                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0544n.06

                                           No. 15-6244


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Sep 22, 2016
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )
                                                       ON APPEAL FROM THE UNITED
                                                 )
                                                       STATES DISTRICT COURT FOR THE
QUADRICUS DEAN,                                  )
                                                       WESTERN DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )
                                                 )
                                                 )



BEFORE:        DAUGHTREY, GIBBONS, and COOK, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Quadricus Dean, was

stopped by police after he pulled his car out of a parking lot and across five lanes, nearly striking

a police car, and then swerved into the next lane, almost hitting a second car. During the traffic

stop, Dean appeared confused and an officer detected the odor of marijuana, so the officers

removed Dean from the vehicle and searched it. The search uncovered marijuana, cocaine, and a

handgun, and Dean was charged with being a felon in possession of a firearm. After his motion

to suppress the evidence from the traffic stop was denied, Dean pleaded guilty and was

sentenced.   He now appeals the denial of his motion to suppress and the portion of the

supervised-release condition in his written judgment that was not pronounced orally at the

sentencing hearing. Finding no clear error, we affirm the denial of the motion to suppress.

However, because the government concedes that the district court abused its discretion in
No. 15-6244, United States v. Dean


imposing the additional supervised-release condition, we remand this matter for entry of an

amended judgment that conforms to the supervised-release condition announced at sentencing.


                     FACTUAL AND PROCEDURAL BACKGROUND


       Dean was charged with being a felon in possession of a firearm. He moved to suppress

the evidence supporting the charge, which was obtained from a search of his car during a traffic

stop. A magistrate judge conducted a suppression hearing, in which three witnesses testified.

The government called Officers Beasley and Neely, the policemen who stopped Dean, searched

his car, and arrested him. The defense called Victoria Peeples, Dean’s fiancée, who witnessed

the events leading up to the stop.


       Beasley testified that he was driving his marked patrol car eastbound on Winchester Road

around 8:00 PM on his way to respond to an alarm. He witnessed a vehicle rapidly pull out of

the parking lot of the Super Center Laundromat and cross five lanes, entering the lane in which

Beasley was traveling. The vehicle entered the lane less than one car length in front of Beasley,

who had to slam on his brakes to avoid a collision. The vehicle then maneuvered into the

adjacent lane without signaling, almost striking a second vehicle. Beasley turned on his lights

and initiated a traffic stop. After driving less than 0.2 miles on Winchester, the offending driver

turned left on Kirby Road and stopped immediately.


       Beasley approached the vehicle, which was being driven by Dean, and asked Dean for his

driver’s license and insurance information. Dean appeared dazed and just stared at Beasley for a

few seconds, appearing not to understand the request. This lasted longer than the “normal time”

of 15 to 20 seconds in which individuals usually can produce a driver’s license. Dean then began

reaching under his seat and between the seat and the center console. Around this time, Neely,


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who was standing on the passenger side of the car, gave Beasley a sign indicating that he could

smell marijuana.    Beasley could not smell marijuana because he “had some type of sinus

infection.” Beasley asked Dean to exit the vehicle, placed him in handcuffs, and moved him to

the back seat of the police car.


       Neely testified that he was driving ahead of Beasley on Winchester, and he turned around

after he saw Beasley initiate the traffic stop. When he arrived at the stop, Neely observed Dean

looking confused and as if “he . . . didn’t know what was going on, [or] what was [sic] the

questions being asked.” Neely testified that Dean did not say anything and was “[k]ind of

baffled about why he was being stopped.” Neely observed Dean searching around and digging

under his seat. Neely noticed the “smell of raw marijuana coming from the vehicle” and

conveyed this to Beasley.          At the suppression hearing, Neely did not recall whether the

passenger’s side window of the car was rolled down when he smelled marijuana. He testified

that the amount of time between when Beasley approached Dean’s car and when Dean was

removed from the vehicle “wasn’t that long at all” and could be measured “in seconds.”


       Once Dean had been removed from the vehicle, Neely searched the car for contraband.

Inside the center console, he found a handgun, ammunition, 1.16 grams of marijuana in a plastic

bag, 2.55 grams of powder cocaine, 16.43 grams of crack cocaine, scales, and a spoon. Neely

also found Dean’s driver’s license underneath and slightly behind the driver’s seat. After Neely

located the contraband, Dean was arrested.


       Peeples, the defense witness, offered a different version of the events leading up to the

traffic stop.   She testified that she was taking a break from her job at the Super Center

Laundromat on Winchester when Dean pulled into the parking lot and talked with her for about


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No. 15-6244, United States v. Dean


ten minutes. Peeples said that she watched Dean wait with his left blinker on for 10 to 20

seconds before pulling out onto Winchester. According to Peeples, after Dean pulled onto

Winchester, she continued to watch for about 10 seconds but did not see any police cars or see

Dean swerve or come into close contact with another vehicle. Peeples said that she then returned

to work and did not see the traffic stop or the events that followed.


       After hearing the witnesses’ testimony and the parties’ arguments, the magistrate judge

issued a report and recommendation, in which he found the officers’ testimony to be credible and

adopted their version of events. The magistrate judge credited the officers’ testimony over

Peeples’s because of Peeples’s close relationship with Dean, the witnesses’ demeanor, and “the

fact that the officers were in the process of responding to an alarm call and terminated their

response in order to stop Dean’s vehicle.” The judge concluded that Beasley had probable cause

to stop Dean because Beasley witnessed Dean committing traffic violations. The magistrate

judge also found that the officers had probable cause to search Dean’s vehicle based on the odor

of marijuana Neely detected.       The magistrate judge recommended that Dean’s motion to

suppress be denied, and the district court adopted the recommendation over Dean’s objection,

giving great deference to the magistrate judge’s credibility determinations.


       Dean pleaded guilty, reserving the right to appeal the denial of his motion to suppress.

The district court sentenced Dean to 87 months of imprisonment, and this appeal followed.


                                          DISCUSSION

Denial of Motion to Suppress


       In an appeal from the district court’s denial of a motion to suppress, we review the

district court’s findings of fact for clear error, its legal conclusions de novo, and the evidence in

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No. 15-6244, United States v. Dean


the light most favorable to the government. United States v. Jackson, 682 F.3d 448, 452 (6th

Cir. 2012). A district court’s factual finding is clearly erroneous when, “although there is

evidence to support the finding, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v. Worley, 193

F.3d 380, 384 (6th Cir. 1999) (internal quotation marks and citation omitted).


        The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const.

amend. IV. A traffic stop is a seizure, and any evidence obtained from a traffic stop that is

unreasonable, or illegal, must be suppressed. Jackson, 682 F.3d at 453. “It is well established

that a police officer lawfully may stop a car when he has probable cause to believe that a civil

traffic violation has occurred, or reasonable suspicion of an ongoing crime.” Id. If probable

cause supports a traffic stop, then the officer’s subjective intent in initiating the stop is irrelevant.

United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008).


        A warrantless search also violates the Fourth Amendment, except in limited

circumstances.    The “automobile exception” to the warrant requirement “allows officers to

search a vehicle without a warrant if they have probable cause to believe that the vehicle contains

evidence of a crime.” United States v. Galaviz, 645 F.3d 347, 355 (6th Cir. 2011) (internal

quotation marks and citation omitted).         “Probable cause is a reasonable ground for belief

supported by less than prima facie proof but more than mere suspicion.” Blair, 524 F.3d at 748.


        Dean challenges the district court’s finding that the officers’ testimony was credible and

its resulting conclusion that the traffic stop was supported by probable cause.                   While

acknowledging the great deference owed to the magistrate judge’s credibility determinations, he

asserts that no reasonable fact finder could have found the officers to be credible because their


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No. 15-6244, United States v. Dean


testimony was inconsistent and implausible. Dean points out that Beasley and Peeples, the only

two witnesses to the moments leading up to the traffic stop, offered contradictory accounts.

Dean asserts that Beasley’s account of Dean’s maneuvers when exiting the Super Center

Laundromat must be false because it is implausible that Dean would pull across five lanes of

traffic directly in front of an oncoming police car and that Neely would fail to notice such

reckless driving in his rearview mirror. He also points to the fact that he was not charged with

any driving infractions as support for his argument that the reckless driving about which Beasley

testified did not occur. In Dean’s view, these factors add up to the inescapable conclusion that

Beasley’s testimony was not credible.


         Put simply, Dean’s arguments fail to persuade us that the lower court’s credibility finding

was clearly erroneous. Although it certainly is unwise to pull across five lanes of traffic and

almost collide with a police car, it is not implausible that a driver would do so, particularly if that

driver were under the influence of drugs. This conclusion is bolstered by the fact that Dean

behaved strangely during the traffic stop and that drugs were found in his car. Moreover, it is

perfectly plausible that Neely would not witness Dean’s reckless driving in his rearview mirror if

Neely’s attention was focused on the road ahead when it occurred. The lack of driving-related

charges in Dean’s arrest ticket also fails to prove that he did not drive recklessly. In light of the

more serious charges Dean faced after the police found drugs and a gun in his car, Beasley

reasonably may have decided to forego the misdemeanor driving charges, even though Dean’s

behavior would have supported such charges.


         The magistrate judge heard all of the testimony, observed the witnesses’ demeanor, and

adopted his own permissible interpretation of the testimony, rather than the interpretation Dean

urges.    “[W]here there are two permissible views of the evidence[,] the district court’s

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No. 15-6244, United States v. Dean


conclusions cannot be clearly erroneous.” Worley, 193 F.3d at 384 (internal quotation marks and

citation omitted). Therefore, even assuming we find Dean’s interpretation of the testimony to be

a permissible one, we cannot rule in his favor. We conclude that the district court’s factual

findings were not clearly erroneous and, thus, that the court did not abuse its discretion in

holding that probable cause supported the traffic stop.


       Dean also challenges the district court’s ruling that the officers had probable cause to

search his vehicle based on the odor of marijuana. We have held that “an officer’s detection of

the smell of marijuana in an automobile can by itself establish probable cause for a search.”

United States v. Johnson, 707 F.3d 655, 658 (6th Cir. 2013) (internal quotation marks and

citations omitted). Therefore, the magistrate judge’s finding that the officers had probable cause

to search Dean’s car turned on the credibility of Neely’s testimony that he smelled raw marijuana

coming from the vehicle.


       Dean points out that his car contained only “approximately one gram of marijuana”

located in a plastic bag and enclosed in the center console and that Beasley did not smell

marijuana. The magistrate judge found it to be improbable that Neely’s nose detected the smell

of the marijuana in the center console, but he hypothesized that the odor could have come from

marijuana that recently had been in the vehicle.


       We must review the factual findings of the magistrate judge, who had the opportunity to

observe the live testimony, for clear error, and in this case we cannot say that the court clearly

erred in finding Neely’s testimony to be credible. The court’s theory that a larger quantity of

marijuana previously was in Dean’s car and gave rise to the odor is plausible given Dean’s dazed

demeanor and the presence of marijuana in his car. Finding no clear error in the factual findings


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No. 15-6244, United States v. Dean


supporting the lower court’s probable-cause determination and in the absence of any legal error,

we uphold the denial of Dean’s motion to suppress.


Supervised Release Condition


       Dean’s second issue on appeal concerns the written judgment entered after his

sentencing. At the sentencing hearing, the district court stated, “He needs to participate in drug

testing and treatment as directed by his probation officer.” The written judgment reads:

       The defendant shall participate as directed in a program (outpatient and/or
       inpatient) approved by the Probation Officer for treatment of narcotic addiction or
       drug or alcohol dependency which may include testing for the detection of
       substance use or abuse. Further, the defendant shall be required to contribute to
       the costs of services for such treatment not to exceed an amount determined
       reasonable by the Probation Officer.

Thus, the written judgment added the requirement that the defendant contribute to the costs of

treatment in an amount determined by the Probation Officer.


       The government concedes that the district court abused its discretion by adding an

additional supervised-release condition in the written judgment that was not pronounced at

sentencing. We therefore remand the sentencing order to the district court for entry of an

amended judgment that conforms to the oral pronouncement of the supervised-release condition

at sentencing.

                                        CONCLUSION


       The district court did not clearly err in finding Beasley’s and Neely’s testimony to be

credible and, as a result, correctly determined that they had probable cause to stop Dean and

search his car.   We therefore AFFIRM the court’s denial of Dean’s motion to suppress.

However, the government concedes that the district court abused its discretion by adding a

condition to the supervised-release portion of the written judgment. We REMAND this matter to

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No. 15-6244, United States v. Dean


the district court with instructions to enter an amended judgment that conforms to the oral

pronouncement of the conditions of supervised release at the sentencing hearing.




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