                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 14a0613n.06

                                                No. 13-3641
                                                                                                   FILED
                            UNITED STATES COURT OF APPEALS                                 Aug 08, 2014
                                 FOR THE SIXTH CIRCUIT                                 DEBORAH S. HUNT, Clerk


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


       BEFORE: MOORE, SUTTON, and ALARCÓN*, Circuit Judges.

       ALARCÓN, Circuit Judge. Following the district court’s denial of Defendant-Appellant

Gregory James’ motion to suppress the loaded weapon found in the vehicle he had been driving,

James entered a conditional guilty plea to a single count of being a felon in possession of a firearm

and ammunition, 18 U.S.C. § 922(g)(1). He reserved his right to appeal the district court’s denial

of his suppression motion. This appeal followed. We affirm because we conclude the search of the

vehicle James had been driving was justified under the automobile exception to the warrant

requirement.

                                                       I

       At the evidentiary hearing on James’ suppression motion, both James and the two

Youngstown Police Department officers involved in the stop and ultimate arrest of James testified.


               *
              The Honorable Arthur L. Alarcón, Circuit Judge for the United States Court of Appeals for the
     Ninth Circuit, sitting by designation.
No. 13-3641, United States v. James


The officers explained that they attempted to effect a traffic stop based on their observation that the

windows of the vehicle James was driving appeared to be tinted to a degree that violated a local

ordinance. After James accelerated, the officers activated their lights and siren, and they followed

James until he stopped the vehicle in the driveway of a residence, exited the vehicle, and headed for

the door of the residence. At that point, the officers drew their weapons, ordered James to the

ground, and placed him in handcuffs. They smelled the strong odor of marijuana coming from

James’ person. One of the arresting officers testified that he asked James “if he had anything on

him,” and James responded that he did not. The officer then asked “if there was anything in the

car,” and James responded that there was a gun in the vehicle’s center console and two marijuana

cigarettes in the ashtray.

        James testified that he told the officers about the weapon only after they were already

searching his vehicle and doing so in a rough manner.

        At the conclusion of the evidentiary hearing, the district court denied James’ motion to

suppress. As an initial matter, the district court determined that the initial stop of the vehicle was

justified because the tinted windows on the vehicle James had been driving constituted a traffic

violation. The district court then turned to the question of whether the officers had a right to detain

James, and it noted that its conclusion was based a credibility determination. The district court

found incredible James’ testimony that he did not know the officers were behind him or that their

lights and siren were activated in an effort to get him to pull over. The district court also found

incredible James’ testimony that the officers’ search of his vehicle was what caused him to tell them

about the firearm. At the same time, the district court found credible the officers’ testimony

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No. 13-3641, United States v. James


regarding James’ tinted windows, the fact that James ran a stop sign, and the fact that James was

fleeing and eluding. The district court reasoned that, even assuming that James was not intentionally

fleeing and eluding, because he pulled into the driveway and got out of the car without

acknowledging the presence of the police behind him, it was reasonable for the officers to detain him

based on reasonable suspicion that James was trying to flee and to elude the officers.

       Next, the district court considered whether the search of the vehicle James had been driving

was justified. The court concluded that, under the automobile exception, the officers had a right to

search the vehicle based on the smell of marijuana coming from James’ person.

       The district court then considered James’ argument that the search of the vehicle was not

valid because the officers had not read him his Miranda rights when they asked him questions that

resulted in his statements about the presence of the weapon and marijuana in the vehicle. The

district court concluded that a Miranda warning was not required because the officers had asked

James the questions about whether he had anything on his person or in his vehicle for purposes of

ensuring officer safety. The court then reiterated that, whether or not a Miranda warning should

have been given, the odor of marijuana still would have been sufficient to justify the search under

the automobile exception.

       Finally, the district court concluded that the inventory search and inevitable discovery

doctrines also justified the search that led to the discovery of the weapon.

       Following the district court’s denial of his motion to suppress, James entered his conditional

guilty plea. Following his conviction and sentencing, James filed a timely notice of appeal.




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No. 13-3641, United States v. James


                                                    II

        James challenges on appeal the district court’s rulings regarding: the officer safety exception

to the Miranda requirement, the automobile exception to the warrant requirement, the inventory

search exception, and the inevitable discovery doctrine. He also asserts that the district court erred

when it failed to conclude that his consent to the search of the vehicle was involuntary, an issue

James concedes “the parties addressed . . . in passing” below.

        We review the district court’s factual findings on a motion to suppress for clear error and its

legal conclusions de novo. United States v. See, 574 F.3d 309, 313 (6th Cir. 2009). The burden of

proof is on the defendant to demonstrate “a violation of some constitutional or statutory right

justifying suppression.” United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003)

(internal quotation marks and citation omitted). When, as here, the district court denied the motion

to suppress, we review the evidence “‘in the light most favorable to the government.’” United States

v. Bell, 555 F.3d 535, 539 (6th Cir. 2009) (quoting United States v. Pearce, 531 F.3d 374, 379 (6th

Cir. 2008)).

        Because we agree with the district court’s determination that the automobile exception to the

warrant requirement applies and provides adequate justification for the search that resulted in

recovery of the weapon on which the count of conviction is based in this case, we need not–and do

not–address the district court’s alternative justifications for the legality of the search of James’

vehicle.

        “The Fourth Amendment forbids law enforcement officers from making unreasonable

searches and seizures, ‘and its protections extend to brief investigatory stops of . . . vehicles that fall

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No. 13-3641, United States v. James


short of traditional arrest.’” United States v. Luqman, 522 F.3d 613, 616 (6th Cir. 2008) (quoting

United States v. Arvizu, 534 U.S. 266, 273 (2002)). “In order to effect a traffic stop, an officer must

possess either probable cause of a civil infraction or reasonable suspicion of criminal activity.”

United States v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012). “Reasonable suspicion to perform a traffic

stop may ripen into probable cause to search a vehicle based on the officer’s interactions with the

vehicle’s occupants.” Id. at 769–70.

       “Under the automobile exception to the warrant requirement, an officer may perform a

warrantless search of a detained vehicle should the officer have probable cause to believe the vehicle

contains contraband or evidence of criminal activity.” Id. at 770. The Supreme Court has held that

“the automobile exception is based on two primary considerations–the ready mobility of motor

vehicles and the reduced expectations of privacy in motor vehicles–which justify searches without

prior recourse to the authority of a Magistrate as long as the overriding standard of probable cause

is met.” United States v. Markham, 844 F.2d 366, 368 (6th Cir. 1988) (citing California v. Carney,

471 U.S. 386, 391 (1985)). “‘[P]robable cause exists when there is a fair probability, given the

totality of the circumstances, that contraband or evidence of a crime will be found in a particular

place.’” United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003) (quoting United States v.

Davidson, 936 F.2d 856, 859 (6th Cir. 1991) (quoting United States v. Loggins, 777 F.2d 336, 38

(6th Cir. 1985) (per curiam))).

       Here, James does not contest the district court’s determination that the initial stop of the

vehicle he was driving was justified due to the officers’ observation of the vehicle’s tinted windows.

Nor does James challenge the district court’s adverse credibility determination, which relates to the

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No. 13-3641, United States v. James


reasonableness of the officers’ decision to detain him and the events that prompted him to tell the

officers that the weapon was in the vehicle. Accordingly, the sole question before this Court is

whether the officers had probable cause to search the vehicle James had just exited.

       James is correct that, although this Court has long recognized that the odor of marijuana

emanating from a vehicle can establish probable cause to believe there is marijuana in the vehicle,

Sixth Circuit precedent has not established that the smell of marijuana on the driver of a vehicle can

give rise to probable cause to search the vehicle for marijuana. See, e.g., United States v. Elkins,

300 F.3d 638, 659 (6th Cir. 2002) (“This 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.”); United States v.

Garza, 10 F.3d 1241, 1246 (6th Cir. 1993) (concluding that a law enforcement officer’s smelling

marijuana while looking inside of a truck during the course of a Terry stop “constituted probable

cause to believe that there was marijuana in the vehicle” and that “[o]nce this probable cause

existed, a search warrant was not necessary”). James’ argument fails to recognize, however, that

the probable cause inquiry looks to the totality of the circumstances. Helton, 314 F.3d at 819.

       Here, the totality of the circumstances included James’ evasive conduct after the officers

clearly signaled him to stop and the strong smell of marijuana emanating from his person

immediately upon exiting his vehicle. The officers observed James accelerate and fail to heed one

or more stop signs while a police cruiser followed him with its lights and sirens activated. They

could have reasonably interpreted this behavior as an attempt to flee. A court may consider evasive

action as one factor among the totality of the circumstances supporting probable cause. See Kerns

v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011); United States v. Humphries, 372 F.3d 653, 657 (4th

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No. 13-3641, United States v. James


Cir. 2004); Tom v. Voida, 963 F.2d 952, 960 (7th Cir. 1992) (reasoning that flight from an officer

“may certainly provide information to ripen an officer’s preexisting suspicions into probable

cause”). The officers also observed the odor of marijuana emanating from James immediately after

he exited his vehicle. The odor on James’ person was not sufficient on its own to provide probable

cause to search the vehicle. But the officers had additional circumstances to support their

assessment that marijuana would be found in the car: They observed James exit his vehicle only

seconds before they searched him and confirmed that he did not have any marijuana on him.

Viewing these specific facts “in the light most favorable to the government,” Bell, 555 F.3d at 539

(internal quotation marks omitted), there was a fair probability that James was in possession of

marijuana during the time period that the officers observed him, and that, because none was found

on James’ person, it would be found in the car James had just exited. The combination of these

circumstances–evasive action, the odor of marijuana emanating from an individual, the failure to

find any marijuana on his person, and the observation that he had exited a vehicle only seconds

before he was searched–provided probable cause for the officers to believe they would find

contraband in James’ automobile.

       Accordingly, viewing the evidence in the light most favorable to the Government, the record

demonstrates that there was at least a fair probability that contraband or evidence of a crime would

be found in the vehicle James had just exited. We are persuaded that the district court correctly

concluded that the search of the vehicle James was driving at the time of his arrest was justified

under the automobile exception to the warrant requirement.




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No. 13-3641, United States v. James


                                             III

       For the foregoing reasons, we AFFIRM the district court’s denial of James’ motion to

suppress and, therefore, AFFIRM his conviction.




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