UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4806
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHANNON JARRELL BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:05-cr-00082)
Submitted: February 21, 2007 Decided: April 6, 2007
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Randy V. Cargill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Ronald Andrew Bassford,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shannon Jarrell Brown entered a conditional plea of
guilty to one count of possession with intent to distribute cocaine
and one count of possession of a firearm during and in relation to
a drug trafficking crime, in violation of 18 U.S.C. § 924(c); 21
U.S.C. § 841(a)(1), (b)(1)(C) (2000). The district court sentenced
Brown to a total of 240 months’ imprisonment. We find no error and
affirm Brown’s convictions and sentence.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there were no
meritorious grounds for appeal, but questioning whether the
district court erred in denying Brown’s motion to suppress. In his
pro se supplemental brief, Brown joins his counsel’s argument
regarding the motion to suppress. Additionally, Brown contends his
counsel provided ineffective assistance by “allowing” him to plead
guilty to charges that were not supported by sufficient evidence.
The Government elected not to file a responsive brief.
Brown initially contends the district court erred in
denying his motion to suppress. We review the factual findings
underlying the denial of a motion to suppress for clear error and
its legal conclusions de novo. United States v. Johnson, 400 F.3d
187, 193 (4th Cir.), cert. denied, 126 S. Ct. 134 (2005). The
evidence is construed in the light most favorable to the prevailing
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party below. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998).
Law enforcement discovered Brown passed out in his
vehicle in the middle of an intersection. After noting “a strong
odor of alcoholic beverage coming from [Brown’s] vehicle,” the
initial responding officer performed a field sobriety test on
Brown. This resulted in Brown’s arrest for driving under the
influence and for being an habitual offender. A search of the
interior passenger compartment of Brown’s vehicle was performed
incident to his arrest. The search rendered a set of digital
scales. Additionally, the officer performing the search noted the
smell of unburned marijuana emanating from a partial opening
between the trunk and back seat area. The officer subsequently
investigated the trunk and discovered marijuana, a firearm,
cocaine, and Brown’s wallet.
Brown concedes in his pro se supplemental brief that the
search of the interior passenger compartment of his vehicle, which
rendered the set of digital scales, was proper. See New York v.
Belton, 453 U.S. 454, 460-61 (1981) (passenger compartment of
vehicle and containers therein may be searched without warrant and
without further showing of probable cause when individual is
lawfully arrested in or near vehicle). However, Brown argues the
search of his trunk was improper because he was “drunk and under
the safe custody” of law enforcement officers. Because “he was
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going nowhere and neither was his car,” he concludes officers
should have been required to secure a warrant prior to searching
the trunk of his vehicle. Additionally, Brown argues that the
officer lacked probable cause for the search as the officer’s
testimony that he could detect the smell of unburned marijuana was
incredible.
A warrantless search of an automobile is lawful if there
is probable cause to believe that it contains evidence of a crime.
See Chambers v. Maroney, 399 U.S. 42, 48-52 (1970). Moreover, “a
search warrant [is] unnecessary where there is probable cause to
search an automobile stopped on [a public road]; the car is
movable, the occupants are alerted, and the car’s contents may
never be found again if a warrant must be obtained. Hence an
immediate search is constitutionally permissible.” Id. at 51. As
the officer had probable cause to search the trunk of Brown’s
vehicle, and the vehicle was located on a public road and thus a
fleeting target for a search, we conclude the warrantless search
did not violate the Fourth Amendment. Though Brown asserts the
testimony of the officer performing the search was incredible, it
is not the province of this court to second-guess the credibility
determinations of the factfinder. See United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989). Therefore, under these
circumstances, the district court did not err in its denial of
Brown’s motion to suppress.
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Brown also contends that his counsel provided ineffective
assistance by “allowing” him to plead guilty despite a lack of
evidence to support the plea. An ineffective assistance of counsel
claim is generally not cognizable on direct appeal, but should
instead be asserted in a post-conviction petition under 28 U.S.C.
§ 2255 (2000). See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). However, we have recognized an exception to the
general rule when “it ‘conclusively appears’ from the record that
defense counsel did not provide effective representation.” Id.
(quoting United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir.
1994)). Because the record does not conclusively establish that
Brown’s counsel was ineffective, Brown’s claim is not cognizable on
appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly we affirm Brown’s convictions and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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