                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        AUG 11 1998
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                      No. 98-3034
v.

ROBERT LEE DOWNS,

             Defendant-Appellant.




                  Appeal from the United States District Court
                           for the District of Kansas
                           (D.C. No. 97-CR-10034)


Submitted on the briefs:

Warner Eisenbise, Eisenbise Law Office, Wichita, Kansas, for Defendant-
Appellant.

Jackie N. Williams, United States Attorney, and Montie R. Deer, Assistant United
States Attorney, Wichita, Kansas, for Plaintiff-Appellee.


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
                                   INTRODUCTION

       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The court therefore

honors the parties’ requests and orders the case submitted without oral argument.

       Robert L. Downs entered a conditional plea of guilty to a one-count

indictment pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure.

The indictment charged Downs with possession of marijuana with intent to

distribute. Downs now appeals the district court’s denial of his motion to

suppress approximately 200 pounds of marijuana found during a roadside search

of his vehicle. This court exercises jurisdiction pursuant to 28 U.S.C § 1291 and

affirms .



                                    BACKGROUND

       On appeal from the denial of a motion to suppress, this court accepts the

district court’s factual findings unless clearly erroneous and views the evidence

in the light most favorable to the United States, the prevailing party.    See United

States v. Maden , 64 F.3d 1505, 1508 (10th         Cir. 1995). Viewed from that

perspective, the facts surrounding the search of Downs’ vehicle are as follows.




                                             -2-
      On March 7, 1997, Kansas Highway Patrol Officer Eric D. Sauer was

patrolling Interstate 70 when he noticed a gray Ford Taurus following closely

behind another car. Sauer testified that the Taurus was following the other car at

a distance of about eight to ten feet and that Kansas law required a distance of at

least 200 feet. Sauer ran the license tag through dispatch, which indicated the tag

was allegedly registered to a 1985 Mazda and was expired as of February 1996.

In light of this report, Sauer pulled over the Taurus.

      As Sauer approached the Taurus to talk with the driver, he first stopped

and leaned down for several seconds to check out the license tag. When Sauer

moved forward to the driver’s side window, Downs explained that he was driving

a rental car and gave Sauer his driver’s license along with the rental agreement.

During this initial exchange, Sauer testified that he could smell the odor of

marijuana coming from inside the vehicle. The smell of raw marijuana was so

strong that it made Sauer’s nose run and his eyes water. Although Sauer testified

he could smell marijuana coming from inside the vehicle, he admitted he could

not smell it when he leaned down to look at the tag as he first approached the car.

While talking with Downs, Sauer also observed a cologne box and some No-Doz

pills in the front passenger seat and a blue duffel bag in the rear seat.

      Upon returning to his car, Sauer ran the tag through dispatch again. This

time, the tag came back as registered to the car which Mr. Downs was driving.


                                          -3-
While Sauer was writing Downs a warning for following too closely, dispatch

informed Sauer that Downs had a prior felony drug history. Sauer then returned

to Downs, explained that there must have been a computer error with the earlier

information on the tag and issued Downs a warning for following too closely.

Sauer testified he noticed Downs had lit a cigarette while he had been in his

patrol car and that the interior of the car now smelled of cologne. He testified he

asked Downs if he had sprayed the cologne and that Downs had denied doing so.

      After Sauer gave Downs the warning citation and returned his license and

rental papers, Sauer asked Downs if he could search the car. When Downs

refused consent to search, Sauer attempted to obtain a canine unit to sniff the

vehicle. When he found that a canine unit was not available, Sauer told Downs

he had probable cause to search and asked him to get out of the vehicle.

      Sauer began the search by inspecting the inside of the car, including the

duffel bag. He found no incriminating evidence. When Sauer began the search,

he unlatched the trunk from inside the vehicle. As Sauer proceeded with the

interior search, Downs shut the trunk. Sauer then ordered Downs away from the

vehicle and reopened the trunk. Inside the trunk, Sauer found approximately 200

pounds of marijuana loosely wrapped in cellophane. Sauer then arrested Downs

and read him his Miranda rights.




                                         -4-
      After he was indicted on drug charges, Downs moved to suppress the

seized marijuana. The district court denied the motion. This court reviews           de

novo the district court’s ultimate determination that the search of Downs’ vehicle

was reasonable under the Fourth Amendment.            See United States v. Nielsen , 9

F.3d 1487, 1489 (10th Cir. 1993).



                                    DISCUSSION

      “Probable cause to search a vehicle is established if, under the ‘       totality of

the circumstances [,]’ there is a ‘fair probability’ that the car contains contraband

or evidence.”   Id. at 1489-90. In a case involving raw marijuana, this court has

held that “the odor of marijuana alone can satisfy the probable cause requirement

to search a vehicle or baggage.”    United States v. Morin , 949 F.2d 297, 300 (10th

Cir. 1991); see also Nielsen , 9 F.3d at 1490 (quoting       Morin for this proposition).

This seemingly categoric statement is not, however, without limits. In          Nielsen , a

case involving the smell of burnt marijuana,      1
                                                      the court recognized the holding in

Morin but noted that “[t]he scope of a warrantless search of an automobile ‘is

defined by the object of the search and the places in which there is probable


      1
        In defining the limits of its holding, the court noted as follows: “The
officer here said he smelled burnt marijuana, and we need only decide whether
that provides probable cause to search a trunk, after a consented-to search of the
passenger compartment produced no evidence to support the officer’s suspicions.”
United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993).

                                            -5-
cause to believe that it may be found.’”     Nielsen , 9 F.3d at 1491 (quoting     United

States v. Ross , 456 U.S. 798, 824 (1982)). The court held:

             The smell of burnt marijuana would lead a person of ordinary
       caution to believe the passenger compartment might contain
       marijuana. In the instant case, [the] consensual search of the
       passenger compartment revealed no marijuana or related contraband.
       We do not believe under the circumstances that there was a fair
       probability that the trunk contained marijuana, or that a disinterested
       magistrate would so hold if asked to issue a search warrant.

Id. ; see also United States v. Parker   , 72 F.3d 1444, 1450 (10th     Cir. 1995)

(holding, in a case involving the smell of burnt marijuana, that the “odor of

marijuana in the passenger compartment of a vehicle does not, however, standing

alone, establish probable cause to search the trunk of the vehicle”).

       Accordingly, this court has established a commonsense distinction between

the smells of burnt and raw marijuana based on the imperative that the scope of a

warrantless search “is defined by the object of the search and the places in which

there is probable cause to believe that it may be found.”       United States v. Ross ,

456 U.S. 798, 824 (1982). As to the smell of burnt marijuana,            Nielsen and

Parker recognize that the smell of burnt marijuana is generally consistent with

personal use of marijuana in the passenger compartment of an automobile. In

such a case, therefore, 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.              See Nielsen , 9 F.3d at


                                             -6-
1490-91; Parker , 72 F.3d at 1450. When, on the other hand, an officer

encounters, as was the case here, the overpowering smell of raw marijuana, there

is a fair probability that the car is being used to transport large quantities of

marijuana and that the marijuana has been secreted in places other than the

passenger compartment. Accordingly, in such circumstances, a search of the

trunk is appropriate.   See Morin , 949 F.2d at 300.



                                     CONCLUSION

       In the case at hand, Sauer testified and the district court found that a strong

smell of raw marijuana emanated from Downs’ vehicle at the time of the stop.

Sauer thus had probable cause to search the trunk of the vehicle and the district

court correctly denied Downs’ motion to suppress. The judgment of the United

States District Court for the District of Kansas is therefore   AFFIRMED .




                                             -7-
