United States v. Kay

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2026
• Docket: 25-3723
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 25-3723 D.C. No. Plaintiff - Appellee, 3:23-cr-00256-AKB-1 v. MEMORANDUM* ROBERT CHARLES KAY,

Defendant - Appellant.

Appeal from the United States District Court for the District of Idaho Amanda K. Brailsford, District Judge, Presiding

Submitted April 16, 2026** Portland, Oregon

Before: OWENS, VANDYKE, and SUNG, Circuit Judges.

Defendant Robert Charles Kay appeals from his conviction for possession of

controlled substances with intent to distribute in violation of 12 U.S.C. § 841(a)(1)

and (b)(1)(b). He argues that the district court erred in denying his motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). suppress evidence discovered during a warrantless search of a silver Dodge Ram.

As the parties are familiar with the facts, we do not recount them here. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

We review de novo the denial of a motion to suppress, and we review the

district court’s underlying factual findings for clear error. United States v. Hylton,

30 F.4th 842, 846 (9th Cir. 2022).

The search of the Dodge Ram was constitutional under the plain view

doctrine, which allows officers to seize evidence without a warrant if they are

lawfully in a position to view the item, and if its incriminating nature is

immediately apparent. See Arizona v. Hicks, 480 U.S. 321, 326 (1987); Coolidge

v. New Hampshire, 403 U.S. 443, 465 (1971) (plurality opinion). While standing

in the parking lot, the officers observed “loose marijuana” through the Dodge’s

passenger-side window. Based on their training and experience, the officers

reasonably believed the substance they saw in the vehicle to be marijuana.

Marijuana possession is unlawful in Idaho. Idaho Code §§ 37-2732(c)(3), 37-

2705(d)(19). The officers’ observations of the marijuana from outside the car thus

supplied probable cause to search the vehicle. See State v. Gonzales, 789 P.2d 206,

207 (Id. Ct. App. 1990) (holding that, in Idaho, merely smelling marijuana in a car

supplies probable cause to search the vehicle); see also Arizona v. Gant, 556 U.S.

332, 347 (2009) (noting that under the automobile exception to the Fourth

2 25-3723 Amendment’s warrant requirement, officers may search a vehicle if they have

probable cause to believe that it contains evidence of a crime) (citing United States

v. Ross, 456 U.S. 798, 820–21 (1982)).

Additionally, other circumstances independently supplied probable cause for

the officers to search the Dodge Ram. See Illinois v. Gates, 462 U.S. 213, 238

(1983) (holding that probable cause exists where a totality of the circumstances

indicates that “there is a fair probability that contraband or evidence of a crime will

be found in a particular place”). Surveillance footage showed Kay handling loose

marijuana in another car in the same parking lot, rolling a joint, and giving

marijuana to another individual. Kay also admitted that he had given “a couple

nugs,” referring to marijuana, to another individual. Officers further learned that

Kay and his companion arrived in a silver Dodge Ram, and that a patron reported

that Kay had attempted to sell drugs from that vehicle. When officers escorted

Kay from the casino, one officer observed Kay hand his companion what appeared

to be Dodge vehicle keys. This key later unlocked the Dodge Ram. Taken

together, these facts established a reasonable probability that the Dodge Ram

contained contraband or evidence of criminal activity. Id.

The district court therefore did not err in denying Kay’s motion to suppress.

AFFIRMED.

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