Petition for Writ of Certiorari — Eric Lebron Burney, Petitioner v. United States

NO.

____________

IN THE UNITED STATES SUPREME COURT

______________________________________________________________________

ERIC LEBRON BURNEY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________________________________________________

Erin P. Rust

Assistant Federal Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

605 Chestnut Street, Suite 1310

Chattanooga, Tennessee 37450

(423) 756-4349

Attorney for Eric Burney

QUESTION PRESENTED FOR REVIEW

By April of 2019 both the state of Tennessee and the federal government

excluded low-THC (delta-9 tetrahydrocannabinol) marijuana from the

definition of illegal “marijuana” as a controlled substance. That resulted in

the proliferation of legal, low-THC marijuana products (often termed

“hemp” by statute), which look, smell, and smoke the same as the illegal,

high-THC variant of the same plant.

The question presented here is:

Does the smell of legal, low-THC marijuana provide probable cause for

law enforcement to conduct an extensive search behind the internal framing

and upholstery of an automobile?

ii

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case and include:

Petitioner Eric Lebron Burney, who was the appellant in the court of appeal and the

defendant in the district court.

Respondent is the United States of America, which was the appellee in the court of

appeals, and the plaintiff in the district court.

RELATED CASE

There are no related cases.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .......................................................................... ii

PARTIES TO THE PROCEEDINGS .................................................................................. iii

RELATED CASES............................................................................................................... iii

TABLE OF CONTENTS ..................................................................................................... iv

TABLE OF AUTHORITIES ..................................................................................................v

PETITION FOR WRIT OF CERTIOARI…………………………………………………...1

OPINIONS BELOW ..............................................................................................................1

JURISDICTIONAL STATEMENT .......................................................................................1

CONSTITUTIONAL PROVISION INVOLVED..................................................................2

STATEMENT OF THE CASE ..............................................................................................3

REASONS FOR GRANTING OF THE WRIT ...................................................................7

I.

II.

The Sixth Circuit got it wrong. .................................................................................7

A.

The physical characteristics and method of use of legal and illegal

marijuana make the two substances indistinguishable absent a lab test. ........7

B.

Prior cases holding that the smell of marijuana provides probable cause

for a search are no longer valid because the smell no longer indicates the

presence of a patently illegal substance ..........................................................8

C.

Evidence that someone is smoking marijuana (which could be legal,

low-TCH marijuana) does not establish probable cause to search the

internal framing of a vehicle because evidence of marijuana use is

unlikely to be found in difficult to access, sealed off portions of a vehicle ..11

This is a widespread and consistently recurring question of exceptional

importance ..............................................................................................................17

CONCLUSION ....................................................................................................................19

iv

TABLE OF AUTHORITIES

Page

Court Cases:

Arkansas v. Sanders, 442 U.S. 753 (1979) ............................................................................ 9

Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) ............................................................... 8

Carroll v. United States, 267 U.S. 132 (1925) ......................................................... 13-14, 17

Coolidge v. New Hampshire, 403 U.S. 443 (1971).............................................................. 10

Florida v. Harris, 568 U.S. 237 (2013) ................................................................................. 8

State v. Crosby, No. W2013-02610-CCA-R3CD, 2014 WL 4415924,

(Tenn. Crim. App. Sept. 9, 2014) ............................................................................. 10

United States v. Haley, 669 F.2d 201 (4th Cir. 1982) ............................................................ 9

United States v. Johns, 469 U.S. 478 (1985) ......................................................................... 9

United States v. Ross, 456 U.S. 798 (1982) ................................................... 4, 11, 15, 17, 18

United States v. Santiago, 139 F.4th 570 (6th Cir. 2025) ...................................................... 6

United States v. Sifuentes, 504 F.2d 845 (4th Cir. 1974) ..................................................... 10

Constitutional Provisions:

Fourth Amendment ................................................................................................................ 2

Statutes:

7 U.S.C. § 1639o(1) ............................................................................................................... 7

21 U.S.C. § 802(16)(i) ........................................................................................................... 7

21 U.S.C. § 812(Schedule I(c)(10)......................................................................................... 7

21 U.S.C. § 841(a)(1) ......................................................................................................... 4, 7

v

21 U.S.C. § 841(b)(1)(A) ....................................................................................................... 4

21 U.S.C. § 841(d) ................................................................................................................. 7

28 U.S.C. § 1254(1) ............................................................................................................... 1

Tenn. Code Ann. § 39-17-402(16)(C).................................................................................... 7

Tenn. Code Ann. § 39-17-403(f)(1) ....................................................................................... 7

Tenn. Code Ann. § 39-17-415(a)(1) ...................................................................................... 7

Tenn. Code Ann. § 39-17-417(a)(4) ...................................................................................... 7

Tenn. Code Ann. § 39-17-417(g)(1) ...................................................................................... 7

Tenn. Code Ann. § 43-27-101(3) ........................................................................................... 7

Other sources:

Adam Hoffer, Cigarette Taxes and Cigarette Smuggling by State, 2021,

Tax Foundation (Dec. 5, 2023) ................................................................................ 12

Alena Hall, CBD Statistics, Data and Use, Forbes (updated April 29, 2024) ..................... 13

Jose Campbell and Kit Maher, Homeland Security Secretary Kristi Noem’s bag,

including $3,000 in cash, is stolen from DC restaurant, CNN Politics

(updated April 21, 2025). ......................................................................................... 16

Mood (2025) .......................................................................................................................... 8

Sian Ferguson, Hemp vs. Marijuana: What’s the Difference?, Healthline

(updated Jan. 31, 2025) .......................................................................................... 7-8

U.S. Centers for Disease Control and Prevention, Burden of Cigarette Use in the U.S:

Current Cigarette Smoking Among U.S. Adults Aged 18 Years and Older (last

reviewed Oct. 8, 2024) ............................................................................................. 13

U.S. Centers for Disease Control and Prevention, Cannabis and Public Health:

About Cannabis (Feb. 15, 2024) .............................................................................. 13

Wild Hemp, CBD Cigarettes For Sale (2025) ....................................................................... 8

vi

PETITION FOR A WRIT OF CERTIORARI

Eric Lebron Burney respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

All documents are contained in the Appendix filed contemporaneously herewith.

United States v. Eric Lebron Burney, Judgment, 2:23-cr-79, R. 42,

(E.D. Tenn. June 24, 2024).……………………………………….……………….1a

United States v. Eric Lebron Burney, Opinion, No. 24-5613, R. 56-2

(6th Cir. July 9, 2025)………………………………………………..…….……….8a

United States v. Eric Lebron Burney, Judgment, No. 24-5613, R. 56-3

(6th Cir. July 9, 2025)………………………………………………..…….……...13a

JURISDICTIONAL STATEMENT

The Sixth Circuit entered its opinion and judgment on July 9, 2024. Justice

Kavanaugh granted Mr. Burney’s application to extend the time to file this certiorari petition

until December 6, 2025. This Court has jurisdiction under 28 U.S.C. § 1254(1).

1

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment of the United States Constitution provides in full:

The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but

upon probable cause, supported by oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

2

STATEMENT OF THE CASE

By the time Tennessee Highway Patrol troopers finished with their unconsented,

warrantless search of Eric Burney’s car on the side of the busy Interstate 81 in Northeast

Tennessee, they had pulled up carpet and upholstery, tossed the contents of the trunk,

searched internal framing of the vehicle, pulled out the framing around the gear shift, and

pried off the cover to the rear floor vents. (Mot. to Suppress, R. 16, PageID #29.) The

troopers were searching the vehicle based on the smell of burnt marijuana. (Pet. App’x at

9a.) But they found no marijuana in the vehicle. (Mot. to Suppress, R. 16, PageID #29; Tr.

Suppress. Hr’g, R. 23, PageID #23.) There was no drug dog that alerted indicating the

presence of illegal drugs; there was no informant who had reported Mr. Bruney as a drug

dealer or mule; there was no evidence that Mr. Burney had been involved in any drug

transactions or that he was presently intoxicated. (See generally Tr. Suppress. Hr’g, R. 23.)

The officers initially stopped Mr. Burney due to his window tint and for following

another vehicle too closely. (Pet. App’x at 8a.) After asking Mr. Burney to step out of his

vehicle, the troopers searched him and found $1,395 in cash. (Id.) While he was outside the

vehicle one of the troopers, Trooper Connors, also told him his vehicle smelled like

marijuana, to which Mr. Burney responded “Yeah,” “I smoked earlier.” (Id.) Neither trooper

inquired as to whether the marijuana he previously smoked was legal. (See generally Tr.

Suppress. Hr’g, R. 23.) Based only on the smell of burnt marijuana the troopers believed

they could search “anywhere inside that vehicle, behind any trim piece, in the trunk, in the

tires, in the transmission, in the radiator, anywhere it could possibly be put.” (Tr. Suppress.

Hr’g, R. 23, PageID #208, 209; see also id. at PageID #183.) And, after pulling out the

3

console surrounding the gear shift the troopers found approximately 300 grams of

methamphetamine, which led to the instant federal drug trafficking charge under 21 U.S.C.

§ 841(a)(1), (b)(1)(A) for possessing methamphetamine with intent to distribute. (Pet. App’x

at 9a.)

Mr. Burney moved to suppress the methamphetamine, conceding that under current

Sixth Circuit law the smell of burnt marijuana provided the troopers with probable cause to

search his vehicle for evidence of recent marijuana use. (Mot. to Suppress, R. 16, PageID

#38.) He argued that “the critical distinction lies in the officer’s subsequent actions in

disassembling [Mr. Burney’s] entire vehicle to access sealed-off locations Mr. Burney

himself could not access without significant physical effort.” (Id.) He based this argument

on this Court’s precedent explaining that the nature of the item for which there is probable

cause restricts the scope of a search under the automobile exception. (Id. at PageID #34

(citing United States v. Ross, 456 U.S. 798, 821 (1982) (“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.”).)

Pointing to Trooper Connors’ testimony that there is no “distinction in smell

between” legal and illegal forms of marijuana, Mr. Burney also argued that any probative

value the smell of marijuana may previously have had no longer exists, now that legal, lowTHC variants are so common. (Objections, R. 25, PageID #256-59; Tr. Suppress. H’rg, R.

23, PageID #206-07.) Thus, Mr. Burney argued that evidence of marijuana use (which could

be of legal marijuana) did not provide probable cause to believe that evidence of a crime

4

would be secreted in the internal framing of his vehicle—or any other location that Mr.

Burney himself could not readily access. (Id. at PageID #36-38.)

The district court denied his motion to suppress. (Order, R. 28, PageID #272-74.) It

began by noting that “[s]earching the framing of a vehicle based solely on evidence that the

driver smoked marijuana might not be reasonable.” (Id. at PageID #271-72.) But, it did not

decide that question and instead concluded that “the odor of marijuana was not all that

justified the search in this case.” (Id. at PageID #272.) In particular, the district court pointed

to “apparent” pry marks on the plastic trim encasing the carpet on the driver’s side

floorboard, what it called “loose” carpeting, and additional factors which it found “provided

the officers with probable cause to believe the vehicle was being used to transport

contraband.” (Id. (emphasis added).)

Mr. Burney then entered a conditional guilty plea, pursuant to Rule 11(a)(2) of the

Federal Rules of Criminal Procedure and thereby preserved his right to appeal the denial of

his suppression motion. (Tr. Change of Plea, R. 48, PageID #855-56.)

On appeal, he primarily argued that the district court’s reliance on any pry marks or

allegedly loose carpeting was inappropriate because both “facts” required crediting the

testimony of Trooper Connors. (Pet. App’x at 12a.) But, he argued, the district court never

made a credibility finding, despite his putting Trooper Connors’ credibility in issue, and

despite serious red flags. (Id.; Opening Brief, 6th Cir. No. 24-5613, R. 19, Pages 30-38;

Reply Br., 6th Cir. No. 24-5613, R. 48, Pages 1-8.) He also argued that officers can no longer

rely on the smell of illegal marijuana, because its smell is identical to that of legal, low-THC

5

marijuana. (Pet. App’x at 11a.) And, he argued that regardless, the officers at most had

probable cause that he was using marijuana (which could have been of a legal variant), not

that he was trafficking it, and so the scope of their vehicle search should have been limited

to areas where one would expect to find evidence of marijuana use—in places readily

accessible to the driver, not in places that require dismantling the vehicle. (Id.)

The Sixth Circuit did not reach the question of Trooper Connors’ credibility, as it

affirmed on the government’s theory that the officers “had probable cause to search Burney’s

vehicle for evidence of a drug crime,” which it held included all areas that drugs could be

located including areas that could only be accessed by dismantling the vehicle. (Id. at 11a,

12a.) It based that conclusion on four factors: an odor of marijuana coming from the vehicle,

that Burney rolled down all his windows when the officers approached, that he admitted to

smoking marijuana (albeit, without indicating whether it was legal marijuana), and that he

had more than $1,000 on his person. (Id. at 10a-11a.)

The Sixth Circuit also rejected Burney’s argument that the smell of marijuana has

limited probative value due to the proliferation of legal variants that smell identical. (Id. at

11a.) It provided no explanation, and instead by relied only on a recent Sixth Circuit case

holding that the smell of marijuana (regardless of whether the marijuana was legal or not)

particularized to a individual person provided law enforcement with probable cause to arrest

the individual for possession of illegal marijuana. (Id. (citing United States v. Santiago, 139

F.4th 570, 575 (6th Cir. 2025).) The Sixth Circuit did not directly address Mr. Burney’s

distinction between evidence of drug use versus evidence of drug trafficking.

6

REASONS FOR GRANTING OF THE WRIT

I.

The Sixth Circuit got it wrong.

A.

The physical characteristics and method of use of legal and illegal

marijuana make the two substances indistinguishable absent a lab test.

In Tennessee, and under federal law, it is legal to possess marijuana with a THC

(delta-9 tetrahydrocannabinol) concentration of 0.3% or less (“legal marijuana”). 7 U.S.C.

§ 1639o(1); 21 U.S.C. § 802(16)(i); Tenn. Code Ann. § 39-17-402(16)(C); Tenn. Code Ann.

§ 39-17-403(f)(1); Tenn. Code Ann. § 43-27-101(3). By contrast, marijuana with a THC

concentration higher than 0.3% is a controlled substance by statute in both jurisdictions

(“illegal marijuana”). 21 U.S.C. § 802(16)(i); 21 U.S.C. § 812(Schedule I(c)(10)); Tenn.

Code Ann. § 39-17-415(a)(1). Thus, possession of illegal marijuana is a crime, while

possession of legal marijuana is not. See 21 U.S.C. § 841(a)(1), (d); Tenn. Code Ann. § 3917-417(a)(4), (g)(1). This has only been true since April of 2019.

The only difference between legal and illegal marijuana is the concentration of

THC—the two substances are derived from the same plant and are otherwise identical. “It’s

a common misconception that hemp [legal marijuana] and [illegal] marijuana are two

different species of plant,” but “[t]hey’re just two different names for cannabis, a type of

flowering plant in the Cannabaceae family.” Sian Ferguson, Hemp vs. Marijuana: What’s

the Difference?, Healthline (updated Jan. 31, 2025)1 While “[l]egally, the key difference

between the two is tetrahydrocannabinol (THC),” “science doesn’t differentiate between

1

Available at https://www.healthline.com/health/hemp-vs-marijuana (last visited Dec. 6,

2025).

7

‘hemp’ and ‘marijuana.’”

Id.

The legalization of low-THC marijuana has led to the proliferation of legal forms of

marijuana, which is indistinguishable from illegal marijuana in its look and scent. These

include products like “Mood” which is marketed as “Weed for every need” and a legal

marijuana cigarette brand called “Wild Hemp” which features a prominent marijuana leaf

on its packaging. See Mood (2025); 2 Wild Hemp, CBD Cigarettes For Sale (2025). 3

Indeed, the state trooper who testified at Mr. Burney’s suppression hearing testified that legal

and illegal forms of marijuana have no “distinction in smell.” (Tr. Suppress. H’rg, R. 23,

PageID #206-07).

B.

Prior cases holding that the smell of marijuana provides probable cause

for a search are no longer valid because the smell no longer indicates the

presence of a patently illegal substance.

Probable cause is a fact specific determination, which is limited by the information

known to the officer at the time. Probable cause means a fair probability that, based on the

totality of the circumstances, evidence of a crime will be found in the place to be searched.

Florida v. Harris, 568 U.S. 237, 244 (2013)). It is a “practical and common-sensical

standard,” that involves a “flexible, all-things-considered approach.” Id. (citations omitted).

“[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City,

Utah v. Stuart, 547 U.S. 398, 403 (2006)). As shown below, the smell of burnt marijuana

(which could be legal, low-THC marijuana) indicates use not trafficking, and it is not

2

Available at https://hellomood.co/ (last visited Dec. 6, 2025).

3

Available at https://www.wildhemp.com/collections/cbd-cigarettes (last visited Dec. 6,

2025).

8

reasonable to rely on the scent of a legal substance to authorize a search so exacting that law

enforcement dismantle a vehicle’s internal framing, pull up carpeting, and pull off

upholstery.

The closest this Court has ever come to recognizing what has become known as the

“plain smell” doctrine was in 1985 in United States v. Johns, 469 U.S. 478 (1985). There the

Court addressed whether customs officers had probable cause to search pickup trucks and

packages within the trucks, when they observed the trucks rendezvous with a small aircraft,

when shortly after the aircraft departed individuals covered the contents of the trucks with a

blanket, when law enforcement smelled the odor of marijuana when they approached the

trucks, and when they saw “packages wrapped in dark green plastic and sealed with tape”

which they knew, based on prior experience was “commonly” how “smuggled marihuana”

is packaged. Id. at 480-81. The Court determined that all of these factors supported a finding

of probable cause to search both the pickup trucks and the packages even though the

packages were not opened by law enforcement until three days later. Id. at 481, 486.

The Court expressly did not decide whether the “plain odor of marihuana emanating

from the packages made a warrant unnecessary.” Id. at 481. But, it explained that the Court

had “previously observed that certain containers may not support a reasonable expectation

of privacy because their contents can be inferred from their outward appearance, and based

on this rationale” other courts, such as the Fourth Circuit, “held that ‘plain odor’ may justify

a warrantless search of a container.” Id. at 486 (citing Arkansas v. Sanders, 442 U.S. 753,

764–765, n. 13 (1979); United States v. Haley, 669 F.2d 201, 203–204, and n. 3 (4th Cir.

1982)).

9

Indeed, the reliance on the “plain odor” of marijuana as a basis for probable cause

for a warrantless search is an extension of the “plain view” doctrine, permissible because of

the unique scent and its patent illegality. See, e.g., United States v. Sifuentes, 504 F.2d 845,

848 (4th Cir. 1974) (upholding a warrantless search of boxes containing marijuana because

the “strong odor of marijuana” emanating from the boxes had the effect of placing the

marijuana “in plain view, that is, obvious to the senses”); State v. Crosby, No. W201302610-CCA-R3CD, 2014 WL 4415924, at *8 (Tenn. Crim. App. Sept. 9, 2014) (rejecting a

challenge to a search based on the smell of marijuana because “marijuana is an illegal

substance that emits a distinctive odor”).

But, this “plain view” justification is no longer viable. The plain view doctrine allows

law enforcement to seize an item whose incriminating nature is evident by the

“[i]ncontrovertible testimony of the senses,” such that it is “immediately apparent to the

police that they have evidence before them.” Coolidge v. New Hampshire, 403 U.S. 443,

466, 468 (1971). Previously, when all forms of marijuana were illegal regardless of THC

content, its distinct and unusual odor made it immediately apparent that an illegal substance

was close by. Sifuentes, 504 F.2d at 848.

That logic no longer holds—the smell of marijuana no longer incontrovertibly

indicates an illegal substance. Legal and illegal versions of marijuana smell identical. (Tr.

Suppress. H’rg, R. 23, PageID #196, 206-07 (Trooper Connors testifies that there is no

“distinction in smell” between legal and illegal versions of marijuana). The smell of

marijuana no longer reliably indicates illegal activity, so can no longer establish probable

10

cause. And, as detailed below, it certainly is unreasonable to rely on that odor as justification

for dismantling the internal framing of a vehicle.

C.

Evidence that someone is smoking marijuana (which could be legal, lowTCH marijuana) does not establish probable cause to search the internal

framing of a vehicle because evidence of marijuana use is unlikely to be

found in difficult to access, sealed off portions of a vehicle.

Law enforcement officers must not only have probable cause to believe that

something illegal is present in a vehicle to search it, but they are only permitted to look for

that item where the item might be found. United States v. Ross, 456 U.S. 798, 821 (1982).

When probable cause is based on evidence of recent drug use in a vehicle, evidence of that

drug use will not be secreted in the difficult-to-access interior framing of a vehicle.

Evidence of drug use will not be sewn into upholstery or hidden in door panels that can only

be accessed by first opening the door, pulling off weather stripping, yanking off a piece of

plastic floorboard, and pulling up carpeting. It will be readily accessible so the individuals

in the vehicle can use it. This is particularly true when the evidence at issue is the smell of

burnt marijuana, which indicates recent use, and when the “drug” being used could just as

easily be purely legal—making any likelihood of illegal trafficking even lower. Surely

purely legal conduct cannot provide probable cause to wholly dismantle a vehicle’s internal

framing and upholstery.

Taken to its logical end, that would mean law enforcement could search the inside

paneling of a vehicle in search of bootlegged whiskey based only on the smell of alcohol on

one’s breath, as legal and bootlegged whisky smell identical. Or, when a driver is smoking

a cigarette during a traffic stop for speeding, law enforcement could tear apart the upholstery

11

looking for smuggled cigarettes, seeing as how legal cigarettes smell the same as bootlegged

ones. Both examples are wholly unreasonable. In the absence of additional evidence of

illegal trafficking of these substances (whose odor associated with using the substance does

not immediately indicate the substance is illegal), tearing apart the internal framing is

dramatically out of bounds. These circumstances reflect clear Fourth Amendment violations,

but the use of marijuana is now functionally no different, and use of legal marijuana is readily

prevalent in the general population.

The comparison to smuggled cigarettes needs a few more moments to fully

conceptualize. First, an individual transporting smuggled cigarettes is not as obscure a

problem as it might seem at first blush. Smuggling cigarettes is a widespread, significant

problem and “a lucrative criminal enterprise.” Adam Hoffer, Cigarette Taxes and Cigarette

Smuggling by State, 2021, Tax Foundation (Dec. 5, 2023). 4 Indeed, 54.4% of cigarettes

consumed in New York state were from smuggled sources, with similarly high rates in other

prominent states including California (44%), New Mexico (38.3%) and Washington

(37.3%). Id. “The annual forgone revenue from untaxed cigarette packs in states that

experience net inbound smuggling exceeded $5.2 billion in 2021.” Id. But no one would

seriously suggest that by merely smelling a freshly burnt cigarette in a car law enforcement

could reasonably rip out the vehicle’s internal framing in search of smuggled cigarettes.

4

Available at https://taxfoundation.org/data/all/state/cigarette-taxes-cigarette-smuggling2023/ (last visited Dec. 6, 2025).

12

At the same time, recent research shows that more Americans smoke legal variants

of marijuana than those who smoke cigarettes—which means that the rule advocated by the

government will have a larger impact on law-abiding Americans than if law enforcement

were permitted to dismantle one’s vehicle based only on cigarette use. In a recent article by

Forbes it explained that 16% of Americans report using CBD flower, which is a version of

the marijuana plant that does not contain illegally high levels of THC and which is consumed

by smoking. Alena Hall, CBD Statistics, Data and Use, Forbes (updated April 29, 2024)5;

see also U.S. Centers for Disease Control and Prevention, Cannabis and Public Health:

About Cannabis (Feb. 15, 2024).6 By contrast, only 11.6% of Americans report smoking

cigarettes. U.S. Centers for Disease Control and Prevention, Burden of Cigarette Use in the

U.S: Current Cigarette Smoking Among U.S. Adults Aged 18 Years and Older (last reviewed

Oct. 8, 2024). 7 Given the widespread use of legal version of marijuana, evidence of

marijuana use does not sufficiently justify dismantling the interior framing of a vehicle or

pulling off upholstery.

This Court has never approved of such an exacting vehicle search based on evidence

of only use of an illegal substance, let alone use of a substance that could just as readily (if

not more likely) be legal. Carroll v. United States, 267 U.S. 132 (1925), proves the point.

There, the search of a vehicle, including behind the seat upholstery, was upheld in 1925

5

Available at https://www.forbes.com/health/cbd/cbd-statistics/ (last visited Dec. 6, 2025).

6

Available at https://www.cdc.gov/cannabis/about/index.html (last visited Dec. 6, 2025).

7

Available at https://www.cdc.gov/tobacco/campaign/tips/resources/data/cigarettesmoking-in-united-states.html (last visited Dec. 6, 2025).

13

during the height of prohibition. Id. at 132-35, 160-61. But the search had nothing to do with

whether law enforcement smelled alcohol or otherwise believed the passengers in the vehicle

were using alcohol.

No, in Carroll, law enforcement searched behind the vehicle’s seat upholstery only

after (1) the driver and passenger had previously attempted to sell bootlegged liquor to law

enforcement agents in Grand Rapids, Michigan using an Oldsmobile roadster “the number

of which [one agent] then identified,” (2) on a separate occasion, agents saw the same two

men in the same exact vehicle drive from Grand Rapids towards Detroit (which was known

as “one of the most active centers for introducing illegally into this country spirituous liquors

for distribution into the interior,”) and the agents followed them for miles, but eventually

lost the tail, and (3) two months later the same agents saw the same two men, in the same

vehicle, driving from Detroit in the direction of Grand Rapids. Id. at 135, 160.

Given the prior attempted sale, the use of the same vehicle, and the suspicious

movement between a bootlegging capital and the city where the men “plied their

[bootlegging] trade,” the agents had probable cause to search the vehicle for the suspected

bootlegged alcohol. Id. at 160-161. In short, there was ample evidence the drivers were

trafficking an illegal substance. Importantly, as noted in Justice McReynolds’ dissent, prior

to tearing open the seat upholstery, the agents had additional and particularized evidence that

bootlegged alcohol was secreted behind the seat back, namely that it “was awfully hard when

I struck it with my fist. It was harder than upholstery ordinarily is in those backs; a great deal

harder. It was practically solid.” Id. at 174 (McReynolds, J., dissenting, joined by J.

Sutherland). And, unsurprisingly, bootlegged alcohol is exactly what the agents found.

14

Another landmark case from this Court addressing the permissible scope of vehicle

searches, Ross, similarly comes nowhere close to authorizing the dismantling of one’s

vehicle based on evidence of substance use—and it especially doesn’t allow for such a search

when the use could have been of a purely legal substance. 456 U.S. 798. Ross authorized the

search of an individual’s “entire vehicle” for contraband but did not address whether “entire

vehicle” meant areas that required dismantling the vehicle. Id. at 817. In Ross the question

was whether law enforcement needed to pause an otherwise valid vehicle search in order to

obtain a warrant to look inside closed packages, namely a paper bag and a piece of luggage,

that were in the vehicle. Id. at 800-02. The Court concluded that under the specific

circumstances before it, “police officers had probable cause to search respondent’s entire

vehicle,” for contraband, including the paper bag and luggage contained therein, but that

search did not in fact extend to any internal framing of the vehicle. Id. at 817. Moreover,

there the officer’s probable cause was based on a tip from a previously reliable informant

who just minutes before the vehicle was stopped by law enforcement personally witnessed

the defendant selling narcotics out of the vehicle. Id. at 800, 817 n.22. That is clearly

evidence of drug trafficking, not use.

None of these facts, nor anything similar, are present here. No one had been tracking

Mr. Burney or had any reason to suspect him of trafficking illicit substances. There were no

attempted sales to an undercover informant, there was no suspicious travel by Mr. Burney,

nor was there any evidence of drug trafficking in the vehicle itself, such as multiple baggies

or scales. Moreover, no marijuana was found in Mr. Burney’s vehicle.

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In Mr. Burney’s case the Sixth Circuit relied on four factors to support probable cause

to dismantle his vehicle: (1) an odor of burnt marijuana coming from the vehicle, (2) that

Burney rolled down all his windows when the officers approached, (3) that he admitted to

smoking marijuana (albeit, without indicating whether it was legal marijuana), and (4) that

he had more than $1,000 on his person. (Pet. App’x at 10a-11a.) But, only one of these

factors could possibly indicate drug trafficking as opposed to use—the possession of more

than $1,000 on his person. But even that is spurious.

The possession of that amount of cash is not sufficient to turn evidence of marijuana

use into evidence of drug trafficking. Trooper Connors did not testify that the cash provided

him with any suspicion. To the contrary, he testified that he searched the interior framing of

the vehicle based on the smell of burnt marijuana alone. (Tr. Suppress. Hr’g, R. 23, PageID

#208, 209; see also id. at PageID #183.) Nor did the district court or the magistrate judge

place any significance on it at all, as neither even mentioned cash in their respective

decisions. That is wise, given that today many people—including high ranking members of

the President’s cabinet with easy access to banks, ATMs, and credit cards—carry large

amounts of cash with them. Jose Campbell and Kit Maher, Homeland Security Secretary

Kristi Noem’s bag, including $3,000 in cash, is stolen from DC restaurant, CNN Politics

(updated April 21, 2025).8 With no other evidence of drug trafficking, such as scales, or

baggies, these four factors do not provide probable cause to dismantle a vehicle’s interior.

8

Available at https://www.cnn.com/2025/04/21/politics/homeland-security-kristi-noempurse-stolen/index.html (last visited Dec. 6, 2025).

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In short, in both Carroll and Ross law enforcement had probable cause indicating

drug trafficking, not just use. And that evidence went far beyond possession of some cash

and smoking what could be legal marijuana. Neither case stands for the proposition that

every time law enforcement has probable cause of drug use, they can dismantle a vehicle.

Nor does either mean that law enforcement can tear apart a vehicle anytime they are

searching for something small enough to be secreted in internal framing or hidden behind

upholstery, no matter the effort required to do so. If that were true, anyone and everyone’s

vehicle could be destroyed by any zealous police officer for nearly any suspected crime.

Illegally possessed food stamps could be secreted in the framing of a vehicle, so

could old, unpaid parking tickets, or any everyday item that was taken in a theft. But the

illegality of these items is not readily ascertainable on their face. Under the Sixth Circuit’s

theory, when a law enforcement officer sees (or smells) any item that could be either illegal

or innocuous that officer can tear apart the entire vehicle. That result is intolerable and

unreasonable. Something more than mere use or possession of an item that could be legal is

required before dismantling an entire vehicle—there must be something to indicate that

evidence of the crime for which the officer has probable cause is likely to be found within

the interior walls of the vehicle.

II.

This is a widespread and consistently recurring question of exceptional

importance.

Millions of Americans smoke legal marijuana, and the Sixth Circuit’s approach

places them at risk not only of having their vehicle searched, but of being subjected to an

extensive and time-consuming dismantling of the internal framing, carpeting, and upholstery

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of their vehicle. That level of intrusion into the private lives of Americans engaged in purely

legal conduct is unreasonable. “[C]ountless vehicles are stopped on highways and public

streets every day,” such that there is “no dispute among judges about the importance of

striving for clarification” in cases involving the warrantless search of a vehicle. Ross, 465

U.S. at 803-04. Even when law enforcement has probable cause to believe that contraband

may be found in a vehicle, “In every case a conflict is presented between the individual's

constitutionally protected interest in privacy and the public interest in effective law

enforcement,” such that the permissible scope of the search matters as much to the privacy

interests of individuals as whether there is probable cause to search in the first place. Id. at

804.

The logic of the Sixth Circuit extends far beyond just legal marijuana smokers—it

applies equally to any individual’s use or possession of any item that could be either legal

or illegal. Including liquor or cigarettes (could be bootlegged or legal, and cannot determine

the difference from scent alone), food stamps (it’s illegal to transfer food stamps to

individuals other than who they were issued for, but that illegality is not discernable from

the face of the food stamps alone), or parking tickets (which could be paid or past-due, but

which is not discernable on their face). Since any of these items could be secreted in the

internal framing of a vehicle, or sewn into upholstery, under the Sixth Circuit’s approach,

possession or use of any would justify dismantling one’s vehicle.

That result is far beyond any bounds of the Fourth Amendment previously

recognized by this Court. This Court’s guidance is urgently needed to preserve the Fourth

Amendment rights of ordinary Americans engaged in everyday, purely legal conduct.

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CONCLUSION

For the forgoing reasons, Eric Burney respectfully requests that this Court grant his

petition for a writ of certiorari.

Respectfully submitted,

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

By:_ /s/ Erin Rust

Erin P. Rust

Assistant Federal Community Defender

605 Chestnut Street, Suite 1310

Chattanooga, Tennessee 37450

(423) 756-4349

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