United States v. Kevin Kizart ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2641
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN DARNEL KIZART,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:18-cr-40009-SLD-1 — Sara Darrow, Chief Judge.
____________________
ARGUED FEBRUARY 27, 2020 — DECIDED JULY 28, 2020
____________________
Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.
BRENNAN, Circuit Judge. A police officer pulled over an in-
dividual for speeding and smelled burnt marijuana coming
from the car. He proceeded to search for contraband or other
evidence of illegal activity. We consider whether the scope of
that search included the vehicle’s trunk where the officer
found illegal drugs.
2 No. 19-2641
I
Witnesses at an evidentiary hearing testified to the follow-
ing facts.
Kevin Kizart was driving alone at 4:00 a.m. on U.S. High-
way 34 in Gulfport, Illinois when Officer Ron Russell stopped
him for speeding. Russell approached Kizart’s Kia Forte se-
dan and, as they talked, Russell smelled burnt marijuana com-
ing from Kizart’s car. When Russell asked Kizart about the
smell, Kizart responded his brother had smoked marijuana in
the car a few hours earlier.
Russell informed Kizart he would conduct a search of the
vehicle. Russell asked Kizart to step out of the car, patted him
down, and found no drugs or weapons. Turning to the vehi-
cle, Russell searched the passenger compartment, including
areas not in plain view like the glove compartment. This took
Russell five to seven minutes. Kizart then approached Russell
looking “relieved” and with “a smile on his face” asked if Rus-
sell was finished. Russell asked Kizart how to open the trunk.
Kizart did not respond, “stood still,” and to Russell, Kizart
“looked sort of shocked.” This delay lasted about five sec-
onds. To Russell this was “a reasonable amount of time” to
answer, and Kizart “seemed he wasn’t going to answer.” This
made Russell “suspicious about what might be in the trunk.”
The district court made findings about this change in Kizart’s
demeanor, crediting Russell’s description.
Russell removed the keys from the car’s ignition and used
them to open the trunk. Toward the back of the trunk, he
found a backpack with a garbage bag inside, which contained
three smaller bags of a substance that smelled and looked like
raw marijuana. The bag also contained a “white, vacuum-
No. 19-2641 3
packed brick of an unknown substance,” which turned out to
be methamphetamine. In total the backpack contained ap-
proximately three pounds of marijuana and three pounds of
methamphetamine. The district court found Russell’s testi-
mony credible.
A grand jury charged Kizart with possessing marijuana
and methamphetamine, each with intent to distribute. See 21
U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(D). Kizart moved to sup-
press the drugs, arguing that smelling burnt marijuana near
the passenger compartment of his car does not give an inves-
tigating police officer probable cause to search its trunk. After
an evidentiary hearing, the district court denied the motion.
The court found that the smell of burnt marijuana from the
car, strengthened by the change in Kizart’s demeanor from
relief to shock or concern, gave Russell probable cause to
search the trunk. Kizart pleaded guilty to these crimes condi-
tioned on his right to appeal the denial of the motion to
suppress and to withdraw his plea if he prevails. He was sen-
tenced to a total of 60 months’ imprisonment followed by
three years of supervised release. This appeal followed.
II
A
Warrantless searches are per se unreasonable under the
Fourth Amendment, subject to only certain exceptions.
Arizona v. Gant, 556 U.S. 332, 338 (2009). Relevant here is the
automobile exception, which allows authorities to search a car
without a warrant if they have probable cause. See United
States v. Ross, 456 U.S. 798, 807–09 (1982); Carroll v. United
States, 267 U.S. 132, 149, 153–56 (1925). “Probable cause to
search a vehicle exists when, based on the totality of the
4 No. 19-2641
circumstances, ‘there is a fair probability that contraband or
evidence of a crime will be found in a particular place.’”
United States v. Sands, 815 F.3d 1057, 1063 (7th Cir. 2015) (quot-
ing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
That the smell of burnt marijuana gave Russell probable
cause to search the sedan’s passenger compartment is not in
dispute. Rather, Kizart contends “when the interior search
does not reveal a controlled substance or any other evidence
of a crime, probable cause has diminished and the officer’s
authority to search does not extend to a vehicle’s trunk.” To
Kizart the smell of burnt marijuana should have led Russell
to look for a personal use amount, so the search could legally
include only Kizart’s person or the interior of the car, not the
trunk. Kizart argues his position is consistent with Ross, 456
U.S. 798 (1982), in which the Court ruled that under the auto-
mobile exception to the warrant requirement, “[i]f probable
cause justifies the search of a lawfully stopped vehicle, it jus-
tifies the search of every part of the vehicle and its contents
that may conceal the object of the search.” Id. at 825.
Kizart urges this court to follow United States v. Downs, 151
F.3d 1301 (10th Cir. 1998), in which the Tenth Circuit drew a
distinction between the smell of raw and burnt marijuana. In
Downs that court concluded “the smell of burnt marijuana is
generally consistent with personal use of marijuana in the
passenger compartment of an automobile.” 151 F.3d at 1303.
In that circumstance “there is no fair probability that the trunk
of the car contains marijuana and an officer must limit the
search to the passenger compartment absent corroborating
evidence of contraband.” Id. Because the officer in Downs en-
countered “the overpowering smell of raw marijuana,” the
Tenth Circuit affirmed the denial of the motion to suppress,
No. 19-2641 5
concluding there was a fair probability that the car was being
used to transport large quantities of marijuana, which could
have been hidden in places other than the passenger compart-
ment. Id. Downs cites United States v. Nielsen, 9 F.3d 1487 (10th
Cir. 1993), which reversed the denial of a motion to suppress
and held that the smell of burnt marijuana and consent per-
mitted the search of a car’s passenger compartment but not its
trunk. 9 F.3d at 1490–91. Kizart concedes this distinction is
“unique to the Tenth Circuit.”
The government argues that the denial of the motion to
suppress should be affirmed because there was probable
cause to search Kizart’s entire car, including the trunk. The
government points to the smell of burnt marijuana, Kizart’s
concession that his brother had smoked it in the car a few
hours earlier, and Kizart’s reaction and behavior when
Russell asked Kizart how to open the trunk.
When considering a district court’s denial of a motion to
suppress, we review legal conclusions de novo and factual
findings for clear error. United States v. Yancey, 928 F.3d 627,
630 (7th Cir. 2019). Kizart does not dispute the district court’s
factual findings on appeal.
B
A warrantless search of Kizart’s car was valid. It is undis-
puted that probable cause existed to believe the sedan con-
tained contraband or evidence of criminality when Russell
smelled the burnt marijuana emanating from the car, and
Kizart admitted that marijuana had been smoked there. The
scope of the warrantless search is at issue.
Ross defines that scope not by the “nature of the container
in which the contraband is secreted” but “by the object of the
6 No. 19-2641
search and the places in which there is probable cause to be-
lieve that it may be found.” 456 U.S. at 824. This rationale from
Ross on where to draw the line for a proper search has been
regularly applied by federal and state courts, including this
court. See, e.g., United States v. Franklin, 547 F.3d 726, 735 (7th
Cir. 2008) (ruling on scope of warrantless vehicle search based
in part on probable cause of smell of burnt marijuana); United
States v. Ledford, 218 F.3d 684, 688 (7th Cir. 2000) (ruling on
scope of warrantless vehicle search).
Because the object of the search here was the marijuana,
and Kizart contends the smell of burnt marijuana suggests
personal use, he argues the search could not include the
trunk. To Kizart the only two places where burnt marijuana
(or related contraband) may have been found were on his per-
son or in the passenger compartment; both were searched and
yielded nothing incriminating.
But we look to the totality of the circumstances to see if
there is a fair probability that evidence of a crime will be
found in a particular place. Illinois v. Gates, 462 U.S. 213, 238
(1983). The whole—in addition to the smell, and Kizart’s con-
cession that marijuana had been smoked in the car—includes
the district court’s specific findings on Kizart’s behavior when
Russell asked about the trunk.
Russell testified that the stop and search, up until the
trunk was opened and the drugs were discovered, had taken
approximately ten minutes or less, with five to seven minutes
of that concentrated on the passenger compartment. Kizart’s
reaction and behavior when asked about the trunk were part
of this same continuous series of events. The probable cause
that justified the search, in addition to the smell, included
Kizart’s approach of Russell looking relieved with a smile on
No. 19-2641 7
his face, Russell asking Kizart how to open the trunk, Kizart’s
abrupt change in demeanor, standing still, looking shocked,
Russell waiting five seconds, and Kizart not responding.
Ross provides that the scope of the search can be “no
greater than a magistrate could have authorized by issuing a
warrant based on the probable cause that justified the search.”
456 U.S. at 818. Using this rubric, a magistrate would consider
Kizart’s location-specific reactions, which pointed directly to
the trunk. Under Ross’s rationale, the totality of the facts form-
ing probable cause included a fair probability that the trunk
contained contraband or other evidence of criminality. That
gave Russell authority to search every part of the vehicle and
its contents that could conceal the contraband or evidence of
criminality—the marijuana—including the trunk.
This court has decided a number of cases with similar facts
and arguments, although none on all fours. The cases the par-
ties have argued in the district court and before us are analo-
gous and instructive: in each the investigating officer smelled
burnt marijuana and additional suspicious activity was pre-
sent.
For example, in Long v. United States, 847 F.3d 916 (7th Cir.
2017), a car was impeding traffic in a restaurant’s drive-
through lane. When an investigating officer approached, he
saw Long asleep at the wheel and asked him to open the door.
Long did so and the officer immediately smelled marijuana.
As they discussed the marijuana odor, the officer also saw a
gun on the floorboard near Long’s feet. Id. at 918. This court
concluded that when “the officer immediately smelled mari-
juana … [t]hat gave the officer probable cause to search the
entire vehicle.” Id. at 921 (citing United States v. Mosby, 541
F.3d 764, 768 (7th Cir. 2008)).
8 No. 19-2641
Both parties cite United States v. Franklin, 547 F.3d 726 (7th
Cir. 2008), and dispute its applicability. An officer stopped
Franklin for speeding and another traffic offense. When the
officer approached Franklin’s car, he noticed the smell of
burnt marijuana coming from the open passenger side win-
dow. The officer told Franklin about the traffic infractions.
Franklin was told to exit his car, and he denied having any
drugs or guns in his car. Later a drug-sniffing dog alerted to
the presence of drugs from outside the car, and drugs were
found in the vehicle’s passenger compartment. Id. at 729.
In Franklin this court concluded that the officer “had prob-
able cause to search Franklin’s vehicle for drugs because he
could smell marijuana smoke through an open window as he
approached the car. … A police officer who smells marijuana
coming from a car has probable cause to search that car.” 547
F.3d at 733. The court went on to state that the smell of mari-
juana smoke “would give the police probable cause to search
the passenger compartment for drugs. This circuit has held
that the search can go so far as probable cause extends, even
into separate containers or the trunk of the car.” Id. at 735 (cit-
ing inter alia Ross). But in Franklin the drugs were in the pas-
senger compartment, and probable cause “was bolstered” by
the officer’s observation of what looked like a marijuana stem
near Franklin’s knee, and by the canine alert. Id. at 729.
In United States v. Cherry, 436 F.3d 769 (7th Cir. 2006), the
defendant was stopped for speeding and another traffic
infraction. One officer smelled burnt marijuana as he
approached Cherry’s car. Another officer saw a plastic bag
protruding from Cherry’s pants pocket. He was searched, ma-
rijuana was seized, and Cherry was arrested. Before his car
was towed, an inventory search yielded a gun in the trunk.
No. 19-2641 9
Cherry, a convicted felon, conditionally pleaded guilty to pos-
sessing a firearm and appealed the search. Id. at 771.
This court upheld the inventory search in Cherry and
stated the government “inexplicably abandoned reliance on
[the officer’s] testimony that he smelled marijuana—which
seems a simple and compelling foundation for searching [the
driver] and ultimately the car including the trunk.” Id. at 772.
But this statement in Cherry is unquestionably dicta, as the
case resolved on other grounds and the court’s comments on
this issue were “merely remarks made in the course of a deci-
sion but not essential to the reasoning behind that decision.”
See BRYAN A. GARNER, ET AL., THE LAW OF JUDICIAL PRECEDENT
§ 4, 44 (2016).
These decisions supply the general rule that the smell of
burnt marijuana plus other suspicious activity may provide
probable cause for the search of an entire vehicle including its
trunk.1 Here, Kizart’s reaction and behavior when he realized
that the search had not ended short of the trunk was part of
the evidence that probable cause of a crime would be found
in a particular place. The district court found Russell’s testi-
mony credible, and we do not second-guess that court’s cred-
ibility determinations on appeal. See, e.g., United States v. Curb,
626 F.3d 921, 925 (7th Cir. 2010) (noting the court “do[es] not
second-guess the judge’s credibility determinations because
he or she has had the best opportunity to observe the subject’s
facial expressions, attitudes, tone of voice, eye contact,
1 An unpublished opinion and order that the district court and the parties
discussed considered similar facts and many of the cases discussed above.
United States v. Hayes, 2014 WL 5757421 (N.D. Ind. 2014). In Hayes the dis-
trict court concluded that the smell of burnt marijuana provided probable
cause to search the trunk of a stopped vehicle.
10 No. 19-2641
posture and body movements” (quoting United States v.
Mancillas, 183 F.3d 682, 701 (7th Cir. 1999)) (internal quotation
marks omitted). Kizart’s reaction and behavior, his abrupt
change from “relieved” to “shocked” or “concern,” and his
delay and failure to respond, all were key to Russell’s proba-
ble cause determination. See United States v. Ellis, 499 F.3d 686,
691 (7th Cir. 2007) (“We have also recognized that a person’s
reactions to the police can be considered in a probable cause
determination.”). Given Kizart’s suspicious reaction and be-
havior, Russell’s search of the trunk was within the bounds of
established precedent.
Kizart argues his nervousness should not be relevant in
determining whether probable cause exists for a warrantless
search. But Kizart’s behavior here is not generalized anxiety
about interaction with the police. See, e.g., United States v.
Williams, 731 F.3d 678, 687 (7th Cir. 2013) (noting that most
people when confronted by a police officer are likely to act
nervous). Instead, Kizart’s reaction and conduct is oriented
toward the potential search of a single locked compartment,
the trunk, and part of a series of connected events described
above.
Our decision here is consistent with most federal and state
cases on this topic.2 The Tenth Circuit precedents Kizart relies
on represent a minority viewpoint.
2 See, e.g., United States v. Foster, 376 F.3d 577, 583–84, 588 (6th Cir. 2004)
(finding the distinction between burnt or fresh marijuana irrelevant and
holding “when the officers detected the smell of marijuana coming from
[defendant’s] vehicle, this provided them with probable cause to search
the vehicle”); United States v. Neumann, 183 F.3d 753, 756 (8th Cir. 1999)
(holding “detection of the smell of burnt marijuana while [the officer] was
conducting the search for an open container gave him probable cause to
No. 19-2641 11
Underlying Kizart’s request to apply Downs is the theory
that the search should have ended before the trunk because
the smell of burnt marijuana indicates only “personal use.”
While Downs says the Tenth Circuit recognizes this distinc-
tion, the caselaw it cites—United States v. Nielsen, 9 F.3d 1487(10th Cir. 1993), and United States v. Parker, 72 F.3d 1444 (10th
Cir. 1995)—rejects the idea that the indicia of “personal use”
limits a search. Nielsen, 9 F.3d at 1490; Parker, 72 F.3d at 1450;
see also United States v. Loucks, 806 F.2d 208, 211 (10th Cir. 1986)
(upholding warrantless vehicle search of trunk after stop for
speeding and officer detects odor of marijuana and rejecting
“personal use” argument).
This court has also rejected an argument, derived from
these Tenth Circuit decisions, that facts such as those here
constitute multiple searches. Franklin, 547 F.3d at 734–35 (cit-
ing Nielsen, 9 F.3d at 1491). That contention is much like
Kizart’s that after Russell looked through the passenger
search the entire vehicle for drugs,” which included the back of a pickup
truck); United States v. Turner, 119 F.3d 18, 19–23 (D.C. Cir. 1997) (holding
smell of burnt marijuana, plus cigar blunt and clear plastic bag of weed-
like material, provided probable cause to believe the vehicle contained
contraband which permitted officers to conduct search of vehicle includ-
ing the trunk); United States v. McSween, 53 F.3d 684, 687 (5th Cir. 1995)
(holding officer’s detection of odor of marijuana justified search of entire
vehicle, not just passenger area where police officer was at time he de-
tected the smell); United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989)
(“[T]he detection of the odor of [burnt] marihuana justified a search of the
entire vehicle, including the locked compartment that was a likely place
to conceal contraband.”); United States v. Mitchell, 2012 WL 6827387, *7, n.1
(W.D.N.Y. 2012) (finding no Second Circuit precedent to support the Tenth
Circuit’s approach in Downs and holding the “smell of burning marijuana
gave the officers probable cause to search any area of the Van where ma-
rijuana could be found”).
12 No. 19-2641
compartment and found no contraband, the search ended, or
at least “diminished” or “dissipated,” before Russell asked
Kizart about the trunk. Such a claim does not consider the to-
tality of the circumstances, including the connected series of
events, the relatively brief time frame of the stop and search,
and the material facts of how Kizart responded to Russell’s
inquiry about the trunk.
III
Because the totality of the circumstances, including the
smell of burnt marijuana and Kizart’s reaction and behavior
when Russell asked Kizart about the trunk, provided proba-
ble cause to search his car’s trunk, we AFFIRM the denial of the
motion to suppress.