                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0269n.06

                                            No. 09-6208
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                             Apr 27, 2011
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
               v.                                         )        COURT FOR THE EASTERN
                                                          )        DISTRICT OF TENNESSEE
LEKELFORD BOHANON,                                        )
                                                          )
       Defendant-Appellant.                               )
                                                          )



BEFORE: MARTIN, SILER and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Lekelford Bohanon pled guilty to possession with intent to

distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B),

reserving the right to challenge the district court’s denial of his motion to suppress evidence seized

during a warrantless search of his vehicle. Because the search was based on probable cause

developed during the course of a lawful traffic stop, the motion was properly denied.

       At an evidentiary hearing on a suppression motion, Tennessee narcotics agent Mike Patterson

testified that he had smelled marijuana coming from inside Bohanon’s Chevy Tahoe during the stop.

On cross-examination, Patterson clarified that he thought the smell was “raw” marijuana, but

admitted that he had previously testified in a state-court preliminary hearing that it was “burned”

marijuana. The magistrate judge believed Patterson, and found that the subsequent search of the

vehicle—which yielded a kilogram of cocaine—was supported by probable cause. The magistrate
No. 09-6208
United States v. Bohanon


judge relied in this regard on United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004), and United

States v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993). The district court upheld the magistrate’s

credibility determination. A small quantity of “raw” marijuana was also found on Bohanon’s person.

        Bohanon’s only argument on appeal is that it was clear error for the district court to find that

Agent Patterson actually smelled marijuana inside the Tahoe. We give deference to a district court’s

credibility assessments in ruling on a motion to suppress. See United States v. Smith, 594 F.3d 530,

535 (6th Cir. 2010). The district court did not clearly err in crediting Patterson’s testimony that he

smelled marijuana. Patterson’s testimony was not controverted at the evidentiary hearing, Bohanon

has not offered evidence to suggest that Patterson’s testimony was false, and some marijuana was

found on Bohanon’s person.

        The discrepancy in Patterson’s testimony (“burned” versus “raw”) is not material, “for in any

event, marijuana was detected as emanating from [Bohanon’s] car and was ultimately discovered,”

and “[w]hether it was burnt or fresh-smelling marijuana does not change this.” Foster, 376 F.3d at

584. The district court “quite appropriately[] did not believe that this discrepancy made any

difference to the fact that marijuana was detected in [Bohanon’s] vehicle.” Id. at 583. Because this

was a “permissible view[] of the evidence,” Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985), the district court did not clearly err.

        Affirmed.




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