United States v. Kevin Kizart (7th Cir. July 2020)

The Federal Docket

August 20, 2020

Warrantless Search/Probable Cause – An officer has probable cause to search an entire car, including the trunk and not just the cabin area, if he or she smells burnt marijuana and the driver/passengers act suspiciously regarding the trunk of the car.

Kevin Kizart was convicted of possession of marijuana and methamphetamine with the intent to distribute both. As Kizart was driving on a highway, he was stopped by an officer for speeding. The officer smelled burnt marijuana emanating from cabin area of Kizart’s car and asked Kizart about the smell. After Kizart told the officer Kizart’s brother had smoked marijuana in the car, the officer patted Kizart down and conducted a search of the cabin area.

After five to seven minutes, Kizart approached the officer “with a smile on his face” and asked if the officer was finished. When the officer asked Kizart to open the trunk, Kizart did not respond for about five seconds, standing still and looking “shocked.” Because of Kizart’s noticeable change in demeanor, the officer became suspicious and used Kizart’s car keys to unlock the trunk. Inside were bags of marijuana and methamphetamine.

Kizart moved to suppress the drugs found in his trunk but was denied by the district court. Kizart then pleaded guilty and was sentenced to sixty months’ imprisonment. He appealed, arguing against the district court’s ruling.

The Court disagreed, holding that there was probable cause to search Kizart’s trunk due to “the smell of burnt marijuana and Kizart’s reaction and behavior when [the officer] asked Kizart about the trunk.”

The Court noted that only the scope of the warrantless search, and whether it included the trunk, was at issue. The Court held that “the smell of burnt marijuana plus other suspicious activity may provide probable cause for the search of an entire vehicle including its trunk” and that Kizart’s noticeable reaction to a specific question about the trunk of his car was relevant to the existence of probable cause.

Appeal from the Central District of Illinois 

Opinion by Brennan, joined by Scudder and St. Eve

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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