21 F.4th 1007
8th Cir.2021Background
- Des Moines Police SET officers driving a marked squad car smelled what they identified as "burnt marijuana" after turning and while following a red Chevrolet Impala for ~30 seconds; the Impala had its passenger window down.
- Officers pulled the Impala over, continued to detect marijuana odor, and during a search found partially smoked marijuana roaches in a covered ashtray, a digital scale with residue, and a loaded 9mm in the center console.
- Shumaker was charged under 18 U.S.C. §§ 922(g)(1), 922(g)(3), 924(a)(2); he moved to suppress evidence from the traffic stop.
- Expert testimony conflicted: Dr. Richard Doty (defense) opined officers could not have smelled marijuana given wind, distance, barriers, and the small amount; David Frye (government) based on interdiction experience testified it was possible and consistent with typical interdiction facts.
- The district court credited the officers and Frye, found the odor was particularized to Shumaker’s vehicle, denied suppression; the Eighth Circuit affirmed.
Issues
| Issue | Shumaker's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the officers’ testimony that they smelled burnt marijuana while trailing the Impala was credible | Testimony was implausible and contradicted by Dr. Doty’s scientific opinion and weather records | Officers’ consistent testimony, corroborating video statements, recovered roaches, and Frye’s interdiction experience support credibility | Court upheld district court: credibility finding not clearly erroneous; officers and Frye credited over Dr. Doty |
| Whether officers had a particularized, reasonable suspicion that the odor came from Shumaker’s vehicle | Odor was not particularized because other vehicles were nearby, follow time was short, and wind could explain delayed detection | Officers ruled out the nearby sedan (previously followed without odor), followed directly behind Impala for ~30s with odor remaining constant, and Impala windows were down | Court held totality of circumstances sufficiently particularized the odor to justify the Terry stop |
Key Cases Cited
- United States v. Williams, 955 F.3d 734 (8th Cir. 2020) (standard for review of suppression rulings and precedent on marijuana odor as probable cause)
- Navarette v. California, 572 U.S. 393 (2014) (reasonable suspicion requires particularized, objective basis)
- United States v. Ramos, 443 F.3d 304 (3d Cir. 2006) (odor can particularize a stop under the totality of circumstances)
- United States v. Smith, 789 F.3d 923 (8th Cir. 2015) (courts do not distinguish faint from strong marijuana odor when assessing prolonging a stop)
- Ybarra v. Illinois, 444 U.S. 85 (1979) (limitations on using a broadly diffuse odor to justify individualized suspicion)
- United States v. Cortez, 449 U.S. 411 (1981) (framework for particularized suspicion under the totality of the circumstances)
- United States v. French, 974 F.2d 687 (6th Cir. 1992) (reasonable suspicion requires less particularity than probable cause)