## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 11 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ROBERT LEE DOWNS,

Defendant-Appellant. No. 98-3034

Appeal from the United States District Court

for the District of Kansas (D.C. No. 97-CR-10034)

Submitted on the briefs: Warner Eisenbise, Eisenbise Law Office, Wichita, Ka nsas, for DefendantAppellant. Jackie N. Williams, United States Attorney, and Montie R. Deer, Assistant United States Attorney, Wichita, Kansas, for Plaintiff-App ellee.
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.-2- INTRODUCTION After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ourt therefore honors the parties’ requests and orders the case su bmitted without oral argument. Robert L. Downs entered a conditional plea of guilty to a one-count indictment pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure. The indictment charged Downs with possession of mar ijuana with intent to distribute. Downs now appeals the district court’s denial of his motion to suppress approximately 200 pounds of marijuana foun d during a roadside search of his vehicle. This court exercises jurisdiction pursuant to 28 U.S.C § 1291 and affirms
.

BACKGROUND On appeal from the denial of a motion to suppress, this court accepts the district court’s factual findings unless clearly erroneous and views the evidence in the light most favorable to the United States, the prevailing party. See United States v. Maden , 64 F.3d 1505, 1508 (10th Cir. 1995). Viewed from that perspective, the facts surrounding the search of Do wns’ vehicle are as follows.-3-

On March 7, 1997, Kansas Highway Patrol Officer Eri c D. Sauer was patrolling Interstate 70 when he noticed a gray For d Taurus following closely behind another car. Sauer testified that the Tauru s was following the other car at a distance of about eight to ten feet and that Kans as law required a distance of at least 200 feet. Sauer ran the license tag through dispatch, which indicated the tag was allegedly registered to a 1985 Mazda and was expired as of February 1996. In light of this report, Sauer pulled over the Taurus. As Sauer approached the Taurus to talk with the dri ver, he first stopped and leaned down for several seconds to check out th e license tag. When Sauer moved forward to the driver’s side window, Downs explained that he was driving a rental car and gave Sauer his driver’s license al ong with the rental agreement. During this initial exchange, Sauer testified that he could smell the odor of marijuana coming from inside the vehicle. The smel l of raw marijuana was so strong that it made Sauer’s nose run and his eyes w ater. Although Sauer testified he could smell marijuana coming from inside the veh icle, he admitted he could not smell it when he leaned down to look at the tag as he first approached the car. While talking with Downs, Sauer also observed a col ogne box and some No-Doz pills in the front passenger seat and a blue duffel bag in the rear seat. Upon returning to his car, Sauer ran the tag throug h dispatch again. This time, the tag came back as registered to the car wh ich Mr. Downs was driving.-4-

While Sauer was writing Downs a warning for followi ng too closely, dispatch informed Sauer that Downs had a prior felony drug h istory. Sauer then returned to Downs, explained that there must have been a computer error with the earlier information on the tag and issued Downs a warning f or following too closely. Sauer testified he noticed Downs had lit a cigarett e while he had been in his patrol car and that the interior of the car now sme lled of cologne. He testified he asked Downs if he had sprayed the cologne and that Downs had denied doing so. After Sauer gave Downs the warning citation and ret urned his license and rental papers, Sauer asked Downs if he could search the car. When Downs refused consent to search, Sauer attempted to obtai n a canine unit to sniff the vehicle. When he found that a canine unit was not available, Sauer told Downs he had probable cause to search and asked him to ge t out of the vehicle. Sauer began the search by inspecting the inside of the car, including the duffel bag. He found no incriminating evidence. W hen Sauer began the search, he unlatched the trunk from inside the vehicle. As Sauer proceeded with the interior search, Downs shut the trunk. Sauer then ordered Downs away from the vehicle and reopened the trunk. Inside the trunk, Sauer found approximately 200 pounds of marijuana loosely wrapped in cellophane. Sauer then arrested Downs and read him his Miranda rights.1 In defining the limits of its holding, the court no ted as follows: “The

officer here said he smelled burntmarijuana, and we need only decide whether that provides probable cause to search a trunk, aft er a consented-to search of the passenger compartment produced no evidence to suppo rt the officer’s suspicions.” United States v. Nielsen , 9 F.3d 1487, 1491 (10th Cir. 1993). -5- After he was indicted on drug charges, Downs moved to suppress the seized marijuana. The district court denied the motion. This court reviews de

novo the district court’s ultimate determination that the search of Downs’ vehicle was reasonable under the Fourth Amendment. See United States v. Nielsen , 9 F.3d 1487, 1489 (10th Cir. 1993).

DISCUSSION “Probable cause to search a vehicle is established if, under the ‘ totality of the circumstances [,]’ there is a ‘fair probability’ that the car con tains contraband or evidence.” Id. at 1489-90. In a case involving raw marijuana, th is court has held that “the odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage.” United States v. Morin , 949 F.2d 297, 300 (10th Cir. 1991); see also Nielsen , 9 F.3d at 1490 (quoting Morin for this proposition). This seemingly categoric statement is not, however, without limits. In Nielsen , a case involving the smell of burnt marijuana, 1 the court recognized the holding in Morin but noted that “[t]he scope of a warrantless searc h of an automobile ‘is defined by the object of the search and the places in which there is probable-6-

cause to believe that it may be found.’” Nielsen , 9 F.3d at 1491 (quoting United States v. Ross , 456 U.S. 798, 824 (1982)). The court held:

The smell of burnt marijuana would lead a person of ordinary caution to believe the passenger compartment might contain marijuana. In the instant case, [the] consensual s earch of the passenger compartment revealed no marijuana or related contraband. We do not believe under the circumstances that ther e was a fair probability that the trunk contained marijuana, or that a disinterested magistrate would so hold if asked to issue a search warrant. Id. ; see also United States v. Parker , 72 F.3d 1444, 1450 (10th Cir. 1995) (holding, in a case involving the smell of burnt marijuana, that the “odor of marijuana in the passenger compartment of a vehicle does not, however, standing alone, establish probable cause to search the trunkof the vehicle”). Accordingly, this court has established a commonsen se distinction between the smells of burnt and raw marijuana based on the imperative that the scope of a warrantless search “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” United States v. Ross , 456 U.S. 798, 824 (1982). As to the smell of burnt marijuana, Nielsen and Parker recognize that the smell of burnt marijuana is gen erally consistent with personal use of marijuana in the passenger compartm ent of an automobile. In such a case, therefore, there is no fair probability that the trunk of the car contains marijuana and an officer must limit the se arch to the passenger compartment absent corroborating evidence of contraband. See Nielsen , 9 F.3d at-7-

1490-91; Parker , 72 F.3d at 1450. When, on the other hand, an off icer encounters, as was the case here, the overpowering smell of raw marijuana, there is a fair probability that the car is being used to transport large quantities of marijuana and that the marijuana has been secreted in places other than the passenger compartment. Accordingly, in such circum stances, a search of the trunk is appropriate. See Morin , 949 F.2d at 300.

CONCLUSION In the case at hand, Sauer testified and the distri ct court found that a strong smell of raw marijuana emanated from Downs’ vehicle at the time of the stop. Sauer thus had probable cause to search the trunk o f the vehicle and the district court correctly denied Downs’ motion to suppress. The judgment of the United States District Court for the District of Kansas is therefore AFFIRMED
.