United States District Court, D. Delaware
25, 2017, the Grand Jury for the District of Delaware
indicted Defendant Dennell Harrison ("Harrison")
for Stealing Firearms From a Federally Licensed Firearms
Dealer, 18 U.S.C. §§ 922(u) and 2; Conspiring to
Steal Firearms from a Federally Licensed Firearms Dealer, 18
U.S.C. § 371; and Possession of a Firearm by a
Prohibited Person, 18 U.S.C. §§ 922(g)(1) and
924(a)(2). (D.I. 12.) Presently before the court is
Harrison's Motion to Suppress Evidence. (D.I. 26.) The
court held an evidentiary hearing on November 29, 2107 and
subsequently directed the parties to file supplemental
briefing. (D.I. 35) After having considered the testimony
elicited during the hearing and the arguments presented in
the parties' submissions on the issues, the court will
deny Harrison's motion to suppress.
FINDINGS OF FACT
evidentiary hearing, the United States called two witnesses:
Justin Richey ("Richey"), a Dover Police Officer,
and Christopher Bumgarner ("Bumgarner"), an A.T.F.
Task Force Officer. After listening to the testimony of the
witnesses, the court concludes that the testimony provided by
Richey and Bumgamer is credible. The following represents the
court's essential findings of fact as required by Rule
12(d) of the Federal Rules of Criminal Procedure.
November 29, 2016, Marshals from the United States Marshal
Task Force were conducting surveillance on Harrison, and
reported over the police radio the direction in which his
vehicle was traveling. (Tr. 8:16-24.) Harrison, who had
several outstanding warrants for his arrest at the time of
the surveillance, was driving what Richey described as a
silver SUV. (Tr. 11:13-14, 16:21-25.) As Richey and
Senior Probation Officer Dan Stagg
("Stagg") were getting into Richey's vehicle to
follow Harrison, the surveillance units were advising that
Harrison's SUV had stopped in the parking lot of Eden
Hill Medical Center on 100 Banning Street in Dover, Delaware.
(Tr. 10:12-11:1, 11:6-7.)
being informed that Harrison's vehicle had come to a
stop, Richey drove about 600 yards to the scene. (Tr.
11:2-5.) He arrived in under one minute. (Tr. 23:16-23.)
Richey and Stagg pulled up behind Harrison's vehicle
which was parked at the northeast corner of the parking lot
in an open area that was "far away" from the
building, and was not near any other vehicles or pedestrians.
(Tr. 11:16-18, 11:23-25, 24:8-9.) Neither the surveillance
officers, nor Richey and Stagg observed anyone exit the
vehicle. (Tr. 9:1-6, 11:21-22.)
exited his vehicle and approached the driver's side of
Harrison's vehicle. (Tr. 9:8-9.) Stagg approached the
passenger's side. (Tr. 9:8-10.) Stagg informed Richey
that he saw Harrison laying down in the back seat. (Tr.
9:11-12, 15:11-15.) Richey was unable to see Harrison as he
approached. (Tr. 24:13-16.) As Richey began making his way
around the rear of the vehicle to meet Stagg on the passenger
side, Stagg was ordering Harrison to show his hands and exit
the vehicle. (Tr.'9:7-15.) When Stagg opened the
SUV's backdoor, he stepped to the left "so as to not
be caught behind the door." (Tr. 13:8-9.) Stagg then
removed Harrison from the vehicle and placed him under arrest
pursuant to outstanding warrants. (Tr. 9:18-19, 16:21-25.)
Richey testified that at the time Stagg opened Harrison's
door to retrieve him, he smelled the odor of marijuana. (Tr.
9:7-17, 13:14-15, 15:3-6.) Richey further testified that he
did not smell marijuana at any other point before Stagg
opened the SUV's door. (Tr. 15:3-6.)
the course of Richey's career as a Dover Police Officer
and officer with the Delaware Department of Corrections, he
became familiar with the smell of marijuana-encountering it
"several hundred times" in its raw, burnt, freshly
burnt, and stale states. (Tr. 6:7-7:20.) This experience led
Richey to conclude that what he smelled when he opened the
vehicle's door was "a hundred percent marijuana,
smelled like, it's like a fresh burnt marijuana, like
somebody had recently smoked marijuana." (Tr. 13:18-20.)
Indeed, Richey was able to characterize the strength of the
marijuana odor as "moderate." (Tr. 25:4-11.)
Richey's conclusion regarding the marijuana smell seem to
find further support in a statement by Harrison. Though made
post arrest, and therefore does not a factor directly into
the probable cause calculus, Harrison explained to Bumgarner
that he was "self-medicating [a gunshot wound] with
marijuana." (Tr. 28:10-15.) Again, while not a fact upon
which the court relies in its probable cause determination,
it is a fact that tends to support the court's conclusion
that Richey's testimony concerning the marijuana odor was
testified that the presence of the marijuana odor led to the
search of Harrison's vehicle. (Tr. 9:7-20, 13:21-22.)
After Harrison was taken into custody, Corporal Barrett
("Barrett") arrived on the scene with PFC James
Johnson ("Johnson") to assist in the search of the
vehicle. (Tr. 13: 13-23.) Richey began his search of the
vehicle starting first with the driver's side and making
his way around to the passenger side. (Tr. 9:22-24.) Barrett
started by opening up the back hatch to the SUV's rear
storage area. (Tr. 9:25-10:1.) He then removed bags from the
rear storage area one-by-one and placed them on the pavement
next to the vehicle. (Tr. 10:4- 6.) Though it is not clear
how Barrett discovered the gun, when Barrett reached a white
"grocery style bag" he informed Richey that there
was a gun in the bag. (Tr. 10:8-10.) Barrett then opened the
bag for Richey to look inside and, therein, he saw a black
handgun. (Tr. 10:10-11.) The black handgun was later found to
have been connected to a gun store burglary where several
guns were taken. (Tr. 29:3-10.) At the conclusion of the
search, the officers found no marijuana or paraphernalia.
support of his motion, Harrison argues that the handgun
obtained as a result of the above-described search must be
suppressed as product of an unconstitutional search in
violation of the Fourth Amendment. (D.I. 36 at 2.)
Specifically, Harrison argues that the search was
unreasonable under Arizona v. Grant, 556 U.S. 332
(2009) because the search exceeded the permissible scope of
the search incident to arrest exception to the Fourth
Amendment's warrant requirement. (D.I. 36 at 2.) As a
result, Harrison requests that the handgun be suppressed.
(D.I. 36 at 1.)
the government argues that the search was reasonable under
the automobile exception to the warrant requirement because
Richey testified that he smelled marijuana coming from within
Harrison's SUV, which led to his search. (D.I. 37 at
3-7.) According to the government, the marijuana odor
established probable cause to conduct a full search of the
vehicle. (Id.) Because the government contends that
the search was constitutional, the government urges the court
to deny Harrison's request to suppress the handgun. (D.I.
37 at 7.) The court agrees with the government.
Fourth Amendment protects citizens from unreasonable searches
and seizures. U.S. Const, amend. IV. A warrantless search is
presumptively unreasonable unless it is conducted pursuant to
an exception to the Fourth Amendment's warrant
requirement. United States v. Ramos, 443 F.3d 304,
308 (3d Cir. 2006). One such exception is the
"automobile exception." United States v.
Brown, 261 Fed.Appx. 371, 373 (3d Cir. 2008) (citing
United States v. Burton, 288 F.3d 91, 100 (3d Cir.
2002). The automobile exception permits law enforcement
officers to "search an automobile without a warrant if
there is probable cause to believe that the vehicle contains
contraband." Id. Probable cause is determined
from the perspective of an objective law enforcement officer
in light of the totality of the circumstances known to that
officer at the time the search was conducted. See e.g.,
Illinois v. Gates, 462 U.S. 213, 269 (1983); see
also Ramos, 443 F.3d at 759. The smell of marijuana
alone is sufficient to constitute probable cause so long as
it is articulable and particularized. United States v.
Ushery, 400 Fed.App'x 674, 675 (3d Cir. 2010);
see also Ramos, 443 F.3d at 308 ("It is well
settled that the smell of marijuana alone, if articulable and
particularized, may establish not merely reasonable
suspicion, but probable cause"); U.S. v.
Humphries, 372 F.3d 653, 658 (4th Cir. 2004) ("We
have repeatedly held that the odor of marijuana alone can
provide probable cause to believe that marijuana is present
in a particular place."); U.S. v. Winters, 221
F.3d 1039, 1042 (8th Cir. 2000) (holding that the smell of
raw marijuana "created probable cause to search [a
car]"); US. v. Parker, 72 F.3d 1444, 1450 (10th
Cir. 1995) ("If an officer smells marijuana in the
passenger compartment of a vehicle, he has probable cause to
search the passenger compartment."). When marijuana odor
is localized to. within an identifiable automobile and an
experienced officer testifies confirming that the odor was
indeed marijuana, the smell of marijuana will be found to
have been sufficiently articulable and particularized to
establish probable cause to search the vehicle.
Ushery, 400 Fed.App'x at 676. "If probable
cause exists, officers may search any part of the vehicle -
including containers - that might conceal contraband."
Brown, 261 Fed.Appx. at 373.
the smell of marijuana was sufficient to establish probable
cause to search Harrison's SUV and the bags within.
First, based on Richey's testimony, the smell of
marijuana was particularized to Harrison's vehicle.
Ramos, 443 F.3d at 760 (noting that for probable
cause, the smell of marijuana must be particularized to a
specific person or place) (citing Humphries, 372
F.3d at 659. Richey testified that first time he smelled the
marijuana odor was when Stagg opened the door to
Harrison's SUV and he smelled the odor coming from within
the vehicle. (Tr. 15:3- 6.) He did not smell the marijuana
upon approaching the ...