McDaniel v. State

Tom Glaze, Justice, dissenting. I must dissent. The majority opinion quotes the pertinent language from Ross v. United States, 456 U.S. 798 (1982), and California v. Acevedo, 500 U.S. 565 (1991), but seems to ignore its application to this case.

The majority is correct in finding Officer Hartwick’s testimony that he smelled marijuana provided him probable cause to search the cab of the truck. Green v. State, 334 Ark. 484 , 978 S.W.2d 300 (1998). However, probable cause to search the cab of the truck does not justify a search of a locked toolbox in the bed of the truck and any containers, including locked containers, therein.

In Ross, Ross challenged only the search of closed containers within his vehicle’s trunk even though the searching police officers had probable cause to search Ross’s entire vehicle. 1 The Supreme Court set out the criteria for courts to use to determine whether a warrantless search is reasonable under the Fourth Amendment:

The scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrandess search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.

Ross, 456 U.S. at 824 (emphasis added). The Court then upheld the search, finding an informant’s tip provided the officers probable cause to search the closed containers in Ross’s trunk.

In Acevedo, the Court was confronted with the situation where police officers had no probable cause to search the entire vehicle, but instead had information that Acevedo placed a sack containing contraband in his vehicle’s trunk. The officers in Acevedo had previously observed activity at an apartment after obtaining information that a package of marijuana had been taken inside. The officers stopped and searched a person leaving the apartment and found marijuana on him. Acevedo subsequently arrived at the apartment, stayed about ten minutes, and left with a package. He was seen putting the package in his trunk. The officers later stopped his vehicle, searched his trunk, and found marijuana. In holding that the police were not required to obtain a warrant before opening the package found inside Acevedo’s trunk, the Court said: “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” Acevedo, 500 U.S. at 580 .

Thus, the Court in Ross and Acevedo required police officers to have specific probable cause to believe they will find the object of their search in the places in which they conduct the search. However, the police must end their search once they have searched that area. In Acevedo, the Court stated, “[T]he police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.” Acevedo, 500 U.S. at 580 (emphasis added). Any search conducted in an area where the police do not have probable cause to believe they will find the object of their search is unreasonable and any evidence gathered by that search must be suppressed.

In this case, Officer Hartwick testified that when he smelled the odor of marijuana after stopping McDaniel, “[i]t smelled like someone had just smoked some marijuana.” Hartwick asked McDaniel if he had been drinking or using drugs; McDaniel said he had not. Based on Officer Hartwick’s testimony, the scope of the search was limited to the places in which there was probable cause to believe the officers would find evidence of freshly smoked marijuana. As neither officer testified they observed any activity to make them believe either McDaniel or his passenger had tried to put anything in the toolbox, the officers could search the cab of the truck for marijuana cigarettes or paraphernalia associated with smoking marijuana, but not the locked toolbox in the bed of the truck, nor the briefcase and locked box contained in the locked toolbox.

Once Officer Hartwick searched the cab of the truck and found no evidence of freshly smoked marijuana, his probable cause was extinguished. Acevedo, 500 U.S. at 580 ; Ross, 456 U.S. at 824 . Because any further search of the truck was unsupported by probable cause and was therefore unreasonable under the Fourth Amendment, any contraband obtained from the search should be suppressed. For these reasons, I respectfully dissent.

The majority relies on Ross to support its finding of probable cause in this case. However, Ross challenged only the lower court’s refusal to suppress evidence found in the search of the closed containers within his trunk and did not challenge the officers’ probable cause to search his vehicle’s passenger compartment. In this case, McDaniel specifically challenges the police officers’ probable cause to search the locked toolboxes. The Court in Ross cites the Court of Appeals’ decision that the officers had probable cause to search the entire vehicle, but did not consider the issue itself. The question of whether probable cause is required for different parts of a vehicular search was addressed in Acevedo.