FILED
United States Court of Appeals
Tenth Circuit
November 2, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-6066
v.
RODNEY BYNARD JOHNSON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:09-CR-00246-HE-1)
Ashley L. Altshuler, Special Assistant United States Attorney (Sanford C. Coats, United
States Attorney and Jonathon E. Boatman, Assistant United States Attorney, with him on
the Brief), Oklahoma City, Oklahoma, for the Plaintiff - Appellee.
William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for the
Defendant - Appellant.
Before MURPHY, HOLLOWAY and O’BRIEN, Circuit Judges.
HOLLOWAY, Circuit Judge.
Defendant-appellant Johnson was charged with possession of a firearm after
former conviction of a felony. After his motion to suppress was denied, the parties
agreed to a non-jury trial on stipulated evidence. The district judge found the defendant
guilty. At sentencing the judge found that defendant had three qualifying prior felonies
under the Armed Career Criminal Act (ACCA) and imposed a fifteen-year sentence,
which was the mandatory minimum under the ACCA, and ordered payment of a special
assessment of $100.00 and four years of supervised release on release from
imprisonment.
Mr. Johnson now appeals the denial of his motion to suppress evidence and the
sentence imposed by the district court. We have jurisdiction under 28 U.S.C. § 1291.
I. Background
We view the record in the light most favorable to the prevailing party – here the
government. See United States v. Salazar, 609 F.3d 1059, 1061 (10th Cir. 2010).
This case grew out of a routine traffic stop. The only witness to testify at the
suppression hearing was the arresting officer, Trooper Kimmons of the Oklahoma
Highway Patrol. The only other evidence admitted at the hearing was the videotape of
the traffic stop. The trooper’s written report was discussed in testimony but not admitted
in evidence.
The following summary is from the district court’s order denying the motion to
suppress. This summary was relied on in the Principal Brief of the Appellant, which
states at page 3 that: “The facts developed at the evidentiary hearing on the motion to
suppress were comprised of the testimony of Oklahoma Highway Patrol Trooper Joe
Kimmons and a videotape of the stop from a camera located in Trooper Kimmons’ patrol
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unit.”
Defendant Johnson was driving a car on one of the interstate highways in
Oklahoma City at about 3:30 in the morning when the trooper saw him swerve suddenly
into another lane. The trooper testified that the driver had committed a violation at that
point, an unsafe lane change. The trooper, however, followed the defendant for about one
mile before pulling him over. During the time that he was following the car, the trooper
saw the three occupants “shuffling frantically inside” the car and called for backup before
pulling the car over. Because of the time of night, the movements in the car, and the fact
that the car had a bar code on it that suggested it was rented, the trooper suspected the
occupants might be involved in something criminal. More specifically, he testified that
he suspected because of the unusual movements that the occupants of the car had a gun
and that he was accordingly concerned for his safety when he activated his emergency
lights and pulled the car over.
Because he was concerned for his safety, the trooper did not approach the car after
pulling it over but asked the driver to come back to the patrol car. He had defendant lift
his shirt before getting in the patrol car so that he could see that there was no weapon in
his waistband. Once the defendant entered the car, the trooper immediately noticed a
strong odor of burnt marijuana. In response to routine questions, defendant said that he
was from Oklahoma City and had an identification card, but not a driver’s license.
Defendant said that the passenger in the front, Zach Walker, had rented the car. When
asked to identify the other passenger, defendant only knew his “street name.” Defendant
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told the trooper that he and his companions had just dropped his cousin off on the
northwest side of town and were going to the south side to get a motel room.
The trooper then approached the stopped car to get the rental contract, leaving
defendant in the patrol car. As soon as the front seat passenger rolled down his window,
the trooper smelled burnt marijuana. He also saw open beer cans. (Apparently none of
the three men appeared intoxicated, however.) The passengers both said that they were
from Missouri and that the car either belonged to or had been rented by the girlfriend of
one of them. (The district judge said that he could not tell from the audio which response
had been given.) Neither passenger had a driver’s license with them; Walker had no
identification at all but did provide his social security number.
The trooper ran a records check on the occupants and asked the defendant about
drugs, saying that he asked because he smelled marijuana. Defendant either denied
smoking it or said that he had been around it earlier in the night. Based on the odor he
had detected and other facts mentioned above, the trooper decided he had grounds to
search the car. With the help of other officers who had arrived at his request, the trooper
removed all the car’s occupants and searched the entire car. A gun was found on the
driver’s seat, under a blanket. Defendant admitted the gun was his. At some point
afterward, the trooper got a report back on the occupants and learned that defendant was a
convicted felon.
II. The District Court’s Ruling
In his motion to suppress, the defendant did not challenge the initial stop but only
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the search of the car. The district judge first rejected one of the government’s two
justifications for the search – that it was a valid inventory search. The judge found the
evidence insufficient to show that the officers had decided to impound the car before they
searched it. The judge said that it was “unclear whether impoundment was the reason for
the search or an afterthought to justify it.”
The judge concluded, however, that the search was supported by probable cause.
His review of the evidence yielded several factors supporting probable cause, of which
the smell of marijuana weighed the heaviest. The court said that the defendant’s
challenge was basically an attack on the trooper’s credibility. Defendant had pointed out
that the officer’s report did not mention that he had smelled marijuana in the car, only on
the defendant’s person. But the court found the trooper’s testimony on that point to be
credible. Moreover, the judge rejected the defendant’s legal argument that the search of
the car would not have been justified if the smell had only been detected on the defendant
himself.
The additional factors listed by the court were that the vehicle was from out of
state; the lessee or owner of the car was not present; the defendant did not know the
actual name of one of his companions (the trooper had testified that criminals sometimes
only know each other by nicknames); it was very late at night; the passengers had made
unusual movements while the officer had been following the car; and the occupants’
plans were vague. The court found that these facts cumulatively amounted to probable
cause.
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III. Analysis
A. Reasonableness of the search.
In reviewing the denial of a motion to suppress evidence, we accept the findings of
fact made by the district court unless they are clearly erroneous, but the ultimate question
of reasonableness under the Fourth Amendment presents a question of law for our plenary
review. See, e.g., United States v. Manjarrez, 348 F.3d 881, 884 (10th Cir. 2003).
As the district court observed, the defendant’s argument is basically an attack on
the credibility of the trooper. The defendant supports the attack primarily by focusing on
discrepancies between the officer’s testimony and the videotape of the encounter.
In his brief, defendant enumerates discrepancies between the videotape and the
trooper’s testimony or between the tape and the district court’s findings. First, the trooper
testified that he smelled marijuana immediately upon defendant’s entering the patrol car,
but the videotape shows that nine minutes passed before the trooper asked defendant
about marijuana. Two, the trooper testified that defendant had said that the backseat
passenger did not have a driver’s license, but the tape shows that defendant said that he
thought the man did have one.
Three, the trooper testified that defendant told him that he had come into town
from St. Louis for a birthday party; the tape shows defendant said he was from Oklahoma
City and had just dropped his cousin off. Four, the court found that defendant did not
know the names of his two passengers; the tape shows defendant identified the front seat
passenger as Zach Walker. Five, the district court found that the occupants’ plans were
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vague, but defendant advised the trooper that they were going to get a motel room on the
south side of town.
Without further analysis, defendant concludes that the district court erred in
concluding that probable cause supported the search of the automobile. We are not
persuaded.
First we note that the odor of marijuana by itself is sufficient to establish probable
cause. United States v. Downs, 151 F.3d 1301, 1301 (10th Cir. 1998). Because the
district court specifically found the trooper to be credible when he testified that there was
a strong odor of burnt marijuana emanating from the car when he approached to question
the passengers, we can find no error in the conclusion that probable cause was established
to justify the search of the car. Moreover, as recited supra, in this case the district judge
also found other factors that supported probable cause, although the judge apparently did
not regard any of them individually as being particularly weighty.
For the most part, defendant’s argument rests on inconsistencies in the evidence on
some of these lesser factors. We will briefly comment on some of these minor
inconsistencies even though the strong odor of marijuana in itself justified the search.
The first alleged inconsistency cited by Mr. Johnson is that the trooper testified
that he smelled the odor of burnt marijuana on Johnson as soon as he got into the patrol
car but did not address the issue for nine minutes. This is not really an inconsistency but
merely an area ripe for attention on cross-examination. The trooper referred several times
in his testimony to his perception that the encounter could be a dangerous one for him.
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Even absent that concern, however, we would not impose a rule to govern in fine detail
the order in which officers must conduct these encounters. There may have been several
good reasons for the officer to delay confronting a detainee with evidence of a crime far
more serious than the one that prompted the encounter in the first place. In any event,
because there is no actual inconsistency here, we certainly have no basis for rejecting any
of the district court’s findings.
Several of the other inconsistencies noted by defendant are so minor that the
district judge apparently attributed them to the vagaries of human memory. Thus, that the
trooper testified that the defendant had told the trooper that none of his companions had
driver’s licenses when the recording shows that the defendant had said that he thought
one of them did have a license is simply not convincing. Similarly, the trooper testified
that defendant had said that he had just come down to Oklahoma from St. Louis, when in
fact it was only the passengers who had said this. Again, the district court did not draw
any adverse inference about the trooper’s general credibility from this apparent lapse of
memory, and we can certainly not say that it was clearly erroneous for the judge not to
have done so. This is, again, not a factor that the judge relied on to support his
conclusion of probable cause.
The same can be said for the fact that the defendant knew the actual name of one
of his companions, though the trooper had testified that defendant did not know either of
the men’s proper names. The salient fact was that he knew one of his companions only
by a nickname. The trooper testified that in his experience such is often the case with
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persons associated for illicit purposes. The district judge carefully assessed the trooper’s
testimony against the video recording and did not rely on testimony that was contradicted
by the recording. Finally, defendant argues that the trooper was mistaken in describing
the detainees’ plans as vague when Mr. Johnson had told the trooper that they were going
to the south side of town to find a motel. This is a matter of characterizing the evidence
rather than finding an inconsistency.
We would be hesitant to second-guess the officer’s weighing of this fact in the
light of his experience, and happily we need not do so. The district court’s conclusion
that the search was supported by probable cause was correct and soundly based on factors
with substantially more weight than this. We note additionally that defendant does not
mention the unusual movements of the passengers in the car after they had noticed the
officer’s car and before being pulled over, in spite of the importance the officer placed on
this observation during his testimony and the fact that the district court gave it as a reason
supporting his ultimate conclusion.
B. Reasonableness of the sentence.
In a pretrial notice of intent to seek an enhanced sentence under the ACCA, the
government listed four prior convictions as a predicate for application of the Act. There
were two prior convictions from Oklahoma for possession with intent to distribute a
controlled substance. There is no dispute that these were properly counted. There were
also two prior convictions from Missouri, one for possession of a controlled substance
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with intent to deliver, and one for second degree assault. Mr. Johnson was seventeen at
the time he committed the two Missouri offenses.
Mr. Johnson now challenges whether those should have been counted under the
ACCA because defendant was a juvenile at the time. Here this is a legal question of
statutory interpretation for de novo review.1
Mr. Johnson was sentenced under the following provision of the ACCA:
In the case of a person who violates section 922(g) of this title and has
three previous convictions by any court referred to in section 922(g)(1) of
this title for a violent felony or a serious drug offense, or both, committed
on occasions different from one another, such person shall be fined under
this title and imprisoned not less than fifteen years . . . .
18 U.S.C. § 924(e)(1). The ACCA defines the key terms:
As used in this subsection –
(A) the term “serious drug offense” means –
....
(ii) an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as defined
in section 102 of the Controlled Substances Act (21 U.S.C.
802)), for which a maximum term of imprisonment of ten
years or more is prescribed by law;
1
Mr. Johnson’s challenge thus appears to be to the procedural reasonableness of his
sentence. In United States v. Martinez, 610 F.3d 1216, 1223 (10th Cir. 2010), we noted
that we review criminal sentences for reasonableness, which includes substantive and
procedural components, and that proper calculation of the advisory guideline range is
necessary for procedural reasonableness. Similarly, a challenge to the applicability of a
mandatory minimum sentence under the ACCA addresses the procedural reasonableness
of the sentence.
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(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or destructive
device that would be punishable by imprisonment for such term if
committed by an adult, that –
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of another;
or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another . . . .
18 U.S.C. § 924(e)(2).
Under Missouri law, defendant Johnson was classified as an adult for the offenses
he committed at age 17 because of the nature of the charges. On the other hand, as Mr.
Johnson points out, federal law considers a person under 18 to be a juvenile. 18 U.S.C. §
5031. Federal law would treat the two Missouri offenses as acts of juvenile delinquency,
defendant argues, and under the ACCA definition quoted above, they would not qualify
as predicate offenses.
Defendant Johnson submits the federal definition of juvenile should be used to
determine whether a predicate offense meets the definition of such a conviction under the
ACCA. He says that using the federal definition of juvenile will promote uniformity in
application of the ACCA and is consistent with the Supreme Court’s categorical
approach. Appellant’s Principal Brief at 12, 18. This argument fails because it is clear
that federal law does not determine whether the Missouri convictions, or either of them,
qualify as “previous convictions” under the ACCA. The ACCA appears in Chapter 44 of
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Title 18. Section 921 provides the definitions applicable to that chapter. And that section
provides this definition: “What constitutes a conviction of [a crime punishable by
imprisonment for a term more than one year] shall be determined in accordance with the
law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20)
(emphasis added). This provision has been described by the Supreme Court as a “choice-
of-law clause.” Beecham v. United States, 511 U.S. 368, 369 (1994). Therefore, because
Missouri treated the offenses of conviction as felony crimes, i.e., treated Mr. Johnson as
an adult, those convictions were properly counted as predicate offenses under the ACCA.
Our holding today is in accord with our holding in the unpublished case of United
States v. Wilson, 95 Fed. Appx. 970, 974 (10th Cir. 2004), vacated on other grds., 543
U.S. 1103 (2005), and the reasoning of United States v. Lender, 985 F.2d 151 (4th Cir.
1993), and United States v. Cure, 996 F.2d 1136 (11th Cir. 1993).2 We have found no
decision by any federal court to the contrary. Mr. Johnson’s arguments are unavailing in
light of the clarity of the statutory provisions at issue.
We are publishing this opinion which will be a binding precedent for the courts of
this Circuit and for executive branches of the Circuit.
2
We previously addressed the use of state law in determining the treatment for
sentencing purposes of offenses committed before the age of eighteen in United States v.
McKissick, 204 F.3d 1282, 1300-1302 (10th Cir. 2000). In that case we rejected an equal
protection challenge and a vagueness challenge to the use of a similar provision in
U.S.S.G. § 4A1.2(d), as applied to enhance the penalty for violation of 21 U.S.C. §
841(b)(1)(A). In our analysis, we cited Lender with approval.
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Conclusion
For the foregoing reasons, the judgment of conviction and the sentence are
AFFIRMED.
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