In 2009, Officer Lance Luckey of the Columbus Police Department observed a maroon colored vehicle where neither the driver nor the passengers of the vehicle were wearing seat belts. After being pulled over, the driver, Thomas Austin, stated that he did not have a driver’s license or insurance. Luckey smelled the odor of marijuana emanating from the car while initially questioning Austin during the traffic stop.
Austin consented to Luckey’s request to search the vehicle where he found the remnants of marijuana on the floorboard and seats. Austin then admitted they had just smoked marijuana within the last hour. As the smell remained strong, Luckey asked for and received consent to search the trunk of the car.
Luckey found a 12-gauge shotgun that Austin claimed belonged to his uncle. Luckey continued to search the trunk, and he found a .45-caliber automatic handgun, which Austin said he found in a ditch. Austin was convicted of being a felon in possession of a firearm and sentenced to ten years. On appeal, he argued the stop was illegal and that the search of the trunk lacked probable cause. MCOA affirmed.
A. Not wearing seat belts justified stop
We said in Drummer that the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Luckey testified at trial that he observed that neither Austin nor his passengers were wearing seat belts while riding in the vehicle, which is a violation of Mississippi Code Annotated section 63-2-1(1) (Supp. 2010).
Section 63-2-1(1) states that when a passenger motor vehicle is operated in forward motion on a public road, street or highway within this state, every operator, every front-seat passenger . . . shall wear a properly fastened safety seat belt system.
Luckey explained that he asked for consent to search the vehicle after smelling marijuana and again asked to search the trunk after still smelling a strong smell of marijuana. An audio recording of the traffic stop, which Austin’s counsel played at both the suppression hearing and at trial, confirms that Austin indeed consented to Luckey’s request to search the vehicle and trunk.
In Peters, we said voluntary consent obviates the need for either probable cause or a warrant. We find that Austin’s consent to Luckey’s request to search the vehicle and trunk obviated the need for probable cause in the present case.
C. Motor Vehicle Exception
Consent notwithstanding, we find that Luckey’s search of the vehicle was also permissible under the automobile exception to the Fourth Amendment.
In Roche, the MSC said that the automobile exception provides that when probable cause justifies the search of a vehicle which the police have lawfully stopped, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.
The United States Supreme Court further explained in Maryland v Dyson, 527 U.S 465 (1999), that if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the police to search the vehicle without more.
After reviewing the record, we find that Luckey possessed probable cause to initiate the traffic stop.
D. Plain smell/plain view
Additionally, due to Luckey’s testimony that he smelled burnt marijuana emanating from the vehicle, we find that his search of the vehicle was also permissible under the plain smell corollary of the plain view doctrine.
In Fultz, this court held that a law enforcement officer had probable cause to search a truck based on plain smell. In Fultz, Trooper Elmo Townsend’s extensive training in drug enforcement classes over several years would have allowed Townsend to recognize the smell of unburned marijuana.
Had this been a markedly smaller amount of marijuana, packaged in similar fashion, the likelihood that it would be fragrant enough to identify, without the help of the well trained drug sniffing dog, is slim. This massive amount was held to be fragrant enough for Trooper Townsend to recognize.