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COMMONWEALTH OF VIRGINIA v. JONES


COMMONWEALTH OF VIRGINIA
v. JONES

(unpublished)


SEPTEMBER 9, 1997
Record No. 0857-97-3

COMMONWEALTH OF VIRGINIA

v.

GARY LYNN JONES

MEMORANDUM OPINION[1]
BY JUDGE SAM W. COLEMAN III
FROM THE CIRCUIT COURT OF WYTHE COUNTY

J. Colin Campbell, Judge
Present: Judges Baker, Coleman and Overton
Argued by Teleconference

Marla Graff Decker, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellant.

No brief or argument for appellee.


The defendant, Gary Lynn Jones, filed a motion to suppress
methamphetamine and drug paraphernalia recovered in a traffic
stop on the ground that the police, after stopping the vehicle
for speeding, did not have probable cause to search the vehicle
in which he was a passenger. The trial court granted the
defendant’s suppression motion, and the Commonwealth appeals that
ruling pursuant to Code ? 19.2-398(2).
The Commonwealth contends on appeal that the defendant failed to
prove he had standing to challenge the search of the vehicle or
the cooler in which the contraband was found and that the trial
court erred in finding that the police did not have probable
cause to conduct the search.

Assuming without deciding that the defendant had standing to
challenge the search, we find that the police had probable cause
to search the vehicle and the cooler. Accordingly, we reverse the
trial court’s ruling and remand the case for further proceedings.

Because of the mobility of motor vehicles, the United States
Supreme Court has held that they may be searched without
obtaining a warrant if a police officer has probable cause to
believe that the vehicle contains contraband. See United
States v. Ross
, 456 U.S. 798, 806-08 (1982); Carroll v.
United States
, 267 U.S. 132, 149 (1925). "Probable cause
exists when the facts and circumstances within the arresting
officer’s knowledge and of which he has reasonable trustworthy
information are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense [has] been or is
being committed." Saunders v. Commonwealth, 218 Va.
294, 300, 237 S.E.2d 150, 155 (1977).

In this case, we hold that Deputy Murphy had probable cause to
believe that the vehicle contained contraband and was justified
in conducting the search. After stopping the van for speeding,
Deputy Murphy, a motorcycle officer, noticed the odor of
"burnt" marijuana emanating from the van. See United
States v. Haley
, 669 F.2d 201 (4th Cir. 1982) (holding that
probable cause to search a vehicle exists when an officer smells
marijuana inside the vehicle). He asked the defendant, who was in
the passenger seat, to exit the van. The deputy testified that,
"based on the fact that I had already smelled . . .
marijuana [and] knew a crime had been committed in the
vehicle," he patted the defendant down and found a
"roach clip" in his pocket. Deputy Murphy told the
defendant it would be in his best interest to turn over the
marijuana, so the defendant retrieved a "Skoal" tobacco
box containing a partially burned marijuana cigarette from the
rear of the van and gave it to the deputy. Considering the
totality of the circumstances, including the odor of burnt
marijuana, the defendant’s possession of a roach clip and the
defendant retrieving the "Skoal" container from the van
which contained marijuana, Deputy Murphy had probable cause to
believe that a crime was being committed and that the van may
contain contraband.

Although Deputy Murphy initially intended to release the
defendant on a summons "if nothing else developed,"
after the backup unit arrived, Deputy Murphy searched the van and
found methamphetamine and drug paraphernalia in a cooler behind
the passenger seat. The defendant acknowledged that the
contraband in the cooler belonged to him and he was arrested.

"The rationale justifying a warrantless search of an
automobile that is believed to be transporting contraband
arguably applies with equal force to any movable container that
is believed to be carrying an illicit substance." Ross,
456 U.S. at 809. The cooler, which was in the vehicle, was a
container in which contraband of the type the deputy was
searching for could have been located, thus, the deputy was
justified in searching the cooler.

Accordingly, we reverse the trial court’s ruling on the
suppression motion and remand for further proceedings.

Reversed and remanded.

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this
opinion is not designated for publication.

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