                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2008

USA v. Brown
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4031




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      No. 06-4031


                               United States of America

                                           v.

                                     Akey Brown,
                                                      Appellant
                                     ___________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                            (D.C. Crim. No. 05-cr-00890)
                 District Judge: The Honorable Garrett E. Brown, Jr.



                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 30, 2007


      Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,* District Judge

                           (Opinion Filed January 24, 2008)



                                       OPINION




      *
         The Honorable Paul S. Diamond, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
DIAMOND, District Judge.

       Akey Brown appeals from his conviction for possession of marijuana with intent to

distribute and possession of a firearm and ammunition as a convicted felon. 21 U.S.C. §§

841(a)(1), (b)(1)(D); 18 U.S.C. § 922(g)(1). Brown challenges the District Court’s denial

of his motion to suppress physical evidence and a statement he made to the police.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that follow,

we affirm.

I.     Standard of Review

       We review the denial of a suppression motion for clear error as to the factual

findings, and exercise plenary review of the District Court’s application of law to those

facts. United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006); United States v. Veal,

453 F.3d 164, 166 n. 2 (3d Cir. 2006). Under the clear error standard, “[t]he district

court's conclusion will stand unless it ‘(1) is completely devoid of minimum evidentiary

support displaying some hue of credibility, or (2) bears no rational relationship to the

supportive evidentiary data.’” United States v. Antoon, 933 F.2d 200, 204 (3d Cir. 1991)

(quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972)).

II.    Background

       The District Court found the following facts. On June 30, 2005, Police Detectives

Travis Maxwell and Louis Vega were patrolling in Trenton in an unmarked car. When

they saw Brown driving without wearing a seatbelt – a violation of New Jersey law – they

stopped Brown’s car. N.J. Stat. Ann. § 39:3-76.2f. Detective Maxwell approached the

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driver’s side window, which was open, and asked Brown for his license and registration.

As Brown leaned over to retrieve these items, Detective Maxwell – an experienced

narcotics officer – smelled raw marijuana and saw a partially open backpack containing

marijuana in the car’s backseat. Detective Maxwell ordered Brown out of the vehicle.

       The detective retrieved the partially open backpack, concluded that it did contain

marijuana, and told Detective Vega to arrest Brown. As he was being handcuffed, Brown

blurted out that there was a gun in the backpack. Detective Maxwell searched the

backpack’s main compartment, finding more marijuana, two scales, and a box of ziploc

bags. He then searched a smaller compartment of the backpack and found a loaded gun

with an obliterated serial number.

       On December 15, 2005, a grand jury in the District of New Jersey returned an

indictment charging Brown with possessing a firearm as a convicted felon. On February

2, 2006, the same grand jury returned a superseding indictment, adding a charge of

possession with intent to distribute over 100 grams of marijuana.

       Brown moved on Fourth and Fifth Amendment grounds to suppress the marijuana

and weapon, as well as his statement that there was a gun in the backpack. The District

Court held a suppression hearing on February 28, 2006 at which Detective Maxwell,

Detective Vega, and Brown testified. Crediting the testimony of the officers and

discrediting the testimony of Brown, the Court denied the suppression motion, concluding

that (1) marijuana odor in the car provided Detective Maxwell with probable cause for the

search; and (2) because Brown volunteered his statement, there was no Miranda violation.

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III.   Discussion

       Brown argues that there was no probable cause supporting the search of his

backpack, and that the District Court should have suppressed the drugs and the gun as

fruits of the illegal backpack search. He further argues that his statement about the gun

was obtained in violation of the Fifth Amendment because it was not preceded by

Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).

       As an initial matter, we reject Brown’s argument that the District Court erred in its

factual findings. The version of the events accepted by the District Court – based on the

testimony of both officers – certainly has evidentiary support. See United States v.

Bethancourt, 65 F.3d 1074, 1078 (3d Cir. 1995) (“[W]e will not review a district court’s

credibility determination.”). Accordingly, we will accept the District Court’s factual

findings.

       A.     Physical evidence

       We have held that warrantless searches are presumptively unreasonable under the

Fourth Amendment unless an exception to the warrant requirement applies. See United

States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005). We have also held that law

enforcement officials may search an automobile without a warrant if there is probable

cause to believe that the vehicle contains contraband. United States v. Burton, 288 F.3d

91, 100 (3d Cir. 2002). If probable cause exists, officers may search any part of the

vehicle – including containers – that might conceal contraband. United States v. Salmon,

944 F.2d 1106, 1123 (3d Cir. 1991).

                                             4
       Based upon the facts it found, the District Court properly concluded that there was

probable cause for the officers to search Brown’s vehicle and its contents. Detective

Maxwell smelled marijuana coming from the car. This alone was enough to establish

probable cause. United States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006) (“It is well-

settled that the smell of marijuana alone, if articulable and particularized, may establish

not merely reasonable suspicion, but probable cause.”). The detective had an additional

reason to search the car, however: standing outside the vehicle, he saw a ziploc bag

containing marijuana in a backpack in the back seat of the car. See United States v.

Yamba, 506 F.3d 251, 256 (3d Cir. 2007) (“[P]recedent has ‘come to reflect the rule that

if, while lawfully engaged in an activity in a particular place, police officers perceive a

suspicious object, they may seize it immediately.’”) (quoting Texas v. Brown, 460 U.S.

730, 739 (1983)). The sight and smell of marijuana certainly provided probable cause for

the detective to search Brown’s car and its contents. Brown contends that because the

New Jersey state courts have articulated a more stringent probable cause standard under

the New Jersey Constitution, Detective Maxwell’s search cannot pass muster in federal

court under the less stringent Fourth Amendment standard. To state this contention is to

refute it. In Rickus, we held that “evidence obtained in accordance with federal law is

admissible in federal court – even though it was obtained by state officers in violation of

state law.” United States v. Rickus, 737 F.2d 360, 363-64 (3d Cir. 1984).

       In these circumstances, whatever the merits of Brown’s contention regarding the

New Jersey Constitution, under our well-settled interpretation of the Fourth Amendment,

                                              5
the search of Brown’s car was proper. See Salmon, 944 F.2d at 1123.

       B.     Brown’s Statements

       Miranda warnings are required only when a suspect is both in custody and subject

to interrogation. Alston v. Redman, 34 F.3d 1237, 1246-47 (3d Cir. 1994) (citing Rhode

Island v. Innis, 446 U.S. 291, 300 (1980)). Interrogation means “express questioning or

its functional equivalent . . . any words or actions on the part of police (other than those

normally attendant to arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect.” United States v. Brownlee,

454 F.3d 131, 146 (3d Cir. 2006) (quoting Innis, 446 U.S. at 300-01).

       The Government concedes that Brown was in custody and had not received

Miranda warnings when he told the police about the gun in his backpack. The District

Court found, however, that the police never interrogated Brown, who volunteered his

statement without any prompting by police. Accordingly, the District Court correctly

concluded that there was no Fifth Amendment violation. In asking us to reverse, Brown

does little more than take issue with the District Court’s decision to credit Detectives

Maxwell and Vega and discredit Brown. The District Court saw and heard all three

witnesses; we will not disturb its credibility determinations. See United States v. Voigt,

89 F.3d 1050, 1080 (3d Cir. 1996) (“It is not for us to . . . determine the credibility of the

witnesses.”) (quoting United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir. 1989)). Thus,

Brown was not subject to interrogation, Miranda warnings were not required, and there

was no violation of his Fifth Amendment rights. Alston, 34 F.3d at 1246-47.

                                               6
       In these circumstances, the District Court properly denied Brown’s motion to

suppress the statement.

III.   Conclusion

       For the reasons stated, we affirm the judgment of the District Court.




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