United States v. Ethridge ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40458
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ROY ETHRIDGE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CR-29-ALL
--------------------
March 1, 2000
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
John Roy Ethridge appeals the district court’s denial of his
motion to suppress the marijuana found in his van during a traffic
stop and his nonverbal response to the officer’s question whether
the officer smelled marijuana after opening the passenger side door
of the van. Ethridge argues that he did not violate Texas
Transportation Code Ann. § 545.060 and there was no basis for the
traffic stop; that the officer exceeded the scope of Ethridge’s
consent by opening the passenger side door; that the district court
should have determined whether Ethridge’s consent was an
1
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that this opinion should not be published and is not precedent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.
independent act of free will unrelated to the stop because the stop
was unjustified; and that, when Ethridge nodded affirmatively to
the officer’s question whether the smell emanating from the van was
marijuana, Ethridge was in custody, and the response was
inadmissible because he had not yet been given Miranda2 warnings.
The evidence at the suppression hearing revealed that the
officers observed Ethridge’s van stray over the right shoulder line
three times in a mile distance. Even if strong winds had made
Ethridge’s control of the van difficult, the officers were not
unjustified for stopping Ethridge for being in violation of §
545.060. See United States v. Zucco, 71 F.3d 188, 189-90 (5th Cir.
1995). Because the stop was justified, we need not determine
whether Ethridge’s consent was an independent act of free will.
See United States v. Chavez-Villarreal, 3 F.3d 124, 127-28 (5th
Cir. 1993).
Ethridge gave the officer permission to look at a U-Haul box
in the van, and Ethridge unlocked the doors to the van with the
automatic lock while he was standing at the driver side door of the
van. The officer did not exceed the scope of the consent by
opening the passenger side door upon hearing the door unlock. See
United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996); United
States v. Rich, 992 F.2d 502, 505-06 (5th Cir. 1993). Ethridge’s
response to the officer’s question whether he smelled marijuana was
not given while Ethridge was in custody for Miranda purposes. See
United States v. Bengivenga, 845 F.2d 593, 596-600 (5th Cir. 1988).
AFFIRMED.
2
Miranda v. Arizona, 384 U.S. 436 (1966).