United States v. Randall E. Neumann
1999 WL 447280, 183 F.3d 753, 1999 U.S. App. LEXIS 14821 (1999)
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Rule of Law:
The combination of a faint odor of alcohol on a driver's breath, a positive result on a portable breath test indicating consumption but not intoxication, the driver's nervousness, and inconsistent statements about drinking constitutes probable cause to conduct a warrantless search of the vehicle for an open container of alcohol.
Facts:
- South Dakota highway patrol officer Mike Kayras observed Randall Neumann's pickup traveling at eighty miles per hour, five miles per hour over the speed limit, and initiated a traffic stop.
- As Kayras approached the vehicle, he observed Neumann light a cigarette.
- Neumann appeared nervous and anxious while searching for his Hawaii driver's license and the registration for his Montana-registered pickup.
- While in the patrol car, Kayras smelled a faint odor of alcohol on Neumann's breath.
- When asked if he had been drinking, Neumann first denied it, but after being told he must take a portable breath test (PBT), he admitted to drinking one beer about an hour earlier.
- The PBT registered a blood alcohol content of .013, indicating alcohol consumption but not legal intoxication.
- Based on these observations and statements, Kayras initiated a search of Neumann's pickup for an open container of alcohol.
- During the search for an open container, Kayras smelled burnt marijuana and found marijuana ashes, which led to a broader search of the vehicle that uncovered approximately ninety-four pounds of marijuana.
Procedural Posture:
- Neumann was indicted by a federal grand jury for possession with the intent to distribute marijuana.
- Neumann filed a motion to suppress the evidence seized from his vehicle in the U.S. District Court for the District of South Dakota, arguing the search was unconstitutional.
- A U.S. Magistrate Judge recommended denying the motion, and the District Court adopted the recommendation and denied Neumann's motion to suppress.
- Neumann entered a conditional guilty plea, which allowed him to appeal the court's denial of his suppression motion.
- Neumann appealed the District Court's ruling to the U.S. Court of Appeals for the Eighth Circuit.
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Issue:
Does the combination of a faint odor of alcohol on a driver's breath, a positive portable breath test (PBT) result below the legal limit for intoxication, the driver's nervousness, and inconsistent statements about drinking create probable cause under the Fourth Amendment to search the vehicle for an open container?
Opinions:
Majority - Wollman, Chief Judge
Yes. A police officer has probable cause to search a vehicle for an open container when the totality of the circumstances creates a probability or substantial chance of finding such evidence. Here, the officer's probable cause was supported by several factors: Neumann's nervousness, the act of lighting a cigarette (which the officer's experience suggested is often done to mask an odor), the faint smell of alcohol on Neumann's breath, the PBT result confirming alcohol consumption, and Neumann's inconsistent statements, first denying and then admitting to drinking. These facts, taken together, provided a substantial basis for the officer to believe that Neumann had consumed beer while driving and that an open container might be in the vehicle. The subsequent detection of burnt marijuana during this lawful search then provided separate probable cause to search the entire vehicle for drugs.
Dissenting - Lay, Circuit Judge
No. The officer's search was based on nothing more than an inchoate suspicion and lacked probable cause, thereby violating the Fourth Amendment. The majority's decision obliterates the bright line between reasonable suspicion and probable cause. The facts supporting the search were weak: the driver was not intoxicated (PBT of .013), the odor of alcohol was faint and on his breath rather than in the car, and lighting a cigarette is hardly a basis for probable cause. The officer had not observed any erratic driving or seen any containers in plain view. This amounts to a mere hunch, not the 'substantial probability' of criminal activity required for a probable cause search.
Analysis:
This decision reinforces the flexible, non-technical nature of the 'totality of the circumstances' test for probable cause established in Illinois v. Gates. It demonstrates that a collection of individually weak or ambiguous facts can aggregate to satisfy the probable cause standard, granting law enforcement significant discretion during traffic stops. The ruling arguably lowers the threshold for what constitutes probable cause to search for an open container, moving closer to what the dissent characterizes as mere suspicion. Future cases will likely cite this decision to justify vehicle searches based on a combination of minor indicators, even without a strong, single piece of incriminating evidence.
