                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2006

USA v. Ramos
Precedential or Non-Precedential: Precedential

Docket No. 05-1169




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                                   PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
             ___________

                No. 05-1169
                ___________

      UNITED STATES OF AMERICA,

                           Appellant

                      v.


   JEFFREY RAMOS; SAMUEL ACOSTA


                ___________

 APPEAL FROM THE DISTRICT COURT OF
             THE VIRGIN ISLANDS
  (D.C. Nos. 04-cr-00117-1 and 04-cr-00117-2)
District Judge: The Honorable Raymond L. Finch
                  ___________

       ARGUED: DECEMBER 6, 2005

     BEFORE: SCIRICA, Chief Judge,
   MCKEE and NYGAARD, Circuit Judges.
                   (Filed: April 5, 2006)
                       ___________

Kirby A. Heller, Esq. (Argued)
United States Department of Justice
Criminal Division, Appellate Section
601 D Street, NW, Room 6206
Washington, DC 20530

Jerry D. Massie, Esq.
United States Department of Justice
Terrorism and Violent Crime Section
601 D Street, NW, Room 6500
Washington, DC 20530

      Counsel for Appellant


Jomo Meade, Esq. (Argued)
112 Queen Cross Street
Frederiksted, St. Croix, USVI 00840

      Counsel for Appellee Samuel Acosta

Stephen A. Brusch, Esq. (Argued)
International Plaza, Suite 2G
P. O. Box 988
Charlotte Amalie, St. Thomas, USVI 00804

      Counsel for Appellee Jeffrey Ramos



                              2
                 OPINION OF THE COURT


NYGAARD, Circuit Judge.

       The United States of America (“government”) appeals

from the order of the District Court of the Virgin Islands

granting defendants Jeffrey Ramos and Samuel Acosta’s motion

to suppress evidence. Because there was reasonable suspicion

justifying the stop, we will reverse.

                                I.

       Members of the Street Enforcement Team of the

Virgin Islands Police Department were patrolling the Castle

Coakley area in an unmarked SUV when they observed two

vehicles, a van and a Honda Accord, parked next to each

other in the parking lot of a night club.1 Upon passing in-

1.
       The District Court wrote that the car and van were
                                                  (continued...)

                                3
between the vehicles, one member of the team, Officer

Huertas, testified that when he got to within three to four feet

of the passenger side of the Honda, he smelled “marijuana

smoke” through his open window. He also testified that the

Honda’s window closest to the officers’ car was partially

open.

        The Enforcement Team then drove past the two

vehicles and parked forty or fifty feet away. Soon thereafter

the Honda left the parking lot, passing by the Enforcement

Team’s vehicle as it left. After the Honda passed the

Enforcement Team’s vehicle the Team decided to make a

traffic stop and pulled over the Honda. The officers ordered

defendant Acosta out of the driver’s side of the car and he

exited with his driver’s license and registration in hand.

1.
       (...continued)
parked on the side of the road, but both parties agree that the
vehicles were in a parking lot.

                               4
Defendant Ramos then apparently exited, according to

Huertas, “in a hostile manner, shaking, waving his hands,”

and asking, “what the fuck you all stop me for?” An officer

then searched Ramos for weapons and found a magazine clip

in his pocket. Then, as Officer Huertas inspected the vehicle

for other occupants, he smelled marijuana and saw smoke

coming from a small black cup. Additionally, he saw a

chrome .357 pistol in the car. After the car was searched, a

second pistol was located under the seat as well as two

marijuana cigarettes, a measuring scale, and baggies. After

the weapons were found, the officers arrested both defendants

and administered their Miranda rights.

       The government charged the defendants on various

weapons possession counts. The defendants moved to

suppress all physical evidence and statements obtained as a

result of the stop. They claimed that the stop violated their

                               5
Fourth Amendment rights and, additionally, that any

statements made were obtained in violation of their Fifth and

Sixth Amendment rights. The government responded that the

officers had probable cause to effectuate the stop based

alternatively on the fact that the Honda had committed a

traffic violation and that the officers had seen smoke and

smelled marijuana as they passed the vehicles.

       After a hearing, the District Court granted defendants’

motion, ruling that the government did not have probable

cause to stop the defendants’ car.2 In so doing, the District


2.
       At the motion hearing the government contended that
the officers had probable cause to stop the defendants. The
District Court’s analysis, therefore, hinged on whether the
government was able to show, by a preponderance of the
evidence, that it had probable cause to stop Acosta’s vehicle.
Because it found that the government could not, the District
Court found the stop to be in violation of the Fourth
Amendment and it applied the exclusionary rule to all the
evidence subsequently found and seized.


                               6
Court found that there was no articulable suspicion of a traffic

violation and that the marijuana smell was neither articulable

nor particularized to the Honda such that it established, by a

preponderance of the evidence, probable cause. The

government timely filed a notice of appeal.3

       At the hearing, the government unsuccessfully

contended that the defendants’ traffic violation established

probable cause to execute the stop and subsequent searches.

On appeal, the government does not challenge the District

Court’s probable cause analysis. Rather, they contend that

even if there was no probable cause, there existed reasonable


3.
       We have jurisdiction pursuant to 28 U.S.C. § 1291.
We have plenary review over the District Court’s
determination of the validity of the officer’s search. Ornelas
v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d
911 (1996); United States v. Valentine, 232 F.3d 350 (3d Cir.
2000). We review the District Court’s findings of fact for
clear error. Ornelas, 517 U.S. at 698.


                               7
suspicion and therefore the stop was justified under Terry v.

Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.E.2d 889 (1968).4

       According to the government, once Officer Huertas

and the other officers detected the marijuana odor, they had

reasonable suspicion to effectuate the stop of defendants’ car.

Defendants argue in response that the marijuana odor was not

particularized to their car and that, therefore, reasonable

suspicion could not exist. Because we conclude that the

4.
        We express a certain amount of discomfort with the
government’s case at trial and their corresponding attempts to
establish probable cause, especially in light of the District
Court’s finding that portions of Officer Huertas’ (the
government’s star witness) testimony were “unsupportive”
and the presence of conflicting justifications for the stop.
Nevertheless, “[t]he fact that the officer does not have the
state of mind which is hypothecated by the reasons which
provide the legal justification for the officer’s action does not
invalidate the action so long as the circumstances, viewed
objectively, justify that action.” United States v. Johnson, 63
F.3d 242, 246 (3d Cir. 1995) (quoting Scott v. United States,
436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)).
Our inquiry, therefore, is justifiably centered on the objective
existence of reasonable suspicion.

                                8
officers had reasonable suspicion to effectuate the stop, we

will reverse.

                               II.

       The Fourth Amendment prevents “unreasonable

searches and seizures.” U.S. Const. Amend. IV. A seizure is

usually reasonable when it is carried out with a warrant based

on probable cause. Katz v. United States, 389 U.S. 347, 356-

357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Warrantless

searches are presumptively unreasonable. See id. As an

exception to this rule, a police officer may conduct a brief,

investigatory search consistent with the Fourth Amendment

without a warrant under the “narrowly drawn authority”

established for a Terry stop. Terry, 392 U.S. at 27. Such

warrantless searches are appropriate where an officer

possesses reasonable, articulable suspicion that criminal




                               9
activity is afoot. Id; Illinois v. Wardlow, 528 U.S. 119, 123,

120 S.Ct. 673, 145 L.E.2d. 570 (2000).

       Reasonable suspicion “is a less demanding standard

than probable cause.” Alabama v. White, 496 U.S. 325, 330,

110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Thus, because

probable cause means “a fair probability that contraband or

evidence of a crime will be found,” the level of suspicion

necessary to justify a Terry stop is somewhat lower and can

be established with information that is different in quantity or

content than that required for probable cause. Id; Illinois v.

Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983). However, the officer must demonstrate that the stop

was based on something more than an “inchoate and

unparticularized suspicion or hunch.” United States v.

Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)

(quoting Terry, 392 U.S. at 27). A police officer, therefore,

                               10
may only effectuate a Terry stop where “specific and

articulable facts, together with all their rational inferences,

suggest that the suspect was involved in criminal activity.”

United States v. Robertson, 305 F.3d 164, 168 (3d Cir. 2002)

(quoting United States v. Brown, 159 F.3d 147, 149 (3d Cir.

1998)). Consequently, we accord deference to an officer’s

judgment of whether criminal activity is taking place with an

understanding that “whether an officer has reasonable

suspicion to warrant a stop . . . is often an imprecise

judgment.” Id.

       It is well settled that the smell of marijuana alone, if

articulable and particularized, may establish not merely

reasonable suspicion, but probable cause. See United States v.

Humphries, 372 F.3d 653, 658 (4th Cir.2004) (“[T]he odor of

marijuana alone can provide probable cause to believe that

marijuana is present in a particular place.”); United States v.

                                11
Winters, 221 F.3d 1039, 1042 (8th Cir. 2000). Recognizing

this, defendants concede that, had an officer smelled

marijuana coming directly from their car, not only reasonable

suspicion, but probable cause would have been established,

justifying the stop. Instead, defendants argue that Officer

Huertas testified, and the District Court found, that the

marijuana smell could not be specifically pinpointed to their

car and that because the marijuana smell was not

appropriately particularized, it cannot establish reasonable

suspicion.5 We disagree.

5.
        It is true that the District Court concluded that “the
government did not preponderate that the smell of marijuana
came from the defendants and their key witness, Officer
Huertas, testified that he could not identify which vehicle the
smell of marijuana was coming from.” Consequently, if our
inquiry were whether probable cause existed, we might be
inclined to agree with the District Court that the stop was not
justified. However, we only must determine whether, under
these circumstances, reasonable suspicion justified the stop;
therefore, the government need not establish by a
                                                     (continued...)

                                12
       The question of what constitutes “particularized” for

the purposes of a reasonable suspicion inquiry does not

reduce to a rigid definition precisely because reasonable

suspicion is itself a flexible standard. See White, 496 U.S. at

330. In the abstract, the defendants may be correct that, at

some point, a broadly diffuse and undistinguished marijuana

odor will not automatically provide the necessary particularity

to establish reasonable suspicion. For instance, had the

officers smelled marijuana odor in a crowded bar, they would

not be justified to pat down every patron on the claim of some

individualized reasonable suspicion. See Ybarra v. Illinois,

444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). But

defendants’ claim that reasonable suspicion requires the same

level of particularity as probable cause is misguided. See

5.
        (...continued)
preponderance of the evidence (as the District Court inquired)
that the marijuana smell came from the defendants’ car.

                               13
United States v. French, 974 F.2d 687, 692 (6th Cir. 1992)

(holding that reasonable suspicion existed to stop defendants

who had been riding in tandem with a truck that possessed a

marijuana odor).

        To establish reasonable suspicion, the particularity

requirement need not be as stringent as it might be for

probable cause.6 Thus, while probable cause may require the

odor to be particularized to a specific person or place, in this

case we are satisfied that the totality of the circumstances

sufficiently particularized the odor to justify a Terry stop of

the defendants’ car.




6.
       As defendants point out, courts that have addressed the
particularity requirement in the context of marijuana odor
have established that the odor should be particularized to
some specific person or place. However, these cases all
addressed the particularity requirement in the context of a
probable cause inquiry. See Humphries, 372 F.3d at 659;
United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 2004).

                               14
       Here, it is undisputed that the officers drove in-

between the two vehicles that were parked next to each other.

As the officers drove by, coming to within three or four feet

of defendants’ car, they smelled an identifiable marijuana

odor. Officer Huertas also testified that the both the

defendants’ car window (facing the officers’ SUV) and the

officers’ own window were open. While it is true that no

officer testified directly as to which car the odor had come

from, relying on their skill and experience, it would have been

reasonable for the officers to conclude that the odor was

coming from one, the other, or both vehicles.7 For the

purposes of reasonable suspicion, that probability establishes

the odor as sufficiently particularized.

       Concluding, as we do, that it was reasonable for the

officers to suspect that the odor was coming from one, or

7.
       These two vehicles were the only vehicles in the area.

                               15
both, of the two vehicles, it was likewise reasonable for the

officers’ to suspect that criminal activity was afoot.8

Therefore, under Terry and its progeny, the officers’ had

reasonable suspicion and were entitled to investigate further,

justifying the stop of defendants’ car. We accordingly find

the District Court erred in suppressing the evidence.

                               III.

       For the foregoing reasons, the judgment of the District

Court entered on December 30, 2004 will be reversed. This

matter will be remanded to the District Court for further

proceedings consistent with this opinion.




8.
       In fact, upon smelling the marijuana odor, the officers
had an obligation to investigate further to, if nothing else,
ensure that the drivers of the vehicles were not impaired. The
same would have been true had the officers smelled alcohol.

                               16
