*David Bramlette, United States District Judge for the

Southern District of Mississippi, sitting by designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-50586

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERRY CARLYLE McSWEEN,

Defendant-Appellant.

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Appeal from the United States District Court for the

Western District of Texas

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(May 19, 1995)

Before GARWOOD and BARKSDALE, Circuit Judges, and BRAMLETTE,

District Judge.*

GARWOOD, Circuit Judge:

Defendant-appellant Gerry Carlyle McSween (McSween) appeals

his conviction on a conditional plea of guilty to possession with

intent to distribute crack cocaine after the district court denied

his motion to suppress the drugs recovered from under the hood of

his car. We affirm.
2

Facts and Proceedings Below

On February 26, 1994, Texas Department of Public Safety

Officers Ralph Billings (Billings) and Larry Price (Price) stopped

McSween for driving 87 mph in a 65-mph zone. As Price conducted a

computer check, Billings began to write a speeding ticket.

Noticing a cellular phone and radar detector in the car's interior,

Billings asked McSween if he could look in the car and trunk.

McSween consented, and Billings opened the hatchback. McSween then

helped Billings remove, with screwdrivers, the hatchback's interior

panels.

Meanwhile, Price had completed his computer check, which

indicated that McSween had four prior arrests on narcotics charges.

After informing Billings of McSween's record, Price moved to the

car's passenger side and asked McSween if he had any objection to

his searching the vehicle. McSween consented. While searching the

passenger area, Price noticed the smell of burnt marihuana, which

he at first suspected was emanating from the ashtray. Finding no

drugs in the ashtray or 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 and saw in the hole what appeared to be a

brown plastic bag. Fingering the bag, Price concluded that it felt

like it contained a "small bale" of marihuana. Price then replaced

the rag and arrested McSween. After the car was impounded,

troopers inspected the hole and found a bag of marihuana and a

shoulder sling of crack cocaine.

A grand jury indictment returned March 8, 1994, charged

McSween with possession with intent to distribute 50 or more grams
3

of crack cocaine in violation of 21 U.S.C. § 841(a)(1). McSween

moved to suppress the evidence seized from his car, arguing that

the officers lacked probable cause and exceeded the scope of his

consent. After a suppression hearing, at which McSween did not

testify, the district court denied the motion, concluding that the

initial stop was justified, that McSween's consent to search was

voluntary and the search within its scope, and that the subsequent

arrest was supported by probable cause. Thereafter, on May 19,

1994, McSween entered a conditional plea of guilty, preserving the

suppression issue for appeal. Fed. R. Crim. P. 11(a)(2). The

district court sentenced McSween to 136 months in prison and 5

years of supervised release. McSween now appeals.

Discussion

McSween argues that the district court erred in denying his

motion to suppress because there was neither probable cause nor

consent to search under the hood of his vehicle, nor probable cause

to arrest him. Viewing the evidence in the light most favorable to

the government, the prevailing party, United States v. Maldonado,

735 F.2d 809, 814 (5th Cir. 1984), we hold that Price had both

probable cause and consent to search the area under the hood of

McSween's vehicle. See United States v. Sutton, 850 F.2d 1083,

1085 (5th Cir. 1988) (either consent or probable cause may

independently support a warrantless vehicle search). We further

hold that the officers had probable cause to arrest McSween and to

perform a subsequent warrantless search of the car after it was

impounded.
1 Also, though of at most entirely minimal relevance, McSween

had a cellular phone and radar detector.

4

I. Probable Cause for the Search

It is well settled that warrantless searches of automobiles

are permitted by the Fourth Amendment if the officers have probable

cause to believe that the vehicle contains contraband or other

evidence of a crime. See United States v. Ross, 102 S.Ct. 2157,

2164-65 (1982); United States v. Buchner, 7 F.3d 1149, 1154 (5th

Cir. 1993), cert. denied, 114 S.Ct. 1331 (1994); United States v.

Kelly, 961 F.2d 524, 527 (5th Cir. 1992). Whether an officer has

probable cause to search a vehicle depends on the totality of the

circumstances viewed "in light of the observations, knowledge, and

training of the law enforcement officers involved in the

warrantless search." United States v. Muniz-Melchor, 894 F.2d

1430, 1438 (5th Cir.), cert. denied, 110 S.Ct. 1957 (1990).

It is undisputed that Price had McSween's consent to search

inside the passenger compartment of McSween's new rental car. At

the suppression hearing, Price testified that, when he entered the

car, he noticed "the odor of what I thought was burned marijuana."

Price testified that he based this conclusion on his twenty-two

years of experience and training in the detection of marihuana by

its odor. He further testified that the smell appeared to be

coming from the ashtray, but he discovered nothing there or

anywhere else inside the vehicle's passenger compartment. He then

decided to look under the hood. At this point, Price had smelled

but not located marihuana and knew of McSween's four prior arrests

on narcotics charges.1 Together these facts, viewed in light of
5

Price's experience, justify a finding of probable cause to search

the entire vehicle. Indeed, the smell of marihuana alone may be

ground enough for a finding of probable cause, as this Court has

held many times. See, e.g., United States v. Reed, 882 F.2d 147,

149 (5th Cir. 1989) (the officer's detection of marihuana "in

itself . . . justified the subsequent search of [the defendant's]

vehicle"); United States v. Henke, 775 F.2d 641, 645 (5th Cir.

1985) ("Once the officer smelled the marijuana, he had probable

cause to search the vehicle."); United States v. Gordon, 722 F.2d

112, 114 (5th Cir. 1983) (same); United States v. McLaughlin, 578

F.2d 1180, 1183 (5th Cir. 1978) (same).

McSween contends that, even if the odor of marihuana gave

Price probable cause to search, the search should have been limited

to the passenger area, where Price detected the smell. We

disagree. It is well settled that, in a case such as this, the

detection of the odor of marihuana justifies "a search of the

entire vehicle." Reed, 882 F.2d at 149. As the Supreme Court

stated in Ross, "If probable cause justifies the search of a

lawfully stopped vehicle, it justifies the search of every part of

the vehicle and its contents that may conceal the object of the

search." 102 S.Ct. at 2173. See also United States v. Johns, 105

S.Ct. 881, 884 (1985). The Court further observed that, if there

is probable cause to suspect that the vehicle contains contraband,

then the search may extend not only to closed containers, but also

to a "car's trunk or glove compartment." Ross, 102 S.Ct. at 2172.

The same reasoning applies to the area under the hood, where drugs
2 This is simply not a case such as United States v. Chadwick,

97 S.Ct. 2476 (1977), or Arkansas v. Sanders, 99 S.Ct. 2586

(1979), in which the officers had probable cause to believe that

narcotics were stowed in a particular container (a footlocker in

Chadwick, a green suitcase in Sanders) but did not have probable

cause to search the automobiles in which the containers were

later placed:

"[I]t was the luggage being transported by respondent

at the time of the arrest, not the automobile in which

it was being carried, that was the suspected locus of

the contraband. The relationship between the

automobile and the contraband was purely coincidental,

as in Chadwick." Ross, 102 S.Ct. at 2167 (quoting

Sanders, 99 S.Ct. at 2594 (Burger, C.J., concurring)).

In Ross, the Supreme Court clearly limited these two cases to

their facts, Ross, 102 S.Ct. at 2165-67, 2172, and overruled an

earlier plurality opinion in Robbins v. California, 101 S.Ct.

2841 (1981), as an incorrectly broad interpretation of them.

3 Although the district court rested the constitutionality of

the warrantless search on McSween's consent, we can affirm the

lower court's decision on any grounds supported by the record. 

Bramblett v. Commissioner of Internal Revenue, 960 F.2d 526, 530

(5th Cir. 1992). On the facts as found by the district court (or

established without dispute in the record), the question of

probable cause is a question of law. See Blackwell v. Barton, 34

F.3d 298, 305 (5th Cir. 1994).

6

may also be concealed.2 We therefore reject McSween's contention

that Price lacked probable cause to search under the hood of his

rental car.3

II. Consent for the Search

In the alternative, we agree with the district court that the

search under the hood was within the scope of McSween's consent.

Under the Fourth Amendment, "[t]he standard for measuring the scope

of a suspect's consent . . . is that of `objective'

reasonablenessSQwhat would the typical reasonable person have

understood by the exchange between the officer and the suspect?"

Florida v. Jimeno, 111 S.Ct. 1801, 1803-04 (1991). McSween argues
4 McSween does not contest the district court's finding that

the consent in this case was voluntary. Nor does McSween

challenge any other factual findings made by the district court. 

The only remaining question, the scope of consent, is considered

a question of law in this Circuit and is, accordingly, reviewed

de novo. United States v. Rich, 992 F.2d 502, 505 (5th Cir.),

cert. denied, 114 S.Ct. 348 (1993).

7

that his consent to search should be construed to extend only to

the trunk and passenger areas and not to the area under the hood.4

In his brief, McSween contends that the troopers' wordsSQtheir

requests to "look in" the car and trunkSQwould indicate to a

reasonable person that the search was so limited. At oral

argument, however, McSween conceded that he did not draw a

distinction between a request to "look in" a car and one to

"search" it.

Viewing the testimony at the suppression hearing in the light

most favorable to the government, we conclude that Price asked

McSween for general permission to search his vehicle. Price

testified, "I asked . . . if . . . [McSween] had any objection of

[sic] me searching his vehicle." Asked then if that was "more or

less the language . . . used," Price responded, "Yes." Even if

Price actually asked to "look in" McSween's vehicle, we would still

conclude that in these circumstances Price effectively asked for a

general consent to search. In United States v. Crain, 33 F.3d 480

(5th Cir. 1994), cert. denied, 115 S.Ct. 1142 (1995), this Court

held "that an individual's consent to an officer's request to `look

inside' his vehicle is equivalent to general consent to search the

vehicle and its contents . . . ." Id. at 484; see also Rich, 992

F.2d at 506. We therefore conclude that Price asked for and
5 McSween did not testify at the suppression hearing. Defense

counsel, however, suggested that it may have been difficult for

McSween to object because of the speed and obscurity of the

search. The district court did not clearly err in finding this

suggestion incredible, especially as counsel's claim is pure

hypothesis. The only evidence at the hearing related to this

claim supports the district court's finding. Billings, who was

standing with McSween at the rear of the vehicle during Price's

search, testified that he was aware Price had opened the hood and

was searching that area. In any event, as we stated in Rich,

8

received from McSween general consent to search the vehicle.

The question, then, is whether it was reasonable to interpret

McSween's general oral consent to search the car as authority to

search under the hood. Although the "scope of a search is

generally defined by its expressed object," Jimeno, 111 S.Ct. at

1804, the officers here never told McSween the purpose of their

search. The failure to specify the object of the search, however,

is not dispositive if the circumstances could otherwise lead a

reasonable person to conclude that the search might include the

area under the hood. In Crain, the defendant argued that, because

the officers never indicated the purpose of their search, an

objectively reasonable person would not consider their consent to

include the opening of a "closed paper bag shoved under the [car's]

seat." 33 F.3d at 484. Rejecting this argument, we held that a

general consent to search a car includes consent to open a paper

bag inside it, at least when the defendant does not attempt to

limit the scope of the search. Id.; accord United States v. Snow,

44 F.3d 133, 135 (2d Cir. 1995). As in Crain, although the

officers here made a general request for a search without

identifying their objective, McSween never objected to the scope of

the search.5
"[W]e are unwilling to read Jimeno to hold . . . that enforcement

officials must conduct all searches in plain view of the suspect,

and in a manner slowly enough that he may withdraw or delimit his

consent at any time during the search." Rich, 992 F.2d at 507.

6 This case is not one in which the officers interpret a

general consent to search the vehicle as authority to inflict

damage on the vehicle or its contents. United States v.

Strickland, 902 F.2d 937, 941-42 (10th Cir. 1990); cf. Jimeno,

111 S.Ct. at 1804 ("It is very unreasonable to think that a

suspect, by consenting to the search of his trunk, has agreed to

the breaking open of a locked briefcase within the trunk, but it

is otherwise with respect to a closed paper bag.").

9

In such circumstances, a failure to object to the breadth of

the search is properly considered "an indication that the search

was within the scope of the initial consent." United States v.

Cannon, 29 F.3d 472, 477 (9th Cir. 1994) (citation and internal

quotation marks omitted). As this Court stated in Rich, the

defendant, as the individual "knowing the contents of the vehicle,"

has the "responsibility to limit the scope of the consent." Rich,

992 F.2d at 507. Because McSween knew at the time of the search

what the fire wall hid, he should have limited his consent, "if he

deemed it necessary to do so," id., to clarify any ambiguity from

which he now seeks to benefit. Further supporting this conclusion

is the fact that McSween gave Price his consent after helping

Billings remove interior panelling in the hatchback. This sort of

behavior could indicate to a reasonable officer that McSween meant

to consent to more than a superficial search of his vehicle.6

In United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.),

cert. denied, 99 S.Ct. 333 (1978), the Ninth Circuit confronted a

factually indistinguishable situation. There, the defendant gave

the officer permission to "look inside" his truck. After searching
7 McSween attempts to distinguish this case by arguing that

here there were circumstances that would make a reasonable

officer realize the "initial consent" was limited. As pointed

out earlier, however, the consent given in this case authorized a

general search of the car.

10

the truck's cab and cargo areas, the officer opened the hood and

found marihuana. In his motion to suppress, the defendant argued

that the officer exceeded the scope of his consent when he opened

the hood. The district court denied the motion, and the Ninth

Circuit affirmed. The court determined that the defendant's

permission to search both the cab and cargo areas, combined with

his failure to object to the continuation of the search under the

hood, made the evidence admissible.7 We believe the same result

should obtain here.

III. Probable Cause for the Arrest and Subsequent Search

McSween next argues that the officers lacked probable cause to

arrest him, impound the vehicle, and conduct a further search.

McSween claims that the cocaine should be suppressed "because the

only thing that was determined during the . . . search on the

highway was that there was an object wrapped in plastic in the hole

under the hood." An officer has probable cause for an arrest when

"the facts and circumstances within the knowledge of the arresting

officer are sufficient to cause a person of reasonable caution to

believe that an offense has been or is being committed." United

States v. Walker, 960 F.2d 409, 416 (5th Cir.), cert. denied, 113

S.Ct. 443 (1992). With the knowledge that McSween had four prior

arrests on narcotics charges and that the interior of his car

smelled of burnt marihuana, Price opened the hood and found a
8 When asked whether he thought there was anything unusual

about a rag sticking out of a fire wall, Price testified, "A

brand-new vehicle like that, a rental car, it was unusual that

you would see a rag stuffed in behind there, I felt it was." 

11

plastic bag hidden behind a rag in the fire wall of a new rental

car.8 Price testified that, after touching the bag and looking at

it, he concluded that, based on his experience, it "felt" like it

contained a "small bale" of marihuana. Given these circumstances,

Price had probable cause for the arrest.

Finally, we must reject McSween's suggestion that, even if the

arrest and initial search were supported by probable cause, the

second search of the car at the sheriff's office, where the cocaine

was discovered, required a warrant. If probable cause justified a

warrantless search on the roadside, it likewise justified one at

the station after the car was impounded. See Ross, 102 S.Ct. at

2163-64 n.9 ("[I]f an immediate search on the street is permissible

without a warrant, a search soon thereafter at the police station

is permissible if the vehicle is impounded.").

Conclusion

For the foregoing reasons, the judgment of the district court

is 

AFFIRMED.