USA v. Monroe Avant, Jr.

Filing

Per Curiam OPINION filed : The district court's denial of the defendants' motion to suppress is AFFIRMED. Decision not for publication. Karen Nelson Moore, Jeffrey S. Sutton,and Bernice Bouie Donald, Circuit Judges. [15-2037, 15-2197]

Case: 15-2037

Document: 21-2

Filed: 05/31/2016

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0286n.06
Nos. 15-2037/15-2197
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MONROE AVANT, JR.;
TODD SELMA,
Defendants-Appellants.

)
)
)
)
)
)
)
)
)
)
)

May 31, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: MOORE, SUTTON, and DONALD, Circuit Judges.
PER CURIAM. Monroe Avant, Jr., and Todd Selma appeal the district court’s denial of
their joint motion to suppress. We affirm.
On March 18, 2014, law enforcement officers executed a search warrant at 3909 Spruce
Street, Inkster, Michigan. Shortly before law enforcement’s arrival, a white Buick Regal pulled
into the driveway, and Selma, the passenger, exited the vehicle and entered the residence. When
law enforcement arrived, Avant, the driver, exited the vehicle and put his hands up; he was
handcuffed and questioned away from the vehicle. Selma fled the house and was apprehended a
block away. A search of the Buick uncovered an AR-15 rifle, marijuana, and heroin.
A federal grand jury subsequently charged Avant and Selma with possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1). Avant moved to suppress the firearm and drugs
seized during the warrantless search of the Buick; Selma filed a notice of joinder and
concurrence in the motion. After an evidentiary hearing, the district court denied the defendants’

Case: 15-2037

Document: 21-2

Filed: 05/31/2016

Page: 2

Nos. 15-2037/15-2197
United States v. Avant
motion to suppress based on two exceptions to the warrant requirement: (1) the detection of a
drug odor coming from the vehicle and (2) the plain-view doctrine. Both defendants entered into
plea agreements preserving the right to appeal the denial of their motion to suppress. Avant
pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and
received a 46-month sentence. Selma pleaded guilty to possession of a stolen firearm, in
violation of 18 U.S.C. § 922(j), and received a 71-month sentence. This timely appeal followed.
“When reviewing the denial of a motion to suppress, we review the district court’s factual
findings for clear error and its legal conclusions de novo.” United States v. Hinojosa, 606 F.3d
875, 880 (6th Cir. 2010). In doing so, we consider the evidence in the light most favorable to the
government. United States v. Johnson, 707 F.3d 655, 658 (6th Cir. 2013).
“If there is probable cause to believe a vehicle contains evidence of criminal activity,” an
officer may search “any area of the vehicle in which the evidence might be found.” Arizona v.
Gant, 556 U.S. 332, 347 (2009). We have “held that an officer’s detection of the smell of
marijuana in an automobile can by itself establish probable cause for a search.” United States v.
Elkins, 300 F.3d 638, 659 (6th Cir. 2002) (citing United States v. Garza, 10 F.3d 1241, 1246 (6th
Cir. 1993)). Here, Sergeant Paul White testified that he is familiar with the odor of marijuana
and that, as he approached the driver’s door of the Buick, he could smell burnt marijuana.
Captain Daniel Voltattorni also testified that he is familiar with the odor of marijuana and that, as
he placed Avant in handcuffs and moved him away from the vehicle, he detected an odor of
burnt marijuana emanating from both Avant and the vehicle.
The defendants contend that the district court should have credited the testimony of
Coreathen Avant, Avant’s wife and the Buick’s owner. While Mrs. Avant denied smelling burnt
marijuana in her vehicle, she admitted that she did not know what happened in the car on March

-2-

Case: 15-2037

Document: 21-2

Filed: 05/31/2016

Page: 3

Nos. 15-2037/15-2197
United States v. Avant
18, 2014, between when her husband dropped her off at work at 4:30 a.m. and when the search
warrant was executed later that morning. The district court acknowledged the defendants’
argument that there was no physical evidence of burnt marijuana in the vehicle but found that the
testimony of Sergeant White and Captain Voltattorni, who both testified to smelling burnt
marijuana, was credible.

We give “great deference” to the district court’s credibility

determinations. United States v. Navarro-Camacho, 186 F.3d 701, 707 (6th Cir. 1999). The
defendants also argue that law enforcement should have used canine units to inspect the Buick to
detect the presence of marijuana. But the defendants have not cited any authority that requires
the use of a canine unit to detect the presence of narcotics when an officer has already smelled
narcotics. The district court did not clearly err in finding that the officers testified credibly that
they smelled marijuana. Nor did the district court err in concluding that the smell of marijuana
provided probable cause to search the Buick without a warrant.
The plain-view doctrine provided an independent basis to support the warrantless search
of the Buick. Under the plain-view doctrine, “if police are lawfully in a position from which
they view an object, if its incriminating character is immediately apparent, and if the officers
have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v.
Dickerson, 508 U.S. 366, 375 (1993). “[A] motorist has ‘no legitimate expectation of privacy
shielding that portion of the interior of an automobile which may be viewed from outside the
vehicle by either inquisitive passersby or diligent police officers.’” United States v. Galaviz,
645 F.3d 347, 355 (6th Cir. 2011) (quoting United States v. Campbell, 549 F.3d 364, 373 (6th
Cir. 2008)). Here, the officers were lawfully present at 3909 Spruce Street to execute a search
warrant. Sergeant White testified that he looked into the driver’s side window of the Buick and
saw what appeared to be the butt of an AR-15 rifle between the center console and the

-3-

Case: 15-2037

Document: 21-2

Filed: 05/31/2016

Page: 4

Nos. 15-2037/15-2197
United States v. Avant
passenger’s seat. Captain Voltattorni testified that, when he reached inside the vehicle to turn
the ignition off, he noticed a rifle on the passenger’s side. Other officers testified that they saw
the rifle in plain view. The incriminating nature of the rifle was immediately apparent, see, e.g.,
Mich. Comp. Laws § 750.227d(1)(a), and provided probable cause to believe that the vehicle
contained evidence of a crime, authorizing the officers to search the vehicle and giving them a
lawful right of access to its interior. See Galaviz, 645 F.3d at 357.
The defendants attempt to attack the credibility of the officers’ testimony about the rifle.
But the officers’ testimony was not “so internally inconsistent or implausible on its face that a
reasonable factfinder would not credit it.” Anderson v. City of Bessemer City, 470 U.S. 564, 575
(1985).
Selma’s reliance on Gant is misplaced because that case involved the search of a vehicle
incident to an arrest. See 556 U.S. at 335. The Buick was not searched incident to an arrest but
was searched based on the officers’ detection of the smell of marijuana and observation of the
rifle in plain view.
For the foregoing reasons, we AFFIRM the district court’s denial of the defendants’
motion to suppress.

-4-