United States v. Lork, 132 F. App'x 34

United States v. Lork

132 F. App'x 34

5th Cir.

2005

Check Treatment

Docket

UNITED STATES of America, Plaintiff-Appellee, v. Melissa Christine LORK, Defendant-Appellant.

No. 04-41291.

United States Court of Appeals, Fifth Circuit.

Decided May 20, 2005.

Summary Calendar.

been overlooked by the police, even in the absence of Chambers‘s statements. Accordingly, even if Chambers‘s statements may have been properly suppressed, the firearm, drugs, or other contraband discovered pursuant to the search warrant should not be suppressed.

Chambers‘s guilty plea is conditional. Under Federal Rule of Criminal Procedure 11(a)(2), “a defendant who prevails on appeal” may withdraw his conditional guilty plea. The plain language of the federal rule and the terms of the plea agreement here make clear that had Chambers been fully successful on appeal, as opposed to only partially so, he would be entitled to withdraw his plea. But here we conclude that the vast majority of the evidence challenged in Chambers‘s motion was properly admitted by the district court. The parties have failed to cite any authority, much less argue, that Chambers‘s partial success on appeal is sufficient to allow him to withdraw his conditional guilty plea.

In United States v. Leake, 95 F.3d 409 (6th Cir.1996)⁵⁰, the Sixth Circuit observed that the inquiry before the court in cases where a defendant only partially prevails on appeal “requires an examination of the degree of success and the probability that the excluded evidence would have had a material effect on the defendant‘s decision to plead guilty.”⁵¹ In Leake, the Sixth Circuit permitted a partially prevailing defendant to withdraw his conditional guilty plea based on its conclusion that the most damning evidence against the defendant should have been suppressed.⁵²

In contrast, Chambers‘s statements, many of which the search proved inaccurate, clearly are not the most damning evidence against him in this illegal gun possession case. Because the admissible evidence readily establishes the fact of possession and we have been apprised of no argument to the contrary, we conclude that suppressing rather than admitting the excludable evidence would not have had a material effect on Chambers‘s decision to plead guilty.

Accordingly, the ruling and judgment of the district court is AFFIRMED.

Michelle S. Englade, Assistant U.S. Attorney, U.S. Attorney‘s Office Eastern District of Texas, Beaumont, TX, for Plaintiff-Appellee.

Bernard John Shealy, Amy R. Blalock, Assistant Federal Public Defender, Federal Public Defender‘s Office Eastern District of Texas, Tyler, TX, for Defendant-Appellant.

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Melissa Christine Lork pleaded guilty to possession with intent to distribute less than 50 grams of methamphetamine but reserved the right appeal the district court‘s denial of her motion to suppress evidence seized from her vehicle during a traffic stop. In reviewing the denial of a motion to suppress, we accept the district court‘s findings of fact unless they are clearly erroneous, but its ultimate conclusion as to the constitutionality of the law enforcement action is reviewed de novo. United States v. Orozco, 191 F.3d 578, 581 (5th Cir.1999).

Lork argues that the district court erred in finding that the police officer acted reasonably in stopping her because the evidence did not establish that she was speeding. However, the relevant inquiry is whether the police officer had probable cause to believe a traffic violation had occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Based on the testimony and the police officer‘s training and experience, we conclude that he did have probable cause to stop Lork for speeding.

Lork also argues that the police officer impermissibly extended her detention. However, a detectable odor of marijuana emanating from a vehicle provides probable cause for the search of a vehicle. See United States v. Reed, 882 F.2d 147, 149 (5th Cir.1989). Because the police officer testified that he detected this odor immediately upon approaching Lork‘s vehicle, any questions regarding the length of detention or consent to the search are irrelevant. Lork also argues that the police officer had no training in the smell of marijuana. Based on the police officer‘s extensive training and experience in narcotics, as well as his testimony that he was familiar with the odor of marijuana, we conclude that his detection of this odor provided probable cause for the search of the vehicle.

Although Lork submitted a FED. R. APP. P. 28(j) letter referencing the recent Supreme Court decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), she did not argue any sentencing error in her briefs, nor do we see any effect of Booker on her sentence.

AFFIRMED.

Notes

95 F.3d 409 (6th Cir.1996).

95 F.3d at 420 n. 21.

Id. at 420.

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.