Appeal from the United States District Court for the District of Nebraska.
The opinion of the court was delivered by: Riley, Chief Judge.
Submitted: November 19, 2010
Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
Following the district court's*fn1 denial of Dion A. Brown's motion to suppress evidence seized during a warrantless search of a vehicle in which Brown was a passenger, a jury found Brown guilty of being a felon in possession of a firearm.The district court sentenced Brown to 78-months imprisonment. Brown appeals the denial of his motion to suppress, his conviction, and his sentence. We affirm.
On the evening of January 2, 2009, Brown, his girlfriend Tonia Murray, and his friend Johan Anderson were traveling westbound on Nebraska Highway 2 near Dunbar when Murray's Dodge Intrepid broke down. Believing her car was out of oil, Murray called and asked a friend to deliver oil.
At approximately 11:30 p.m., Otoe County Deputy Sheriff Cody Starner observed Murray's disabled vehicle on the shoulder with its hazard lights flashing. Deputy Starner pulled up behind the vehicle, activated his patrol lights,*fn2 and approached the driver side of the vehicle.
Murray, who was seated in the driver's seat, rolled down her window, and Deputy Starner asked Murray "if she needed any assistance or if she had help on the way." Deputy Starner smelled burnt marijuana and asked, "Who's smoking the weed?" Anderson, who was lying down in the back seat, sat up and admitted smoking marijuana.
Deputy Starner then escorted Anderson to his patrol vehicle, while Murray and Brown remained seated in Murray's vehicle. Deputy Starner called for backup and questioned Anderson. Anderson consented to a search of his bag, which was located in the trunk of Murray's vehicle.
Deputies Colin Caudill and Brian Briley soon arrived and Deputy Starner explained the situation to them.Deputy Starner again approached Murray's vehicle and asked Murray if he could search the trunk for Anderson's bag. Murray agreed and opened the trunk. Deputy Starner searched Anderson's bag, but did not find any marijuana. Meanwhile, Deputy Caudill went to the front passenger side and opened the door.Deputy Caudill smelled the odor of burnt marijuana while he briefly questioned Brown.Deputy Caudill asked Brown to exit the vehicle, patted down Brown, and, finding nothing at that time, allowed him to return to Murray's vehicle.
Deputies Caudill and Briley decided to search Murray's entire vehicle and once again asked Brown to exit the vehicle. Deputy Briley then pat searched Brown and found a small amount of marijuana on him. Deputy Caudill informed Brown that a small amount of marijuana was "not a big deal" and "just an infraction." After the search, Deputy Briley escorted Brown to his patrol vehicle, which had a back seat modified to transport both a canine and a prisoner. The deputy placed Brown in the patrol vehicle for officer safety and because it was a cold January night. Before putting Brown in the patrol vehicle, Deputy Briley advised Brown he was only being detained, not arrested, and would be free to leave if nothing were found in the vehicle.
Deputy Briley then interviewed Murray outside her vehicle, while Deputy Caudill searched the vehicle. During the search, Deputy Briley stayed outside with Murray, while Deputy Starner was in his patrol vehicle with Anderson. Deputy Caudill soon found a loaded Bryco .380 caliber semi-automatic handgun underneath a McDonald's bag on the floor board in front of the front passenger seat.
Deputy Briley handcuffed Murray and placed her in Deputy Caudill's patrol vehicle. Deputy Starner asked Anderson if there were any other guns in the vehicle and Anderson replied there was a gun under a jacket on the backseat. Deputy Caudill then looked in the backseat and found the second gun. Deputy Starnerhandcuffed Anderson and the search continued. After the search was ...