United States v. Pierce Brown , 677 F. App'x 827 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4410
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PIERCE YARNELL BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:15-cr-00074-GEC-1)
Submitted: January 26, 2017 Decided: January 31, 2017
Before WILKINSON, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Randy V. Cargill,
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. John P. Fishwick, Jr., United States Attorney,
Ashley B. Neese, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pierce Yarnell Brown appeals his conviction for possession
of a firearm by a convicted felon. He challenges the denial of
his motion to suppress the firearm, arguing that the officer
lacked probable cause to search his moped. We disagree, and
thus, we affirm Brown’s conviction.
In reviewing a district court’s ruling on a motion to
suppress, we defer to the district court’s factual findings,
setting them aside only if clearly erroneous, and review its
legal conclusions de novo. United States v. Blake, 571 F.3d
331, 338 (4th Cir. 2009). When the district court has denied a
motion to suppress, “the evidence must be construed in the light
most favorable to the Government.” United States v. Uzenski,
434 F.3d 690, 704 (4th Cir. 2006).
Warrantless searches “are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established
and well-delineated exceptions.” California v. Acevedo, 500
U.S. 565, 580 (1991) (internal quotation marks and citation
omitted). One exception to the warrant requirement concerns
automobiles because of their inherent mobility and the risk that
contraband inside the vehicle could disappear while officers
obtained a search warrant. California v. Carney, 471 U.S. 386,
390-91 (1985). “If a car is readily mobile and probable cause
exists to believe it contains contraband, the Fourth Amendment
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. . . permits police to search the vehicle without more.”
Maryland v. Dyson, 527 U.S. 465, 467 (1999) (internal quotation
marks and citation omitted); Carney, 471 U.S. at 393-94 (noting
that vehicle exception should apply to all “movable vessels”
subject to Government licensing and inspection). Probable cause
to search exists if, given the totality of the circumstances,
there is a “fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983). Whether the warrantless search is of
an automobile or of a closed container within an automobile, the
limitation is the same: the scope of the search is “defined by
the object of the search and the places in which there is
probable cause to believe that it may be found.” United
States v. Ross, 456 U.S. 798, 824 (1982).
The district court found probable cause based on the small
amount of marijuana recovered from Brown’s person, as well as
Brown’s nervous behavior and his location in a high crime area.
Brown relies on our decision in United States v. Baker, 719 F.3d
313 (4th Cir. 2013). In Baker, Baker’s passenger was found in
possession of heroin, crack cocaine, and a digital scale. On
the basis of this and the passenger’s behavior (trying to walk
away, struggling with police officers), the police searched
Baker’s car and seized heroin, crack cocaine, methadone,
marijuana, and a handgun. Id. at 315. We held that probable
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cause exists to search a vehicle when “a police officer lawfully
searches a vehicle’s recent occupant and finds contraband on his
person.” Id. at 319. Brown contends that, while this statement
is broad, the facts of Baker are much narrower and the case
should be understood to hold only that such a search is proper
when, as in Baker, items are found “indicating involvement in
the drug trade” prior to the search. Id. Brown also contends
that his nervousness was of “limited significance” because most
citizens would be nervous when confronted by the police. See
United States v. Wald, 216 F.3d 1222, 1227 (10th Cir. 2000).
Thus, Brown asserts that a small amount of marijuana found
on the driver is insufficient to provide probable cause to
believe the vehicle contains evidence of criminal activity.
This argument finds no support in our precedent that the
detection of marijuana odor is sufficient to establish probable
cause. United States v. Palmer, 820 F.3d 640, 650 (4th Cir.
2016). Further, other circuits have found contrary to Brown’s
assertion. See United States v. Johnson, 383 F.3d 538, 545-46
(7th Cir. 2004) (finding that “discovery of a banned substance
(drugs) on Johnson’s person clearly provided . . . probable
cause to search the trunk of the vehicle . . . since the officer
had a reasonable basis for believing that more drugs or other
illegal contraband may have been concealed inside”); United
States v. Parker, 72 F.3d 1444, 1450-51 (10th Cir. 1995)
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(finding probable cause to search trunk based on smell of
marijuana combined with corroborating evidence of contraband
(powder residue and marijuana cigarette found on occupant)).
Finally, probable cause in this case did not rest solely on the
discovery of marijuana on Brown’s person; the officer also noted
that Brown was unusually nervous and that Brown was stopped in
an area known for drug trafficking. Given the totality of the
circumstances, we find that the officer had probable cause to
search Brown’s moped. *
For these reasons, we affirm Brown’s conviction. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
* The district court also upheld the search finding that the
firearm would have been inevitably discovered during an
inventory search of the moped. Brown challenges the towing of
his moped as violative of police procedure. Because we find
that probable cause existed to search Brown’s moped, we decline
to address this issue.
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