David B. Smith, appointed by the court, argued the cause
and filed the briefs for appellant.
Theodore C. Marcus, Assistant U.S. Attorney, argued the
cause for appellee, with whom Eric H. Holder, Jr., U.S.
Attorney, John R. Fisher and Roy W. McLeese, III, Assistant
U.S. Attorneys, were on the brief.
Before: Silberman, Williams and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Garland.
Garland, Circuit Judge : After losing a motion to suppress
evidence found in the trunk of his car, appellant Warren
Turner entered a conditional plea of guilty to one count of
possession with intent to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(iii). As part of his plea agreement, Turner pre-
served his right to appeal the district court's denial of his
motion to suppress. The issue presented on this appeal is
whether United States Park Police officers lawfully searched
the trunk in which the evidence was found. We conclude that
they did and affirm the district court's denial of appellant's
motion to suppress.
On December 6, 1995, United States Park Police Officer
William Sepeck stopped Mr. Turner's car because it did not
have a license plate on its front bumper. As Officer Sepeck
approached the car, Turner rolled down the window, and the
officer noticed a strong odor of burnt marijuana emanating
from inside. Officer Sepeck asked Turner to produce his
driver's license and registration. Turner produced a tempo-
rary registration, but could not produce his license.
Looking through Turner's open window, Officer Sepeck
saw torn pieces of cigar tobacco in Turner's lap, on the seat
between Turner's legs, and on the floor at Turner's feet. In
the officer's experience, these observations were consistent
with marijuana use. He believed they indicated that a hol-
lowed out cigar "blunt" had been used as a receptacle for
smoking marijuana. Through another window, Sepeck also
observed on the floor directly behind Turner's seat a clear
plastic bag of green, weed-like material, which he believed to
be marijuana itself.
Based on these observations, Officer Sepeck asked Turner
for his car keys. After obtaining the keys, Sepeck tossed
them to a second officer who had arrived on the scene, and
na. When the second officer discovered there was no trunk
key on the ring, Officer Sepeck asked Turner to take off his
shoes. At the hearing on the motion to suppress, Officer
Sepeck testified that in his experience, when a trunk key is
missing, it often is concealed on the person's body, including
in his shoes. Tr. at 12. As Officer Sepeck predicted, the
trunk key was in the sole of Turner's left shoe. The second
officer then searched the trunk, finding $825 in small bills and
a 62-gram chunk of cocaine base ("crack").
Appellant moved to suppress the evidence found in the
trunk. He argued that the traffic stop leading to the search
had been pretextual, and that the search had been made
without a warrant. At the close of the suppression hearing,
Turner largely abandoned the pretext argument, and assert-
ed instead that the shoe search that produced the trunk key
had been conducted without probable cause. The govern-
ment argued that the car had not been stopped on pretext;
that the key was found as part of a lawful search incident to
arrest; and that the trunk search came within the scope of
warrantless automobile searches authorized by the Supreme
Court in United States v. Ross, 456 U.S. 798 (1982). Tr. at
45. The district court agreed, and denied Turner's motion to
suppress. Id. at 46. Thereafter, Turner entered a condition-
al plea of guilty, preserving the right to appeal the denial of
his motion to suppress.
On appeal, Turner does not renew the arguments he made
below. Instead, he argues that the search of his trunk
exceeded the scope of warrantless searches authorized in
Ross, because the officers lacked probable cause to believe
there would be contraband in the trunk. 1 The government
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1 Turner also challenges what he believes to be the district
court's holding that the search of his trunk was authorized by
another exception to the warrant requirement, the "search incident
to arrest" doctrine, an exception which is limited to a car's passen-
ger compartment. See New York v. Belton, 453 U.S. 454, 460 n.4
Fourth Amendment challenge in the district court, the court's
ruling should be affirmed unless it was "plain error"_that is,
an error "so obvious and substantial" or so "serious and
manifest that it affects the very integrity of the trial process."
See In re Sealed Case, 99 F.3d 1175, 1177 (D.C. Cir. 1996).
While conceding that he did not make this particular chal-
lenge below, Turner argues it was sufficient that he moved
for suppression of the evidence based on the absence of a
warrant. Once he did so, Turner contends, it was the govern-
ment's burden to show the search came within the scope of
warrantless searches authorized by Ross, not his burden to
show it did not. Appellant's Reply Br. at 1 (citing United
States v. Hough, 944 F. Supp. 20, 22 (D.D.C. 1996)). More-
over, he notes, the government did in fact argue that the
search came within the scope of Ross and the district court so
held. Id. at 2 (citing Tr. at 45). Under these circumstances,
Turner contends, this Court should determine de novo wheth-
er the search of the trunk was lawful. See generally United
States v. Taylor, 997 F.2d 1551, 1553 (D.C. Cir. 1993).
This dispute over the appropriate standard of review need
not detain us, however, as we find no error, plain or other-
wise, in the district court's determination.
In Carroll v. United States, 267 U.S. 132 (1924), the
Supreme Court established an exception to the Fourth
Amendment's warrant requirement, holding that a warrant-
less search of an automobile, stopped by police officers who
had probable cause to believe the vehicle contained contra-
band, was not unreasonable within the meaning of the Fourth
Amendment. In United States v. Ross, 456 U.S. 798 (1982),
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(1981). We, however, do not read the district court's decision as
relying on the search incident to arrest doctrine to support the
trunk search. Rather, the court relied on that doctrine to authorize
seizure of the key from Turner's shoe, while relying on Ross to
support the "search of every part of the vehicle and its contents,
including the trunk." Tr. at 46.
that the "scope of a warrantless search of an automobile ...
is defined by the object of the search and the places in which
there is probable cause to believe that it may be found."
Ross, 456 U.S. at 824 . "If probable cause justifies the search
of a lawfully stopped vehicle," the Court stated, "it justifies
the search of every part of the vehicle and its contents that
may conceal the object of the search." Id. at 825. See also
California v. Acevedo, 500 U.S. 565, 570 , 579-80 (1991).
Thus, the question for consideration here is whether the
police had probable cause to believe that contraband may
have been in the trunk of Mr. Turner's car or, as the Ross
Court put it, whether the trunk was one of several parts of
the vehicle that "might contain the object of the search." 456
U.S. at 821.
On appeal, the government relies on three pieces of evi-
dence to establish probable cause: the smell of burnt mari-
juana emanating from the car, the pieces of torn cigar paper
arrayed around Turner, and the ziplock bag of green weed
material found on the floor behind his seat. Government's
Br. at 11-12. 2 The government argues that these three
pieces of evidence, together with Officer Sepeck's experience
and training in traffic and narcotics enforcement, formed a
"totality of circumstances" sufficient to meet the require-
ments of probable cause: that is, "a fair probability that
contraband or evidence of a crime [would] be found," Illinois
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2 Before actually opening the car's trunk, Officer Sepeck also
learned a fourth fact_that Mr. Turner had hidden the trunk key in
his shoe. If we were to consider that fact here, it would greatly
simplify the probable cause determination, as it points suspicion
directly at the trunk. But the government does not rely on the
trunk key's location as part of the probable cause for the search,
apparently because it thinks it fatal that the key was not discovered
until after the officer had formulated an intent to search the trunk
and after he had been thwarted by the key's absence. Because this
issue was not presented, we do not decide whether the government
was correct in concluding that it could not rely on the key, and
instead limit ourselves to considering only the three pieces of
evidence proffered to us.
including in its trunk.
Turner does not dispute the legality of the manner in which
any of these pieces of evidence came to the officer's attention.
Nor does he dispute that these facts established probable
cause to believe additional marijuana might be found else-
where in the passenger compartment of the car, or that if
another kind of evidence (for example, a larger quantity of
narcotics) had been found in the passenger compartment, it
could have constituted probable cause to believe additional
contraband might be found in the trunk. Appellant's Br. at 6.
Turner argues, however, that the observations made by Offi-
cer Sepeck constituted evidence of nothing more than person-
al use of marijuana, and that a person who uses rather than
distributes drugs would keep them within his control, either
on his person or in his immediate vicinity, and not in his
trunk. Id. at 6-7. Hence, he contends, in this case there was
no probable cause to believe additional drugs would be found
in the trunk.
The line appellant seeks to draw is too fine. While it may
be true that evidence of narcotics distribution would consti-
tute even stronger cause to believe additional contraband had
been secreted in the trunk, the evidence in this case was
sufficient to establish a "fair probability" that Turner might
have hidden additional drugs not necessary for his current
consumption in areas out of plain sight, including the trunk of
the car. The testimony of Officer Sepeck at the suppression
hearing, based on his experience in narcotics and traffic
enforcement, supports that conclusion. Tr. at 11, 24-25.
Those federal courts that have considered the "personal
use" argument have rejected it, and have upheld trunk
searches on evidence similar to that found here. See United
States v. Loucks, 806 F.2d 208, 210-11 (10th Cir. 1986) (smell
of still-burning marijuana cigarette butts and a small bag of
marijuana supported trunk search); United States v. Burnett,
791 F.2d 64, 67 (6th Cir. 1986) (small amount of marijuana on
floorboard of passenger compartment provided probable
cause to search trunk). See also United States v. Reed, 882
fied search of entire vehicle, including locked compartment in
rear of station wagon); United States v. Hough, 944 F. Supp.
20, 23 & n.2 (D.D.C. 1996) (smell of marijuana and discarded
marijuana cigarettes on floor of car provided probable cause
to search entire car including trunk).
Although the Supreme Court has not considered this ques-
tion directly, it did consider a similar set of facts in Robbins v.
California, 453 U.S. 420 (1981). In Robbins, California
Highway Patrol officers stopped a station wagon that had
been operating erratically. When the driver opened the door,
the officers smelled marijuana smoke. A pat-down of the
driver produced a vial of liquid, and a search of the passenger
compartment yielded marijuana "as well as equipment for
using it." Id. at 422. With nothing more than this evidence
of marijuana use, the officers opened the tailgate of the
station wagon, lifted the cover of a recessed luggage compart-
ment set flush in the deck, and discovered two packages
wrapped in opaque plastic. They unwrapped the packages
and found that each contained fifteen pounds of marijuana.
Id.
In Robbins, the Supreme Court held that the opaque
plastic packages should not have been opened without a
warrant, 453 U.S. at 428 _a holding later disavowed in Ross,
456 U.S. at 824 . The Robbins Court, however, did not
question the officers' authority to open the station wagon's
luggage compartment in the first place. To the contrary,
although it was not a focus of the case, the Court stated that
the two bricks of marijuana had been discovered "during a
lawful search of the petitioner's car." Robbins, 453 U.S. at
428. And, while Ross later disapproved the disposition in
Robbins insofar as it required a warrant for opening the
packages, it reaffirmed that the search for and discovery of
the packages inside the luggage compartment had been legiti-
mate. Ross, 456 U.S. at 817 , 824. Although there are
distinctions between a station wagon's luggage compartment
and a car's trunk, they both are sufficiently outside the
control of the vehicle's occupants for us to read Robbins and
Ross as authorizing the trunk search at issue here.
Turner acknowledges that there are "no federal cases
supporting [his] position that have the same facts." Appel-
lant's Br. at 11. He contends, however, that two cases are
"close." Id. at 11-12 (citing United States v. Nielsen, 9 F.3d
1487 (10th Cir. 1993), and United States v. Seals, 987 F.2d
1102, 1107 (5th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct.
155 (1993)). He also contends that language in United States
v. Ross, 456 U.S. at 824 , and California v. Acevedo, 500 U.S.
at 580, is consistent with his position. None of Turner's
citations, however, supports overturning the decision of the
district court here.
In United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir.
1993), the United States Court of Appeals for the Tenth
Circuit held that an officer's testimony that he smelled burnt
marijuana in the passenger compartment of the defendant's
car, without physical corroboration, provided insufficient
probable cause to search the trunk. In Nielsen, however, the
court's principal concern was with the credibility of such an
uncorroborated observation by an untrained "human sniffer."
Id. At the same time, the Tenth Circuit confirmed its
previous rejection of the " 'personal use' argument," id. at
1490, and distinguished Nielsen from the earlier case of
United States v. Loucks, 806 F.2d 208 (10th Cir. 1986), where
it had upheld a trunk search after the officer both smelled
and found corroborating evidence of small amounts of mari-
juana in the passenger compartment_the same kind of evi-
dence the government proffers here. In a subsequent case,
the Tenth Circuit reaffirmed the position taken in Loucks,
holding that a police officer had probable cause to search the
trunk of a car "when he smelled burned marijuana in the car
and found corroborating evidence of contraband [a rolled-up
dollar bill with a white powder residue, and a marijuana
cigarette] on defendant." United States v. Parker, 72 F.3d
1444, 1450 (10th Cir. 1995).
In the second case cited by appellant, United States v.
Seals, 987 F.2d 1102, 1107 (5th Cir.), cert. denied, ___ U.S.
___, 114 S. Ct. 155 (1993), the Fifth Circuit upheld a trunk
cocaine residue_as well as apparent modification of a rear
seat to allow trunk access. The pipe had been found after a
drug detection dog alerted to the presence of narcotics in the
passenger compartment. The court held that the pipe pro-
vided probable cause to search the trunk, Seals, 987 F.2d at
1107, but suggested in dictum that if the sole evidence
providing probable cause had been the dog's alerting to the
passenger compartment, only a search of that compartment
would have been justified. Id. at 1107 n.8. The distinction,
the court said, was "between probable cause to believe that
drugs are in a particular section of the car, and probable
cause to believe that drugs are generally within the car." Id.
In the former circumstance, the court suggested, only that
particular section could be searched; in the latter, any part of
the car that could conceal the drugs would be subject to
search.
This same distinction is at the heart of the language in
Ross to which appellant draws our attention. Although in
Ross the Court found that the police "had probable cause to
search respondent's entire vehicle," 456 U.S. at 817 , it noted a
circumstance in which that would not have been true: "Prob-
able cause to believe that a container placed in the trunk of a
taxi contains contraband or evidence," the Supreme Court
said, "does not justify a search of the entire cab." Id. at 824.
The Court's example was not hypothetical, but rather a
reference to the container placed in the taxi in the case of
Arkansas v. Sanders, 442 U.S. 753 (1979), the facts of which
were described earlier in Ross. In Sanders, the police had
been advised by a reliable informant that Sanders would
arrive at the airport carrying a green suitcase containing
marijuana. He did in fact arrive with a green suitcase, and
the police observed him placing it in the trunk of a taxi. The
relationship between the suitcase and the taxi was "coinciden-
tal," the Ross Court noted, and "no danger existed that its
contents could have been secreted elsewhere in the vehicle."
456 U.S. at 813 & n.17. Under those circumstances, the Ross
Court said, the police in Sanders did not have "probable
... green suitcase...." Id. at 814. 3
In California v. Acevedo, the Supreme Court returned once
again to this distinction between probable cause to believe
contraband is in a specific location, and probable cause to
believe that it may be in some unknown location within a
vehicle. While upholding the warrantless seizure of a bag in
a trunk, the Acevedo Court stated that the "facts in the
record reveal that the police did not have probable cause to
believe that contraband was hidden in any other part of the
automobile and a search of the entire vehicle would have been
without probable cause and unreasonable under the Fourth
Amendment." 500 U.S. at 580 . In Acevedo, as in Sanders,
the police had been following a particular parcel of drugs_
one the police actually had intercepted, examined, and reseal-
ed_and had watched as the suspect bag was placed in the
trunk. The government did not argue that it had reason to
suspect additional drugs were anywhere else in the car, and
indeed did not search anywhere else in the car. Under those
circumstances, the Court said, probable cause to search ex-
tended to the bag alone. Id.
Unfortunately for Turner, his case is not comparable to the
dicta of Seals, Ross or Acevedo. Here, "suspicion was not
directed at a specific container," Ross, 456 U.S. at 814 ,
whether by drug dog, informant, or police surveillance. 4
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3 In Sanders, the Court also noted that, although there was
probable cause to search the suitcase, that probable cause existed
before the suitcase was placed inside the automobile. Hence, the
Court said, the automobile exception did not apply and a warrant
was required. Subsequently, in California v. Acevedo, 500 U.S. 565
(1991), the Court disapproved this aspect of Sanders, holding that
the police may search any container found in an automobile without
a warrant "if their search is supported by probable cause." Aceve-
do, 500 U.S. at 579 .
4 This case is different from the circumstances discussed in
Ross for another reason as well. Here, the question is not just
whether probable cause to believe there are drugs in one part of a
car can provide probable cause to believe they may be in another,
probable cause to search "every part of the vehicle and its
contents that may conceal the object of the search." Id. at
825. Neither logic nor case law excludes Mr. Turner's trunk
from the list of such locations. Accordingly, we affirm the
judgment of the district court.
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but whether an actual finding of drugs in one location supplies
probable cause to believe there may be additional drugs in another.