United States v. Randall E. Neumann

183 F.3d 753, 1999 U.S. App. LEXIS 14821, 1999 WL 447280

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 2, 1999
• Docket: 98-2911
• Status: Published

Opinions

WOLLMAN, Chief Judge.

Randall Neumann entered a conditional guilty plea to one count of possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), reserving the right to appeal the district court’s² denial of his motion to suppress evidence seized during the search of his vehicle. He now appeals, and we affirm.

I.

On January 1, 1998, South Dakota highway patrol officer Mike Kayras was conducting stationary radar surveillance on Interstate 90 in Brule County, South Dakota, when he observed Neumann’s pickup traveling west. Kayras clocked Neu-mann’s speed at eighty miles per hour, five miles per hour over the posted speed limit. Kayras followed Neumann and then stopped him for speeding.

As Kayras approached Neumann’s vehicle, he observed Neumann light a cigarette. Kayras asked Neumann for his driver’s license and vehicle registration. Neumann appeared nervous and anxious as he searched for the requested information. He eventually produced a valid Hawaii driver’s license, although the pickup was registered in Montana. Neumann explained that he formerly lived in Hawaii but had moved to Montana to pursue a career as a suntan lotion salesman. He told the officer that he had left Minneapolis early in the morning and had been traveling all day.

Kayras asked Neumann to accompany him back to the patrol car while he prepared a warning ticket for speeding. Once inside the patrol car, Kayras smelled a faint odor of alcohol on Neumann’s breath. Kayras asked Neumann how much he had had to drink. Neumann responded that he had not been drinking at all. Kayras then asked Neumann to take a portable breath test (PBT) to determine whether he had been drinking. Neumann initially indicated that he did not want to take the test, whereupon Kayras told him that South Dakota law required him to take the test. Neumann then recanted his earlier statement and admitted that he had drunk one beer about one hour before being stopped. Kayras administered the PBT, which registered a blood alcohol content of .013, indicating that Neumann had consumed alcohol but was not intoxicated.

Based on the results of the PBT and Neumann’s inconsistent statements, Kay-ras searched Neumann’s vehicle for an open container.³ During the search, Kay-ras found one empty beer can and one unopened beer can. He also smelled burnt marijuana inside the pickup and noticed an ashtray containing marijuana ashes. When questioned about the odor and ashes, Neumann denied smoking marijuana. Kayras then told Neumann that he was going to search the pickup for drugs. At that point Neumann admitted that he had smoked marijuana and stated that a small bag on the passenger side of the pickup contained marijuana. Kayras located the bag of marijuana and then proceeded to search the entire vehicle. In the back of the pickup he found ninety-four pounds, thirteen ounces of marijuana.

Neumann was subsequently indicted by a federal grand jury for possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). The district court denied Neumann’s motion to suppress the evidence seized, adopting the magistrate judge’s⁴ proposed findings that the search of Neumann’s vehicle did not violate the Fourth Amendment. Neumann thereafter entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. See Fed. R.Crim.P. 11(a)(2). The district court sentenced Neumann to 24 months’ imprisonment, followed by three years of supervised release, and imposed a $1,000 fine and a $100 assessment.

II.

Neumann contends that the motion to suppress should have been granted because probable cause did not exist to justify the warrantless search of his pickup for an open container. We examine the factual findings underlying the district court’s denial of the motion to suppress for clear error and review de novo the ultimate question of whether the Fourth Amendment has been violated. See United States v. McManus, 70 F.3d 990, 992 (8th Cir.1995).

Neumann does not contend that the initial stop of his vehicle was unconstitutional. “[A]ny traffic violation, even a minor one, gives an officer probable cause to stop the violator.” United States v. Bell, 86 F.3d 820, 822 (8th Cir.1996). Kayras had probable cause to stop Neumann for speeding because he was traveling five miles per hour over the posted speed limit. See United States v. Pipes, 125 F.3d 638, 640 (8th Cir.1997). The detection of alcohol on Neumann’s breath provided Kayras with a reasonable suspicion to further detain Neumann and expand the scope of the investigation. See United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir.1995) (applying reasonable suspicion standard to support further detention and investigation); United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994) (same); United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir.1994) (en banc) (same). The issue before us is whether Kayras could continue the encounter by searching Neu-mann’s vehicle for an open container after he finished issuing the speeding ticket, for “[a] traffic violation alone will not justify an automobile search; there must be probable cause or consent.” United States v. Martinez, 168 F.3d 1043, 1046 (8th Cir.1999).

“Police may search a car without a warrant if they have probable cause to believe that the car contains contraband or evidence.” United States v. Payne, 119 F.3d 637, 642 (8th Cir.1997). Probable cause requires “ ‘only a probability or substantial chance of criminal activity, not an actual showing of such activity.’ ” See Payne, 119 F.3d at 642 (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

We conclude that Kayras had probable cause to search Neumann’s vehicle for an open container. Kayras had had seventeen years’ experience with the highway patrol and significant training in the area of alcohol and drug detection. He testified that lighting a cigarette is usually done to mask an incriminating odor. Neumann appeared nervous and anxious and then positioned himself directly against the door while he was in the patrol car. Kayras suspected that Neumann had been drinking, and the PBT confirmed his suspicion. Neumann first denied drinking and then admitted to drinking one beer “in a town about 60 miles back.” Based on this information, there was probable cause for Kay-ras to believe that Neumann had consumed beer while driving in his pickup and that there might well be an open container inside the vehicle.

Kayras’s detection of the smell of burnt marijuana while he was conducting the search for an open container gave him probable cause to search the entire vehicle for drugs. See United States v. Caves, 890 F.2d 87, 90 (8th Cir.1989). Accordingly, the district court did not err in denying the motion to suppress.

The judgment is affirmed.

2 . The Honorable Lawrence L. Piersol, Chief Judge, United States District Court for the District of South Dakota.

3 . S.D.C.L. § 35-1-9.1 provides:

It is a Class 2 misdemeanor for any person to have a package or any receptacle containing an alcoholic beverage in his possession in a motor vehicle unless the seal of the original package remains unbroken or the alcoholic beverage is so removed that no occupant of the motor vehicle shall have access to it while the vehicle is in motion.

4 . The Honorable Mark F. Marshall, United States Magistrate Judge for the District of South Dakota.