                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0445n.06
                             Filed: July 29, 2008

                                           No. 08-3207

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE NORTHERN
               v.                                        )        DISTRICT OF OHIO
                                                         )
MARSHALL L. CRUMB,                                       )
                                                         )
      Defendant-Appellant.                               )
__________________________________________



BEFORE: COLE and GRIFFIN, Circuit Judges; and SARGUS, District Judge.*

       GRIFFIN, Circuit Judge.

       Defendant Marshall L. Crumb appeals an order of the district court denying his motion to

suppress evidence discovered during a traffic stop. Crumb argues that police lacked probable cause

to conduct a warrantless search of the vehicle in which he was riding, despite the arresting officer

smelling the odor of marijuana and seeing a partially smoked marijuana cigarette in plain view in

the vehicle. We disagree and, accordingly, affirm Crumb’s convictions for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g), and possessing a controlled substance,

in violation of 21 U.S.C. § 844(a).

                                                 I.

       *
        The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-3207
United States v. Crumb


       In the early morning of January 27, 2007, Officer Ryan Duffy of the Linndale (OH) Police

Department observed a vehicle traveling northbound on Interstate 71 at a high rate of speed while

weaving on and off the shoulder. Thereafter, Officer Duffy, along with Auxiliary Officer Mahon,

executed a traffic stop of the vehicle. As Duffy approached the vehicle’s driver, Douglas Scott, and

began speaking with him, Duffy smelled the odor of marijuana emanating from the vehicle. While

Duffy and Scott continued to talk, Duffy saw a partially smoked marijuana cigarette in an ashtray

in the vehicle’s center console. Duffy then asked both Scott and his passenger, defendant Crumb,

for identification and requested that Scott hand him the marijuana cigarette. Scott and Crumb

complied with Duffy’s requests.

       After a scan of Crumb’s license disclosed two outstanding arrest warrants, Duffy returned

to the vehicle, removed defendant from the passenger seat, and conducted a pat-down search of him.

The search of defendant revealed a small plastic bag containing marijuana and a small electronic

scale. Duffy subsequently placed Crumb in handcuffs and seated him in the rear of the police

cruiser. Duffy then removed Scott from the vehicle, at which time he noticed the smell of alcohol

on Scott’s breath. During his pat-down search of Scott, Duffy found a small plastic bag, which

contained multiple smaller bags of marijuana, and a speed loader.1 Duffy then seated Scott in the

rear of Officer Mahon’s police cruiser.




       1
       Duffy testified at the suppression hearing that a speed loader is “a small device to which you
would attach bullets, live rounds to be inserted into the chamber of a revolver for quick loading.”

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No. 08-3207
United States v. Crumb


       After both Crumb and Scott were in custody, Officers Duffy and Mahon performed a search

of the vehicle, finding a loaded revolver on the driver’s side. Thereafter, Duffy returned to the

cruiser, placed Scott under arrest, and issued him a Miranda warning. When Scott refused to make

a statement, Duffy resumed his search of the vehicle.

       During this portion of the search, Duffy discovered a plastic bag containing crack cocaine

lodged between the center console and the driver’s seat, while Officer Mahon found Ecstacy pills

scattered on the passenger side of the vehicle. In the trunk, the officers uncovered a large plastic

freezer bag containing marijuana and a semi-automatic pistol underneath the bag. The officers then

towed the vehicle and transported Scott and Crumb to the Linndale Police Department for booking

and questioning, during which Crumb admitted that he owned the firearm found in the trunk.

       Subsequently, Crumb and Scott were named in a four-count indictment that charged

defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and

possessing a controlled substance, in violation of 21 U.S.C. § 844(a). Both Crumb and Scott filed

motions to suppress the evidence discovered during the traffic stop, and the district court held a

hearing on the motions. After receiving testimony from Officer Duffy – the only witness presented

during the hearing – the court issued a written order denying the motions, ruling that Duffy had

probable cause to search Scott, Crumb, and the vehicle in which they were traveling because of the

officer’s detection of marijuana odor emanating from the vehicle.

       Following the denial of his motion, Crumb entered into a plea agreement with prosecutors,

in which he reserved the right to appeal the district court’s denial of his motion to suppress. The


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United States v. Crumb


court accepted Crumb’s plea and sentenced defendant to a term of 12 months and one day of

incarceration on each count, to be served concurrently. Crumb now appeals the denial of his motion

to suppress.

                                                 II.

       On appeal, Crumb raises a single issue: whether the district court erred in ruling that the

detection of marijuana odor and the presence of a partially smoked marijuana cigarette provided

probable cause to search the vehicle. Specifically, Crumb argues that once Officer Duffy seized the

marijuana cigarette, no further search of the vehicle was supported by probable cause. We disagree.

       We review the district court’s denial of a motion to suppress for clear error with respect to

the court’s findings of fact and de novo with regard to conclusions of law. United States v. Jackson,

470 F.3d 299, 306 (6th Cir. 2006); United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006). On

defendant’s appeal, we consider the evidence in the light most favorable to the government.

Jackson, 470 F.3d at 306-07.

       In general, the Fourth Amendment requires that all searches and seizures be supported by

probable cause. Maryland v. Pringle, 540 U.S. 366, 369 (2003). Although searches must normally

be conducted pursuant to a warrant, under the well-known automobile exception, a warrantless

search of a vehicle that has been stopped lawfully is permissible if the search is based upon probable

cause. United States v. Ross, 456 U.S. 798, 823 (1982); United States v. Pasquarille, 20 F.3d 682,

690 (6th Cir. 1994). “Probable cause is defined as reasonable grounds for belief, supported by less

than prima facie proof but more than mere suspicion, and is found to exist when there is a fair


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No. 08-3207
United States v. Crumb


probability that evidence of a crime will be located on the premises of the proposed search.”

Jackson, 470 F.3d at 306 (internal quotation marks and citations omitted).

       Thus, in determining the admissibility of evidence seized during a warrantless search of a

vehicle during a traffic stop, we must answer two questions: first, whether the initial stop of the

vehicle was supported by reasonable suspicion and, second, whether the subsequent search of the

vehicle was supported by probable cause. United States v. Foster, 376 F.3d 577, 584-85 (6th Cir.

2004); United States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993). Crumb does not contest that

Officer Duffy had reasonable suspicion to conduct a traffic stop of the vehicle. See United States

v. Simpson, 520 F.3d 531, 541 (6th Cir. 2008) (holding that a seizure of vehicle due to an ongoing

traffic violation is governed by the standard of reasonable suspicion). Thus, because there is no

dispute that the initial stop of the vehicle was valid, the focus of our analysis is whether Officers

Duffy and Mahon had probable cause to search the vehicle.

       In ruling that Officer Duffy’s detection of marijuana in the vehicle, by itself, provided the

necessary probable cause to conduct a lawful search of the vehicle, the district court relied on our

opinion in Garza. In Garza, the defendant’s semi-truck vehicle was pulled over in a traffic stop by

federal Drug Enforcement Administration (“DEA”) and United States Border Patrol agents, after

they conducted a week-long surveillance that suggested the defendant was involved in drug

trafficking. Garza, 10 F.3d at 1243-44. After ordering the defendant to exit the truck, a DEA agent

noticed a strong odor of marijuana coming from the truck as the agent looked inside the vehicle via

a “flapping” open door to confirm that no other individuals were hiding inside. Id. at 1244. The


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No. 08-3207
United States v. Crumb


federal agents then conducted a full search of the truck, discovering 150 pounds of marijuana stored

in the cab. Id. at 1243. On appeal from the denial of the defendant’s motion to suppress, we held

that the agents had reasonable suspicion to conduct a traffic stop of the truck, and the DEA agent’s

“smelling the marijuana then constituted probable cause to believe that there was marijuana in the

vehicle. Once this probable cause existed, a search warrant was not necessary.” Id. at 1246.

       Defendant Crumb attempts to distinguish Garza, arguing that it “is apparent that the lengthy

surveillance of the Defendant’s actions [in Garza] coupled with the smell of marijuana from an

unknown source provided an objective basis for the finding of probable cause to search the semi-

truck cab.” Crumb is correct that the defendant in Garza was the subject of a week-long surveillance

by federal agents. However, although the surveillance provided the agents with the reasonable

suspicion sufficient to conduct a lawful traffic stop, Garza, 10 F.3d at 1245-46, it was the marijuana

odor – and only the marijuana odor – that we cited as providing probable cause to search the interior

of the truck. Thus, our opinion in Garza does not support Crumb’s position.

       Moreover, we have followed Garza consistently in holding that the detection of a narcotic’s

odor, by itself, is sufficient to provide probable cause to conduct a lawful search of a vehicle. See

United States v. Puckett, 422 F.3d 340, 343 (6th Cir. 2005) (upholding the denial of a motion to

suppress where police “smelled and saw in open view the marijuana in the seat” and “[t]herefore,

there was probable cause to search the car at that point”); Foster, 376 F.3d at 588 (holding that

“when the officers detected the smell of marijuana coming from Foster’s vehicle, this provided them

with probable cause to search the vehicle without a search warrant” which “therefore turned a lawful


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No. 08-3207
United States v. Crumb


Terry stop into a lawful search”); United States v. Elkins, 300 F.3d 638, 659 (6th Cir. 2002)

(observing that “[t]his court has held that an officer’s detection of the smell of marijuana in an

automobile can by itself establish probable cause for a search” and noting that “[t]he same may be

true when marijuana is smelled within a home”). See also Simpson, 520 F.3d at 544-45 (holding that

probable cause to search a vehicle existed “upon the alert of a trained narcotics-detection dog”);

United States v. Littleton, 15 F. App’x 189, 193 (6th Cir. 2001) (rejecting defendant’s argument that

probable cause was lacking because drug detection dog was unreliable, and holding that training and

reliability of drug dog was irrelevant because smell of marijuana was sufficient to establish probable

cause to permit warrantless search of vehicle).

       Furthermore, we reject Crumb’s claim that the probable cause to search the vehicle

terminated upon the seizure of the marijuana cigarette by Officer Duffy. It is clear that upon

smelling the marijuana odor and seeing the marijuana cigarette, the police officers had reasonable

grounds to believe that further evidence of a crime may be found inside the vehicle. See Jackson,

470 F.3d at 306 (citing, e.g., United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005)). Moreover,

the presence of the speed loader found on Scott’s person, coupled with the detection of the marijuana

cigarette, suggested that Crumb and Scott may have been involved in the distribution of marijuana

and established sufficient probable cause to search the vehicle.

       Because the police had probable cause to search the vehicle, we hold that the district court

did not err in denying Crumb’s motion to suppress.

       Affirmed.


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