Commonwealth v. Gary Lynn Jones ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued by Teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0857-97-3 JUDGE SAM W. COLEMAN III
SEPTEMBER 9, 1997
GARY LYNN JONES
FROM THE CIRCUIT COURT OF WYTHE COUNTY
J. Colin Campbell, Judge
Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellant.
No brief or argument for appellee.
The defendant, Gary Lynn Jones, filed a motion to suppress
methamphetamine and drug paraphernalia recovered in a traffic
stop on the ground that the police, after stopping the vehicle
for speeding, did not have probable cause to search the vehicle
in which he was a passenger. The trial court granted the
defendant's suppression motion, and the Commonwealth appeals that
ruling pursuant to Code § 19.2-398(2). The Commonwealth contends
on appeal that the defendant failed to prove he had standing to
challenge the search of the vehicle or the cooler in which the
contraband was found and that the trial court erred in finding
that the police did not have probable cause to conduct the
search.
Assuming without deciding that the defendant had standing to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
challenge the search, we find that the police had probable cause
to search the vehicle and the cooler. Accordingly, we reverse
the trial court's ruling and remand the case for further
proceedings.
Because of the mobility of motor vehicles, the United States
Supreme Court has held that they may be searched without
obtaining a warrant if a police officer has probable cause to
believe that the vehicle contains contraband. See United States
v. Ross, 456 U.S. 798, 806-08 (1982); Carroll v. United States,
267 U.S. 132, 149 (1925). "Probable cause exists when the facts
and circumstances within the arresting officer's knowledge and of
which he has reasonable trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief
that an offense [has] been or is being committed." Saunders v.
Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977).
In this case, we hold that Deputy Murphy had probable cause
to believe that the vehicle contained contraband and was
justified in conducting the search. After stopping the van for
speeding, Deputy Murphy, a motorcycle officer, noticed the odor
of "burnt" marijuana emanating from the van. See United States
v. Haley, 669 F.2d 201 (4th Cir. 1982) (holding that probable
cause to search a vehicle exists when an officer smells marijuana
inside the vehicle). He asked the defendant, who was in the
passenger seat, to exit the van. The deputy testified that,
"based on the fact that I had already smelled . . . marijuana
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[and] knew a crime had been committed in the vehicle," he patted
the defendant down and found a "roach clip" in his pocket.
Deputy Murphy told the defendant it would be in his best interest
to turn over the marijuana, so the defendant retrieved a "Skoal"
tobacco box containing a partially burned marijuana cigarette
from the rear of the van and gave it to the deputy. Considering
the totality of the circumstances, including the odor of burnt
marijuana, the defendant's possession of a roach clip and the
defendant retrieving the "Skoal" container from the van which
contained marijuana, Deputy Murphy had probable cause to believe
that a crime was being committed and that the van may contain
contraband.
Although Deputy Murphy initially intended to release the
defendant on a summons "if nothing else developed," after the
backup unit arrived, Deputy Murphy searched the van and found
methamphetamine and drug paraphernalia in a cooler behind the
passenger seat. The defendant acknowledged that the contraband
in the cooler belonged to him and he was arrested.
"The rationale justifying a warrantless search of an
automobile that is believed to be transporting contraband
arguably applies with equal force to any movable container that
is believed to be carrying an illicit substance." Ross, 456 U.S.
at 809. The cooler, which was in the vehicle, was a container in
which contraband of the type the deputy was searching for could
have been located, thus, the deputy was justified in searching
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the cooler.
Accordingly, we reverse the trial court's ruling on the
suppression motion and remand for further proceedings.
Reversed and remanded.
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