A known confidential informant called Deputy Bobby Bailey, Jefferson County S.O., and advised there were three people in an SUV (either white Tahoe or white Yukon) parked at a gas station in Fayette with a strong odor of marijuana. Bailey drove towards the gas station and noticed a white SUV coming towards him.
As he passed the vehicle, he noted that the driver was not wearing a seatbelt. Ten minutes elapsed from the time he got the tip until he made the stop. Bailey also smelled the marijuana as he approached the car. The driver, Carl Wallace, immediately showed Bailey a personal stash of two small bags of marijuana in the center console.
Bailey proceeded to search the vehicle and found cocaine, scales, methamphetamine, and a .22 taurus handgun with bullets within reach of the driver. All three of the occupants were arrested but Wallace took responsibility and was booked. Wallace was convicted of possession with intent to distribute a variety of controlled substances and felon in possession of a firearm and sentenced to 30 years. On appeal, he argued the stop was illegal. MCOA affirmed.
A. Confidential Informant
An investigatory traffic stop is only permissible when an officer has reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a felony or as long as the officers have some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.
The MSC in Floyd held that reasonable suspicion for an investigatory traffic stop may be obtained through an officer’s personal observation or an informant’s tip if it bears indicia of reliability.
In Floyd, MSC examined the following indicia of reliability using a totality of the circumstances approach: (1) whether the informant is known by law enforcement; (2) whether the informant has provided reliable information in the past or is paid by law enforcement to provide information; (3) the extent of detail and specificity provided in the tip, to include the crime committed, how the informant came to be aware, the location, and/or the individuals involved; and (4) whether the officer has further investigated the tip for corroboration.
The deputy stated that the informant was listed in his report as “anonymous” because he wanted to keep the person’s identity confidential. Bailey testified repeatedly that he knew the informant and had found the person to be reliable in the past. Importantly, the relationship must have been reliable enough because the record shows that the informant called Bailey directly rather than using 911 or a general line.
At the suppression hearing, the trial court noted that the tip was not anonymous. The trial court even went so far as to advise that the record is clear that Bailey knew who the caller was. There is no merit to any suggestion that the tip was unreliable simply because the identity of the informant was not known.
The informant’s tip had roughly four pieces of information: there were three men, sitting in a white SUV (either a Tahoe or a Yukon), at the local gas station, and the SUV reeked of marijuana. This information is sufficiently reliable. Bailey testified that from the time he received the tip until the time he pulled over Wallace’s SUV, only about ten minutes had elapsed.
Although the deputy did not find the white SUV at the gas station, he literally passed it on the way there and noted it contained three men. Once the stop had been initiated, the stench of marijuana further corroborated the informant’s information.
B. Independent reasons for stop
Further, Bailey had an independent basis for the traffic stop beyond the informant’s tip. We said in Moore that a pretextual traffic stop does not violate the Fourth Amendment if the officer making the stop has probable cause to believe that a traffic violation has occurred. Probable cause for a traffic stop is evaluated objectively, using a totality of the circumstances approach regarding the officer’s knowledge of the facts at the time of the stop.
Bailey testified that while driving to the gas station he spotted a white SUV and noticed while passing it that the driver was not wearing a seatbelt. When Wallace drove the white SUV down Main Street without wearing his seatbelt, he committed a traffic violation, which provided Bailey with probable cause to stop his car.
Nor does it matter that the deputy did not ultimately issue a traffic citation to Wallace for failure to wear a seatbelt. MSC said in Martin that there is no requirement that an officer issue a citation for the predicate traffic violation to have a valid stop or search.
Upon approaching the SUV, Bailey testified that he smelled an odor so immense that there was no doubt it was marijuana. This smell then gave rise to a second sufficient occurrence of probable cause, as MSC said in Dies that probable cause may come from any of an officer’s five senses. If an officer clearly smells contraband, such as marijuana, that smell can give rise to the probable cause necessary to search a vehicle and its passengers.
Even prior to the deputy’s search of the white SUV, Wallace had visibly committed a minimum of four misdemeanor offenses. He failed to use his seatbelt. He was likely operating a car while under influence of drugs. He volunteered to Bailey by virtue of his personal stash that he had committed at least simple possession of marijuana. When opening the center console he also displayed digital scales, violating state law regarding drug paraphernalia.