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).
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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
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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)
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(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
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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
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and
dange
rous.
The
distric
t
court
thus
prope
rly
ruled
that
the
pat-
down
violat
ed
Wald’
s
Fourt
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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
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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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