United States v. McSween
1995 WL 309564, 53 F.3d 684 (1995)
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Rule of Law:
The odor of marijuana emanating from a vehicle provides police officers with probable cause to search the entire vehicle, including under the hood. Alternatively, a suspect's general consent to search a vehicle, without express limitation, reasonably extends to areas like under the hood where contraband may be concealed.
Facts:
- Texas Department of Public Safety Officers Ralph Billings and Larry Price stopped Gerry Carlyle McSween for driving 87 mph in a 65-mph zone.
- While one officer wrote a ticket, McSween consented to the other officer's request to look in the car and trunk.
- McSween actively assisted the officer by using screwdrivers to help remove the hatchback's interior panels.
- A computer check revealed that McSween had four prior arrests on narcotics charges.
- After being informed of McSween's record, Officer Price also asked for and received McSween's consent to search the vehicle.
- While searching the passenger area, Officer Price detected the odor of burnt marijuana.
- Unable to find the source of the smell in the 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, saw a brown plastic bag, and upon feeling it, concluded it contained a 'small bale' of marijuana, at which point he arrested McSween.
Procedural Posture:
- A grand jury returned an indictment charging McSween with possession with intent to distribute crack cocaine.
- McSween filed a motion to suppress the evidence seized from his car in the U.S. District Court, arguing the search was unconstitutional.
- The district court held a suppression hearing and denied McSween's motion.
- McSween entered a conditional plea of guilty, which preserved his right to appeal the court's denial of his suppression motion.
- The district court sentenced McSween to 136 months in prison.
- McSween (appellant) appealed the district court's denial of his motion to suppress to the U.S. Court of Appeals for the Fifth Circuit.
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Issue:
Does a police officer's warrantless search under the hood of a vehicle violate the Fourth Amendment when the officer detects the odor of burnt marijuana in the passenger compartment and the driver has given general consent to search the vehicle?
Opinions:
Majority - Garwood, Circuit Judge
No, the warrantless search under the hood of the vehicle did not violate the Fourth Amendment. The court held that the search was justified on two independent grounds: probable cause and consent. First, the detection of the odor of burnt marijuana by an experienced officer provided probable cause to believe the vehicle contained contraband. Citing United States v. Ross, the court reasoned that once probable cause is established to search a vehicle, it justifies a search of every part of the vehicle and its contents that may conceal the object of the search, including the area under the hood. Second, McSween's general consent to search the vehicle was reasonably interpreted to include the area under the hood. Applying the 'objective reasonableness' standard from Florida v. Jimeno, the court found that a typical reasonable person would understand a general consent to search a car to include all areas where drugs could be hidden. McSween's failure to object to the search's progression or to limit its scope, coupled with his earlier assistance in dismantling part of the car, supported the conclusion that the search was within the scope of his consent.
Analysis:
This decision reinforces and clarifies the scope of two major exceptions to the Fourth Amendment's warrant requirement for vehicle searches. It solidifies the 'plain smell' doctrine, confirming that the odor of marijuana alone is sufficient to create probable cause for a comprehensive, 'bumper-to-bumper' search, not just a search of the immediate area where the smell is detected. Furthermore, the ruling emphasizes that the onus is on the suspect to explicitly limit the scope of a consensual search; a general grant of consent, followed by a failure to object, grants officers broad authority to search any part of a vehicle where contraband might reasonably be found.
