UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4935

BRIAN KEITH SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-97-7)

Submitted: October 9, 1998

Decided: November 23, 1998

Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Scott Allen Curnutte, Elkins, West Virginia, for Appellant. William
D. Wilmoth, United States Attorney, Zelda E. Wesley, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Brian Keith Smith pled guilty to possession of crack cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1994), and
was sentenced to a term of 121 months.1 He asserts on appeal that the
district court erred in denying his motion to suppress evidence seized
during a search of his automobile. Finding no reversible error, we
affirm.

I.

The facts are not in dispute. Smith was traveling on Interstate 79
when West Virginia State Trooper Rodney Southall stopped him for
speeding. After obtaining Smith's driver's license, registration, and
insurance card, Southall asked Smith to exit his vehicle as a precau-
tionary safety measure and informed Smith that he planned to issue
only a warning citation. As Southall handed Smith his documents and
the citation, Southall asked Smith if he had any guns in the car. Smith
said no.

Southall then asked Smith if he had anything illegal in the car, and
Smith said no. Southall asked Smith if he could look inside Smith's
car. Smith responded, "Go ahead." When Southall asked again
whether he could look in the car, Smith said, "I'd rather not, I'm in
kind of a hurry." Smith expressed his appreciation for the warning
because he already had been stopped for speeding once and was run-
ning late. He extended his hand to Southall, but Southall refused to
shake it. Southall continued to question Smith by asking him if a nar-
cotics dog would alert to anything in the car. Smith first said he did
not think so but then admitted that there were "reefer roaches" in the
car. Southall told Smith that "reefer roaches" would alert a dog.

Smith told Southall that he could search the car, and Southall found
the marijuana in the ashtray. As Southall attempted to open the trunk,
_________________________________________________________________
1 On November 13, 1997, the district court amended the judgment to
correct a clerical mistake under Fed. R. Crim. P. 36, changing the term
of imprisonment from 120 to 121 months.

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he noticed that Smith kept one of the keys from the ring in his hand.
That key opened the trunk. Southall discovered approximately 760
grams of crack cocaine.

Smith moved to suppress the crack cocaine. The district court
found that based on the totality of the circumstances, Smith consented
to the initial search of the car, he did not withdraw his consent, his
detention after Southall handed him the warning citation was not ille-
gal, he voluntarily confessed to having marijuana in the car, and he
consented to the search that revealed the crack cocaine.2 The court
therefore denied Smith's motion to suppress. Smith timely appeals.

II.

Smith challenges on appeal the district court's denial of his motion
to suppress evidence. He first asserts that he did not consent to the
search. Alternatively, he contends that any consent was involuntary
because it resulted from an illegal detention. A police officer may
conduct a search without a warrant and without probable cause if the
person in control of the area voluntarily consents to a search. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In determining
whether consent is voluntary, the court should look to the totality of
the circumstances. Id. at 227. Appropriate factors to consider include
"the characteristics of the accused (such as age, maturity, education,
intelligence, and experience) as well as the conditions under which
the consent to search was given (such as the officer's conduct; the
number of officers present; and the duration, location, and time of the
encounter)." United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.
1996). The government need not produce evidence that the defendant
"knew of his right to refuse consent to prove that the consent was vol-
untary." Id. (citations omitted).

On motions to suppress evidence, we review the factual findings
under the clearly erroneous standard and review the legal conclusions
de novo. See United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). Whether Smith voluntarily consented to the search of his car
_________________________________________________________________
2 The district court also concluded that Southall did not have a reason-
able suspicion of unlawful activity sufficient to justify the search of
Smith's car. Smith does not challenge this ruling on appeal.

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is a factual question which we review for clear error. See United
States v. Elie, 111 F.3d 1135, 1144 (4th Cir. 1997).

The record supports the finding that Smith voluntarily consented to
the search of the car. Smith's response, "go ahead," to Southall's
request to look inside the car constituted consent, and his next
response, "I'd rather not, I'm in kind of a hurry," was not a with-
drawal of the consent. Further, neither Smith's characteristics nor the
conditions surrounding Smith's consent render the consent involun-
tary. At the time of the stop, Smith had been working for his father
in a car service for six years, attended college, and had been stopped
for speeding shortly before Southall stopped him. Finally, as the dis-
trict court found, Southall's question about the narcotics dog was not
coercive. Southall was alone during the stop and did not have a drug
dog at the scene or en route. Once Smith admitted that he had mari-
juana in the ashtray, Southall had probable cause to search the
remainder of the car and, in doing so, discovered the crack cocaine
in the trunk. We therefore find that the district court did not err in
denying the motion to suppress.

III.

Accordingly, we affirm Smith's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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