[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 1, 2008
THOMAS K. KAHN
No. 07-14175
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-60344-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY OLBEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 1, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
This is Johnny Olbel’s appeal of his convictions for possessing crack
cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and
for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
I.
Olbel first contends that the district court erred in denying his motion to
suppress the evidence of the drugs and the firearm that were found in his vehicle
when he was arrested.
“[T]he general rule in the criminal context is that warrantless searches are
per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” United States v.
Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996) (internal quotation marks and
citations omitted). One of those exceptions is for a search incident to a lawful
arrest, United States v. Bailey, 691 F.2d 1009, 1018 (11th Cir. 1982), which
includes the right to search a vehicle occupied by the arrestee, New York v.
Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981). Under that exception an
officer may search a vehicle the arrestee has recently occupied even if the officer
first makes contact with him after he has exited the vehicle. Thornton v. United
States, 541 U.S. 615, 617, 623–24, 124 S. Ct. 2127, 2129, 2132 (2004).
The district court did not err in determining that the search of Olbel’s car
was a lawful search incident to his arrest. The court’s findings that Olbel was
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arrested almost immediately after exiting his vehicle and that the officers
approached him when he was within close physical proximity to it are supported
by the testimony and not clearly erroneous. The arresting officers also testified
that they saw Olbel with marijuana in plain sight before they approached him and
that one of them knew from his earlier contact with Olbel that he had a suspended
driver’s license. There was no Fourth Amendment violation.
II.
Olbel also contends that he is entitled to a new trial because the government
failed to provide him access to potentially exculpatory evidence as required by
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). The evidence at issue is
the government’s knowledge that someone other than Olbel owned the vehicle
from which the drugs and firearm were seized and that the owner had given the
vehicle to Olbel before his arrest.
There was no Brady violation because Olbel surely knew that he was not the
owner of the vehicle and how he had come to be in it. The government is not
required to disclose to a defendant a fact that the defendant already knows or could
ascertain with reasonable diligence. United States v. Newton, 44 F.3d 913, 918
(11th Cir. 1995). Not only that, but Olbel has also failed to show that the fact the
vehicle he was driving at the time of his arrest was owned by someone else was
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material in the Brady sense. See id.1
AFFIRMED.
1
Olbel also contends that his sentence was “unconstitutional” in light of the disparity
between sentences for possession of powder cocaine and crack cocaine. We decline to reach this
contention because Olbel abandoned it by only mentioning it in passing and providing no
citations to any authority to support his argument. See United States v. Gupta, 463 F.3d 1182,
1195 (11th Cir. 2006), cert. denied, 127 S. Ct. 2446 (2007); Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
4