Freddie Fultz was driving up I-55 through Pike County when he was pulled over by Highway Patrolman Elmo Townsend. Townsend was in Pike County on special detail to check for safety violations on eighteen wheeler trucks. He was working with another officer on a stop when Fultz passed them.
Trooper Townsend said he heard a loud banging noise as the truck passed. When it was safe for him to leave the scene being worked by the other trooper, Townsend pursued Fultz and pulled him over to check Fultz’s license, registration and the truck’s load.
Townsend testified that a strong odor of green marijuana was about Fultz’s person when Fultz approached. Trooper Townsend checked out the license and registration of the truck and its driver. He found them all to be satisfactory. He found the load to be loose as two of the chains holding the cargo had slack in them.
The loose load was making the loud banging noise when the truck initially passed the troopers. Townsend testified that as he walked to the front of the truck he again smelled the strong odor of green marijuana escaping from the truck’s cab. He completed his safety check and returned Fultz’s driver’s license to him.
Townsend then asked Fultz if he had anything illegal in the truck. Fultz answered no but Townsend said he could see a radar detector, which is illegal in a commercial vehicle, on the dashboard. The officer asked to see the inside of the “tractor and I’d like to take a look at his log books and bill of lading.”
Here is where the versions of the story diverge. Townsend testified that Fultz hopped into the truck on the driver’s side and leaned over to unlock the passenger side door to allow Townsend entry. Fultz says he did not consent to any search and he did not unlock the door for the trooper.
Townsend said he was struck by the pungent odor of green marijuana upon entering the cab of the truck. He went into the sleeper compartment, lifted the bed and found several bales of marijuana. When asked, Fultz denied any knowledge of the marijuana stating that he did not know what Townsend was talking about. At that point, Townsend handcuffed Fultz to the steering wheel and read him the Miranda warning.
Fultz was convicted of possession of marijuana with intent to distribute and sentenced to 30 years. On appeal, he argued the Trooper did not have probable cause to search the truck. MCOA affirmed.
The question is whether probable cause existed for the search based on the “plain smell” of green marijuana and/or the radar detector observed by Trooper Townsend. The radar detector was on the front dash. The packages of marijuana were wrapped in plastic wrap, then with fabric softener sheets and once again with plastic wrap. It was being stored in the sleeper section of the truck on the floor.
Fultz testified that he had been riding with the windows of his cab rolled up with little or no fresh air passing through. The radar detector was enough probable cause to open the door to the truck. When the truck door was open, Townsend said he smelled the marijuana. Did the scent of marijuana give Townsend probable cause to search the back portion of the cab of the truck?
At the suppression hearing the judge held that 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. Townsend testified that there was so much that the smell was pungent enough to give him a headache while taking photographs of the stash. The trial court found that Townsend’s ability to identify green marijuana was acute enough to be able to detect nearly one hundred pounds of poorly wrapped marijuana which upheld the search and seizure.
In addition, Fultz is not afforded the same protections in a motor vehicle that one is afforded in one’s home. Strange v. State, 530 So. 2d 1336 (Miss. 1988) (the plain smell corollary to plain view would not save the State from an illegal seizure of marijuana found in the home where privacy interests are highest).
Finally Fultz’s reasoning for suppression is flawed even though the language in Miss. Code Ann § 63- 13-21 (Rev. 2001) that the authority to make safety inspections is limited to the inspection for mechanical defects and shall not authorize the search of the vehicle or the occupants for any other purpose without due process of law, makes the seizure of the marijuana unlawful.
Proof of his flawed reasoning is found in Jones v. State, 761 So. 2d 907 (Miss. Ct. App. 2000). In Jones, this court held that the rules of evidence control the admissibility of evidence in judicial proceedings. The rules are subject to any constitutional concerns that might come into play, and not according to the dictates of legislative enactments. (Put another way, the court decides whether items are admissible or suppressed, not the legislature.)