Plain Smell is a corollary to plain view

Facts

In 2002, Agents Brent Young and Wes Stapp of the Mississippi Bureau of Narcotics were dispatched to the Office Sports Bar (the bar) in Columbus, Mississippi. They had received a call about a female of interest who was either in possession of narcotics or trying to sell narcotics at that location.

They parked in the rear of the building and Young noticed three individuals, one female and two males, sitting in a red camaro near the corner of the building. Afraid of being detected, they waited for the individuals in the camaro to enter the bar before exiting their car.

They then exited and walked to a nearby window to look inside the bar to see if a woman matching the description that they were given was present. They did not see any such woman and therefore returned to their vehicle.

As they were returning to their vehicle they passed near the red camaro and noticed the distinct smell of burnt marijuana. The agents traced the smell back to the red Camaro which had its passenger window rolled down one to two inches, and then contacted the Columbus Police Department for assistance.

Since they were in an unmarked car and the bar was about to close, they wanted to have a traffic stop performed away from the bar. The agents told Officer Wayne Beard, Columbus Police Department, that they smelled burnt marijuana in a parked car and they wanted him to conduct a traffic stop along the roadway after the car left.

They gave him a full description of the car and alerted him when it left. Beard followed the red camaro for a short period of time and then initiated his blue lights. The car did not immediately respond and continued down the street for approximately 1/10th of a mile before pulling into a driveway of a residence that joined the road.

The agents followed Beard but remained in support of him at a safe distance. Once stopped, an individual, later determined to be Kirby Dies, exited the driver’s side of the red camaro and fled on foot into the wooded area along the driveway. The agents pursued him, first by car and then on foot, into the wooded area.

The individual was located in the woods and placed under arrest for failure to yield, disobeying a police officer and resisting arrest. As the agents returned to the road with the arrested subject, they were informed by another officer that someone had dropped something on the ground.

On the ground near the side of the road Young found several bags of a substance that later was identified as marijuana. There were five bags, four of which contained marijuana and one that was empty.

Young then conducted a search incident to arrest of the subject and on his person found a sixth bag of a substance, which was in similar packaging to the ones that were found lying on the ground, and also discovered rolling papers and a powdery white substance which was later identified as cocaine.

Dies was convicted of possession of cocaine and sentenced to eight years. On appeal, he argued the traffic stop was not based on reasonable suspicion and thus all evidence should have been suppressed. MSC affirmed.

Analysis

A. Law Enforcement Activities

This court in Singletary v. State, 318 So. 2d 873 (Miss. 1975) opined that a police officer’s law enforcement activities can be divided into three types:

(1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed;

(2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest;

(3) Arrest: An arrest may be made only when the officer has probable cause.

This court allows an investigative stop as long as 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.

B. Plain Smell

In Miller v. State, 373 So. 2d (Miss. 1979), this court first addressed the issue of the plain smell corollary to the plain view doctrine. We found the sense of smell to be no less important or trustworthy than the sense of sight. It was in Miller that this court first stated that probable cause may come from any one of an officer’s five senses, including an officer’s sense of smell.

We then said in Boches v. State, 506 So. 2d 254 (Miss. 1987), that 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. Because smell alone can give rise to a search of the passengers and compartment of a stopped vehicle, it also can give rise to the lower standard for reasonable suspicion and support an officer’s desire to further his investigation of the recent passengers of a vehicle.

The record clearly reflects that the agents identified the smell of burnt marijuana, and their experience with the Mississippi Bureau of Narcotics exposed them to that smell on multiple occasions. They were able to trace the smell back to the red camaro through an open window. They came to this knowledge while remaining outside of the vehicle in space that was open to the public.

The agents in no way entered into a space in which Dies had a reasonable expectation of privacy. The smell of burnt marijuana coming from an identified location, such as a car, creates enough articulable fact to give rise to a reasonable suspicion that criminal activity had been committed and that further investigation is warranted.

The Fourth Amendment does not require police who lack the information necessary for probable cause to simply shrug their shoulders and allow a crime or a criminal escape to occur. Rather, it allows for investigatory stops to encourage the police to pursue their reasonable suspicions.

Dies argues that because the agents were unable to identify the individuals who were in the car when they arrived at the bar as the same ones who later were pulled over by Beard, their traffic stop was illegal. That assertion is incorrect. The two events are not too remote in time to dull the reasonable suspicion that was present.

When the agents arrived at the bar, they witnessed three people sitting in the red camaro. Shortly after their arrival those individuals left and went inside the bar. A short time after that, the agents perceived the smell of burnt marijuana and traced it to its source, thereby tying their reasonable suspicion to the vehicle and its recent occupants.

The agents remained in surveillance of the red camaro for 45 minutes. Admittedly, they could not see if anyone else came or went from the vehicle but they were aware that it did not leave the parking lot during that time. It is reasonable to believe that the individuals who were in the vehicle when the agents arrived were the same ones who would leave 45 minutes later in that same vehicle. The time period here is not long enough to negate the agents’ reasonable suspicion.

C. Pretextual Stop

Dies argues that Beard’s traffic stop was pretextual, but then claims that Beard lacked the pretext to stop him. In this case the traffic stop was based on the reasonable suspicion that illegal narcotics were being used. That was the crime the agents sought to investigate. They did not need to perform a pretextual stop. Therefore, we find the agents had the right to stop Dies.

D. Reasonable Suspicion and Probable Cause can transfer

Dies also argues that any reasonable suspicion the agents may have possessed was not transferred to Beard who performed the traffic stop; therefore, Beard’s stop was illegal. We do not agree with this argument.

This court in Jones held that reasonable suspicion and probable cause can be transferred from officer to officer and police department to police department. When Beard acted, he did so with the reasonable suspicion that the agents had given to him.

E. Flight During Reasonable Suspicion Justifies Arrest

Dies also argues his arrest was illegal because the agents lacked probable cause. This court in Mitchell, held that if a suspect flees from the police when he has been detained on reasonable suspicion, the officers acquire probable cause to effectuate an arrest. The agents possessed reasonable suspicion that Dies was engaged in criminal activity. His flight from Beard created the probable cause for which he was lawfully arrested.

Thoughts

Since we are talking about smell, don’t forget that in Jardines the U.S. Supreme Court said that taking a dog to sniff outside of a house constitutes a 4th amendment search that would require a warrant or an exception to the warrant. However, that same case distinguished a human nose and stated that a human sniff is not a search.

 

https://courts.ms.gov/images/OPINIONS/CO33165.PDF