                                                            [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                         MAY 1, 2008
                                                     THOMAS K. KAHN
                               No. 07-14175
                                                          CLERK
                           Non-Argument Calendar
                         ________________________

                     D. C. Docket No. 06-60344-CR-WJZ

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

JOHNNY OLBEL,

                                                        Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (May 1, 2008)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     This is Johnny Olbel’s appeal of his convictions for possessing crack
cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and

for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

                                           I.

      Olbel first contends that the district court erred in denying his motion to

suppress the evidence of the drugs and the firearm that were found in his vehicle

when he was arrested.

      “[T]he general rule in the criminal context is that warrantless searches are

per se unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.” United States v.

Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996) (internal quotation marks and

citations omitted). One of those exceptions is for a search incident to a lawful

arrest, United States v. Bailey, 691 F.2d 1009, 1018 (11th Cir. 1982), which

includes the right to search a vehicle occupied by the arrestee, New York v.

Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981). Under that exception an

officer may search a vehicle the arrestee has recently occupied even if the officer

first makes contact with him after he has exited the vehicle. Thornton v. United

States, 541 U.S. 615, 617, 623–24, 124 S. Ct. 2127, 2129, 2132 (2004).

      The district court did not err in determining that the search of Olbel’s car

was a lawful search incident to his arrest. The court’s findings that Olbel was



                                           2
arrested almost immediately after exiting his vehicle and that the officers

approached him when he was within close physical proximity to it are supported

by the testimony and not clearly erroneous. The arresting officers also testified

that they saw Olbel with marijuana in plain sight before they approached him and

that one of them knew from his earlier contact with Olbel that he had a suspended

driver’s license. There was no Fourth Amendment violation.

                                          II.

      Olbel also contends that he is entitled to a new trial because the government

failed to provide him access to potentially exculpatory evidence as required by

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). The evidence at issue is

the government’s knowledge that someone other than Olbel owned the vehicle

from which the drugs and firearm were seized and that the owner had given the

vehicle to Olbel before his arrest.

      There was no Brady violation because Olbel surely knew that he was not the

owner of the vehicle and how he had come to be in it. The government is not

required to disclose to a defendant a fact that the defendant already knows or could

ascertain with reasonable diligence. United States v. Newton, 44 F.3d 913, 918

(11th Cir. 1995). Not only that, but Olbel has also failed to show that the fact the

vehicle he was driving at the time of his arrest was owned by someone else was



                                          3
material in the Brady sense. See id.1

       AFFIRMED.




       1
          Olbel also contends that his sentence was “unconstitutional” in light of the disparity
between sentences for possession of powder cocaine and crack cocaine. We decline to reach this
contention because Olbel abandoned it by only mentioning it in passing and providing no
citations to any authority to support his argument. See United States v. Gupta, 463 F.3d 1182,
1195 (11th Cir. 2006), cert. denied, 127 S. Ct. 2446 (2007); Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

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