United States v. Johnson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10270
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOREY TREVOY JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-325-1-L
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April 11, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Torey Trevoy Johnson entered a conditional guilty plea to
one count of possession of an unregistered firearm. He reserved
the right to appeal the district court's denial of the motion to
suppress. We review the district court's findings of fact for
clear error and the conclusion as to the constitutionality of the
law enforcement action de novo. Ornelas v. United States, 517
U.S. 690, 699 (1996). We will not second-guess the district
court's findings as to the credibility of witnesses. United
States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997).
*
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that this opinion should not be published and is not precedent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. 00-10270
-2-
It is not necessary to determine whether the district court
erred in its finding that Johnson consented to the initial entry
into the apartment because that entry was justified by probable
cause. Johnson concedes that the officers could have arrested
him and searched the immediate area because they had probable
cause to believe that a crime was being committed when he opened
the door and the officers smelled burning marijuana. See United
States v. Ramirez, 145 F.3d 345, 352 (5th Cir. 1998).
Johnson argues that the district court was clearly erroneous
in its finding that he consented to a search of the entire
apartment. Given the required deference to the district court's
credibility determination and the totality of the circumstances
shown by the officers' testimony, the district court did not
clearly err in its factual findings that Johnson voluntarily
consented to the search of his apartment. The district court did
not err in denying the motion to suppress the results of the
search. See United States v. Cooper, 43 F.3d 140, 145-46 (5th
Cir. 1995); United States v. Morales, 171 F.3d 978, 981 (5th
Cir. 1999).
Johnson’s motion to submit nonconforming record excerpts is
GRANTED.
AFFIRMED; MOTION GRANTED.