United States v. Kay

── United States v. Kay ── Court: Court of Appeals for the Ninth Circuit Date: April 20, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 25-3723 D.C. No. Plaintiff - Appellee, 3:23-cr-00256-AKB-1 v. MEMORANDUM* ROBERT CHARLES KAY, Defendant - Appellant. Appeal from the United States District Court for the District of Idaho Amanda K. Brailsford, District Judge, Presiding Submitted April 16, 2026** Portland, Oregon Before: OWENS, VANDYKE, and SUNG, Circuit Judges. Defendant Robert Charles Kay appeals from his conviction for possession of controlled substances with intent to distribute in violation of 12 U.S.C. § 841(a)(1) and (b)(1)(b). He argues that the district court erred in denying his motion to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). suppress evidence discovered during a warrantless search of a silver Dodge Ram. As the parties are familiar with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291. We affirm. We review de novo the denial of a motion to suppress, and we review the district court’s underlying factual findings for clear error. United States v. Hylton, 30 F.4th 842, 846 (9th Cir. 2022). The search of the Dodge Ram was constitutional under the plain view doctrine, which allows officers to seize evidence without a warrant if they are lawfully in a position to view the item, and if its incriminating nature is immediately apparent. See Arizona v. Hicks, 480 U.S. 321, 326 (1987); Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) (plurality opinion). While standing in the parking lot, the officers observed “loose marijuana” through the Dodge’s passenger-side window. Based on their training and experience, the officers reasonably believed the substance they saw in the vehicle to be marijuana. Marijuana possession is unlawful in Idaho. Idaho Code §§ 37-2732(c)(3), 37- 2705(d)(19). The officers’ observations of the marijuana from outside the car thus supplied probable cause to search the vehicle. See State v. Gonzales, 789 P.2d 206, 207 (Id. Ct. App. 1990) (holding that, in Idaho, merely smelling marijuana in a car supplies probable cause to search the vehicle); see also Arizona v. Gant, 556 U.S. 332, 347 (2009) (noting that under the automobile exception to the Fourth 2 25-3723 Amendment’s warrant requirement, officers may search a vehicle if they have probable cause to believe that it contains evidence of a crime) (citing United States v. Ross, 456 U.S. 798, 820–21 (1982)). Additionally, other circumstances independently supplied probable cause for the officers to search the Dodge Ram. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (holding that probable cause exists where a totality of the circumstances indicates that “there is a fair probability that contraband or evidence of a crime will be found in a particular place”). Surveillance footage showed Kay handling loose marijuana in another car in the same parking lot, rolling a joint, and giving marijuana to another individual. Kay also admitted that he had given “a couple nugs,” referring to marijuana, to another in