Facts
In May 2020, Tony Dasmond McGee was playing loud music before being pulled over by Officer Reginald Cain of the Brookhaven Police Department for violating a city noise ordinance. McGee was driving with his then-girlfriend, Tyranesia Gilmore, who was in the passenger seat. After approaching McGee’s car, the officer observed what he believed was marijuana in plain view located in a cubby hole to the left of the steering wheel.
Advising McGee that probable cause existed to search his vehicle, Sergeant Lisa Jackson then instructed both occupants to exit the car, and she proceeded to conduct a probable cause search. During the search, the sergeant took custody of the marijuana in the cubby hole and then lifted the lid to the car’s middle console. Next, Sergeant Jackson observed a black Glock pistol. Tyranesia claimed that the gun was hers. After running the serial number through the National Crime Information Center’s database, law enforcement discovered that the gun was stolen. The evidence collected from McGee’s car was then taken to the laboratory for testing.
McGee was subsequently indicted for possession of less than thirty grams of marijuana with intent to distribute (Count I), possession of a stolen firearm (Count II), and possession of a firearm by a felon (Count III).
At trial, the State called Officer Cain, who largely recounted his observations after he pulled over McGee and Tyranesia. The officer testified that during his investigation, he determined McGee owned the car he pulled over on the night in question, and McGee also admitted as much. Officer Cain’s body-camera footage was then admitted into evidence and shown to the jury.
Next, the jury heard from Lisa Jackson, a sergeant with the Brookhaven Police Department. Sergeant Jackson testified that after arriving on the scene, Officer Cain advised me that during the process of a traffic stop he observed marijuana in plain view in a vehicle. She explained how she could see what appeared to be marijuana with the door closed while she was standing by McGee’s car in a cubby hole to the left of the steering wheel. The sergeant testified, “From that point I advised Mr. McGee that we had probable cause to search the vehicle.”
After disclosing that the search revealed a black Glock pistol in the car’s center console, Sergeant Jackson made clear that she was wearing her patrol gloves for the entirety of the search. She further testified that from there, the gun was confiscated and then taken to the lab to “check for any DNA.
McGee took the stand in his own defense. Multiple times, McGee attempted to use his relationship with Tyranesia—the mother of his children—as a way of evading the questions he was asked. His testimony centered around his contention that the gun found in his car was hers and that he was not aware of its existence until it was found during the traffic stop. He claimed that Gilmore used his vehicle, so when law enforcement saw
what appeared to be marijuana in plain view, he tried to give them a reason why it would be there. McGee explained to the jury that he told Sergeant Jackson: It looks like marijuana, but if it is some marijuana, it couldn’t be a marijuana substance that — that is illegal. It’s the kind that be bought out the store, which we call CBD, and it’s hemp.
McGee further testified, “I never gave anyone permission to search my vehicle.” But he testified that he was told by law enforcement on the scene that because they saw what appeared to be marijuana in plain view, that gave them probable cause to search my vehicle.
Ultimately, the jury found McGee guilty of possession of a stolen firearm (Count II) and possession of a firearm by a felon (Count III). He was sentenced as a habitual offender to life imprisonment. On appeal, he argued that the search of the vehicle was improper. MCOA affirmed.
Analysis
McGee argues that the search of his car was illegal. Specifically, he claims that because the officer’s initial basis for the traffic stop was not objectively reasonable and because the substance in plain view tested for industrial hemp, a perfectly legal substance to own and possess, everything found during the search of his car—including the gun—would be fruits of a poisonous tree.
When a police officer personally observes a driver commit what he reasonably believes is a traffic violation, he then has probable cause to stop the vehicle. See MSC Martin. MSC has held that probable cause may come from any of an officer’s five senses. See MSC Dies.
No warrant is required to seize an object in plain view when viewed by an officer from a place he has the lawful right to be, its incriminating character is readily apparent (probable cause standard) and the officer has a lawful right of access to the evidence. See MSC Johnson.
At trial, Officer Cain testified that he heard loud music coming from McGee’s car, in violation of a city noise ordinance, prompting him to make a traffic stop. In line with precedent, the officer personally observed McGee commit what he reasonably believed was a traffic violation, in turn, giving him probable cause to stop the car. During the traffic stop, Officer Cain observed what appeared to be marijuana in plain view sitting in a cubby hole to the left of the steering wheel, thereby supplying the requisite probable cause to perform a valid warrantless search of McGee’s car.
McGee contends that the State’s decision in electing not to prosecute the marijuana possession count, amounts to a confession that the search was illegal and at odds with the Fourth Amendment. But McGee’s argument is misplaced. Because McGee was stopped for playing loud music in violation of a city noise ordinance, the initial stop was reasonable. Likewise, during the stop, officers saw a green leafy substance resembling marijuana in plain view, justifying the search of McGee’s car. The fact that the green leafy substance’s THC concentration was later found to be much lower and, instead, consistent with concentrations that would be seen in industrial hemp does nothing to invalidate what was an otherwise legal search.
We find that the officer’s initial stop and subsequent search of McGee’s car were both reasonable. And the later discovery of the substance’s THC concentration is irrelevant to the legality of the search. Therefore, we find that the search of McGee’s car was not illegal.