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Officer detection of odor of marijuana sufficient regardless of whether marijuana ever found

Facts

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On December 13, 2020, around 7:00 a.m., Quentin Terrell was driving a Pontiac Grand Prix in Woodworth, Louisiana when he was pulled over by Chief of Police James Gonzales. During the stop, Gonzales’s body camera (“body cam”) and dashboard camera (“dash cam”) are both activated and record the following events as they transpire. After Terrell pulls over, Gonzales approaches the driver’s side of the vehicle and asks Terrell to “pull over a little bit more” because he is stopped partially in the roadway. Terrell complies and then Gonzales requests to see his driver’s license and other paperwork. Gonzales then tells Terrell that he stopped him for speeding as he was going 47 mph in a 35 mph zone, and also because he was “swerving all over the road.”

As Gonzales is speaking with Terrell, he requests backup. Shortly thereafter, Officer Lory Malone arrives on the scene. Gonzales then asks Terrell to exit the vehicle and Terrell complies. Gonzales tells Malone to “watch”Terrell as he runs his paperwork, explaining that he had caught him going 48 mph in a 35 mph zone, that he was swerving all over the road, and that when he pulled him over, Terrell only partially pulled over, so that he continued to block the roadway, so Gonzales had him pull over further. Malone then states that he needs to go get his camera because it is charging, returning shortly thereafter with an activated body cam.

Gonzales begins to run Terrell’s license in the computer database in his patrol car and walks back over to Terrell while the report is running. Gonzales then reminds Terrell that he was speeding and “swerving all over the road” when Gonzales had pulled him over. Gonzales then states that he smells what he believes to be marijuana coming from the vehicle and asks if Terrell will consent to a search of the vehicle. Terrell declines to give consent, stating that the car does not belong to him, he does not smoke marijuana, and there is no marijuana or contraband in the vehicle.

Gonzales and Malone then both return to Gonzales’s patrol car and Gonzales states that the report shows that Terrell had been arrested two months prior “for marijuana.” Malone then confirms that he also smells marijuana coming from Terrell’s vehicle and Gonzales states that he had observed a can of “Blunteffects,” a canned spray that neutralizes odors, in the passenger seat of the vehicle. Gonzales then walks back over to Terrell and informs him that he is going to conduct a “probable cause” search based on the odor of marijuana coming from Terrell’s vehicle. Terrell asks Gonzales to just give him a ticket and let him go home. Against Terrell’s protests, Gonzales tells Malone to stay with Terrell while he conducts a search of the vehicle, further informing Terrell that Malone would be conducting a search of his person.

Malone thoroughly searches Terrell’s person and when he is finished, asks Terrell to take a seat on the “push bar” of his patrol car. Terrell declines to do so, however, continuously asking if the officers are really going to search the vehicle. Terrell then begins to advance toward the vehicle as Gonzales is searching it, so Malone instructs him to turn around and place his hands behind his back, reaching toward Terrell’s hand, presumably to handcuff him.

The following events then take place over a timespan of approximately twenty seconds and are best captured on Gonzales’s body cam, and to some extent his dash cam footage. Although the incident is also captured on Malone’s body cam, his body cam falls off within approximately eight seconds and only audio is captured thereafter. Terrell suddenly breaks free from Malone and runs over to the front passenger side door as Gonzales is searching the vehicle, retrieves a handgun, and begins running away from the officers, towards the woods, with the gun in his hand. Malone begins to chase Terrell, and his body cam falls off. Malone catches up with Terrell and tackles him, and both men fall to the ground. After the two men fall to the ground, Terrell starts to get up, and Malone yells to Gonzales, “He’s got a gun!” As Terrell tries to continue towards the woods, the officers yell at Terrell to “drop the gun, drop it!” Malone then fires two non fatal shots into Terrell’s back, and Terrell falls to the ground bleeding and cursing. Gonzales’s body cam captures Terrell being shot, but not Malone firing the shots, although it is undisputed that Malone fired the shots.

Both officers then approach and begin to administer first aid to Terrell while calling for additional medical personnel and law enforcement backup. A few minutes after medical personnel arrive and take over the care of Terrell, his handgun is discovered in the grass near the area where he was tackled. According to Terrell’s Amended Complaint, he dropped the handgun when Malone first tackled him, before he got up again and continued to advance towards the woods; so when Malone shot him, he was unarmed.

Terrell was charged with speeding, improper lane usage, littering, unauthorized use of a motor vehicle, being a felon in possession of a firearm, resisting a police officer with force or violence, aggravated assault upon a police officer with a firearm, flight from an officer, and battery on a police officer. According to Terrell, a subsequent search of his vehicle revealed no evidence of marijuana. He further contends that the Rapides Parish District Attorney reviewed his case and declined to prosecute him on any of the charges for which he was arrested.

In December 2021, Terrell filed a civil rights complaint under 42 U.S.C. § 1983. The district court dismissed the complaint. The 5th affirmed.

Analysis

A. Excessive Force

A1. Video evidence

Although Terrell is correct that the shooting took place out of frame, he is incorrect that the video evidence is ambiguous. As the district court observed:

Contrary to Terrell’s conclusory assertions, the body cam does not establish that it was apparent to Officer Malone that Terrell lost control of the gun or that it fell to the ground. Although still shots included in the Complaint show the gun on the ground, review of the body cam depicts Officer Malone shouting, “Drop the gun, drop the gun.” And it does not show the gun on the ground until over five minutes after the shooting. Clearly, the video evidence shows this was a “tense, uncertain, and rapidly evolving” situation in which the suspect posed an “immediate threat to the safety of the officers or others,” and in which the suspect was “actively resisting arrest or attempting to evade arrest by flight.” The body cam clearly shows Officer Malone had the reasonable belief that Terrell was still armed as he yelled for him to “drop the gun.”

The video footage reveals that Terrell undoubtedly posed an immediate threat to officers and others, depicting Terrell aggressively resisting arrest as he physically engaged with Malone, breaking free from Malone not once, but twice. He broke free from Malone the first time to get his weapon and attempt to flee, and he broke free a second time from Malone after he was tackled, advancing towards the woods. The video footage supports that Malone did not know that Terrell was no longer armed since he shouted for Terrell to drop the gun. Officers need not wait until a fleeing suspect turns his weapon toward bystanders before using deadly force to protect them. See Wilson.

A2. Failure to Give Deadly Force Warning

This court has acknowledged, that even when a suspect is armed, a warning must be given, when feasible, before the use of deadly force. See Allen. And the use of force should be proportional to the threat.

The record indicates that Terrell failed altogether to comply with a single command of either officer once he initially broke free from Malone, and the video evidence further confirms that Malone had the reasonable belief that Terrell was still armed the second time he broke free, posing a serious and immediate threat to the safety of both officers. Although Terrell is correct that an officer should give a warning before using deadly force, even to a suspect he believes is armed, he must only do so when feasible. See Allen. Here, Terrell’s consistent refusal to comply with both officers’ commands, his successful attempt at arming himself, and his aggressive attempts to resist arrest and ongoing continuous attempts to flee the scene throughout the entire encounter, make it clear that it was not feasible under these circumstances for Malone to warn Terrell, any more than he had already attempted to, before using deadly force.

Moreover, Malone made multiple attempts to use non-deadly force with Terrell, only resorting to deadly force when his initial attempts were unsuccessful. Accordingly, we hold that the district court did not err in determining that Malone’s use of force was objectively reasonable and not a violation of Terrell’s constitutional rights, thus entitling him to qualified immunity on Terrell’s Fourth Amendment excessive force claims.

B. Search & Seizure Credibility Determination

Here, the record confirms that under step one of the Terry inquiry, Gonzales’s initial stop of Terrell was justified at its inception because the stop was based on Gonzales’s belief that Terrell had committed a traffic violation, i.e., speeding. Although Terrell takes issue with the fact that Gonzales allegedly told him he was traveling at a rate of 47 mph yet later claimed he was traveling at a speed of 48 mph, that discrepancy does not negate the fact that Terrell was committing a traffic violation at either speed since he was traveling in a 35 mph zone.

Likewise, we agree that our established precedent recognizes that the Fourth Amendment permitted Gonzales to order Terrell out of the car once he made the initial justified traffic stop. See Meredith.

Turning to step two of the Terry inquiry, we now must determine whether the stop lasted no longer than necessary to effectuate its purpose, unless further reasonable suspicion, supported by articulable facts, emerged. As the video evidence shows, both Gonzales and Malone stated that they smelled the odor of marijuana coming from Terrell’s vehicle after his initial stop for the traffic violation. When Gonzales ran Terrell’s license, the report showed that he had been arrested for a marijuana-related offense two months prior. Malone observed that a can of “Blunteffects,” a spray that neutralizes odors, was in the passenger seat of the vehicle.

Although the officers sought Terrell’s consent to search the vehicle, he refused. Thus, they conducted a probable cause search based on the smell of the marijuana coming from the vehicle. And as this court’s well- established precedent provides, an officer’s detection of the odor of marijuana coming from a vehicle is sufficient to support probable cause to search the vehicle, regardless of whether marijuana is ever found. See McSween.

 

https://www.ca5.uscourts.gov/opinions/unpub/23/23-30510.0.pdf