U.S. v. McSween

In U.S. v. McSween, 53 F.3d 684, 685 (5th Cir. 1995), the driver of a vehicle was stopped by two Texas Department of Public Safety officers for driving in excess of the posted speed limit. One of the officers asked the driver if he could search the car, including the trunk. Id. The driver consented. Id. The officer "noticed the smell of burnt marihuana" but did not find any evidence in the vehicle during the initial search to confirm his belief. Id. Under the hood of the vehicle, the officer removed a rag from a hole in the vehicle's fire wall and found a brown paper bag. Id. Believing that the bag contained marijuana, the officer arrested the driver. Id. at 685-86. The car was impounded and additional marijuana, as well as cocaine, were discovered in the hole under the hood of the vehicle. Id. at 686. On appeal, the driver argued that: (1) his consent to search the car did not extend to areas under the hood of the vehicle and (2) "even if the odor of marihuana gave the officer probable cause to search, the search should have been limited to the passenger area, where the officer detected the smell." Id. at 687. The court disagreed, stating: It is well settled that, in a case such as this, the detection of the odor of marihuana justifies "a search of the entire vehicle." U.S. v. Reed, 882 F.2d 147, 149 (5th Cir. 1989). As the Supreme Court stated in Ross, "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." 456 U.S. at 825, 102 S. Ct. at 2173. See also United States v. Johns, 469 U.S. 478, 482, 105 S. Ct. 881, 884, 83 L. Ed. 2d 890 (1985). The Court further observed that, if there is probable cause to suspect that the vehicle contains contraband, then the search may extend not only to closed containers, but also to a "car's trunk or glove compartment." Ross, 456 U.S. at 823, 102 S. Ct. at 2172. The same reasoning applies to the area under the hood, where drugs may also be concealed. (Id. at 687.)