Scent of methamphetamine provides probable cause for search

SEARCH & SEIZURE/SENTENCING United States v. Windrix, No. 04-5016, ___ F.3d ___ (10th Cir. May 3, 2005)(N.D. Oklahoma). Appeal of convictions and sentences for conspiracy to manufacture and sell methamphetamine. HELD: (1) Scent of methamphetamine, wherever detected, not just from vehicle, gives qualified officers probable cause to search for methamphetamine and methamphetamine manufacturing. (2) Where defendants argued at sentencing that judge-found facts of drug quantities used to increase their mandatory sentencing range violated rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), defendants preserved issue for appeal as claim of error under later-decided case of United States v. Booker, 125 S.Ct. 738 (2005). Because issue was properly raised in district court, alleged error is evaluated under harmless error standard. Under harmless error review, burden is on government to establish harmlessness beyond reasonable doubt. Because government’s single-paragraph harmless error argument claimed only that defendants’ guidelines offense level was supported by evidence and resulted in sentence less than statutory maximum, government failed to meet its burden of showing beyond reasonable doubt that district court would have imposed just as harsh sentence in absence of mandatory guidelines regime. Read the opinion here.