Search & seizure; “Reasonable suspicion” for a stop under Terry v Ohio; Whether the smell of marijuana localized to a person by itself can support probable cause for a warrantless arrest for marijuana possession; Sentencing; Substantive reasonableness challenge to a within-Guidelines sentence; Weighing of the 18 USC § 3553(a) factors

The court held for the first time in this circuit that the smell of marijuana localized to an individual by itself provides probable cause to arrest him or her for the crime of marijuana possession. A grand jury indicted defendant-Santiago for FIP. He unsuccessfully moved to suppress the evidence seized during his warrantless detention, arrest, and search, arguing that they were unconstitutional. A jury convicted him. His 56-month sentence fell within the Guidelines. He argued on appeal that the police detectives lacked a reasonable suspicion to detain him and probable cause to arrest him. The court held that there was reasonable suspicion to stop him under Terry where the detectives were familiar with the smell of marijuana through training, they “smelled a strong odor of marijuana coming from Santiago’s car when it entered the parking lot and” it intensified when he opened his car door. He was also alone in the car. “The smell of an illegal substance, like marijuana, localized to a suspect supports a Terry stop.” Because the search took place after Santiago was arrested, the next issue was the lawfulness of the warrantless arrest under the Fourth Amendment. Such an “‘arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence,’ . . . even if the crime was ‘very minor[.]’” The court noted that it had “yet to address whether the smell of marijuana, localized to a particular person, is sufficient to constitute probable cause to arrest the person for the crime of marijuana possession.” At least four other circuits have found that it is, and the court agreed. Considering its case law holding that the smell of marijuana provided probable cause to search a car, it concluded that law enforcement officers “are justified in both contexts in believing that marijuana is present where they smell it.” But it is necessary for the officer to be able to “localize” the source of the smell to a particular person. For “the same reasons the detectives had reasonable suspicion to detain Santiago, they had probable cause to arrest him.” The court also rejected his substantive reasonableness challenge to his sentence, finding the district court properly reviewed the § 3553(a) factors, including his “‘[v]ery, very bad record with firearms in the past’; he was on parole and the firearm was loaded at the time of arrest; and he had” 19 prior criminal sentences. The court found that his “medical condition and frustrations with his legal representation do not make his within-Guidelines sentence substantively unreasonable.” Affirmed.