SCHWARTZMAN, Chief Judge.
Kevin C. Schmadeka appeals the denial of his motion to suppress drug evidence seized from a search of his automobile and his home. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On August 5, 1999, Idaho State Police Trooper Peter Bowes observed a 1981 Datsun coupe with a horizontal crack running across the middle of the windshield. Bowes also noticed that the driver was not wearing his seatbelt. Bowes conducted a traffic stop within the city limits of Post Falls and contacted the driver, Kevin Schmadeka.
While Schmadeka was searching for his registration and insurance documents, Trooper Bowes noticed a "M-800" firecracker, a large explosive type of firework that he believed to be illegal in Idaho, inside the vehicle. Trooper Bowes also noticed a slight odor of burnt marijuana coming through the open window. When asked about the faint odor of burnt marijuana, Schmadeka had no explanation. Schmadeka denied having any marijuana in the car.
Bowes returned to his vehicle and requested a driver's status report and backup from the Post Falls Police Department. Upon returning to the Datsun, Bowes told Schmadeka that he would receive a warning for the vehicle's cracked windshield and for failure to wear his seatbelt. Bowes then ordered Schmadeka out of the Datsun and
Believing that the contents of the trunk were evidence of an active methamphetamine laboratory, Bowes arrested Schmadeka for manufacturing methamphetamine. Schmadeka was Mirandized and, for the next hour and fifteen minutes, held in the back of a police car, or on an adjacent lawn, while officers repeatedly asked him to cooperate by consenting to a search of his house. Schmadeka eventually agreed, and the ensuing search of his home revealed more evidence of methamphetamine manufacturing, as well as methamphetamine, marijuana, and drug paraphernalia.
Schmadeka was charged with possession of a controlled substance with intent to deliver, I.C. § 37-2732(a)(1)(A); possession of marijuana in an amount less than three ounces, I.C. § 37-2732(c)(3); and possession of drug paraphernalia, I.C. § 37-2734(A)(1). Counsel for Schmadeka moved to suppress all evidence seized after the initial stop on the ground that the search of Schmadeka's car was unreasonable and that his subsequent statements following his arrest were tainted by the preceding illegality. Following a hearing, the district court ruled that Trooper Bowes' belief that the odor of burnt marijuana was emanating from the passenger compartment of Schmadeka's car did not justify a search of the trunk. However, the court ruled that the search of the trunk was justified because there was probable cause to believe that illegal fireworks might be contained inside. Therefore, the district court concluded that Schmadeka's subsequent statements and consent to search his home, following his arrest for manufacturing methamphetamine, were untainted by any illegal police conduct in searching the trunk of his vehicle.
Schmadeka filed a motion to reconsider the denial of his motion to suppress, which the district court denied from the bench, ruling again that the search of the trunk was justified because there was probable cause to believe that it contained contraband—one or more "M-800" fireworks. Thereafter, Schmadeka entered a guilty plea to one count of possession of methamphetamine, preserving his right to appeal the denial of his motion to suppress, in exchange for the dismissal of all other charges and a favorable sentencing recommendation from the state. A judgment of conviction was entered, from which Schmadeka now appeals.
STANDARD OF REVIEW
In evaluating a ruling on a motion to suppress, we defer to factual findings of the trial court unless they are clearly erroneous, but we freely review the trial court's determination as to whether constitutional standards have been satisfied in light of the facts found. State v. Morris, 131 Idaho 562, 565, 961 P.2d 653, 656 (Ct.App.1998); State v. Pick, 124 Idaho 601, 603, 861 P.2d 1266, 1268 (Ct.App.1993); State v. Heinen, 114 Idaho 656, 658, 759 P.2d 947, 949 (Ct.App.1988). The district court's findings of fact are unchallenged. The scope of the search in this case—a search of both the passenger compartment and the trunk—is a question of reasonableness under the Fourth Amendment. The reasonableness of a given search or seizure is a question of law requiring our independent review. Morris, 131 Idaho at 565, 961 P.2d at 656; State v. McIntee, 124 Idaho 803, 804, 864 P.2d 641, 642 (Ct.App.
The Fourth Amendment requires that all searches and seizures be reasonable. State v. Murphy, 129 Idaho 861, 863, 934 P.2d 34, 36 (Ct.App.1997). Warrantless searches and seizures are considered unreasonable per se unless they come within one of the few specifically established and well-delineated exceptions to the warrant requirement. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619, 634 (1991); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564, 575-76 (1971); State v. Henderson, 114 Idaho 293, 295, 756 P.2d 1057, 1059 (1988); State v. Hawkins, 131 Idaho 396, 400, 958 P.2d 22, 26 (Ct.App.1998). One of these is the "automobile exception" under which law enforcement officers may search an automobile and the containers within it if there is probable cause to believe that the automobile holds contraband or evidence of a crime. State v. Gallegos, 120 Idaho 894, 898, 821 P.2d 949, 953 (1991); State v. Ramirez, 121 Idaho 319, 323, 824 P.2d 894, 898 (Ct.App.1991). The automobile exception is based both upon the automobile's ready mobility—an exigency sufficient to excuse the warrant requirement where there is probable cause for a search—and upon the lesser expectation of privacy in an automobile as compared to the privacy interest in a home. State v. Braendle, 134 Idaho 173, 175, 997 P.2d 634, 636 (Ct.App.2000). The permissible scope of a warrantless automobile search "is defined by the object of the search and the places in which there is probable cause to believe it will be found." United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572, 593 (1982), quoted in Braendle, 134 Idaho at 175, 997 P.2d at 636.
A. The Firecracker As Justification For The Search Of The Trunk
Schmadeka argues that the state did not meet its burden of demonstrating that the firework was "illegal," that there was no reason to believe that additional "illegal" fireworks could be found in the trunk and that the search of the trunk was therefore unlawful. The district court ruled that the "M-800" found in Schmadeka's car was an illegal firework, although the officer did not identify any law defining the firework as such. Again, on reconsideration, the district court explained, "[T]here are laws and ordinances about possession or prohibiting possession of illegal fireworks," although the particular law defining the firework in question as illegal was not identified.
Prior to 1997, Idaho Code made possession of such "dangerous fireworks" as firecrackers without a valid license for public display a misdemeanor. I.C. §§ 39-2624, 39-2626 (repealed and replaced by the Fireworks act of 1997). However, the Fireworks act of 1997 merely prohibits sale and use, not possession, of firecrackers. I.C. § 39-2601-39-2614. Accordingly, state law did not classify the "M-800" firecracker as an illegal firework.
Attached as an appendix to the state's brief is a relevant portion of the Post Falls City Code defining a firecracker as an illegal firework and making the possession of such a misdemeanor. Post Falls Ord. §§ 8.80.010-8.80.060 (2000). However, the ordinance provided appears to have been enacted in 2000, while the traffic stop and search of Schmadeka's vehicle occurred in August 1999. Accordingly, the ordinance cannot be relied upon by this Court as setting forth the applicable law in 1999.
Furthermore, assuming the single firecracker ran afoul of the ordinance, we conclude that its presence in the passenger compartment did not justify a search of the automobile's trunk under the automobile exception.
456 U.S. at 821, 102 S.Ct. at 2171, 72 L.Ed.2d at 591. The Court held that probable cause to believe that a van was being used to transport undocumented aliens did not justify the warrantless search of a suitcase, explaining:
Id. at 825, 102 S.Ct. at 2173, 72 L.Ed.2d at 594; Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 1300-01, 143 L.Ed.2d 408, 414-15 (1999); Murphy, 129 Idaho at 864, 934 P.2d at 37. A court must apply common sense, considering the totality of the circumstances to determine whether there is a fair probability that contraband will be discovered in a particular place. Shepherd, 118 Idaho at 124, 795 P.2d at 18 (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
We hold that, even if the "M-800" was an illegal firework,
B. Slight Odor Of Marijuana As Justification For The Search Of The Trunk
Bowes searched the trunk of Schmadeka's car after searching the passenger compartment of the car for the source of a slight odor of burnt marijuana without avail. The district court concluded that Bowes subjective belief that he smelled the slight odor of burnt marijuana coming from the passenger compartment of Schmadeka's car, absent any corroborating evidence found therein, precluded Bowes from searching the trunk. The state argues that this odor alone provided probable cause to search the trunk. We disagree.
The existence of probable cause to search the interior of a car is not necessarily sufficient to justify a search of the car's trunk. In Wimberly v. Superior Court, 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417, 424-427 (1976), the California Supreme Court explained that observations that support only the inference of casual drug usage—the odor of burnt marijuana in the passenger compartment—do not reasonably support the inference
The Tenth Circuit's distinction between the odor of burnt marijuana in the passenger compartment (alone insufficient to establish probable cause for a search of the car's trunk) and that of raw marijuana (sufficient alone to establish probable cause for a search of the trunk) applies common sense in viewing the totality of the circumstances to determine the existence of probable cause. As explained in Wald:
216 F.3d at 1226. Thus, we conclude, as did the district court below, that the odor of burnt marijuana alone, when recognized by a person or canine qualified to recognize the odor, is only sufficient to establish probable cause for a warrantless search of the portion of the automobile associated with that odor.
The authorities relied upon by the state do not support the proposition that the slight odor of burnt marijuana in the passenger compartment alone is sufficient to establish probable cause for a search of the entire automobile. Probable cause to search in each case was based on more than a slight odor of burnt marijuana emanating from the passenger compartment. See, e.g., Shepherd, 118 Idaho 121, 795 P.2d 15 (odor of "raw marijuana," presence of marijuana pipe, and marijuana located in a backpack on the rear seat sufficient for probable cause to search the trunk of automobile); compare State v. Gonzales, 117 Idaho 518, 789 P.2d 206 (Ct. App.1990) (odor of "raw marijuana" emanating from a motor home was sufficient to establish probable cause to support a warrantless search of the interior of the motor home). Based on the record before us, we conclude that the district court correctly concluded that the slight odor of burnt marijuana alone was insufficient to justify Bowes' warrantless search of the trunk of Schmadeka's vehicle.
Accordingly, we conclude that the district court's order denying the motion to suppress must be reversed and the case remanded to the district court for proceedings consistent with Schmadeka's Rule 11 plea agreement.
Judge PERRY, CONCURS.
I concur with all of the majority opinion except that portion of section III(A) indicating that even if the firecracker was an unlawful firework, the presence of a single firecracker in the passenger compartment would not provide probable cause for a search of the trunk under the automobile exception. In my view, that portion of the opinion is dicta and concerns an issue that we need not address inasmuch as the Court, earlier in the opinion, determined that the State did not meet its burden to prove that the firecracker was an illegal firework. This dicta does not express my view and appears to be contrary to the position adopted by most jurisdictions that have considered the question of whether a minimal amount of contraband observed in the passenger compartment will justify a search of the trunk. See 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 7.2(c), p. 487, n. 108 (3d ed.1996).