Summary 2007 WY 129

Summary of Decision issued August 9, 2007

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Case Name: McKenney v. State

Citation: 2007 WY 129

Docket Number: 06-207

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): Mike Cornia, Evanston, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Cara Boyle Chambers, Assistant Attorney General.

Issues: Whether the smell of raw marijuana alone can create probable cause to search a vehicle. Whether the trial court’s finding that a traffic stop on I-80 at night creates an exigency sufficient to justify a warrantless search error.

Facts/Discussion: Appellant entered a conditional guilty plea to the charge of possessing a controlled substance with intent to deliver, a felony. He reserved the right to appeal the district court’s denial of his motion to suppress the marijuana seized during a search of his vehicle following a traffic stop.
Standard of Review: When the Court reviews a district court’s decision on a motion to suppress evidence, the Court defers to the court’s findings on factual issues unless they are clearly erroneous. The constitutionality of a particular search or seizure is a question of law and is reviewed de novo.
Probable Cause: Probable cause justifying a search of a vehicle is established if under the totality of the circumstances there is a fair probability that the car contains contraband or evidence of a crime. In Rideout v. State the Court accepted that an odor, standing alone, can supply probable cause. The United States Supreme Court pointed out in Johnson v. United States that an odor sufficiently distinctive to identify a forbidden substance might be evidence of the most persuasive character.
Exigent Circumstances: The district court ruled that exigent circumstances were required along with probable case, but no such requirement exists. The search was conducted pursuant to the automobile exception to the warrant requirement. The “automobile exception” is more properly defined as a search or seizure of an automobile upon probable cause. No further exigent circumstances are required. The Court ruled that the order of the district court that the automobile exception requires a separate finding of exigency in addition to a finding of probable cause is squarely contrary to the United States Supreme Court’s holdings.

Holding: Under the circumstances of this case, the detection of an odor sufficiently distinctive to identify a forbidden substance by a qualified person is sufficient, standing alone, to establish probable cause for a search of an automobile. The district court’s order denying Appellant’s motion to suppress was affirmed.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/3bzbqy .