UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TITO ABBO, Plaintiff - Appellant,

v. STATE OF WYOMING; WYOMING HIGHWAY PATROL; AARON KIRLIN, individually and in his official capacity; BEATRIZ REGINA SCHULMEISTER, individually and in her official capacity; JOHN DOES 1 THROUGH 20, Defendants - Appellees. No. 13-8079 (D.C. No. 2:12-CV-00249-NDF) (D. Wyo.)

ORDER AND JUDGMENT *

Before HOLMES , MATHESON , and McHUGH , Circuit Judges.

Tito Abbo was a passenger in his car when a Wyoming Highway Patrol (WHP) trooper stopped the driver for speeding. Th e trooper believed she smelled raw marijuana in the vehicle, along with another plant odo r she believed to be sage. She called for another WHP trooper, who also smelled what he believed was raw marijuana. The troopers patted down Mr. Abbo, handcuffed him, placed him in a patrol car, and searched

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 30, 2014

Elisabeth A. Shumaker Clerk of Court-2- his vehicle. They did not find marijuana, and released Mr. Abbo. The stop lasted approximately 76 minutes. Mr. Abbo brought suit under 42 U.S.C. § 1983, alleging the troopers’ conduct violated his Fourth, Fifth, and Fourteenth Amendment rights. The district court determined the troopers had qualified imm unity and granted summary judgment for the defendants. Mr. Abbo now appeals. Exerci sing jurisdiction under 28 U.S.C. § 1291, we

affirm.

I. BACKGROUND

A. Factual Background On October 30, 2011, Tito Abbo was ridi ng as a passenger in his own car when Trooper Regina Schulmeister of the WHP stopped the driver, Gregory Mercado, for speeding. 1 After failing to stop for two miles a nd waving at Trooper Schulmeister, the occupants of the car pulled on to the highway shoulder and rolled down both windows. When Trooper Schulmeister approached th e vehicle, she believed she smelled raw marijuana in the car as well as another pl ant odor she believed to be sage. Trooper Schulmeister took Mr. Mercado back to her patrol car, searched him, and put him in the back seat. Sh e issued him a citation for spee ding. Trooper Schulmeister then called Trooper Aaron Kirlin to the scene. When he arrived, she told him, “I need

1 The car was going 105 miles per hour in a 75 miles-per-hour zone.-3- your nose,” but did not tell him what she believed she smelled. 2 Trooper Kirlin approached Mr. Abbo’s vehicle, spoke with him briefly, and believed he smelled raw marijuana. He asked Mr. Abbo to step out of the car. When he

informed Mr. Abbo that he sm elled marijuana and was going to search the vehicle, Mr. Abbo protested, became “somewhat agitated,” a nd told Trooper Kirlin to call for a drug dog. Aplt. App. at 143. Trooper Kirlin in formed Mr. Abbo he was not under arrest, but handcuffed Mr. Abbo’s hands behind his back, patted him down, and placed him in the back seat of a patrol car while the troopers searched his vehicle. Troopers Schulmeister and Kirlin searched Mr. Abbo’s vehicle for 49 minutes. They found rolling papers without tobacco, ce llophane with duct tape, a power inverter, a screwdriver, three cellular phones, an iPad, and salves and herbs, but did not find marijuana. The troopers released Mr. Abbo a nd Mr. Mercado. Mr. Abbo suffers anxiety attacks as a result of the stop.

B. Procedural Background

Mr. Abbo sued in federal di strict court in Wyoming, bringing (1) § 1983 claims against the troopers in their personal capac ity, alleging deprivation of civil rights, false arrest, and false imprisonment; (2) a civil cons piracy claim against the troopers; and (3) a claim against the WHP and the tr oopers in their official capacity. He sought monetary

2 Trooper Schulmeister described the smell as “sage.” Aplt. App. at 184-85. Trooper Kirlin noted “pine crap scattered ever ywhere” in the vehicle. Kirlin Video at 16:51:13. Mr. Abbo is a trained herbalist and sa ys the vehicle contained fresh juniper.-4- and punitive damages. The WHP and troopers filed a motion for summary judgment, which the district court granted. The district court determined (1) the troopers were entitled to qualified immunity, (2) Mr. Abbo had not alleged sufficien t facts to establish his conspiracy claim, and (3) sovereign immunity barred claims agai nst the troopers and WHP in their official capacity. Mr. Abbo filed a timely appeal. On a ppeal, Mr. Abbo contests the grant of summary judgment on the § 19 83 claims against the troopers in their personal capacity, arguing they are not entitled to qu alified immunity for the alle ged violation of his Fourth Amendment rights.

II. DISCUSSION

A. Standard of Review and Legal Background We review a grant of summary judgment ba sed on qualified immunity de novo. Steffey v. Orman , 461 F.3d 1218, 1221 (10th Cir. 2006 ). “Law enforcement officers are, of course, entitled to a presumption that they are immune from lawsuits seeking damages for conduct they und ertook in the course of performing their jobs.” Kerns v. Bader , 663 F.3d 1173, 1180 (10th Cir. 2011). When a defendant asserts qualified immunity, the burden of proof shifts to the plaintiff. Steffey , 461 F.3d at 1221. The plaintiff must show (1) the defendant violated his or her constitutional right and (2) the infringed right was so clearly established that every reasonable official would have understood what she or he was doing violated the law. Kerns , 663 F.3d at 1180. We may address these two-5- showings in any order. Pearson v. Callahan , 555 U.S. 223, 236 (2009).

B. Analysis Although the governing case law likely su pports a finding of pr obable cause, we begin and end our inquiry by asking whether the alleged infringed right was so clearly established that every reasonable official would have understood the troopers’ actions

violated the law. 3 We conclude it was not. The troopers testified they sm elled what they believed to be raw marijuana in Mr. Abbo’s vehicle, and determined this gave them probable cause to search. 4 Indeed, this court has repeatedly recognized the odor of raw marijuana establishes probable cause for

3 The district court relied on this ground: “The issue is not whether probable cause existed, but whether it was clearly established that probable cause did not exist.” Aplt. App. at 145 (emphasis omitted).

4 Mr. Abbo contends the district court e rred in determining the troopers actually smelled raw marijuana. He argues this was a disputed fact, and claims the district court improperly resolved it in favor of the troope rs rather than Mr. Abbo, the non-moving party. In his Fed. R. App. P. 28(j) lette r of November 17, 2014 , Mr. Abbo quotes from Tolan v. Cotton , 134 S. Ct. 1861, 1866 (2014) (c itation, quotations, and alterations omitted): “[b]y failing to credit evidence th at contradicted some of its key factual conclusions, the court improperly weighed the ev idence and resolved disputed issues in favor of the moving party.” We disagree. We understand the district court’s opinion to find that the troopers smelled marijuana in a subjective sense, and not to establish that the troopers smelled what was, in fact, marijuana. The partie s do not dispute this fact. Both troopers commented they smelled mariju ana during their search. Th ey subsequently testified under oath that they smelled raw marijuana in Mr. Abbo’s car. At oral argument, counsel for Mr. Abbo conceded the troopers believed th ey smelled raw marijuana. Oral Arg. at 2:40-4:53. The troopers’ belie f is not in question, and a mi stake of fact does not defeat their determination of probable cause. United States v. Nicholson , 721 F.3d 1236, 1238 (10th Cir. 2013); Sherouse v. Ratchner , 573 F.3d 1055, 1059 (10th Cir. 2009).-6- a search. See United States v. Zabalza , 346 F.3d 1255, 1259 (10th Cir. 2003); United States v. Vasquez-Castillo , 258 F.3d 1207, 1213 (10th Cir. 2001); United States v. Morin , 949 F.2d 297, 300 (10th Cir. 1991); United States v. Sperow , 551 F.2d 808, 811 (10th Cir. 1977); United States v. Bowman , 487 F.2d 1229, 1231 (10th Cir. 1973). Once probable cause is established, troope rs may search an entire vehicle. United States v. Bradford , 423 F.3d 1149, 1 160 (10th Cir. 2005); United States v. Rosborough , 366 F.3d 1145, 1152-53 (10th Cir. 2004); United States v. Parker , 72 F.3d 1444, 1450 (10th Cir. 1995). We have noted “for a right to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or th e clearly established weight of authority

from other courts must have found the la w to be as the plaintiff maintains.” Cortez v. McCauley , 478 F.3d 1108, 1114-15 (10th Cir. 2007) (quotations omitted). Mr. Abbo cites two of our previous rulin gs to support his claim the tr oopers lacked probable cause for the search and seizure. First, he invokes United States v. Nielsen , 9 F.3d 1487 (10th Cir. 1993), which concluded probable cause di d not exist when offi cers smelled burnt marijuana in a vehicle, searched the passeng er compartment but found nothing, and then proceeded to search the trunk of the vehicle, where they found cocai ne but did not find marijuana. Id. Mr. Abbo argues Nielsen stands for the principle “that marijuana smell alone is not grounds to uphold a search, ab sent the ‘corroboration’ of a finding of marijuana.” Aplt. Br. at 20. Second, Mr. A bbo contends searches based on the odor of raw marijuana are unreasonable when conf ounding smells are present, citing United-7- States v. Salzano , 158 F.3d 1107, 1111 (10th Cir. 1 998). He argues a confounding smell in his case called for further investigation to confirm or dispel the troopers’ reasonable suspicion, and suggests the troopers should have called a drug dog for that purpose. Mr. Abbo has misconstrued both opinions. Neither decision is on point for the circumstances at hand, and neith er would put a reasonable office r on notice that she or he was violating Mr. Abbo’s rights. First, Nielsen did not hold that probable cause depends on whether contraband is actually found in a search. “[W]e do not evaluate probable cause in hindsight, based on what a se arch does or does not turn up.” Florida v. Harris , 133 S. Ct. 1050, 10 59 (2013). Instead, Nielsen reasoned that the scope of a warrantless search “is defined by the object of the sear ch and the places in which there is probable cause to believe that it may be found,” and concluded the odor of burnt marijuana gave probable cause to search a more limited area of a vehicle than the odor of raw marijuana.

Nielsen , 9 F.3d at 1491 (quoting United States v. Ross , 456 U.S. 798, 824 (1982)). Subsequent rulings have reiterated this holding. See United States v. Downs , 151 F.3d 1301, 1303 (10th Cir. 1998) (“ Nielsen and Parker recognize that the smell of burnt marijuana is generally consistent with pe rsonal use of marijuana in the passenger compartment of an automobile. . . . When, on the other hand , an officer 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 larg e quantities of marijuana and that the marijuana has been secreted in places other than the passenger compartment.”); see also Rosborough , 366 F.3d at 1153 (describing Nielsen as “limited to the factual scenario of-8- an officer detecting the smell of burnt marijuana”); United States v. Wald , 216 F.3d 1222, 1226 (10th Cir. 2000) (“ [The distinction in Nielsen ] is premised on the common-sense proposition that the smell of burnt marijuana is indicative of drug usag e, rather than drug trafficking, and because it is unreasonable to believe people smoke marijuana in the trunks of cars, the mere smell of burnt mar ijuana does not create the fair probability that the trunk contains marijuana.”). Nielsen , along with subsequent case law, supports the proposition that the odor of raw marijuana pr ovides probable cause to search the entirety

of a vehicle. Second, we have not held or implied confou nding smells defeat a probable cause

determination. Salzano is off point because the officers in that stop alleged they smelled only a masking agent and did not also sme ll what they believed to be drugs. Salzano , 158 F.3d at 1114. Here, however, the troopers believed they smelled raw marijuana as well as a potential masking agent. Furthermore, we have held confounding smells are often used as masking agents to conceal the odor of drugs and therefore bolster, rather than defeat, a finding of probable cause to search. United States v. West , 219 F.3d 1171, 1178-79 (10th Cir. 2000). The smell of ot her plant odors, which Mr. Abbo concedes were in the vehicle, would in fact strengthe n a reasonable officer’s determination she or he had probable cause to search. 5

5 Mr. Abbo also argues the troopers vi olated his rights by handcuffing and detaining him for the duration of his search . The officers’ belief they smelled raw marijuana and had probable ca use to search the vehicle wo uld also provide them with probable cause to detain Mr. Abbo. See United States v. Rodriguez-Rodriguez , 550 F.3d-9- For purposes of qualified imm unity, we need not defin itively resolve whether the officers had probable cause to search M r. Abbo’s car based on these precedents. 6 We need only conclude Mr. Abbo ha s not demonstrated the law was so clearly established

that reasonable officers would have known they were violating Mr. Abbo’s rights by searching his car and seizing his person afte r smelling what they believed to be raw marijuana. Without su ch a showing, the district court was correct to grant the troopers qualified immunity.

III. CONCLUSION For the foregoing reasons, we affirm the district court.

ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge

1223, 1227 (10th Cir. 2008) (“We need no t determine whether [the defendant’s] investigative detention amounted to an arrest if probable cause existed, because in such circumstances, an arrest would not violate the Fourth Amendment.”). On appeal, Mr. Abbo does not offer clearly es tablished law to the contrary.

6 Mr. Abbo contends the troopers did, in fact, understand that the odor of raw marijuana does not constitute probable cau se, citing materials and deposition testimony regarding the troopers’ drug interdiction training . Even if we accepted this assertion as true, the relevant inquiry is not whether office rs were instructed in a particular way, but whether there was clearly estab lished law to that effect. See Cortez , 478 F.3d at 1114-15.