State of Utah v. Wright

State v. Wright. Filed March 18, 1999 This opinion is subject to revision before publication in the Pacific Reporter.

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Christopher David Wright,
Defendant and Appellant.

OPINION
(For Official Publication)

Case No. 981058-CA

F I L E D
March 18, 1999
  1999 UT App 086

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Fourth District, Nephi Department
The Honorable Ray M. Harding, Sr.

Attorneys:
Ronald W. Perkins, Ogden, for Appellant
Jan Graham, Catherine M. Johnson,
and Barnard N. Madsen, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Jackson.

JACKSON, Judge:

¶1      Christopher David Wright challenges the trial court's denial of his motion to suppress evidence and his subsequent convictions for possessing marijuana and drug paraphernalia. His
convictions were entered under a conditional plea agreement reserving the right to appeal the
suppression issue. See State v. Sery, 758 P.2d 935, 939 (Utah Ct. App. 1988) (holding
conditional plea valid when court and prosecutor accept agreed-upon condition). We affirm.

BACKGROUND

¶2     Wright has specifically stated in his brief that he accepts the trial court's factual findings for
purposes of this appeal. We therefore recite the facts from those findings.

¶3     On September 5, 1996, Sergeant Paul Mangelson of the Utah Highway Patrol saw a car
driven by Wright weaving across the highway lane divider at least twice. The car's license plate
was loose and jiggling. After running a check on the license number, which showed that no
information was on file, Sergeant Mangelson stopped Wright.

¶4    While asking Wright routine questions, Sergeant Mangelson detected the odor of raw
marijuana coming from the car. The sergeant asked Wright for permission to search the car for
marijuana. When Wright refused, the sergeant ordered him from the car, patted him down, and
told him to open the car trunk. There, Sergeant Mangelson found a duffel bag containing
twenty-five pounds of marijuana. The sergeant arrested Wright on drug possession charges.

¶5     Wright moved to suppress the evidence seized from the trunk. He argued that Sergeant
Mangelson lacked probable cause to search the trunk, violating his right to be free from
unreasonable search and seizure. When the trial court denied his motion, Wright entered a
conditional guilty plea, maintaining the right to raise the probable cause issue on appeal.

ANALYSIS

¶6     "We review a trial court's determination of whether a particular set of facts constitutes
probable cause nondeferentially for correctness, affording a measure of discretion to the trial
court." State v. Spurgeon, 904 P.2d 220, 225 (Utah Ct. App. 1995).

¶7     The concept of probable cause is vital to protecting Fourth Amendment rights.(1)See id. at
225-26. In general, police officers may not search or seize without a warrant supported by
probable cause.(2)See id. at 226. Warrantless searches and seizures are per se unreasonable
unless they meet the criteria of an accepted exception to the Fourth Amendment's warrant
requirement. See id. Two such exceptions involve searches of mobile vehicles and seizure of
evidence in plain view. See id. Still, these exceptions are applicable only when supported by
probable cause. See id.

¶8     Probable cause is present when "'"the facts and circumstances within [the officers']
knowledge and of which they ha[ve] reasonably trustworthy information [are] sufficient in
themselves to warrant a [person] of reasonable caution in the belief that" an offense has been or is  being committed.'" Id. (alterations in original) (quoting State v. Dorsey, 731 P.2d 1085, 1088
(Utah 1986) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302,
1310-11 (1949))). It is "an objective standard"--a police officer's subjective beliefs are not the
benchmark. Id.

¶9     Even so, a court may consider an officer's particular experience and education in
determining whether probable cause exists. See id. For instance, an officer's special familiarity
with how controlled substances smell is germane to evaluating whether an officer had probable
cause to search and seize. See id. Indeed, "'probable cause . . . may arise from an officer's sense
of smell.'" Id. at 227 (quoting State v. Bartley, 784 P.2d 1231, 1236 (Utah Ct. App. 1989)).
Further, "[i]t is well settled that the odor of marijuana emanating from a vehicle establishes
probable cause for the warrantless search of that vehicle." Id. We have held that "'[a] strong,
emanating odor of marijuana comes within the "plain view" doctrine and need not be ignored by
officers.'" State v. Naisbitt, 827 P.2d 969, 972 (Utah Ct. App. 1992) (alteration in original)
(quoting United States v. Manbeck, 744 F.2d 360, 380 n.34 (4th Cir. 1984)).

¶10    It is undisputed here that Sergeant Mangelson smelled marijuana before he searched. That
fact alone gave him probable cause to search under the principles outlined above. What Wright
questions is whether the probable cause which clearly existed supported the sergeant's search of
the trunk, as opposed to the passenger compartment. Wright argues that the smell of marijuana
justifies an officer in searching only the passenger compartment of the car to corroborate the smell with evidence before searching the trunk. To support this proposition, Wright cites United States
v. Nielsen, 9 F.3d 1487 (10th Cir. 1993), a case this court described with approval in State v.
Maycock, 947 P.2d 695, 697 (Utah Ct. App. 1997).

¶11    In Nielsen, an officer on a car stop smelled burnt marijuana coming from the defendant's
open window. See Nielsen, 9 F.3d at 1488. On that basis, the officer asked for and received
permission to search the car's interior for the source of the odor. See id. The officer's search was
fruitless. See id. Still, he persevered and, despite the defendant's protests, searched the car trunk, where he found cocaine and scales. See id. The defendant moved to suppress the evidence found in the trunk, arguing the officer lacked probable cause to search there.

¶12    The Tenth Circuit agreed, holding that the smell of burnt marijuana gave the officer
probable cause to search only the passenger compartment. See id. at 1491. Once the officer was unable to corroborate the smell with evidence from the passenger compartment, probable cause
could not support a search of the trunk. See id. The court noted, "The scope of a warrantless
search of an automobile 'is defined by the object of the search and the places in which there is
probable cause to believe that it may be found.'" Id. (quoting United States v. Ross, 456 U.S.
798, 824, 102 S. Ct. 2157, 2172 (1982)). The court further reasoned that "[t]he smell of burnt
marijuana would lead a person of ordinary caution to believe the passenger compartment might
contain marijuana." Id.

¶13    The Tenth Circuit has since used this language from Nielsen and Ross to support its holding
in a case directly on point here. See United States v. Downs, 151 F.3d 1301, 1303 (10th Cir.
1998). In Downs, the court recognized "a commmonsense distinction between the smells of burnt
and raw marijuana based on the imperative that the scope of a warrantless search 'is defined by
the object of the search and the places in which there is probable cause to believe that it may be
found.'" Id. (quoting Ross, 456 U.S. at 824, 102 S. Ct. at 2172). In further explanation, the court stated that: [t]he smell of burnt marijuana is generally consistent with personal use of marijuana
in the passenger compartment of an automobile. In such a case, therefore, there is
no fair probability that the trunk of the car contains marijuana and an officer must
limit the search to the compartment absent corroborating evidence of contraband.
When, on the other hand, an officer encounters, as was the case here, the
overpowering smell of raw marijuana, there is a fair probability that the car is being
used to transport large quantities of marijuana and that the marijuana has been
secreted in places other than the passenger compartment. Accordingly, in such
circumstances, a search of the trunk is appropriate. Id. (citations omitted).

¶14    We agree with the Tenth Circuit's rationale and apply it here. In this case, Wright does not
dispute the trial court's finding that Sergeant Mangelson smelled the odor of marijuana coming
from his car. The only testimony on this issue at the hearing was that the odor was that of raw
marijuana. An odor of raw marijuana strong enough to be smelled from outside a car "would lead
a person of ordinary caution" to believe that marijuana in bulk may be stored in the car trunk. Id.
The trial court thus correctly determined that Sergeant Mangelson had probable cause to search
the trunk.

¶15    Based on our analysis, we need not address Wright's other argument that the trunk search
was not justified as a search incident to arrest. Affirmed.
 
 

______________________________
Norman H. Jackson, Judge -----

¶16    WE CONCUR:
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge

1. The Fourth Amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized. 2. "A warrantless automobile search is not justified by probable cause alone, but must also be
premised upon exigent circumstances."  State v. Maycock, 947 P.2d 695, 697 (Utah Ct. App.
1997). However, because Wright has not raised the issue of exigent circumstances, we address
only the existence of probable cause.