||ODOR OF MARIJUANA ON A PERSON MAY JUSTIFY ARREST

ODOR OF MARIJUANA ON A PERSON MAY JUSTIFY ARREST

©2010 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM)   United States v. Perdoma, No. 09-3394, 2010 U.S. App. LEXIS 19066 (8th Cir. Decided September 13, 2010)

On September 13, 2010, the Eighth Circuit Court of Appeals decided the United States v. Perdomai, which serves as an excellent Fourth Amendment review of officer/citizen encounters and how an encounter can rapidly escalate from consensual to probable cause to arrest.  The facts of Perdoma are as follows:

On the morning of November 17, 2008, Investigator Alan Eberle of the Nebraska State Patrol (“NSP”) was on duty in plain clothes at a Greyhound bus terminal in Omaha, Nebraska. At approximately 6:00 a.m., Investigator Eberle saw a black SUV pull up to the terminal. Jesus Perdoma exited the vehicle carrying a small bag and walked into the terminal without gesturing to the driver of the vehicle. Eberle decided to follow Perdoma into the terminal.

Perdoma walked to the ticket counter and began speaking with an agent while Investigator Eberle watched from four or five feet away. Eberle overheard Perdoma request a one-way ticket to Des Moines, Iowa, using the name Jesus Cruz. When Perdoma retrieved cash from his wallet to pay for the ticket, Eberle saw a government-issued identification card in the wallet, but he could not read the name on the card. According to Eberle, Perdoma’s hands were shaking and he appeared nervous throughout the transaction.

Investigator Eberle approached Perdoma as he walked away from the ticket counter. Without touching Perdoma, Eberle identified himself as a police officer and asked Perdoma if he would answer a few questions. Eberle assured Perdoma that he was “not under arrest or in any kind of trouble,” and Perdoma agreed to speak with Eberle. In response to Eberle’s questions, Perdoma said that he was on his way from Denver to his home in Des Moines and that he had arrived at the terminal by cab.

During the brief conversation, Investigator Eberle smelled the odor of marijuana emanating from Perdoma. Eberle asked to see Perdoma’s identification, but Perdoma claimed that he did not have any identification with him. Having already seen a form of government identification in Perdoma’s wallet, Eberle then asked to see Perdoma’s wallet.  Perdoma was breathing rapidly, trembling, and looking around the terminal as he reached for his wallet. Based on Perdoma’s answers, his nervous behavior, and the smell of marijuana, Investigator Eberle suspected that Perdoma was engaged in criminal activity.

Perdoma paused after taking the wallet out of his pocket. Instead of handing the wallet to Eberle, Perdoma put it back in his pocket and ran. Investigator Eberle ordered him to stop and grabbed his jacket, but Perdoma continued running. After a brief chase Eberle and NSP Investigator Scott, who was also on duty at the bus terminal that morning, wrestled Perdoma to the ground and placed him under arrest. The officers handcuffed Perdoma and escorted him to an area at the rear of the terminal. Investigator Eberle searched Perdoma and discovered approximately four grams of marijuana in the coin pocket of Perdoma’s pants. Meanwhile, Investigator Scott found approximately 454 grams (one pound) of methamphetamine in Perdoma’s bag.ii

Perdoma was indicted on a federal narcotics charge and he filed a motion to suppress the methamphetamine challenging his arrest and search.  The motion was denied and Perdoma appealed to the Eighth Circuit Court of Appeals.
On appeal, Perdoma argued that (1) his initial encounter with Investigator Eberle was not consensual and not supported by reasonable suspicion therefore he was unlawfully seized; (2) there was no legal basis to arrest him because there was no probable cause and because, under Nebraska law, possession of less than an ounce of marijuana was not an “arrestable” offense; and (3) the search of his bag was not a valid warrantless search incident to arrest based on Arizona v. Gant.iii

1ST ARGUMENT BY DEFENSE – Unlawful seizure, encounter non-consensual
As to the first issue, the court observed the following rule from the United States Supreme Court:

[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions… So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.iv

In the case at hand, the court noted that the investigator approached Perdoma, identified himself and asked Perdoma if he would answer a few questions.  The investigator did not touch Perdoma and did not display a weapon.  Additionally, the investigator told Perdoma that he was “not under arrest or in any kind of trouble.”  In light of these facts, the court of appeals held that a reasonable person in this situation would have believed that he was free to disregard the investigator’s questions and walk away.v  As such, initially, this was a proper consensual encounter.

2nd ARGUMENT BY DEFENSE – No probable cause, not arrestable offense
Perdoma’s second argument was that there was no legal basis to arrest him because there was no probable cause and because, under Nebraska law, possession of less than an ounce of marijuana was not an “arrestable” offense.  In response to whether there was probable cause to arrest Perdoma for possession of marijuana, the court noted that the Fourth Circuit Court of Appeals has previously held

[I]f an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana and thus has authority to arrest him without a warrant in a public place.vi [internal quotations omitted]

As such, the Eighth Circuit concluded that the investigator “had probable cause to arrest Perdoma for marijuana possession once he detected the odor of marijuana emanating from Perdoma.”vii  Perdoma argued that the investigator never made mention in his testimony or reports as marijuana possession as the reason that he attempted to arrest Perdoma.  However, the court of appeals stated

Because an arresting officer’s subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis, it does not matter that Eberle did not identify marijuana possession as the basis for arresting Perdoma. The relevant inquiry is whether probable cause existed to arrest [the defendant] for some crime, and here we answer that question in the affirmative.viii [internal citations and quotations omitted]

Within the second issue, Perdoma also asserted that, since possession of less than an ounce of marijuana is an “infraction” under Nebraska law, it is not an offense for which an officer can make a valid custodial arrest.ix  However, in Virginia v. Moore, the United States Supreme Court held

…warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.x

Additional precedent from both the Seventh and Eighth Circuit has held

Whether the offense was an infraction or a misdemeanor is irrelevant, however, because if an arrest is otherwise reasonable, the fact that it is not for an “arrestable” offense [under state law] does not make it unconstitutional.xi [internal quotations omitted]

In light of the above, the court, in Perdoma, held that because the investigator had probable cause to believe that the defendant possessed marijuana in violation of Nebraska law, the arrest did not violate the Fourth Amendment.xii

3rd ARGUMENT BY DEFENSE – Invalid search incident to arrest
Perdoma’s final argument was that the investigator’s warrantless search of his bag was not justified as a valid search incident to arrest because of the United States Supreme Court’s 2009 decision in Arizona v. Gant.  At the outset, it is necessary to review that the reason the Supreme Court allows the warrantless search incident to arrest is to prevent the arrestee from accessing weapons and hurting the officers and to prevent the destruction of evidence.xiii

The court then considered the applicability of Gant to Perdona’s case.  In Gant, the defendant was arrested approximately 10-12 feet from his vehicle when officers observed him driving with a suspended driver’s license.  He was handcuffed, searched and locked in the back of a police vehicle.  Officers then searched his vehicle incident to arrest and found methamphetamine.  Gant challenged the search incident to arrest arguing that since he was handcuffed in the back of a police car at the time of the search he was unable to pose a threat of attack or escape.  Thus, the first justification for a search incident to arrest was not presented.  Further, he argued that since there was no destructible evidence related to the crime of driving with a suspended license, the second justification for the search incident to arrest was likewise not present.  Therefore, in Gant, the Supreme Court held

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.xiv [emphasis added]

Thus, in light of Gant, Perdona argued that after he was arrested, his bag was not within his reach because he was restrained by one police officer and another officer had control of his bag.  When the court examined the facts of Perdona, they noted that the search of the bag occurred within close proximity to where Perdona was restrained, Perdona had already run from the officers, and the officers did not know Perdona’s strength or physical capability.  Additionally, Perdona was merely restrained by handcuffs but still at the same location as his bag, whereas, in Gant, the arrestee was handcuffed and locked in the back seat of a police car.  The court believed this to be distinguishable.  The court of appeals then concluded that the bag was within the area where Perdona might be able to reach to grab a weapon or evidence.xv  As such, the search incident to arrest was a lawful warrantless search under the Fourth Amendment.

Thus, the Eighth Circuit Court of Appeals affirmed the denial of the motion to suppress.

Note: Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

SEE RELATED ARTICLES:

U.S. Supreme Court:  Search Incident to Arrest Case – VA v. Moore (2008)

U.S. Supreme Court:  New Restrictions on Search Incident to Arrest in Vehicles – AZ. v. Gant (2009)

Legal Question Response:  Automobile Search Based on Smell of Marijuana (2008)

Legal Question Response:  Dog Sniffs and Probable Cause (2008)

The Law of Citizen Contacts and Stop and Frisk (2006)

Police Mistakes Leading to Unlawful Search – Exclusionary Rule (2009)

CITATIONS:

i United States v. Perdoma, No. 09-3394, 2010 U.S. App. LEXIS 19066 (8th Cir. Decided September 13, 2010)

ii Id. at 2-4

iii 129 S. Ct. 1710 (2009)

iv Id. at 6 (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)

v Id.

vi Id. at 7 (quoting United States v. Humphries, 372 F.3d 653, 659-60 (4th Cir. 2004))

vii Id.

viii Id. at 8-9, fn 3

ix Id. at 8

x Id. (quoting Virginia v. Moore, 553 U.S. 164, 176 (2008))

xi Id. at 7-8 (See United States v. Burtton, 599 F.3d 823, 830 (8th Cir. 2010) (quoting Thomas v. City of Peoria, 580 F.3d 633, 637 (7th Cir. 2009)) (upholding an arrest for an infraction under Nebraska law))

xii Id. at 8

xiii Chimel v. California, 395 U.S. 752 (1969)

xiv 129 S. Ct. 1710 (2009)

xv Id. at 12

By |2018-06-29T17:07:43+00:00October 1st, 2010|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.