces

facing

Mang

elson

-17-
when

he

friske

d

Wald

did

not

give

rise to

an

object

ively

reaso

nable

suspic

ion

that

Wald

was

armed

-18-
and

dange

rous.

The

distric

t

court

thus

prope

rly

ruled

that

the

pat-

down

violat

ed

Wald’

s

Fourt

-19-
h

Amen

dment

rights

. We

theref

ore

canno

t

consi

der

the

pipes

in

deter

minin

g

wheth

er

proba

-20-
ble

cause

existe

d to

search

the

trunk

and

we

need

not

decid

e

wheth

er the

pipes,

if

admis

sible,

would

-21-
 have

justifi

ed the

trunk

search

.

The remaining evidence upon which the government relies does not

sufficiently corroborate a suspicion of contraband possession to lawfully permit

the trunk search. In undertaking probable cause determinations, this court

recognizes that “[s]ome facts must be outrightly dismissed as so innocent or

susceptible to varying interpretations as to be innocuous.” United States v. Lee,

73 F.3d 1034, 1039 (10th Cir. 1996); see also Reid v. Georgia, 448 U.S. 438, 441

(1980). The road atlas, the luggage, the Visine, the appearance of Wald’s eyes,

and the wine coolers all fall into that category. As to the road atlas, this court

previously stated, “The presence of open maps in the passenger compartment . . .

is entirely consistent with innocent travel such that, in the absence of

contradictory information, it cannot reasonably be said to give rise to suspicion of

criminal activity.” United States v. Wood, 106 F.3d 942, 947 (10th Cir. 1997).

Similarly, the presence of only two pieces of luggage for two people on a

purported weekend road trip to Las Vegas is not at all suspicious. Although

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Visine may raise slightly more suspicion because it can be used to mask the

effects of drug usage, its presence in a vehicle can just as plausibly be explained

by a driver’s need to maintain clear vision during a lengthy road trip which began

in the early morning, as was the case with Wald and Ramirez. Correspondingly,

bloodshot, glassy eyes are equally susceptible to perfectly innocent explanations,

such as Wald’s somnolent state due to an early morning departure from Las

Vegas. [Vol. II at 58] Furthermore, while the presence of wine coolers may have

justified a suspicion of driving under the influence, the record fails to indicate

that Mangelson harbored any such suspicion; the wine coolers do not, however,

constitute corroborating evidence of a suspicion of drug possession or trafficking.

Finally, as this court has repeatedly recognized, the nervousness which

Mangelson observed when he confronted Wald and Ramirez “is of limited

significance” in determining whether probable cause to search the trunk existed,

particularly when Mangelson had no prior acquaintance with these two men.

United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994); see also United

States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir. 1992); United States v. Hall,

978 F.2d 616, 621 (10th Cir. 1992). “It is certainly not uncommon for most

citizens–whether innocent or guilty–to exhibit signs of nervousness when

confronted by a law enforcement officer.” Wood, 106 F.3d at 948. Wald’s

fumbling for his vehicle registration suggested nothing more than such innocuous

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nervousness; ultimately, he did produce a valid registration. Therefore, consistent

with Nielsen, Wald’s and Ramirez’s nervousness did not sufficiently corroborate

Mangelson’s suspicion of contraband possession to justify a search of the

vehicle’s trunk. See Nielsen, 9 F.3d at 1491.

In sum, none of the evidence upon which the government relies to

substantiate Mangelson’s suspicion based on smelling burnt methamphetamine,

either individually or collectively, sufficiently corroborates that suspicion to

provide the requisite probable cause for the trunk search.

In reaching the contrary conclusion, the district court relied on Mangelson’s

testimony about the pungent odor of methamphetamine and inferred that such an

odor “could permeate from the trunk” of the vehicle. Had Mangelson testified

that he detected the odor of raw methamphetamine, such evidence, if based upon

proper foundation, would have sufficed to provide probable cause for the trunk

search. See Downs, 151 F.3d at 1303 (holding that when an officer encounters

“the overpowering smell of raw marijuana” emanating from a vehicle, probable

cause to search the vehicle’s trunk exists (emphasis added)). In the instant case,

however, Mangelson testified that he smelled only burnt methamphetamine, not

raw methamphetamine, and that burnt methamphetamine has a distinctively

pungent odor. Following Nielsen and its progeny, the strong odor of burnt

methamphetamine, whether or not it can permeate trunks, does not provide

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probable cause to search a trunk, because it is unreasonable to think someone

smoked drugs in the trunk of a car.

Finally, the government offers the alternative argument that even if no

probable cause to search the trunk existed, Wald consented to the trunk search.

Addressing the extent of Wald’s consent to search the vehicle, the district court

concluded, “Wald gave Sgt. Mangelson consent to take a quick look inside the

vehicle. Wald’s consent did not go any further than the interior of the vehicle and

at no time did he give consent to a search of the trunk.” “Whether a search

remains within the boundaries of the consent is a question of fact to be

determined from the totality of the circumstances, and a trial court’s findings will

be upheld unless they are clearly erroneous.” United States v. Pena, 920 F.2d

1509, 1514 (10th Cir. 1990). The test for measuring the scope of consent is one

of objective reasonableness: “[W]hat would the typical reasonable person have

understood by the exchange between the officer and the suspect?” Florida v.

Jimeno, 500 U.S. 248, 251 (1991).

A review of the videotape recording of the traffic stop reveals that

Mangelson asked Wald and Ramirez the following question: “You wouldn’t mind

if I take a quick look, would you?” One or both of the defendants responded,

“No.” A reasonable observer of this exchange would not likely conclude that

Wald gave Mangelson permission to search the vehicle’s trunk.

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 The government asserts that because Wald did not later object when

Mangelson began searching the trunk, the trunk search must have fallen within

the scope of Wald’s consent. As a general proposition, this court has determined

that a defendant’s “failure to object when the search exceeds what he later claims

was a more limited consent[] is an indication the search was within the scope of

consent.” United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999). That

rule, however, applies only when the defendant initially gave “a general

authorization to search.” Id. (emphasis added). Here, the district court found that

Wald’s initial consent was not general, but rather was limited to a “quick look

inside the vehicle,” a finding we affirm as not clearly erroneous. Moreover, it is

significant that when Mangelson began searching the trunk, he had already

discovered the drug paraphernalia on Wald and informed Wald, “You’re in a little

bit of trouble, aren’t you.” A reasonable person, therefore, might well conclude

that Wald’s failure to object to the search of the trunk stemmed from his belief

that he was currently under arrest and therefore had no power to prevent the trunk

search. Mangelson even testified that upon his discovering the pipes, Wald and

Ramirez “were not free to go.” This court cannot conclude on this record the

district court’s finding that Wald’s consent to search was limited to a quick look

inside the passenger compartment was clearly erroneous.

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 In sum, because Wald did not consent to a search of his car’s trunk and

Mangelson lacked probable cause to do so, the methamphetamine and any other

evidence found inside the trunk should have been suppressed. As a consequence,

Wald’s post-arrest statements to law enforcement officers also should have been

suppressed as a fruit of the illegal search and subsequent arrest. 3 See Wong Sun v.

United States, 371 U.S. 471, 487-88 (1963).

IV. CONCLUSION

Because the district court erred in denying Wald’s motion to suppress both

the evidence discovered in the trunk of his vehicle and his post-arrest statements,

this court hereby REVERSES the district court’s denial of Wald’s suppression

motion, orders that the District Court for the District of Utah VACATE his

conviction and sentence, and REMANDS for further proceedings consistent with

this opinion.

3
The government does not dispute Wald’s claim that his statements
constitute fruit of the poisonous tree, should this court hold the trunk search
invalid. Having so concluded, this court need not address Wald’s alternative
argument that the district court, in denying his motion to suppress those
statements, improperly failed to rule on the voluntariness of his statements.

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