United States v. Ramos ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-5-2006
USA v. Ramos
Precedential or Non-Precedential: Precedential
Docket No. 05-1169
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-1169
___________
UNITED STATES OF AMERICA,
Appellant
v.
JEFFREY RAMOS; SAMUEL ACOSTA
___________
APPEAL FROM THE DISTRICT COURT OF
THE VIRGIN ISLANDS
(D.C. Nos. 04-cr-00117-1 and 04-cr-00117-2)
District Judge: The Honorable Raymond L. Finch
___________
ARGUED: DECEMBER 6, 2005
BEFORE: SCIRICA, Chief Judge,
MCKEE and NYGAARD, Circuit Judges.
(Filed: April 5, 2006)
___________
Kirby A. Heller, Esq. (Argued)
United States Department of Justice
Criminal Division, Appellate Section
601 D Street, NW, Room 6206
Washington, DC 20530
Jerry D. Massie, Esq.
United States Department of Justice
Terrorism and Violent Crime Section
601 D Street, NW, Room 6500
Washington, DC 20530
Counsel for Appellant
Jomo Meade, Esq. (Argued)
112 Queen Cross Street
Frederiksted, St. Croix, USVI 00840
Counsel for Appellee Samuel Acosta
Stephen A. Brusch, Esq. (Argued)
International Plaza, Suite 2G
P. O. Box 988
Charlotte Amalie, St. Thomas, USVI 00804
Counsel for Appellee Jeffrey Ramos
2
OPINION OF THE COURT
NYGAARD, Circuit Judge.
The United States of America (“government”) appeals
from the order of the District Court of the Virgin Islands
granting defendants Jeffrey Ramos and Samuel Acosta’s motion
to suppress evidence. Because there was reasonable suspicion
justifying the stop, we will reverse.
I.
Members of the Street Enforcement Team of the
Virgin Islands Police Department were patrolling the Castle
Coakley area in an unmarked SUV when they observed two
vehicles, a van and a Honda Accord, parked next to each
other in the parking lot of a night club.1 Upon passing in-
1.
The District Court wrote that the car and van were
(continued...)
3
between the vehicles, one member of the team, Officer
Huertas, testified that when he got to within three to four feet
of the passenger side of the Honda, he smelled “marijuana
smoke” through his open window. He also testified that the
Honda’s window closest to the officers’ car was partially
open.
The Enforcement Team then drove past the two
vehicles and parked forty or fifty feet away. Soon thereafter
the Honda left the parking lot, passing by the Enforcement
Team’s vehicle as it left. After the Honda passed the
Enforcement Team’s vehicle the Team decided to make a
traffic stop and pulled over the Honda. The officers ordered
defendant Acosta out of the driver’s side of the car and he
exited with his driver’s license and registration in hand.
1.
(...continued)
parked on the side of the road, but both parties agree that the
vehicles were in a parking lot.
4
Defendant Ramos then apparently exited, according to
Huertas, “in a hostile manner, shaking, waving his hands,”
and asking, “what the fuck you all stop me for?” An officer
then searched Ramos for weapons and found a magazine clip
in his pocket. Then, as Officer Huertas inspected the vehicle
for other occupants, he smelled marijuana and saw smoke
coming from a small black cup. Additionally, he saw a
chrome .357 pistol in the car. After the car was searched, a
second pistol was located under the seat as well as two
marijuana cigarettes, a measuring scale, and baggies. After
the weapons were found, the officers arrested both defendants
and administered their Miranda rights.
The government charged the defendants on various
weapons possession counts. The defendants moved to
suppress all physical evidence and statements obtained as a
result of the stop. They claimed that the stop violated their
5
Fourth Amendment rights and, additionally, that any
statements made were obtained in violation of their Fifth and
Sixth Amendment rights. The government responded that the
officers had probable cause to effectuate the stop based
alternatively on the fact that the Honda had committed a
traffic violation and that the officers had seen smoke and
smelled marijuana as they passed the vehicles.
After a hearing, the District Court granted defendants’
motion, ruling that the government did not have probable
cause to stop the defendants’ car.2 In so doing, the District
2.
At the motion hearing the government contended that
the officers had probable cause to stop the defendants. The
District Court’s analysis, therefore, hinged on whether the
government was able to show, by a preponderance of the
evidence, that it had probable cause to stop Acosta’s vehicle.
Because it found that the government could not, the District
Court found the stop to be in violation of the Fourth
Amendment and it applied the exclusionary rule to all the
evidence subsequently found and seized.
6
Court found that there was no articulable suspicion of a traffic
violation and that the marijuana smell was neither articulable
nor particularized to the Honda such that it established, by a
preponderance of the evidence, probable cause. The
government timely filed a notice of appeal.3
At the hearing, the government unsuccessfully
contended that the defendants’ traffic violation established
probable cause to execute the stop and subsequent searches.
On appeal, the government does not challenge the District
Court’s probable cause analysis. Rather, they contend that
even if there was no probable cause, there existed reasonable
3.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We have plenary review over the District Court’s
determination of the validity of the officer’s search. Ornelas
v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d
911 (1996); United States v. Valentine, 232 F.3d 350 (3d Cir.
2000). We review the District Court’s findings of fact for
clear error. Ornelas, 517 U.S. at 698.
7
suspicion and therefore the stop was justified under Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).4
According to the government, once Officer Huertas
and the other officers detected the marijuana odor, they had
reasonable suspicion to effectuate the stop of defendants’ car.
Defendants argue in response that the marijuana odor was not
particularized to their car and that, therefore, reasonable
suspicion could not exist. Because we conclude that the
4.
We express a certain amount of discomfort with the
government’s case at trial and their corresponding attempts to
establish probable cause, especially in light of the District
Court’s finding that portions of Officer Huertas’ (the
government’s star witness) testimony were “unsupportive”
and the presence of conflicting justifications for the stop.
Nevertheless, “[t]he fact that the officer does not have the
state of mind which is hypothecated by the reasons which
provide the legal justification for the officer’s action does not
invalidate the action so long as the circumstances, viewed
objectively, justify that action.” United States v. Johnson, 63
F.3d 242, 246 (3d Cir. 1995) (quoting Scott v. United States,
436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978)).
Our inquiry, therefore, is justifiably centered on the objective
existence of reasonable suspicion.
8
officers had reasonable suspicion to effectuate the stop, we
will reverse.
II.
The Fourth Amendment prevents “unreasonable
searches and seizures.” U.S. Const. Amend. IV. A seizure is
usually reasonable when it is carried out with a warrant based
on probable cause. Katz v. United States, 389 U.S. 347, 356-
357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Warrantless
searches are presumptively unreasonable. See id. As an
exception to this rule, a police officer may conduct a brief,
investigatory search consistent with the Fourth Amendment
without a warrant under the “narrowly drawn authority”
established for a Terry stop. Terry, 392 U.S. at 27. Such
warrantless searches are appropriate where an officer
possesses reasonable, articulable suspicion that criminal
9
activity is afoot. Id; Illinois v. Wardlow, 528 U.S. 119, 123,
120 S. Ct. 673, 145 L.E.2d. 570 (2000).
Reasonable suspicion “is a less demanding standard
than probable cause.” Alabama v. White, 496 U.S. 325, 330,
110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). Thus, because
probable cause means “a fair probability that contraband or
evidence of a crime will be found,” the level of suspicion
necessary to justify a Terry stop is somewhat lower and can
be established with information that is different in quantity or
content than that required for probable cause. Id; Illinois v.
Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527
(1983). However, the officer must demonstrate that the stop
was based on something more than an “inchoate and
unparticularized suspicion or hunch.” United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)
(quoting Terry, 392 U.S. at 27). A police officer, therefore,
10
may only effectuate a Terry stop where “specific and
articulable facts, together with all their rational inferences,
suggest that the suspect was involved in criminal activity.”
United States v. Robertson, 305 F.3d 164, 168 (3d Cir. 2002)
(quoting United States v. Brown, 159 F.3d 147, 149 (3d Cir.
1998)). Consequently, we accord deference to an officer’s
judgment of whether criminal activity is taking place with an
understanding that “whether an officer has reasonable
suspicion to warrant a stop . . . is often an imprecise
judgment.” Id.
It is well settled that the smell of marijuana alone, if
articulable and particularized, may establish not merely
reasonable suspicion, but probable cause. See United States v.
Humphries, 372 F.3d 653, 658 (4th Cir.2004) (“[T]he odor of
marijuana alone can provide probable cause to believe that
marijuana is present in a particular place.”); United States v.
11
Winters, 221 F.3d 1039, 1042 (8th Cir. 2000). Recognizing
this, defendants concede that, had an officer smelled
marijuana coming directly from their car, not only reasonable
suspicion, but probable cause would have been established,
justifying the stop. Instead, defendants argue that Officer
Huertas testified, and the District Court found, that the
marijuana smell could not be specifically pinpointed to their
car and that because the marijuana smell was not
appropriately particularized, it cannot establish reasonable
suspicion.5 We disagree.
5.
It is true that the District Court concluded that “the
government did not preponderate that the smell of marijuana
came from the defendants and their key witness, Officer
Huertas, testified that he could not identify which vehicle the
smell of marijuana was coming from.” Consequently, if our
inquiry were whether probable cause existed, we might be
inclined to agree with the District Court that the stop was not
justified. However, we only must determine whether, under
these circumstances, reasonable suspicion justified the stop;
therefore, the government need not establish by a
(continued...)
12
The question of what constitutes “particularized” for
the purposes of a reasonable suspicion inquiry does not
reduce to a rigid definition precisely because reasonable
suspicion is itself a flexible standard. See White, 496 U.S. at
330. In the abstract, the defendants may be correct that, at
some point, a broadly diffuse and undistinguished marijuana
odor will not automatically provide the necessary particularity
to establish reasonable suspicion. For instance, had the
officers smelled marijuana odor in a crowded bar, they would
not be justified to pat down every patron on the claim of some
individualized reasonable suspicion. See Ybarra v. Illinois,
444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). But
defendants’ claim that reasonable suspicion requires the same
level of particularity as probable cause is misguided. See
5.
(...continued)
preponderance of the evidence (as the District Court inquired)
that the marijuana smell came from the defendants’ car.
13
United States v. French, 974 F.2d 687, 692 (6th Cir. 1992)
(holding that reasonable suspicion existed to stop defendants
who had been riding in tandem with a truck that possessed a
marijuana odor).
To establish reasonable suspicion, the particularity
requirement need not be as stringent as it might be for
probable cause.6 Thus, while probable cause may require the
odor to be particularized to a specific person or place, in this
case we are satisfied that the totality of the circumstances
sufficiently particularized the odor to justify a Terry stop of
the defendants’ car.
6.
As defendants point out, courts that have addressed the
particularity requirement in the context of marijuana odor
have established that the odor should be particularized to
some specific person or place. However, these cases all
addressed the particularity requirement in the context of a
probable cause inquiry. See Humphries, 372 F.3d at 659;
United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 2004).
14
Here, it is undisputed that the officers drove in-
between the two vehicles that were parked next to each other.
As the officers drove by, coming to within three or four feet
of defendants’ car, they smelled an identifiable marijuana
odor. Officer Huertas also testified that the both the
defendants’ car window (facing the officers’ SUV) and the
officers’ own window were open. While it is true that no
officer testified directly as to which car the odor had come
from, relying on their skill and experience, it would have been
reasonable for the officers to conclude that the odor was
coming from one, the other, or both vehicles.7 For the
purposes of reasonable suspicion, that probability establishes
the odor as sufficiently particularized.
Concluding, as we do, that it was reasonable for the
officers to suspect that the odor was coming from one, or
7.
These two vehicles were the only vehicles in the area.
15
both, of the two vehicles, it was likewise reasonable for the
officers’ to suspect that criminal activity was afoot.8
Therefore, under Terry and its progeny, the officers’ had
reasonable suspicion and were entitled to investigate further,
justifying the stop of defendants’ car. We accordingly find
the District Court erred in suppressing the evidence.
III.
For the foregoing reasons, the judgment of the District
Court entered on December 30, 2004 will be reversed. This
matter will be remanded to the District Court for further
proceedings consistent with this opinion.
8.
In fact, upon smelling the marijuana odor, the officers
had an obligation to investigate further to, if nothing else,
ensure that the drivers of the vehicles were not impaired. The
same would have been true had the officers smelled alcohol.
16