United States v. Lork ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-41291
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELISSA CHRISTINE LORK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CR-44-ALL-RHC
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Melissa Christine Lork pleaded guilty to possession with
intent to distribute less than 50 grams of methamphetamine but
reserved the right appeal the district court’s denial of her
motion to suppress evidence seized from her vehicle during a
traffic stop. In reviewing the denial of a motion to suppress,
we accept the district court’s findings of fact unless they are
clearly erroneous, but its ultimate conclusion as to 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this opinion should not be published and is not precedent except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. 04-41291
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constitutionality of the law enforcement action is reviewed
de novo. United States v. Orozco, 191 F.3d 578, 581 (5th Cir.
1999).
Lork argues that the district court erred in finding that
the police officer acted reasonably in stopping her because the
evidence did not establish that she was speeding. However, the
relevant inquiry is whether the police officer had probable cause
to believe a traffic violation had occurred. Whren v. United
States, 517 U.S. 806, 810 (1996). Based on the testimony and the
police officer’s training and experience, we conclude that he did
have probable cause to stop Lork for speeding.
Lork also argues that the police officer impermissibly
extended her detention. However, a detectable odor of marijuana
emanating from a vehicle provides probable cause for the search
of a vehicle. See United States v. Reed, 882 F.2d 147, 149
(5th Cir. 1989). Because the police officer testified that he
detected this odor immediately upon approaching Lork’s vehicle,
any questions regarding the length of detention or consent to the
search are irrelevant. Lork also argues that the police officer
had no training in the smell of marijuana. Based on the police
officer’s extensive training and experience in narcotics, as well
as his testimony that he was familiar with the odor of marijuana,
we conclude that his detection of this odor provided probable
cause for the search of the vehicle.
No. 04-41291
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Although Lork submitted a FED. R. APP. P. 28(j) letter
referencing the recent Supreme Court decision in United States v.
Booker, 125 S. Ct. 738 (2005), she did not argue any sentencing
error in her briefs, nor do we see any effect of Booker on her
sentence.
AFFIRMED.