     Case: 12-30464       Document: 00512167527         Page: 1     Date Filed: 03/07/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 7, 2013
                                       No. 12-30464
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RICARDO M. YOUNG, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-52-1


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ricardo M. Young, Jr., conditionally pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and
received 30 months’ imprisonment and three years’ supervised release. His plea
reserved the right to appeal the denial of his motion to suppress the firearm
seized during the search of his vehicle. Young contends: the ruling was
erroneous as a matter of law because the district court believed it could submit
the pre-trial suppression issue to the jury; and the court’s probable-cause


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-30464     Document: 00512167527       Page: 2   Date Filed: 03/07/2013

                                   No. 12-30464

determination was based on its erroneously finding an officer testified credibly
that he smelled marijuana in the vehicle and saw stems and seeds in it.
      For denial of a motion to suppress, a district court’s conclusions of law are
reviewed de novo; its findings of facts, for clear error, viewing the evidence in the
light most favorable to the Government. E.g., United States v. Montes, 602 F.3d
381, 384-85 (5th Cir. 2010).           Factual findings, including credibility
determinations, are not clearly erroneous if the findings are plausible in the
light of the record as a whole. Id. at 384.
      Regarding whether, as a matter of law, the district court abdicated its role
to rule on admissibility, the admissibility vel non of the firearm was “within the
sole province of the district court”. United States v. Lang, 8 F.3d 268, 270 (5th
Cir. 1993). Thus, it would have been improper to submit this issue to a jury. See
id. at 271-72. Because Young entered his conditional guilty plea, no jury was
presented this issue. Cf. id. at 271. Moreover, there is no statement in the
court’s order that it intended to submit the suppression issue to the jury; and,
by denying the motion to suppress, albeit without prejudice, the court
necessarily made the required admissibility determinations, including on
credibility. E.g., United States v. Santiago, 410 F.3d 193, 198 (5th Cir. 2005).
      For his witness-credibility contention, Young asserts the court erroneously
found probable cause based solely on the uncorroborated testimony of an officer
who testified that the smell of marijuana and presence in plain view of
marijuana residue justified his searching Young’s vehicle. “It is well settled that
warrantless searches of automobiles are permitted by the Fourth Amendment
if the officers have probable cause to believe that the vehicle contains contraband
or other evidence of a crime.” United States v. McSween, 53 F.3d 684, 686 (5th
Cir. 1995). “[T]he smell of mari[j]uana alone may constitute probable cause to
search a vehicle”. United States v. Ibarra-Sanchez, 199 F.3d 753, 760 (5th Cir.
1999).



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    Case: 12-30464    Document: 00512167527     Page: 3   Date Filed: 03/07/2013

                                 No. 12-30464

      The officer’s testimony was neither corroborated by the officer’s partner
nor by the subsequent canine search. Despite the absence of corroboration, the
court found the officer’s ability to detect the smell of marijuana both plausible
and credible because he was better positioned – in space and in time – than his
partner or the drug-detecting dog. Further, the officer’s testifying he smelled
marijuana was consistent with his testifying he had later observed marijuana
stems and seeds in the vehicle, and with Young’s later admitting marijuana had
been smoked in the vehicle earlier that day. The court did not clearly err by
crediting the officer’s testimony, despite the weaknesses in it. E.g., United
States v. Gillyard, 261 F.3d 506, 509 (5th Cir. 2001).
      AFFIRMED.




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