In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-2641 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

KEVIN DARNEL KIZART, 

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. 

____________________ 

ARGUED FEBRUARY 27, 2020 — DECIDED JULY 28, 2020 

____________________ 

Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges. 

BRENNAN, Circuit Judge. A police officer pulled over an individual for speeding and smelled 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 testified to the following facts. 

Kevin Kizart was driving alone at 4:00 a.m. on U.S. Highway 34 in Gulfport, Illinois when Officer Ron Russell stopped 

him for speeding. Russell approached Kizart’s Kia Forte sedan and, as they talked, Russell 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, patted him 

down, and found no drugs or weapons. Turning to the vehicle, Russell searched the passenger compartment, including 

areas not in plain view like the glove compartment. This took 

Russell five to seven minutes. Kizart then approached Russell 

looking “relieved” and with “a smile on his face” asked if Russell was finished. 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 five seconds. To Russell this was “a reasonable 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 findings 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 to 

be methamphetamine. In total the backpack contained approximately three pounds of marijuana and three pounds of 

methamphetamine. 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 his car does not give an investigating police officer probable cause to search its trunk. After 

an evidentiary hearing, the district 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 to 

search the trunk. Kizart pleaded guilty to these crimes conditioned on his right to appeal the denial of the motion to 

suppress and to withdraw his plea if he prevails. He was sentenced to a total of 60 months’ imprisonment followed by 

three years of supervised release. 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 the 
4 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 contends “when the interior search 

does not reveal a controlled substance or any other evidence 

of a crime, probable cause has diminished and the officer’s 

authority to search does not extend to a vehicle’s trunk.” To 

Kizart the smell of burnt marijuana should have led Russell 

to look for a personal use amount, 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 Court ruled that under the automobile exception to the warrant requirement, “[i]f 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.” 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 of raw and burnt marijuana. In 

Downs that court concluded “the smell of burnt marijuana is 

generally consistent with personal 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 officer must limit the 

search to the passenger compartment absent corroborating 

evidence of contraband.” Id. Because the officer in Downs encountered “the overpowering smell of raw marijuana,” the 

Tenth Circuit affirmed the denial of the motion to suppress, 
No. 19-2641 5

concluding there was a fair probability that the car was being 

used to transport large quantities of marijuana, which could 

have been hidden in places other 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 burnt marijuana and consent permitted the search of a car’s passenger 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 the denial of the motion to 

suppress should be affirmed because there was probable 

cause to search Kizart’s entire car, including the trunk. The 

government points to the smell 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 court’s denial of a motion to 

suppress, we review legal conclusions de novo and factual 

findings for clear error. United States v. Yancey, 928 F.3d 627, 

630 (7th Cir. 2019). Kizart does not dispute the district court’s 

factual findings 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 admitted that marijuana had been smoked there. The 

scope of the warrantless search is at issue.

Ross defines that scope not by the “nature of the container 

in which the contraband is secreted” but “by the object of the 
6 No. 19-2641 

 

search and the places in which there 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 search 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 that evidence 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 specific findings on Kizart’s behavior when 

Russell asked about the trunk. 

Russell testified that the stop and search, up until the 

trunk was opened and the drugs were discovered, had taken 

approximately ten minutes or less, with five 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 justified the search, in addition to the smell, included 

Kizart’s approach of Russell looking relieved with a smile on 
No. 19-2641 7

his face, Russell asking Kizart how to open the trunk, Kizart’s 

abrupt change in demeanor, standing still, looking shocked, 

Russell waiting five 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 justified the search.” 

456 U.S. at 818. Using this rubric, a magistrate would consider 

Kizart’s location-specific 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 evidence 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 on all fours. The cases the parties have argued in the district court and before us are analogous and instructive: in each the investigating officer 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 traffic in a restaurant’s drivethrough lane. When an investigating officer approached, he 

saw Long asleep at the wheel and asked him to open the door. 

Long did so and the officer immediately smelled marijuana. 

As they discussed the marijuana odor, the officer also saw a 

gun on the floorboard near Long’s feet. Id. at 918. This court 

concluded that when “the officer immediately smelled marijuana ... [t]hat gave the officer 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 officer stopped 

Franklin for speeding and another traffic offense. When the 

officer approached Franklin’s car, he noticed the smell of 

burnt marijuana coming from the open passenger side window. The officer told Franklin about the traffic infractions. 

Franklin was told to exit his car, and he denied having any 

drugs or guns in his car. Later a drug-sniffing 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 officer “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 officer 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 officer’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 traffic 

infraction. One officer smelled burnt marijuana as he 

approached Cherry’s car. Another officer saw a plastic bag 

protruding 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 firearm and appealed the search. Id. at 771. 

This court upheld the inventory search in Cherry and 

stated the government “inexplicably abandoned reliance on 

[the officer’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 BRYAN A. GARNER, ET AL., THE LAW OF JUDICIAL PRECEDENT

§ 4, 44 (2016). 

These decisions supply the general 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 opportunity to observe the subject’s 

facial expressions, attitudes, 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 omitted). Kizart’s reaction and behavior, his abrupt 

change from “relieved” to “shocked” or “concern,” and his 

delay 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 cause 

determination.”). Given Kizart’s suspicious reaction and behavior, Russell’s search of the trunk was within the bounds of 

established precedent. 

Kizart argues his nervousness should not be relevant in 

determining whether probable cause 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 officer 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) 

(finding the distinction between burnt or fresh marijuana irrelevant and 

holding “when the officers 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 officer] was 

conducting the search for an open container gave him probable cause to 
No. 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 indicates 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 the 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 officer 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 permitted officers to conduct search of vehicle including the trunk); United States v. McSween, 53 F.3d 684, 687 (5th Cir. 1995) 

(holding officer’s detection of odor of marijuana justified search of entire 

vehicle, not just passenger area where police officer 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 justified 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) (finding no Second Circuit precedent to support the Tenth 

Circuit’s approach in Downs and holding the “smell of burning marijuana 

gave the officers probable cause to search any area of the Van where marijuana could be found”).
12 No. 19-2641 

 

compartment and found no contraband, the search ended, or 

at least “diminished” or “dissipated,” before Russell asked 

Kizart about the trunk. Such a claim does not consider the totality of the circumstances, including 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 Kizart’s reaction and behavior 

when Russell asked Kizart about the trunk, provided probable cause to search his car’s trunk, we AFFIRM the denial of the 

motion to suppress.