United States District Court, W.D. Missouri, Joseph Division
ORDER AND OPINION (1) ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION AND (2) DENYING DEFENDANT'S
MOTION TO SUPPRESS
PHILLIPS, UNITED STATES DISTRICT COURT JUDGE.
highway patrolman found a gun in the trunk of Defendant's
car, resulting in Defendant's indictment for being a
felon in possession of a firearm. (Doc. 12.) He filed a
Motion to Suppress, (Doc. 20), contending the search of the
car's trunk was unconstitutional. The Honorable Robert E.
Larsen, Magistrate Judge for this District, held a hearing on
August 9, 2016, and he issued a Report on August 24, 2016
recommending that the Motion to Suppress be denied. (Doc.
31.) Defendant objects to Judge Larsen's Report and
Recommendation (“the Report”).
Court has conducted a de novo review as required by 28 U.S.C.
§ 636(b)(1). In particular, the Court has reviewed the
parties' submissions before the hearing, the transcript
from the hearing, the exhibits admitted during the hearing,
Defendant's objections and the Government's response.
Having conducted this review, the Court adopts the Report in
its entirety as the Order of the Court and denies the Motion
to Suppress. Given the Report's thoroughness there is no
need for an extended discussion; the Court's intent is to
specifically address Defendant's Objection. In addition,
Defendant's dispute focuses primarily on the law and does
not require a detailed examination of the facts.
A.J. Webb of the Missouri Highway Patrol stopped
Defendant's car because Defendant was exceeding the speed
limit. During his discussion with Defendant, Corporal Webb
smelled the odor of burnt marijuana in Defendant's car.
He took Defendant to his cruiser for the purpose of issuing a
warning; during the ensuing conversation Corporal Webb
learned that Defendant was returning to Kansas City from
Omaha, had luggage in the trunk of his car, and had prior
Webb issued Defendant a warning for speeding. He then advised
Defendant that he smelled burnt marijuana in the car.
Defendant admitted that his cousin had smoked marijuana in
the car. Corporal Webb asked for permission to search the
car, but Defendant refused. Corporal Webb then advised that
he had probable cause to search the car because of the odor
of burnt marijuana, and then he and Sergeant Larry Allen
searched Defendant's car. As Corporal Webb searched the
car's interior, Sergeant Allen opened the trunk and found
a shopping bag. He opened the shopping bag and found a small
mason jar with green (fresh) marijuana inside, a loaded
firearm, and a digital scale. Defendant was then arrested.
argues that the evidence found in the trunk of his car must
be suppressed because the search of the trunk (and the bag
therein) violated the Constitution. For the reasons set forth
in the Report, the Court disagrees. The odor of marijuana
provided probable cause to justify a search. E.g., United
States v. Smith, 789 F.3d 923, 928-29 (8th Cir. 2015);
United States v. Peltier, 217 F.3d 608, 610 (8th
Cir. 2000). Defendant contends the scope of any such search
was limited to the areas of the car where evidence of
marijuana usage could be found - which would not permit the
search to extend to the trunk of the car.
Court does not interpret prior decisions of the Eighth
Circuit as narrowly as does Defendant. The Eighth Circuit has
never held that an officer's probable cause to believe
that marijuana had been smoked in a car precluded a search of
the car's trunk. For instance, in United States v.
Caves, 890 F.2d 87 (8th Cir. 1989), a trooper smelled
the odor of burnt marijuana on the defendant's person and
breath, the defendant admitted that marijuana was in the
console, and the trooper then found cigarette papers, a can
of disinfectant, and marijuana in the console. Armed only
with this evidence of marijuana use, the trooper searched the
trunk of the car. The Court of Appeals held that the search -
including the search of the trunk - was proper. Similarly, in
United States v. Neumann, 183 F.3d 753 (8th Cir.),
cert. denied, 528 U.S. 981 (1999), the odor of burnt
marijuana, marijuana ashes in the ashtray, and a small
quantity of marijuana justified a search of the entire
vehicle. Other Eighth Circuit cases have relied on these (and
other) decisions to announce the general proposition that
“[t]he smell of burnt marijuana emanating from [a] car
[gives] the police probable cause to search the entire
vehicle for drugs . . . .” United States v.
Beck, 11 Fed. App'x 700, 700 (8th Cir. 2001);
see also United States v. Smith, 789 F.3d 923, 929
(8th Cir. 2015); United States v. Jennings, 2007 WL
2142260, *1 (8th Cir. 2007); Peltier, 217 F.3d at
610. However, no decision from the Eighth Circuit limits the
scope of such a search to the passenger
suggests the search of the trunk in Caves was only
justified because the trooper had more information than just
the smell of burnt marijuana. But that additional information
indicated nothing more than the contemporaneous use of
marijuana that was already established by the smell of burnt
marijuana. Thus the trooper in Caves - like Corporal
Webb here - was armed only with information suggesting
marijuana had been recently used in the car, yet the search
of the trunk was held to be lawful. Defendant also points out
that the vehicle in Neumann was a truck, and
suggests that the “entire vehicle” consisted of
the passenger compartment. (Doc. 34, p. 3.) However, the
search of the entire vehicle included “the back of the
pickup” where more than ninety-four pounds of marijuana
was found. 183 F.3d at 755. The opinion does not make clear
whether this was found in the bed of the truck or in the
passenger compartment; either way, it seems unlikely that
this quantity of marijuana was out in the open - so probable
cause to believe marijuana had been used in the truck
justified opening containers in which marijuana could be
found, even though evidence of marijuana use would not be
expected to be found therein.
in the Court of Appeal's holdings is the conclusion that
if there is probable cause to believe that marijuana has been
used in the passenger compartment, there is also probable
cause to believe that there is more marijuana elsewhere in
the car - including places where marijuana might not be
smoked, or where evidence of recent use might not be found.
The scope of a search justified by the odor of burnt
marijuana is not limited to places where the remains of burnt
marijuana might be found. For these reasons, the Court ADOPTS
the Report and Recommendation and DENIES the Motion to
IS SO ORDERED.
 The Court acknowledges Defendant's
citation to the Tenth Circuit's decision in United
States v. Nielsen, 9 F.3d 1487 (10th Cir. 1993), but
Nielson is inconsistent with the ...