IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11524
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORY JERMAINE BEVERLY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-216-1-M
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July 26, 2002
Before JOLLY, DAVIS and PARKER, Circuit Judges.
PER CURIAM:*
Cory Jermaine Beverly (Beverly) appeals his conditional
guilty plea conviction for possession with intent to distribute
crack cocaine and carrying a firearm during and in relation to a
drug trafficking crime. Beverly challenges the district court's
denial of his motion to suppress evidence seized from the rental
car he was driving. Specifically, Beverly argues that the
officer’s testimony that the pistol in the car was in plain view
was not credible because it was physically impossible for the
*
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that this opinion should not be published and is not precedent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.
No. 01-11524
-2-
officer, who was standing beside the open driver’s side window of
the car, to have seen the handle of a pistol protruding from
underneath the driver’s seat in the area where his left foot was.
This court reviews a ruling on a motion to suppress based
upon live testimony under the “clearly erroneous” standard for
findings of fact and de novo for questions of law. United States
v. Grosenheider, 200 F.3d 321, 326 (5th Cir. 2000). We will not
disturb a district court’s credibility determination unless the
“testimony is so unbelievable on its face that it defies physical
laws.” United States v. Casteneda, 951 F.2d 44, 48 (5th Cir.
1992) (citing United States v. Lindell, 881 F.2d 1313, 1322 (5th
Cir. 1989)) (internal quotation omitted).
The district court did not clearly err in finding the
officer’s testimony credible. The record indicates that the
officer is a very tall man, that he was standing closely beside
the open driver’s side window of a car (not a sports-utility
vehicle or truck), that the car was well illuminated, and that,
when Beverly reached for the glove box, the officer could see,
with his flashlight, the floorboard area around Beverly’s left
foot. Beverly offered no evidence at the suppression hearing to
rebut this evidence. Accordingly, given the deference required
by Lindell, there was no clear error. See Casteneda, 951 F.2d at
48; see also United States v. Lara, 517 F.2d 209, 211 (5th Cir.
1975).
AFFIRMED.