### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-2641
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

K EVIN D ARNEL K IZART , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Central District of Illinois. No. 4:18-cr-40009-SLD-1 — Sara Darrow , Chief Judge

.

____________________

A RGUED F EBRUARY 27, 2020

— D ECIDED J ULY 28, 2020

____________________

Before B RENNAN , S CUDDER , and S T

. E VE , Circuit Judges

. B RENNAN , Circuit Judge . A police officer pulled over an individual for speeding and smel led burnt marijuana coming from the car. He proceeded to search for contraband or other evidence of illegal activity. We consider whether the scope of that search included the vehicle’s trunk where the officer found illegal drugs.2 No. 19-2641

I Witnesses at an evidentiary hearing testi fi ed to the following facts.Kevin Kizart was driving alone at 4:00 a.m. on U.S. Highway 34 in Gulfport, Illinois when O ffi cer Ron Russell stoppedhim for speeding. Russell approached Kizart’s Kia Forte sedan and, as they talked, Russe ll smelled burnt marijuana coming from Kizart’s car. When Russell asked Kizart about the smell, Kizart responded his brother had smoked marijuana in the car a few hours earlier.

Russell informed Kizart he would conduct a search of the vehicle. Russell asked Kizart to step out of the car, pa tt ed him down, and found no drugs or we apons. Turning to the vehicle, Russell searched the passenger compartment, including areas not in plain view like the glove compartment. This took Russell fi ve to seven minutes. Kizart then approached Russelllooking “relieved” and with “a smile on his face” asked if Russell was fi nished. Russell asked Kizart how to open the trunk. Kizart did not respond, “stood still,” and to Russell, Kizart “looked sort of shocked.” This delay lasted about fi ve seconds. To Russell this was “a reas onable amount of time” to answer, and Kizart “seemed he wasn’t going to answer.” This made Russell “suspicious about what might be in the trunk.” The district court made fi ndings about this change in Kizart’s demeanor, crediting Russell’s description. Russell removed the keys from the car’s ignition and used them to open the trunk. Toward the back of the trunk, he found a backpack with a garbage bag inside, which contained three smaller bags of a substance that smelled and looked like raw marijuana. The bag also contained a “white, vacuum-No. 19-2641 3

packed brick of an unknown substance,” which turned out tobe methamphetamine. In total the backpack contained approximately three pounds of ma rijuana and three pounds ofmethamphetamine. The district court found Russell’s testimony credible. A grand jury charged Kizart with possessing marijuana and methamphetamine, each with intent to distribute. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(D). Kizart moved to suppress the drugs, arguing that smelling burnt marijuana near the passenger compartment of hi s car does not give an investigating police o ffi cer probable cause to search its trunk. After an evidentiary hearing, the dist rict court denied the motion. The court found that the smell of burnt marijuana from the car, strengthened by the change in Kizart’s demeanor from relief to shock or concern, gave Russell probable cause tosearch the trunk. Kizart pleaded guilty to these crimes conditioned on his right to appeal the denial of the motion tosuppress and to withdraw his plea if he prevails. He was sentenced to a total of 60 months’ imprisonment followed by three years of supervised rele ase. This appeal followed.

II

A Warrantless searches are per se unreasonable under the Fourth Amendment, subject to only certain exceptions. Arizona v. Gant , 556 U.S. 332, 338 (2009). Relevant here is the automobile exception, which allows authorities to search a car without a warrant if they have probable cause. See United States v. Ross , 456 U.S. 798, 807–09 (1982); Carroll v. United States , 267 U.S. 132, 149, 153–56 (1925). “Probable cause to search a vehicle exists when, based on the totality of the4 No. 19-2641

circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” United States v. Sands , 815 F.3d 1057, 1063 (7th Cir. 2015) (quoting Illinois v. Gates , 462 U.S. 213, 238 (1983)). That the smell of burnt marijuana gave Russell probable cause to search the sedan’s passenger compartment is not in dispute. Rather, Kizart conten ds “when the interior search does not reveal a controlled substance or any other evidence of a crime, probable caus e has diminished and the o ffi cer’s authority to search does not extend to a vehicle’s trunk.” To Kizart the smell of burnt mari juana should have led Russell to look for a personal use amou nt, so the search could legally include only Kizart’s person or the interior of the car, not the trunk. Kizart argues his position is consistent with Ross , 456 U.S. 798 (1982), in which the Cour t ruled that under the automobile exception to the warrant requirement, “[i]f probable cause justi fi es the search of a lawfully stopped vehicle, it justi fi es the search of every part of the vehicle and its contents that may conceal the object of the search.” Id . at 825. Kizart urges this court to follow United States v. Downs , 151 F.3d 1301 (10th Cir. 1998), in which the Tenth Circuit drew a distinction between the smell ofraw and burnt marijuana. In Downs that court concluded “the smell of burnt marijuana is generally consistent with pers onal use of marijuana in the passenger compartment of an automobile.” 151 F.3d at 1303. In that circumstance “there is no fair probability that the trunk of the car contains marijuana and an o ffi cer must limit the search to the passenger compartment absent corroborating evidence of contraband.” Id. Because the o ffi cer in Downs encountered “the overpowering smell of raw marijuana,” the Tenth Circuit a ffi rmed the denial of the motion to suppress,No. 19-2641 5

concluding there was a fair pr obability that the car was being used to transport large quantities of marijuana, which could have been hidden in places ot her than the passenger compartment. Id. Downs cites United States v. Nielsen , 9 F.3d 1487 (10th Cir. 1993), which reversed the denial of a motion to suppress and held that the smell of bu rnt marijuana and consent permi tt ed the search of a car’s passe nger compartment but not its trunk. 9 F.3d at 1490–91. Kizart concedes this distinction is “unique to the Tenth Circuit.” The government argues that th e denial of the motion to suppress should be a ffi rmed because there was probable cause to search Kizart’s entire car, including the trunk. The government points to the sme ll of burnt marijuana, Kizart’s concession that his brother had smoked it in the car a few hours earlier, and Kizart’s reaction and behavior when Russell asked Kizart how to open the trunk. When considering a district co urt’s denial of a motion to suppress, we review legal conclusions de novo and factual fi ndings for clear error. United States v. Yancey, 928 F.3d 627, 630 (7th Cir. 2019). Kizart does not dispute the district court’s factual fi ndings on appeal.

B

A warrantless search of Kizart’s car was valid. It is undisputed that probable cause existed to believe the sedan contained contraband or evidence of criminality when Russell smelled the burnt marijuana emanating from the car, and Kizart admi tt ed that marijuana had been smoked there. The scope of the warrantless search is at issue.

Ross de fi nes that scope not by the “nature of the container in which the contraband is secreted” but “by the object of the6 No. 19-2641

search and the places in which th ere is probable cause to believe that it may be found.” 456 U.S. at 824. This rationale from Ross on where to draw the line for a proper search has been regularly applied by federal and state courts, including this
court. See, e.g. , United States v. Franklin , 547 F.3d 726, 735 (7th Cir. 2008) (ruling on scope of warrantless vehicle search based in part on probable cause of smell of burnt marijuana); United States v. Ledford , 218 F.3d 684, 688 (7th Cir. 2000) (ruling on scope of warrantless vehicle search). Because the object of the se arch here was the marijuana, and Kizart contends the smell of burnt marijuana suggests personal use, he argues the search could not include the trunk. To Kizart the only two places where burnt marijuana(or related contraband) may have been found were on his person or in the passenger compartment; both were searched and yielded nothing incriminating.

But we look to the totality of the circumstances to see if there is a fair probability thatevidence of a crime will be found in a particular place. Illinois v. Gates , 462 U.S. 213, 238 (1983). The whole—in addition to the smell, and Kizart’s concession that marijuana had been smoked in the car—includes the district court’s speci fi c fi ndings on Kizart’s behavior when Russell asked about the trunk.

Russell testi fi ed that the stop and search, up until the trunk was opened and the drugs were discovered, had taken approximately ten minutes or less, with fi ve to seven minutes of that concentrated on the passenger compartment. Kizart’s reaction and behavior when asked about the trunk were part of this same continuous series of events. The probable cause that justi fi ed the search, in addition to the smell, included Kizart’s approach of Russell looking relieved with a smile onNo. 19-2641 7

his face, Russell asking Kizart how to open the trunk, Kizart’s abrupt change in demeanor, stan ding still, looking shocked, Russell waiting fi ve seconds, and Kizart not responding.

Ross provides that the scope of the search can be “no greater than a magistrate could have authorized by issuing a warrant based on the probable cause that justi fi ed the search.” 456 U.S. at 818. Using this rubric, a magistrate would consider Kizart’s location-speci fi c reactions, which pointed directly to the trunk. Under Ross ’s rationale, the totality of the facts forming probable cause included a fair probability that the trunk contained contraband or other ev idence of criminality. That gave Russell authority to search every part of the vehicle and its contents that could conceal the contraband or evidence of criminality—the marijuana—including the trunk.

This court has decided a number of cases with similar facts and arguments, although none onall fours. The cases the parties have argued in the district court and before us are analogous and instructive: in each the investigating o ffi cer smelled burnt marijuana and additional suspicious activity was present. For example, in Long v. United States , 847 F.3d 916 (7th Cir. 2017), a car was impeding tra ffi c in a restaurant’s drivethrough lane. When an investigating o ffi cer approached, he saw Long asleep at the wheel an d asked him to open the door. Long did so and the o ffi cer immediately smelled marijuana. As they discussed the marijuana odor, the o ffi cer also saw a gun on the fl oorboard near Long’s feet. Id. at 918. This court concluded that when “the o ffi cer immediately smelled marijuana ... [t]hat gave the o ffi cer probable cause to search the entire vehicle.” Id . at 921 (citing United States v. Mosby , 541 F.3d 764, 768 (7th Cir. 2008)).8 No. 19-2641

Both parties cite United States v. Franklin , 547 F.3d 726 (7th Cir. 2008), and dispute its applicability. An o ffi cer stopped Franklin for speeding and another tra ffi c o ff ense. When the

o ffi cer approached Franklin’s ca r, he noticed the smell ofburnt marijuana coming from the open passenger side window. The o ffi cer told Franklin about the tra ffi c infractions. Franklin was told to exit his car, and he denied having any drugs or guns in his car. Later a drug-sni ffi ng dog alerted to the presence of drugs from outside the car, and drugs were found in the vehicle’s passenger compartment. Id . at 729.

In Franklin this court concluded that the o ffi cer “had probable cause to search Franklin’s vehicle for drugs because he could smell marijuana smoke through an open window as he approached the car. ... A police o ffi cer who smells marijuana coming from a car has probable cause to search that car.” 547 F.3d at 733. The court went on to state that the smell of marijuana smoke “would give the police probable cause to search the passenger compartment for drugs. This circuit has held that the search can go so far as probable cause extends, even into separate containers or the trunk of the car.” Id. at 735 (citing inter alia Ross ). But in Franklin the drugs were in the passenger compartment, and probable cause “was bolstered” by the o ffi cer’s observation of what looked like a marijuana stem near Franklin’s knee, and by the canine alert. Id. at 729.

In United States v. Cherry, 436 F.3d 769 (7th Cir. 2006), the defendant was stopped for speeding and another tra ffi c infraction. One o ffi cer smelled burnt marijuana as he approached Cherry’s car. Another o ffi cer saw a plastic bagprotruding from Cherry’s pants pocket. He was searched, marijuana was seized, and Cherry was arrested. Before his car was towed, an inventory search yielded a gun in the trunk.No. 19-2641 9

Cherry, a convicted felon, conditionally pleaded guilty to possessing a fi rearm and appealed the search. Id. at 771. This court upheld the inventory search in Cherry and stated the government “inexplicably abandoned reliance on [the o ffi cer’s] testimony that he smelled marijuana—which seems a simple and compelling foundation for searching [the driver] and ultimately the car including the trunk.” Id. at 772. But this statement in Cherry is unquestionably dicta, as the case resolved on other grounds and the court’s comments on this issue were “merely remarks made in the course of a decision but not essential to the reasoning behind that decision.” See B RYAN A. G ARNER , ET AL ., T HE L AW OF J UDICIAL P RECEDENT § 4, 44 (2016). These decisions supply the gene ral rule that the smell of burnt marijuana plus other suspicious activity may provide probable cause for the search of an entire vehicle including its trunk. 1 Here, Kizart’s reaction and behavior when he realized that the search had not ended short of the trunk was part of the evidence that probable cause of a crime would be found in a particular place. The district court found Russell’s testimony credible, and we do not second-guess that court’s credibility determinations on appeal. See, e.g. , United States v. Curb , 626 F.3d 921, 925 (7th Cir. 2010) (noting the court “do[es] not second-guess the judge’s credibility determinations because he or she has had the best oppo rtunity to observe the subject’s facial expressions, a tt itudes, tone of voice, eye contact,

1 An unpublished opinion and order that the district court and the parties discussed considered similar facts and many of the cases discussed above. United States v. Hayes , 2014 WL 5757421 (N.D. Ind. 2014). In Hayes the district court concluded that the smell of burnt marijuana provided probable cause to search the trunk of a stopped vehicle.10 No. 19-2641

posture and body movements” (quoting United States v. Mancillas , 183 F.3d 682, 701 (7th Cir. 1999)) (internal quotation marks omi tt ed). Kizart’s reaction and behavior, his abrupt change from “relieved” to “shocked” or “concern,” and hisdelay and failure to respond, all were key to Russell’s probable cause determination. See United States v. Ellis , 499 F.3d 686, 691 (7th Cir. 2007) (“We have also recognized that a person’s reactions to the police can be considered in a probable causedetermination.”). Given Kizart’s suspicious reaction and behavior, Russell’s search of the tr unk was within the bounds of established precedent. Kizart argues his nervousness sh ould not be relevant in determining whether probable ca use exists for a warrantless search. But Kizart’s behavior here is not generalized anxiety about interaction with the police. See, e.g. , United States v. Williams , 731 F.3d 678, 687 (7th Cir. 2013) (noting that most people when confronted by a police o ffi cer are likely to act nervous). Instead, Kizart’s reaction and conduct is oriented toward the potential search of a single locked compartment, the trunk, and part of a series of connected events described above.

Our decision here is consistent with most federal and state cases on this topic. 2 The Tenth Circuit precedents Kizart relies on represent a minority viewpoint.

2 See, e.g. , United States v. Foster , 376 F.3d 577, 583–84, 588 (6th Cir. 2004) ( fi nding the distinction between burnt or fresh marijuana irrelevant and holding “when the o ffi cers detected the smell of marijuana coming from [defendant’s] vehicle, this provided them with probable cause to search the vehicle”); United States v. Neumann , 183 F.3d 753, 756 (8th Cir. 1999) (holding “detection of the smell of burnt marijuana while [the o ffi cer] was conducting the search for an open co ntainer gave him probable cause toNo. 19-2641 11

Underlying Kizart’s request to apply Downs is the theory that the search should have ended before the trunk because the smell of burnt marijuana in dicates only “personal use.” While Downs says the Tenth Circuit recognizes this distinction, the caselaw it cites— United States v. Nielsen , 9 F.3d 1487 (10th Cir. 1993), and United States v. Parker, 72 F.3d 1444 (10th Cir. 1995)—rejects the idea that th e indicia of “personal use” limits a search. Nielsen , 9 F.3d at 1490; Parker, 72 F.3d at 1450; see also United States v. Loucks , 806 F.2d 208, 211 (10th Cir. 1986) (upholding warrantless vehicle search of trunk after stop for speeding and o ffi cer detects odor of marijuana and rejecting “personal use” argument). This court has also rejected an argument, derived from these Tenth Circuit decisions, that facts such as those here constitute multiple searches. Franklin , 547 F.3d at 734–35 (citing Nielsen , 9 F.3d at 1491). That contention is much like Kizart’s that after Russell looked through the passenger

search the entire vehicle for drugs,” which included the back of a pickup truck); United States v. Turner, 119 F.3d 18, 19–23 (D.C. Cir. 1997) (holding smell of burnt marijuana, plus cigar blunt and clear plastic bag of weedlike material, provided probable cause to believe the vehicle contained contraband which permi tt ed o ffi cers to conduct search of vehicle including the trunk); United States v. McSween , 53 F.3d 684, 687 (5th Cir. 1995) (holding o ffi cer’s detection of odor of marijuana justi fi ed search of entire vehicle, not just passenger area where police o ffi cer was at time he detected the smell); United States v. Reed , 882 F.2d 147, 149 (5th Cir. 1989) (“[T]he detection of the odor of [burnt] marihuana justi fi ed a search of the entire vehicle, including the locked compartment that was a likely place to conceal contraband.”); United States v. Mitchell , 2012 WL 6827387, *7, n.1 (W.D.N.Y. 2012) ( fi nding no Second Circuit precedent to support the Tenth Circuit’s approach in Downs and holding the “smell of burning marijuana gave the o ffi cers probable cause to search any area of the Van where marijuana could be found”).12 No. 19-2641

compartment and found no cont raband, the search ended, or at least “diminished” or “dissipated,” before Russell askedKizart about the trunk. Such a claim does not consider the totality of the circumstances, incl uding the connected series of events, the relatively brief time frame of the stop and search, and the material facts of how Kizart responded to Russell’s inquiry about the trunk.

III Because the totality of the circumstances, including the smell of burnt marijuana and Ki zart’s reaction and behaviorwhen Russell asked Kizart about the trunk, provided probable cause to search his car’s trunk, we A FFIRM the denial of the motion to suppress.