The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Defendant Kevin J. Robinson ("Defendant") filed a motion to suppress (Court File No. 11), which was referred to United States Magistrate Judge William B. Carter ("magistrate judge") to conduct an evidentiary hearing if necessary and make a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). The magistrate judge held an evidentiary hearing on March 16, 2007 and filed a report and recommendation ("R&R") recommending Defendant's motion be denied on May 2, 2007 (Court File No. 21).
Defendant filed objections to the R&R within the required ten days, arguing the magistrate judge erred in making certain conclusions of law and factual findings (Court File No. 22). As a result, Defendant argues the Court should sustain Defendant's objections, overrule the magistrate judge's decisions, and suppress the items discovered in the June 24, 2006 traffic stop and search of the vehicle as well as certain incriminating statements Defendant made during such stop (id.). After carefully reviewing the record, including the relevant portions of the transcript of the evidentiary hearing held before the magistrate judge, and after considering both the filings of Defendant and the United States ("Government") (Court File Nos. 22 & 23), the Court finds the magistrate judge's factual findings to be supported by the weight of the evidence and his legal analysis to be correct under the relevant law. Therefore, with the addition of an alternative basis for denial of Defendant's motion, the Court will ACCEPT and ADOPT the magistrate judge's R&R and will DENY Defendant's motion to suppress (Court File No. 11).
This Court must conduct a de novo review of those portions of the R&R to which objection is made and may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1)(C). When reviewing a magistrate judge's credibility determinations on a motion to suppress, the district court may accept or reject the magistrate judge's determinations, while recognizing a magistrate judge is in the better position to assess the credibility of witnesses he sees and hears. United States v. Ailemen, 986 F. Supp. 1228, 1231 (N.D. Cal. 1997) (citing United States v. Raddatz, 447 U.S. 667, 673-76 (1980)). Credibility determinations of the magistrate judge who personally listened to the testimony of a witness should be accepted by a district judge unless in his de novo review of the record he finds a reason to question the magistrate judge's assessment. Blizzard v. Quillen, 579 F. Supp. 1446, 1449 (D. Del. 1984); see also United States v. Wallace, No. 1:04-CR-96, 2005 WL 2922226, *9 (E.D. Tenn. Nov. 3, 2005).
Defendant objects to one of the magistrate judge's factual findings; however, after reviewing the record de novo the Court finds the magistrate judge's factual findings are consistent with the record. Consequently, the Court will ACCEPT and ADOPT by reference the magistrate judge's statement of the relevant facts in his R&R (Court File No. 21, p. 1-3).
At the evidentiary hearing, the Government offered the testimony of Officer Mike Harris ("Officer Harris") and Officer Walter Mitchell ("Officer Mitchell") of the Cleveland Police Department. The Defendant presented no witnesses. The magistrate judge found both of these witnesses to be credible and made his factual finding based upon their testimony. Defendant objects to: (1) the magistrate judge's conclusion of law there was probable cause to search all areas of the vehicle including the trunk, and (2) the magistrate judge's factual finding that Defendant was not in custody prior to making certain incriminating statements.*fn1
A. Defendant's Objection to the Magistrate Judge's Legal Conclusion that Probable Cause Existed to Search All Areas of the Vehicle, Including the Trunk
On June 24, 2006 Defendant was stopped by Officer Harris who observed Defendant run through a stop sign without stopping (Court File No. 21). The magistrate judge found this initial traffic stop was justified since there was probable cause to believe a traffic violation had occurred. The magistrate judge also found that since Officer Harris smelled the strong odor of burnt marijuana coming from the stopped vehicle, probable cause exited to search the entire vehicle, even the trunk and any containers in the trunk. The magistrate judge cited several Sixth Circuit cases to support his findings.*fn2 In his first objection Defendant argues the cases cited in the R&R regarding this issue are factually distinguishable from his case and the Court should consider his motion to suppress with a "strong eye" on the facts (Court File No. 22).
First and foremost, the Court finds Officer Harris legally stopped Defendant's vehicle since he ran a stop sign, which is a violation of state law. See United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002) ("a police officer may effect a traffic stop of any motorist for any traffic infraction"). "Under the automobile exception, a warrantless search of a vehicle which has been lawfully stopped is permissible if the search is based upon probable cause." United States v. Littleton, 15 F. App'x 189, 191 (6th Cir. 2001). It is well established that if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of that vehicle, including the trunk and any containers found within it. United States v. Ross, 456 U.S. 798, 825 (1982); United States v. Crotinger, 928 F.2d 203, 205 (6th Cir. 1991). Under these circumstances, any container in the vehicle, regardless of ownership or location, is subject to a search. See Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (indicating any container found in a vehicle may be searched because "it may contain the contraband that the officer has reason to believe is in the car").
Probable cause to search a vehicle is established if, under the "totality of the circumstances" there is a "fair probability" that the car contains contraband or evidence. Illinois v. Gates, 462 U.S. 213, 238 (1983). There is abundant Sixth Circuit precedent holding officers smelling burnt marijuana emanating from a stopped vehicle have sufficient probable cause to search the entire vehicle without a warrant. See United States v. Reeves, No. 1:06:CR:291, 2007 WL 1238885, *2 (W.D. Mich. Apr. 27, 2007) (citing United States v. $188,170.00 in U.S. Currency, 69 F. App'x 714, 716 (6th Cir. 2003) ("The smell of marijuana alone constitutes probable cause to believe that drugs are in the vehicle and will justify searching without a warrant.") (emphasis added); United States v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993) ("smelling the marijuana . . . constituted probable cause to believe that there was marijuana in the vehicle"); United States v. Jackson, 63 F. App'x 839, 842 (6th Cir. 2003) (finding the smell of burned marijuana coming from inside a vehicle during a reasonable stop provided probable cause to search the vehicle); cert. denied, 540 U.S. 910 and 540 U.S. 916 (2003)); see also Crotinger, 928 F.2d at 205 (finding a warrantless search justified when an officer detected the faint smell of burning marijuana come from a vehicle validly stopped for speeding); Littleton, 15 F. App'x at 193 (indicating the Sixth Circuit has "clearly held that an officer's smelling the marijuana during a vehicle stop constitute[s] probable cause" for a warrantless search). Defendant admitted to Officer Harris he smoked marijuana earlier and there was a strong odor of marijuana emanating from his vehicle; therefore, based upon the totality of the circumstances, there was a fair probability contraband was in the vehicle.*fn3
Accordingly, the magistrate judge's legal conclusion that probable cause existed was not erroneous. While the facts of some of the cases cited in the R&R may not be directly on point with the instant case, the magistrate judge's conclusion is supported by authoritative Sixth Circuit precedent. The magistrate judge specifically cites United States v. Carrrera, No.90-6415, 90-6564, 1992 WL 116006 (6th Cir. May 29, 1992), which held "the smell of marijuana emanating from [the] vehicle gave the officer probable cause to . . . search the vehicle, including the trunk." Carrrera, 1992 WL 116006 at *2. Defendant argues it is significant that the marijuana in Carrera was raw or fresh as opposed to burnt since that court cited a law review article as support for its holding which listed cases holding the odor of fresh marijuana, standing alone, provides probable cause for a warrantless search. Id. However, the court did not discuss whether the difference between burnt versus fresh-smelling marijuana would have any effect at all on its probable cause analysis.*fn4
Additionally, as the magistrate judge pointed out, the Sixth Circuit has explicitly indicated there is no difference between burnt and fresh-smelling marijuana in a probable cause analysis. See United States v. Foster, 376 F.3d 577 (6th Cir. 2004). In Foster the Sixth Circuit determined when officers detected the smell of marijuana coming from the defendant's vehicle, probable cause was established to search it without a warrant. Id. at 588. The officers' testimony regarding whether they smelled fresh or burnt marijuana was conflicting. Id. at 583-84. At the suppression hearing in Foster, one of the officers testified he smelled burnt marijuana and at the trial, another officer testified he smelled fresh marijuana coming from defendant's vehicle. Id. at 582 n.4. The Sixth Circuit noted this inconsistency was not significant and would not alter the ultimate outcome of its probable cause analysis. Id. at 584 (finding the odor of marijuana emanating from a vehicle provided officers with probable cause to search a vehicle, regardless of "whether it was burnt or fresh-smelling marijuana").
Defendant relies on a Tenth Circuit case for the proposition that an officer's alleged smell of burnt marijuana did not give probable cause to search the trunk of a vehicle, when there was no corroborating evidence defendant had recently smoked marijuana and none was found in the passenger compartment of the vehicle. United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993). As fully explained, there is Sixth Circuit precedent on point which is authoritative and controlling; therefore, the Court does not deem it necessary, nor permissible, to rely on persuasive case law from other circuits. Regardless, Nielsen is distinguishable from the instant case. In Nielsen, there was no corroboration that defendant recently smoked marijuana and defendant refused to consent to a search of his trunk. Id. at 1488-89. In this case, there is ...