United States v. Douglas Merrill Nielsen
1993 WL 483133, 1993 U.S. App. LEXIS 30033, 9 F.3d 1487 (1993)
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Rule of Law:
The uncorroborated smell of burnt marijuana alone does not provide probable cause to conduct a warrantless search of a vehicle's trunk after a consensual search of the passenger compartment reveals no contraband.
Facts:
- Utah Highway Patrol Officer Bushnell stopped Douglas Merrill Nielsen for speeding.
- Bushnell claimed he detected the smell of burnt marijuana coming from the open window of Nielsen's vehicle.
- Nielsen denied having any marijuana and consented to a search of the vehicle's passenger compartment.
- Bushnell searched the interior of the car but found no marijuana, paraphernalia, or any source for the alleged odor.
- A radio check revealed Nielsen had a 15-year-old misdemeanor marijuana conviction.
- Nielsen expressly refused to consent to a search of his car's trunk.
- Bushnell proceeded to take the keys from the ignition, opened the trunk without consent, and discovered approximately two kilograms of cocaine and a set of scales.
Procedural Posture:
- The United States charged Nielsen with possession of cocaine in the United States District Court for the District of Utah (a federal trial court).
- Nielsen filed a motion to suppress the cocaine, arguing it was obtained through an unconstitutional search.
- The district court, finding the officer's testimony that he smelled marijuana to be credible, denied the motion to suppress.
- Nielsen entered a conditional guilty plea, which allowed him to appeal the district court's denial of his suppression motion.
- Nielsen (as appellant) appealed the district court's ruling to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does the uncorroborated smell of burnt marijuana, detected by a police officer during a lawful traffic stop, provide probable cause under the Fourth Amendment to conduct a warrantless search of a vehicle's trunk after a consensual search of the passenger compartment reveals no evidence of marijuana?
Opinions:
Majority - Logan, Circuit Judge
No. The warrantless search of the trunk was unreasonable under the Fourth Amendment because the uncorroborated smell of burnt marijuana did not provide probable cause. The court reasoned that the scope of a warrantless automobile search is defined by the object of the search and the places where there is probable cause to believe it may be found, as established in United States v. Ross. The smell of burnt marijuana suggests its presence in the passenger compartment where it was smoked. Once a consensual search of that compartment yielded no evidence to corroborate the officer's suspicion, there was no longer a 'fair probability' that marijuana would be found in the trunk. The court distinguished this case from prior precedents where officers either found contraband in the passenger compartment before searching the trunk or detected the smell of raw marijuana, which might imply transportation or storage. The court expressed concern that constitutional rights are endangered if an officer's uncorroborated and subjective claim of smelling burnt marijuana, without more, could justify a search of an entire vehicle.
Analysis:
This decision significantly refines the "plain smell" doctrine by creating a distinction between the smell of burnt and raw marijuana and linking probable cause to a specific location within a vehicle. It establishes that the justification for a search must be spatially related to the evidence giving rise to suspicion. The smell of burnt marijuana points to the passenger compartment; if a search of that area is fruitless, probable cause does not automatically extend to the trunk. This ruling places an important limitation on police discretion, requiring more than an uncorroborated, subjective smell to justify expanding a search, thereby protecting citizens from potentially pretextual searches.
