United States v. Aurelio Ortiz

United States Court of Appeals
For the Eighth Circuit
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No. 14-1093
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Aurelio Javier Ortiz
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 12, 2014
Filed: September 18, 2014
[Unpublished]
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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Aurelio Javier Ortiz appeals from the district court’s1 order denying his motion
to suppress evidence. We affirm.
1
The Honorable Stephanie Rose, United States District Judge for the Southern
District of Iowa.
I.
On November 25, 2012, a police officer stopped Ortiz’s vehicle because it did
not have a front license plate. When the officer noticed that the vehicle contained
four occupants—Ortiz and three passengers—he called for backup. As the officer
approached the vehicle, he detected a strong odor of unburnt marijuana emanating
from it. In response to the officer’s question about the smell, Ortiz stated that the
three passengers had recently smoked marijuana inside the vehicle.
Two officers searched the vehicle on the basis of Ortiz’s statement. They
discovered several empty plastic bags in the vehicle’s center console, but could not
initially locate the source of the marijuana smell. After about thirty minutes, the
officers determined that the smell was originating from the ceiling of the vehicle.
They pulled down the vehicle’s fabric headliner and discovered a bag of marijuana,
a bag of methamphetamine, a bag of unidentified pills, and a drug pipe.
The officers then began to search the rest of the vehicle more thoroughly.
Although there was no odor of marijuana coming from the rear of the vehicle, one of
the officers lifted up the rubber matting on the floor underneath the backseat and
found a handgun there.
Ortiz was charged with being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). He moved to suppress evidence of the
handgun as the fruit of an illegal search under the Fourth Amendment. The district
court denied the motion, and Ortiz appealed.
II.
“When reviewing the denial of a motion to suppress, we review the district
court’s factual findings for clear error and its legal conclusions de novo.” United
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States v. Anderson, 688 F.3d 339, 343 (8th Cir. 2012). Ortiz asserts that the district
court should have suppressed the evidence of the handgun because the officers lacked
the authority under the Fourth Amendment to search the area underneath the backseat
of his vehicle. Police officers may “conduct a warrantless search of an automobile
if, at the time of the search, they have probable cause to believe that the vehicle
contains contraband or other evidence of a crime.” United States v. Farnell, 701 F.3d
256, 264 (8th Cir. 2012) (quoting United States v. Kennedy, 427 F.3d 1136, 1140-41
(8th Cir. 2005)). “Probable cause exists where there is a ‘fair probability that
contraband or evidence of a crime will be found in a particular place.’” United States
v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007) (quoting Illinois v. Gates, 462 U.S.
213, 238 (1983)).
Ortiz concedes that the smell of unburnt marijuana gave the officers probable
cause to search parts of the vehicle for marijuana, but he contends that because the
backseat area did not give off an odor of marijuana, the officers lacked probable cause
to search that part of the vehicle. The discovery of well-hidden amphetamines and
pills, however, gave the officers probable cause to search areas of the vehicle that did
not emit any odor of marijuana, since neither article of contraband produces any odor.
See Michigan v. Thomas, 458 U.S. 259, 260 (1982) (per curiam). Accordingly, the
district court did not err in denying Ortiz’s motion to suppress evidence.
III.
The judgment is affirmed.
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