                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2441
                                    ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the Eastern
                                      * District of Missouri.
Stacey Harvey,                        *
                                      * [UNPUBLISHED]
            Defendant-Appellant.      *
                                 ___________

                              Submitted: December 11, 2001
                                 Filed: April 2, 2002
                                  ___________

Before LOKEN and BYE, Circuit Judges, and BOGUE,1 District Judge.
                              ___________

PER CURIAM.

       This appeal arises from Stacey Harvey's conditional plea of guilty to possession
with intent to distribute marijuana in violation of 21 U.S.C. § 841(a). Harvey appeals
the district court's2 denial of his motion to suppress drug evidence seized following

      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      2
       The Honorable Jean C. Hamilton, Chief United States District Judge for the
Eastern District of Missouri, adopting the report and recommendation of the
Honorable Thomas C. Mummert III, United States Magistrate Judge for the Eastern
District of Missouri.
a traffic stop and incriminating statements Harvey made regarding drug trafficking
activities. We affirm.

                                             I.

        On December 7, 1999, Harvey and a passenger, Lamont Watson, were stopped
by St. Louis police for driving the wrong way on a one-way street. When the police
officers approached Harvey's vehicle they noticed the odor of marijuana and observed
a shopping bag in the back seat containing a substance believed to be marijuana.
Harvey and Watson were ordered to exit the vehicle at which time Harvey
spontaneously admitted he owned the marijuana. Harvey was arrested and given
Miranda warnings. Miranda v. Arizona, 384 U.S. 436 (1966). A record check also
revealed an outstanding arrest warrant for Harvey for violating a city ordinance.
Harvey was arrested on the warrant and again given Miranda warnings. Later, while
at the police station, Harvey was given Miranda warnings for a third time, after which
he gave the police a written statement.

       Harvey was indicted for possession with the intent to distribute marijuana. He
moved to suppress the marijuana arguing the police stopped him while he was a
pedestrian, not while he was driving. Harvey also moved to suppress the
incriminating statements arguing they were obtained as the result of an illegal search
of his vehicle. Following an evidentiary hearing, the magistrate judge recommended
denial of the motions to suppress. Harvey filed timely objections to the magistrate
judge's report and recommendation, and following a de novo review of the record, the
district court denied the motions. Harvey filed a motion for reconsideration and
request for a de novo evidentiary hearing which was denied. He then entered a
conditional plea of guilty, reserving his right to appeal the district court's denial of his
motions to suppress and motion for reconsideration.




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       On appeal, Harvey contends the district court failed to conduct an adequate de
novo review and should have held a second evidentiary hearing. Harvey also argues
the findings of fact and conclusions of law adopted by the district court were
erroneous because (1) he was not driving the vehicle at the time of his arrest (the
alleged traffic violation was merely a ruse concocted by the police to justify the
search of his vehicle), and (2) Harvey's incriminating statements were fruits of an
illegal search and should be suppressed.

                                           II.

       When a party timely objects to a magistrate judge's report and recommendation,
the district court is required to make a de novo review of the record related to the
objections, which includes more than merely reviewing the report and
recommendation. See 28 U.S.C. § 636(b)(1); see also Jones v. Pillow, 47 F.3d 251,
253 (8th Cir. 1995) (remanding to the district court to perform a de novo review of
the record where the district court stated only that it had reviewed the magistrate
judge's findings and recommendations and the objections thereto but the hearing
transcript was not yet available at the time of the district court's review). The burden,
however, is on the objecting party to make a prima facie showing that de novo review
was not performed. Jones, 47 F.3d at 25 (requiring affirmative evidence that de novo
review was not performed). We require that "[i]n conducting [de novo] review, the
district court must, at a minimum, listen to a tape recording or read a transcript of the
evidentiary hearing." Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989). We
will presume the district court properly performed its review and will "'affirm the
district court's approval of the magistrate's recommendation,'" absent evidence to the
contrary. Jones, 47 F.3d at 253 (quoting United States v. Hamell, 931 F.2d 466, 468
(8th Cir. 1991)).

      The district court conducted a de novo review of the entire record and listened
to audio tapes of the evidentiary hearing. Harvey, however, contends the district

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court was required to hold a second evidentiary hearing because a different district
court presiding over passenger Watson's case ordered similar evidence suppressed.
Harvey cites no authority for his position and we find his argument unconvincing.
The mere fact that a different district court in a related case reached a different
conclusion does not mean the district court in this case committed clear error. Harvey
has failed to present any evidence suggesting the district court's de novo review was
improper or incomplete. Absent such evidence, we conclude the district court's de
novo review was conducted properly.

       Harvey next argues the district court's findings of fact were clearly erroneous
and the court misapplied applicable law. We review the district court's findings of
fact for clear error and its conclusions of law de novo. United States v. Booker, 269
F.3d 930, 931-32 (8th Cir. 2001) (citing United States v. Raines, 243 F.3d 419, 421
(8th Cir. 2001)). The district court's decision must be affirmed "unless it is not
supported by substantial evidence on the record; it reflects an erroneous view of the
applicable law; or upon review of the entire record, [we] are left with the definite and
firm conviction that a mistake has been made." Id. (citing United States v. Lowe, 50
F.3d 604, 607 (8th Cir. 1995)).

       Our review of the record reveals nothing to suggest the district court's findings
of fact are clearly erroneous. The testimony was conflicting, and each witness gave
a somewhat different version of what transpired. Nonetheless, there is substantial
record evidence to support the district court's decision to credit some testimony and
to discredit other testimony. We conclude the district court's findings of fact are not
clearly erroneous.

       Similarly, the district court's conclusions of law must be affirmed. Assuming
the facts as adopted by the district court, the officers properly stopped Harvey for
driving the wrong way on a one-way street. When the officers approached Harvey's
vehicle they smelled and observed marijuana, and Harvey admitted it was his. Taken

                                          -4-
together these facts are more than sufficient to establish probable cause to search the
vehicle. See, e.g., Booker, 269 F.3d at 932 (holding that police officer's observation
of marijuana in vehicle constituted probable cause to search).

                                         III.

      The district court's order denying the motions to suppress is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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