Case: 14-11852   Date Filed: 01/05/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11852
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:13-cr-00476-RAL-MAP-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

CARL BRUCE SMITH, JR.,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (January 5, 2015)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Carl B. Smith, Jr., appeals his conviction for possessing a firearm as a

convicted felon, in violation of 18 U.S.C. § 922(g)(1), after the district court

denied his motion to suppress evidence found during a warrantless search of his

car. Smith argues that the police did not have probable cause to search the car, so

the gun found during the search should have been suppressed. After careful

review, we affirm.

                                          I.

      On the night of Smith’s arrest, Officer Scott Durivou was on patrol alone in

the vicinity of an apartment complex whose residents had complained of ongoing

drug activity in the area. Around 11:00 p.m., Durivou saw Smith and another man

on a picnic table outside the complex. From a distance of about one hundred feet,

and over the course of about thirty minutes, Durivou observed Smith get up several

times from the picnic table to access the interior cabin and the trunk of a car, which

was about six to eight feet away.

      Durivou approached the men and, on the way, observed them lighting

something repeatedly in a way that led Durivou to believe that they were doing

drugs, rather than, say, lighting a cigarette. As Durivou got closer, he could smell

burnt marijuana, and he saw Smith quickly put down what looked like a hand-

rolled “blunt.” After confronting the two men, Durivou broke open the blunt,

which contained marijuana, and then arrested Smith. A search incident to arrest


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revealed that Smith had no contraband on his person, but Durivou did find keys to

the car.

      Durivou then requested, but was denied, permission from Smith to search

the car, the front windows of which were about halfway down. According to

Durivou, he proceeded to search the car, notwithstanding the lack of consent and

without waiting for a drug dog, because he could smell the odor of fresh marijuana

coming from inside the car. Once inside the car, he found that the marijuana odor

was stronger in the back seat, which led him to open and search the trunk. In the

trunk, Durivou observed in plain view a clear baggie containing about ten grams of

marijuana, and a further search of the trunk revealed a firearm and loaded

magazine hidden in a sweatshirt.

      A federal grand jury indicted Smith on one count of possessing a firearm as

a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Smith filed a motion to

suppress evidence obtained from the warrantless search of the car, arguing that the

search of the car was not supported by probable cause.

      At a suppression hearing before the district court, Durivou testified to the

facts detailed above. Smith in turn contended that Durivou’s testimony that he

could smell, from outside of the car and through the halfway-open front windows,

the odor of a small amount of marijuana in the trunk of the car was “just

incredulous.” Smith also challenged Durivou’s testimony on the basis that the


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police report he filed after the incident stated that he smelled burnt marijuana

coming from inside the car, rather than fresh marijuana.       At the suppression

hearing, Durivou stated that he had made a mistake in the report and clarified that

he had smelled fresh marijuana inside the car.

      After hearing arguments from the parties, the district court orally denied the

motion to suppress. In relevant part, the court concluded:

                  With regard to Officer Durivou, it’s true he made
            what could be considered a mistake in his report, calling
            it burnt as opposed to fresh, but the thrust of his
            testimony is that he smelled marijuana. All right. He’s
            corrected that today. I don’t find that he’s in any way
            misrepresented or deceived this court in his testimony.

                   There is nothing here that would support the
            premise that he was unable to smell marijuana when he
            was in the back seat of the car, so I don’t find anything
            improbable or unbelievable about his testimony. And I
            reject any notion that he would get up here and perjure
            himself for a case like this. So I’ll find that he had
            probable cause to go inside the vehicle. While in there,
            he also, having smelled the odor of marijuana in the back
            seat in the proximity of the trunk, he then had probable
            cause to go in the trunk and seize the marijuana as well
            as the firearm.

      Following the denial of his motion to suppress, Smith was found guilty at a

bench trial based on stipulated facts.       He was sentenced to 27 months of

imprisonment. This appeal followed.




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                                          II.

      When reviewing a district court’s denial of a motion to suppress, we review

findings of fact for clear error and the court’s application of law to those facts de

novo. United States v. Ransfer, 

, 921 (11th Cir.), cert. denied, 135 S.

Ct. 392 (2014). The facts are construed in the light most favorable to the party

prevailing in the district court—here, the government. 

defer to the

district court’s credibility determinations unless the testimony is “contrary to the

laws of nature, or is so inconsistent or improbable on its face that no reasonable

factfinder could accept it.” United States v. Ramirez-Chilel, 

, 749

(11th Cir. 2002) (quotation marks omitted).

                                         III.

      A warrantless search of an automobile is constitutional if (1) the automobile

is readily mobile and (2) there is probable cause to believe that it contains

contraband or evidence of a crime. United States v. Lanzon, 

, 1299-

1300 (11th Cir. 2011). The first prong is satisfied if the car is operational, which is

not contested here. United States v. Watts, 

, 1286 (11th Cir. 2003).

Regarding the second prong, probable cause exists when, under the totality of the

circumstances, there is a fair probability that contraband or evidence of a crime

will be found in the vehicle. 

. Probable cause may arise

when an officer, through training or experience, detects the smell of marijuana.


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United States v. Tobin, 

, 1512 (1991) (en banc); United States v.

Lueck, 

, 903 (11th Cir. 1982).

      The only issue on appeal in this case is whether the warrantless search of the

car was supported by probable cause. Probable cause in turn depends on whether

Durivou’s testimony that he smelled marijuana coming from the car is creditable.

At the suppression hearing, Durivou testified that, based on his training and

experience, he recognized the smell of fresh marijuana coming from inside the car.

That training and experience included working on hundreds of cases involving

marijuana, receiving training in detecting marijuana, and personally smoking

marijuana in the twelfth grade. Recognizing that there “may be some troubling

aspects” about Durivou’s testimony, the district court, nevertheless, credited

Durivou’s testimony that he could smell the odor of marijuana coming from inside

the car, and we must defer to the court’s credibility determination unless no

reasonable factfinder could accept the testimony. 

.

      Even if we thought that it would have been unlikely for the odor of

marijuana in the trunk to be detectable from outside the car, which we need not

decide, it is entirely possible that the marijuana was located in the passenger cabin

immediately before Durivou approached Smith, leaving a lingering odor. Indeed,

Durivou observed Smith accessing both the interior of the car and the trunk several

times before Smith was caught with the hand-rolled blunt. So Smith could have


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moved the marijuana from the interior of the car to the trunk before smoking the

blunt on the picnic table. Consequently, nothing about Durivou’s testimony that he

smelled the odor of fresh marijuana coming from the interior of the car strikes us

as contrary to the laws of nature, inconsistent, or improbable on its face.

      Because Durivou detected marijuana in the vehicle, and because the district

court credited Durivou’s testimony and we do not find his testimony in this respect

to be contrary to the laws of nature or otherwise so improbable that no reasonable

factfinder could accept it, he had probable cause to conduct a warrantless search of

the car. See 

; 

; 

. The permissible scope of the search included the trunk, particularly in light of

Durivou’s testimony that the smell of marijuana was stronger in the back seat. As

the Supreme Court has explained, “If there is probable cause to believe a vehicle

contains evidence of criminal activity, [the Court’s case law] authorizes a search of

any area of the vehicle in which the evidence might be found.” Arizona v. Gant,

, 347, 

, 1721 (2009) (citation omitted). Here, that

included the trunk. Accordingly, based on its credibility determination, the district

court did not err in denying Smith’s motion to suppress.

      Smith’s conviction is, therefore, AFFIRMED.




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