Police officer smell can give rise to probable cause to search car

Facts

In 1992, Officer Cornelius Turner, while driving east on Highway 16, observed a white vehicle running a traffic light. Turner pulled William Townsend over. Officer Forrest Adcock had pulled up to the scene upon seeing Turner’s flashing blue lights. Turner, after conferring with Adcock, arrested Townsend for failure to appear for three other traffic violations.

Turner then put Townsend under arrest and placed him into his patrol car. After Townsend was placed into the patrol car, Townsend advised Turner that he had a black vinyl bag that was on the passenger side, front seat of his vehicle. Townsend said it had money and asked if he could retrieve it. Turner told him that he could not get it at this point but Turner would get it for him.

Turner went to Townsend’s car to retrieve this bag of money for him, as Townsend watched unprotestingly. Upon opening the car door, Turner noticed a distinct odor of marijuana smoke inside Townsend’s car. The record reveals that Adcock was with Turner at this time. Turner did not search the car at that point, but took the black bag with the money to his patrol car, and summoned Assistant Chief Ken Adcock, the senior officer on duty, to come to the scene to assist.

Approximately six or seven minutes after the initial stop and after Officer Turner had left the scene with Townsend,  K. Adcock arrived. Both he and F. Adcock initiated a search of the interior of the vehicle. This search was conducted before Strong’s Wrecker service arrived to tow away Townsend’s vehicle.

They found a small set of scales, three syringes, a box of plastic sandwich type bags, a small plastic bag containing a green leafy substance, which was later identified as marijuana (10.2 grams), and .1 grams of methamphetamine in the car.

He was convicted of possession of methamphetamine and sentenced to six years. On appeal, he argued the search of the car was illegal. MSC affirmed.

Analysis

Townsend’s consent is unnecessary because the facts lend themselves to probable cause. The officers had placed Townsend under lawful custody. They had called a private towing service to take away Townsend’s car. It appears that the officers did not intend to further search the vehicle, until Townsend’s request for his money bag sent Turner back to the vehicle.

It was there that the smell of marijuana hit Turner, giving him probable cause (automobile exception) to search further for the source of the smell. Because the smell of marijuana was apparent when Turner opened the car, with F. Adcock standing beside him at that time, any ensuing search was legal.

We said in Miller v. State, 373 So. 2d 1004 (Miss. 1979), that the sense of smell is no less important or reliable than the sense of sight. Probable cause has been found to exist where law enforcement officials searched a pickup truck upon observing suspicious activities surrounding the truck, and the testimony of established officials who could smell marijuana close to the pickup. See MSC case Rooks v. State, 529 So. 2d 546 (Miss. 1988).

Also, it has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. See U.S. Supreme Court case Harris v. United States, 390 U.S. 234 (1968).

Thoughts

MSC also spoke about search incident to arrest in this case but after Gant, that exception could not be used here as Townsend was arrested for traffic violations.

 

https://courts.ms.gov/images/Opinions/Conv3302.pdf