State v. Ireland, corrected 3-18-98
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 35 
Docket:		Pen-97-431
Submitted
on briefs:		January 16, 1998	
Decided :		February 25, 1998

Panel:	WATHEN, C.J., and  CLIFFORD, RUDMAN, DANA, LIPEZ and SAUFLEY, JJ.

STATE OF MAINE

v.

CHRISTIAN F. IRELAND

CLIFFORD, J.

	[¶1]  Christian Ireland appeals from a judgment entered in the
Superior Court (Penobscot, Kravchuk, C.J.) affirming the judgment of the
District Court (Millinocket, Gunther, J.) finding him guilty of violating
17-A M.R.S.A. § 1103 (Trafficking in Scheduled Drugs, Class D).{1} On appeal
Ireland contends that the District Court erred in admitting evidence
obtained from the search of the trunk of the vehicle in which he was an
occupant because it was not supported by probable cause and was thus per
se unreasonable.  We disagree and affirm his conviction.
	[¶2]  At approximately 9:45 p.m. on June 19, 1996, Millinocket
police officers Glidden and James stopped a vehicle driving with its
headlights off, and Glidden asked the driver for his license and registration. 
When the driver could not produce his license, Glidden ran a check using
the driver's name and date of birth, determined that his license was under
suspension, and placed him under arrest.  Glidden then asked defendant
Ireland and a passenger, Tobi Crosby, to exit the car.  Glidden proceeded to
search the seats, under the driver's seat, on the floor, and on the console
"by flashlight and by hand."  Somewhere between five and twenty minutes
after initially approaching the driver's window and asking the driver to step
out, Glidden detected "a burnt marijuana smell" under the driver's seat
which "wasn't the fresh marijuana."  He testified that he had training and
experience in the detection of marijuana, and that he had no question that
the odor was marijuana.  After Glidden apprised James of his discovery of
the odor, the pair continued to search the passenger compartment, but
found no marijuana or any other contraband or incriminating evidence.
	[¶3]  Based on defendant Crosby's statement that she owned the car,
Glidden then asked her if there was anything in the trunk.  She responded
that there was nothing in the trunk and that she had no key.  The officers
then found a key in the vehicle that opened the trunk.  In the trunk the
officers found a number of marijuana plants, and the occupants were placed
under arrest.  
	[¶4]  The State filed a complaint against Ireland for violation of
17-A M.R.S.A. §  1103.   Ireland filed a motion to suppress any evidence
obtained based upon the search of the vehicle, as well as any statements
Ireland made at the scene.  After a hearing on the motion and consideration 
of written briefs, the District Court (Millinocket, Gunther, J.) denied the
motion to suppress as to the evidence obtained based upon the search of the
vehicle.  Ireland was tried by the same court and found guilty.  The Superior
Court (Penobscot, Kravchuk, C.J.) affirmed the judgment of the trial court
and Ireland appealed to this court.
	[¶5]  We review findings of fact for clear error.  The legal conclusion
that the search of the trunk was supported by probable cause we review
independently.  State v. Rizzo, 1997 ME 215, ___ A.2d ___; cf. State v.
Cefalo, 396 A.2d at 240 ("[A] trial judge's findings of historical facts on
relevant identification issues will be overturned only when clearly erroneous. 
The legal conclusions drawn from those facts, however, are subject to the
independent examination and judgment of the Law Court.").
	[¶6]  Ireland contends that the court erred in denying his motion to
suppress by finding that the officers had probable cause to search the trunk
of the vehicle.  He concedes that the search of the passenger compartment
was lawful under New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860,
2864 (1981) (cited in State v. LaPlante, 534 A.2d 959, 963 (Me. 1987)
("The Supreme Court and this court have held that an officer can search the
passenger compartment of a vehicle when an occupant has been lawfully
arrested, even if the occupant is outside of the car at the time of the
arrest.")).  Ireland contends that the search of the trunk, however, was an
unreasonable search in violation of the Fourth Amendment of the U.S.
Constitution and Article 1, section 5 of the Maine Constitution.{2}
	[¶7]  Under the automobile exception to the warrant requirement
under the fourth amendment of the U.S. Constitution, "the existence of
probable cause" justifies a warrantless seizure and reasonable search of a
motor vehicle irrespective of the existence of exigent circumstances.  State
v. Rizzo, 623 A.2d 1277, 1281-82 (Me. 1993) (quoting United States v.
Panitz, 907 F.2d 1267, 1272 (1st Cir. 1990)).  Further, Maine and federal
courts have consistently held that when probable cause exists to search for
contraband, the trunk of a motor vehicle is not categorically immune from
search:

When a legitimate search is under way, and when its purpose
and its limits have been precisely defined, nice distinctions
between closets, drawers, and containers, in the case of a home,
or between glove compartments, upholstered seats, trunks, and
wrapped packages, in the case of a vehicle, must give way to the
interest in the prompt and efficient completion of the task at
hand.

Ross, 456 U.S. at 821, 102 S.Ct. at 2170 (quoted in State v. Bouchles,
457 A.2d 798, 800 (Me. 1983)).  See also U.S. v. Infante-Ruiz,
13 F.3d 498, 502 (1st Cir. 1994) ("It is now established that if the police
have probable cause to believe that either a vehicle or a container within a
vehicle contains contraband, evidence of crime, or other matter that may
lawfully be seized, no Fourth Amendment violation occurs when the police
open and search the container without a warrant."); Rizzo, 623 A.2d at 1282
("[P]robable cause entitles the police to search any containers within the
vehicle that might reasonably contain the objects of the search.  Since
marijuana could have been concealed in the trunk, [the officer] was
permitted to search the trunk.") (citations omitted); Bouchles,
457 A.2d at 800 ("If probable cause justifies the search of a lawfully stopped
vehicle, it justifies the search of every part of the vehicle and its contents
that may conceal the object of the search.") (quoting U.S. v. Ross,
456 U.S. 798, 825, 102 S. Ct. 2157, 2172 (1982)).
	[¶8]  While an enclosed area such as a trunk is not exempt from
search, the scope of that search is not unbounded.  See Ross,
456 U.S. at 821, 102 S. Ct. at 2170 (requiring that the search must be
"legitimate" and "its purpose and its limits . . . precisely defined");{3} Rizzo,
623 A.2d at 1282 ("An officer's warrantless search of an automobile must,
just prior to the search, be supported by a reasonable belief 'that contraband
or evidence of a crime are located in the place to be searched.'") (emphasis
added).  The First Circuit has recently held that while "[c]ertainty is not
required" for probable cause to exist, mere suspicion or "personal belief
that probable cause exists,"  such as when the officer knows that vehicle
occupants have "serious drug trafficking records," is not enough to
constitute probable cause.  Infante-Ruiz, 13 F.3d at 502.   The fourth
amendment requires "  indicating that, at the time of search,
the vehicle or a container within it carried contraband, evidence of crime,
or other seizable matter."  Id. at 2664 (emphasis added).  See also State v.
Snow, 527 A.2d 750, 753 (Me. 1987) (probable cause exists when "personal
knowledge of facts and circumstances, in combination with any reasonably
trustworthy information conveyed to them, would warrant a prudent person
to believe that the container seized holds either contraband or evidence of a
crime").
	[¶9]  We have thus held that probable cause to search a trunk existed
when officers discovered a bag of marijuana on the defendant's person as
well as other incriminating evidence.  See Rizzo, 623 A.2d at 1279; cf. State
v. Currier, 521 A.2d 295, 298 (Me. 1987) ("Upon finding marijuana in
Currier's pocket, the officer had probable cause to believe that there was
marijuana in the car.  Accordingly, he could then and there have conducted
a warrantless search of the entire vehicle."); State v. Barclay, 398 A.2d 794,
797 (Me. 1979) (search of car, including glove compartment, was supported
by probable cause when officer, upon arriving at the driver's window,
"detected marijuana smoke emanating from the interior of the vehicle").
	[¶10]  Federal precedent is not inconsistent.  See United States v.
Parker, 72 F.3d 1444, 1450 (10th Cir. 1995); (smell of burned marijuana in
car and rolled-up dollar bill with white powder residue and marijuana
cigarette on person of defendant established probable cause for search of
trunk); United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989)
(nervousness of occupants and officer's detection of odor of burnt marijuana
as he approached driver's window justified search of entire vehicle,
including locked compartment in rear of station wagon);  United States v.
Loucks, 806 F.2d 208, 210-11 (10th Cir. 1986) (smell of still-burning
marijuana cigarette butts and a small bag of marijuana supported trunk
search);  United States v. Burnett, 791 F.2d 64, 67 (6th Cir. 1986) (small
amount of marijuana on floorboard of passenger compartment provided
probable cause to search trunk);  United States v. Hough, 944 F.Supp. 20, 23
& n. 2 (D.D.C. 1996) (smell of marijuana and discarded marijuana cigarettes
on floor of car provided probable cause to search entire car including trunk);
State v. Guerra, 459 A.2d 1159 (N.J. 1983) (strong odor of raw unburned
marijuana that could not have emanated from small suitcase in an
automobile's interior provided probable cause to search trunk for evidence
of contraband).
	[¶11]  Because the marijuana odor was neither immediately
detectable nor discovered in conjunction with other contraband, Ireland
argues that we must follow U.S. v. Nielsen, 9 F.3d 1487 (10th Cir. 1993). 
The court in Nielsen held that detection of a burnt marijuana odor in the
passenger compartment, without further corroborating evidence, does not
provide probable cause to search the trunk of the vehicle.  See U.S. v. Staula,
80 F.3d 596, 603 n.4 (1st Cir. 1996) (citing Nielsen, 9 F.3d at 1487).{4}  The
opinion in Nielsen, which is not binding precedent,{5} stated that the smell of
burnt marijuana would lead a person of ordinary caution to believe the
passenger compartment might contain marijuana, but when the search of
the passenger compartment revealed no marijuana or related contraband
the court did not believe there was a fair probability that the trunk
contained marijuana, or that a disinterested magistrate would so hold if
asked to issue a search warrant.{6}  See Nielsen, 9 F.3d at 1491.
	[¶12]  In Ireland's case, however, the existence of probable cause was
supported not only by officer Glidden's detection of the smell of burnt
marijuana, but also by the furtive behavior of the occupants in denying that
they had a key to the trunk after which the officers readily located one
within the passenger compartment. Cf. Reed, 882 F.2d at 149 (defendants'
nervousness, refusal to make eye contact, and distinct odor of burnt
marijuana justified a search of the entire vehicle, including the locked
compartment that was a likely place to conceal contraband).  Given the facts
before the District Court, the denial of Ireland's motion to suppress was not
error.
	The entry is:
			Judgment affirmed.
                                                           
Attorneys for State:
R. Christopher Almy, District Attorney
C. Daniel Wood, Asst. Dist. Atty.
97 Hammond Street
Bangor, ME 04401

Attorney for defendant:

Diane Albert Khiel, Esq.
P O Box 45
Topsfield, ME 04490

FOOTNOTES******************************** {1} Title 17-A M.R.S.A § 1103(1) (Supp. 1997) provides in pertinent part: A person is guilty of unlawful trafficking in a scheduled drug if the person intentionally or knowingly trafficks in what the person knows or believes to be a scheduled drug and that is in fact a scheduled drug . . . . {2} The State correctly points out that the Maine Constitution affords Ireland no greater protection than that afforded under the Fourth Amendment of the United States Constitution. See State v. Patten, 457 A.2d 806 (Me. 1983) ("[W]e hold that a warrantless search of a vehicle for contraband, that is constitutionally permissible under the long-established 'automobile exception,' may be validly extended to a container, found in the vehicle, that is capable of containing the contraband. In this regard we find no reason to construe article I, section 5 of the State Constitution any differently than the fourth amendment of the federal constitution.") (emphasis added). {3} Although U.S. v. Ross is often cited for having removed distinctions between searching various parts of vehicles, the U.S. Supreme Court has placed spatial limits on vehicle searches: Thus, if officers have probable cause to believe that contraband is in only one part of a car, then they are limited to that area. If, on the other hand, officers have probable cause to believe that contraband is located somewhere in a car, but they don't know exactly where, then they can search the entire vehicle. United States v. Seals, 987 F.2d 1102, 1107 (5th Cir. 1993) (explaining U.S. v. Ross, 456 U.S. at 824, 102 S.Ct. at 2172). In Seals, the court held that the discovery of cocaine residue, the defendant's nervousness and false answers, and modification of the rear seat provided the officers with probable cause to believe that additional drugs were contained elsewhere in the vehicle. Since they did not know exactly where in the car the drugs were located, the officers had probable cause to search the entire vehicle, including the trunk. Id. {4} Staula did not deal with a trunk search. The officer "smelled burnt marijuana when he first approached the driver's side window to demand a registration certificate." Id. at 599. In holding that probable cause existed to search the entire passenger compartment, the court stated: The case law is consentient that when a law enforcement officer detects the odor of marijuana emanating from a confined area, such as the passenger compartment of a motor vehicle, that olfactory evidence furnishes the officer with probable cause to conduct a search of the confined area. Id. at 602. {5} Ireland contends we must vacate the decision of the District Court because the first circuit, in Staula, "implicitly adopted" the Nielsen decision. We disagree. Staula merely mentions Nielsen, in a footnote rejecting the defendant's attempt to use Nielsen as a basis to suppress the fruits of a search of the area behind the seat of his pickup truck. See U.S. v. Staula, 80 F.3d 596, 603 n.4 (1st Cir. 1996). The court stated: "Since the aroma of marijuana wafted from the passenger area, that region became fair game for a drug search under the automobile exception to the warrant requirement." Id. Because the Staula court considered the area behind the seats to be part of the passenger compartment, any favorable analysis of the Nielsen decision is dictum. {6} See State v. Currier, 521 A.2d 295, 298 n.1 (Me. 1987) (probable cause determination under automobile exception "must be based on objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officer.") (citing United States v. Ross, 456 U.S. at 808, 102 S. Ct. at 2164).