vehicle was never searched in his presence at the scene. Motion at para. 11.
Claimant subsequently flunked a breathalyzer test. Although the Affidavit does not state that the "cigarette" when tested was determined to be marijuana, plaintiff's Verified Complaint for Forfeiture alleges that marijuana was being transported or concealed in the defendant vehicle and claimant does not deny that marijuana was present in the vehicle.
Officer Szkolka initially stopped the claimant because the defendant vehicle "was being driven in an erratic manner," an articulable and reasonable suspicion that claimant was intoxicated, justifying the initial seizure of the claimant and the defendant vehicle. See United States v. Rodriguez-Pando, 841 F.2d 1014, 1017 (10th Cir. 1988) citing United States v. Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985); United States v. Hairston, 439 F. Supp. 515, 516 (N.D.Ill. 1977). Claimant does not deny that probable cause existed to stop the defendant vehicle and arrest claimant for driving under the influence of alcohol.
Officer Szkolka claims he entered the defendant vehicle with claimant's consent. If claimant consented, his motion must be denied. On the other hand, even if claimant did not consent, Officer Szkolka had the right to enter, remove the defendant vehicle from the public way, and secure it against vandalism. United States v. McCambridge, 551 F.2d 865, 870 (1st Cir. 1977); citing South Dakota v. Opperman, 428 U.S. 364, 369, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). Having arrested claimant for driving while under the influence of alcohol, it would not have been reasonable for Officer Szkolka to allow the claimant to reenter and drive the vehicle.
Claimant next argues that he did not consent to the "search." Claimant further implies, without citing authority, that since the defendant vehicle was searched after he was removed from the scene, the search cannot be justified as incident to claimant's arrest and is not otherwise supported by probable cause. Yet, the contraband marijuana was not discovered as a result of a search, rather it was in "plain view" in the open ashtray. Texas v. Brown, 460 U.S. 730, 739, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983); Harris v. United States, 390 U.S. 234, 236, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968) ("Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence"). The outcome does not change under claimant's version, which requires the court to assume that the contraband marijuana was not in "plain view" (the ashtray was closed), but was discovered as a result of a search. The odor of burning marijuana that Officer Szkolka smelled immediately upon entering the defendant vehicle provided probable cause for Officer Szkolka to believe that the defendant vehicle contained contraband, justifying an immediate warrantless search of the defendant vehicle. See Carroll v. United States, 267 U.S. 132, 149, 69 L. Ed. 543, 45 S. Ct. 280 (1925).
Claimant's motion to suppress is denied.
IT IS SO ORDERED.
DATED: June 8, 1989
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