United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1980EA
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Genevieve "Jenny" Nichols, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 17, 1998
Filed: November 27, 1998
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Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON,* District
Judge.
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PER CURIAM.
An Arkansas police officer stopped Genevieve “Jenny” Nichols for following
another vehicle too closely on the freeway. As the officer approached Nichols’s U-
Haul vehicle, he smelled marijuana, and when Nichols voluntarily opened the back of
the vehicle, the officer noticed a stronger marijuana odor. In response to the officer’s
question, Nichols denied she was carrying any contraband. Nichols then signed a
consent form and permitted the officer to search her vehicle, where the officer found
*
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas, sitting by designation.
more than four hundred pounds of marijuana. Nichols moved to suppress this evidence,
arguing the officer’s stop and search violated the Fourth Amendment. After a hearing,
the district court denied the motion. Nichols entered a conditional guilty plea to
possession with intent to distribute marijuana and the district court sentenced her to
thirty months in prison. Nichols appeals her conviction and sentence. We affirm.
Nichols challenges the district court’s denial of her suppression motion, claiming
the officer did not have probable cause for the stop. Nichols also claims she did not
voluntarily consent to the search of her vehicle because the officer coerced her into
opening her vehicle and she later signed the consent form merely as authorization of
this search. We reject Nichols’s contentions. First, the officer saw Nichols commit a
traffic violation, which created probable cause for the stop. See United States v.
Johnson, 58 F.3d 356, 357 (8th Cir. 1995). Second, contrary to Nichols’s contention,
the officer testified Nichols volunteered to open her vehicle, and even if Nichols had
not opened her vehicle or signed the consent form, the marijuana odor created probable
cause that justified the officer’s search. See United States v. Gipp, 147 F.3d 680, 685
(8th Cir. 1998). The district court found the officer’s testimony at the suppression
hearing more credible, and having reviewed the record, we conclude the district court’s
factual findings supporting its denial of Nichols’s suppression motion are not clearly
erroneous. See United States v. White, 42 F.3d 457, 459 (8th Cir. 1994).
We turn to Nichols’s remaining contentions. First, the district court did not
abuse its discretion when it refused to admit the hearsay testimony of Nichols’s
passenger. Although this type of hearsay testimony may be admissible, the district
court properly excluded the passenger’s proffered statement because it did not subject
the passenger to criminal liability. See Fed. R. Evid. 804(b)(3). Next, we also reject
Nichols’s claim that the district court erroneously denied her request for a downward
departure at sentencing. See U.S. Sentencing Guideline Manual § 5K2.0 (1997). We
review the district court’s downward-departure ruling for an abuse of discretion. See
Koon v. United States, 518 U.S. 81, 98-100 (1996). Nichols claims she is entitled to
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the departure for reasons of economic hardship, favorable employment record, family
ties and responsibilities, extraordinary remorse, and that her offense was a single act
of aberrant behavior. The district court correctly concluded these reasons were either
forbidden factors unavailable for departure purposes or discouraged and unmentioned
factors that, based on the particular circumstances, were within the heartland of the
applicable guidelines and did not warrant a downward departure. See United States
v. Weise, 128 F.3d 672, 673-74 (8th Cir. 1997). Having considered the record, we
believe the district court correctly calculated Nichols’s guideline sentence.
We affirm Nichols’s conviction and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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