Ferguson v. StateFerguson v. State
- Reporters:
- ,
- Before:
- Bussey
Lead Opinion
OPINION
BUSSEY, Judge:Appellant, Jeffrey Don Ferguson, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Caddo Cоunty, Case No. CRM-73-83, for the offense of Unlawful Possession of Marijuana. His punishment was fixed at a term of thirty (30) days in the Caddo County Jail and from said judgment and sentence, a timely appeal has been perfected to this Court.
The defendant’s sole proposition of error asserts that the trial court erred in overruling the defendant’s motion to suрpress.
Briefly stated the facts surrounding the search of the defendant’s automobile, which resulted in the seizure of two “baggies of marijuanа,” same being admitted as evidence, is as follows:
On February 2, 1973, Troopers Curtis Rushing and Jack Abbott, of the Oklahoma Highway Patrol, stopped thе defendant and his passengers on I — 40 after clocking the defendant’s automobile at 90 miles per hour. After stopping the automobilе, Trooper Rushing approached the vehicle and smellеd a strong odor, in his opinion, of marijuana. Officer Rushing then looked around inside the automobile and observed two partially burned, hand-rolled cigarettes still burning in the ashtray. He then removed the keys from the ignitiоn of the automobile and opened the glove compartment, which was locked. From the glove compartment, he remоved two plastic baggies containing a green,’ leafy substancе, later determined to be marijuana by the Oklahoma Bureau of Investigation Crime Laboratory.
The defendant’s argument is that based on these facts, his motion to suppress should have been sustained by reаson of an unlawful search and seizure. In the case of Carroll v. Unitеd States, 267 U.S, 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the *820United States Supreme Court stated at page 149, of the official opinion, 45 S.Ct. at page 283:
“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or оther vehicle contains that which by law is subject to seizure and destruсtion, the search and seizure are valid.”
Also see Gaston v. State, Okl.Cr., 457 P.2d 807 (1969) and United States v. Haith, 4 Cir., 297 F.2d 65 (1961).
Therefore, the questiоn for this Court to decide is, does the fact that Trooper Rushing smelled a strong odor of marijuana and observed two partially burned, hаnd-rolled cigarettes burning in the ashtray constitute sufficient probable cause to search the locked glove compartmеnt for contraband. It is our opinion that the fact the arresting offiсer was in a place he had a right to be, had detected thе odor of marijuana, had observed two hand-rolled cigarettеs in the ashtray still burning constituted sufficient probable cause for him to sеarch the locked glove compartment upon the beliеf that marijuana was contained in the defendant’s automobile. Wе therefore find this proposition to be without merit.
Finding no error sufficiеnt to warrant modification or reversal, it is our opinion that the judgmеnt and sentence appealed from should be, and the samе is hereby, affirmed.
BLISS, P. J., concurs. BRETT, J., specially concurs.
Concurrence Opinion
(specially concurring):
I concur that the evidence found on defendant is sufficient to sustain this conviction, but I believe defendant’s motion to suppress was valid as it pertained to the evidence found in the glоve compartment. Therefore, I concur that the judgment and sentence should be affirmed.