United States v. Charles E. McGill
125 F.3d 642
8th Cir.
1997
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LOKEN, Circuit Judge.

After the district court 1 denied his motion to suppress, Charles E. McGill entered a conditional plea of guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). McGill now raises suppression issues on appeal, based upon his contention that а police officer searched his vehicle in a manner contrary to New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). We affirm.

After McGill’s truck rear-ended another vehicle on a public street in East Prairie, Missouri, ‍​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌​​​​​‍police officer Timothy Parker was summoned to investigаte. The district court found that:

In the course of his investigation, Parker sought to obtain the vehicle identification numbеrs (VIN) of the vehicles. To obtain the VIN of McGill’s truck, Officer Parker put only his head inside the open driver’s window while standing оutside the vehicle with McGill standing next to him. The VIN was visible and legible to a person reading it by standing outside the vehicle and looking through the front windshield.
When his head was thus inside the truck, Officer Parker smelled marijuana. He told McGill that he smelled thе odor of marijuana in the vehicle and asked him, “Can I have permission to search your vehicle?” McGill answered in the affirmative.

Parker then searched the cab of the truck, finding marijuana cigarettes in the ashtray and baggies of marijuana behind a loose dashboard panel plate. After arresting McGill, Parker conducted ‍​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌​​​​​‍a further criminal investigative search of the truck at the police station and found the firearm. Police subsequеntly conducted a routine inventory search of the impounded truck.

*644 • After a suppression hearing, the magistrate judge ruled that Officer Parker violated McGill’s Fourth Amendment rights as defined in Class when he put his head in the window of McGill’s truck, rather than reading the VIN from outside the truck. However, the magistrate judge recommended not suppressing the firearm because it would inevitably have been found during the inventory search. In denying McGill’s motion to suppress, the district court did not rеach this issue. Rather, it upheld McGill’s arrest and the subsequent truck searches on the ground that marijuana was inevitably discoverable at the accident scene because Parker would eventually have smelled marijuanа fumes coming out the open window or by opening the vehicle’s door to search for the VIN inside the door jamb, a procedure the Supreme Court approved, at least for older model ears, in Class, 475 U.S. at 118, 106 S.Ct. at 968.

In Class, a poliсe officer searching for a vehicle’s VIN during a routine traffic stop opened the vehicle door, reached into the interior to move papers obscuring the area of the ‍​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌​​​​​‍dashboard where the VIN is located, and observed a firearm protruding from under the driver’s seat. In upholding seizure of the firearm, the Supreme Cоurt cautioned:

We note that our holding today does not authorize police officers to enter a vehicle to obtain a dashboard-mounted VIN when the VIN is visible from outside the automobile. If the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compаrtment to see it.

475 U.S. at 119, 106 S.Ct. at 968-69. Relying on this passage in Class, McGill argues that Officer Parker violated the Fourth Amendment when he put his head inside the cab of a late-model truck whose VIN was observable from outside the vehicle, and that the district court’s finding that the fumes werе otherwise inevitably discoverable is clearly erroneous. Therefore, the initial search was invalid, and thе firearm must be suppressed as the fruit of that unlawful search under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Assuming without deciding that McGill’s Fourth Amendment rights were violated whеn Officer Parker put his head through the truck’s open window, we conclude that the subsequent search of the truck wаs validated by McGill’s voluntary ‍​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌​​​​​‍consent to search. Even if consent is the result, in a “but for” sense, of a Fourth Amendment violation, the consent mil validate a subsequent search if the consent is “sufficiently an act of free will to purge thе primary taint.” United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.1994) (quoting Wong Sun, 371 U.S. at 486, 83 S.Ct. at 416-17), cert. denied, 514 U.S. 1134, 115 S.Ct. 2015, 131 L.Ed.2d 1013 (1995); accord United States v. Thomas, 83 F.3d 259 (8th Cir.1996). That question turns on whether McGill understood his right to withhold consent, the temporal proximity of his consent and the prior Fourth Amendment violation, the presence of intervening circumstances, “and, particularly, the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975).

Here, as in Ramos and Thomas, the request for consent followed immediately upоn the assumed Fourth Amendment violation, without relevant intervening circumstances. But here, as in those eases, it is apparent that McGill understood his right to withhold consent. At the suppression hearing, McGill testified that he did not consent tо the search at all, but instead told Officer Parker that “in most cases before you get in someone’s privatе property and start filtering around you need a. Search Warrant.” The district court credited Officer Parker’s description of the encounter and found that McGill did in fact consent. On appeal, McGill does not contеnd that his consent was coerced or that he did not understand his right to withhold it.

Turning to the most critical factor — the naturе of Officer Parker’s Fourth Amendment violation — we note that Officer Parker was investigating a traffic accident in which McGill was apparently at fault. Ascertaining ‍​​‌​‌‌‌​‌​​​‌​​​‌​‌​‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌​‌‌​​​​​‍the vehicle’s VIN number and determining whether McGill’s driving had been impaired by drugs or alcohol were highly relevant to that investigation. Thus, even if Parker had not smelled marijuana fumes, he could quite *645 properly have asked McGill for permission to search the cab of the truck. See Cady v. Dombrowski, 413 U.S. 433, 441-42, 93 S.Ct. 2523, 2528-29, 37 L.Ed.2d 706 (1973). In these circumstances, McGill’s voluntary consent was “sufficiently an act of free will,” even if Parker’s motive in requesting consent was supplied by an unlawful prior search. Accord, United States v. Liss, 103 F.3d 617, 621-22 (7th Cir.1997); United States v. Sheppard, 901 F.2d 1230 (5th Cir.1990); cf. Whren v. United States, — U.S. —, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

For the foregoing reasons, the judgment of the district court is affirmed.

Notes

1

. The HONORABLE STEPHEN N. LIMBAUGH, United States District Judge for the Eastern District of Missouri.