United States of America v. Cedric D. Simmons

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-3902
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UNITED STATES OF AMERICA
v.
CEDRIC D. SIMMONS,
Appellant.
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 06-cr-0041)
District Judge: Honorable William W. Caldwell
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Submitted Under Third Circuit LAR 34.1(a)
October 25, 2007
Before: SLOVITER, CHAGARES and HARDIMAN, Circuit Judges.
(Filed: October 26, 2007)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Defendant Cedric Simmons (Simmons) appeals the District Court's denial of two
motions to suppress evidence gathered through a vehicle search and a search of his person

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incident to arrest. Because neither search violated Simmons's Fourth Amendment rights,
we will affirm his conviction.
I.
On January 8, 2006, at approximately 2:30 a.m., Simmons was stopped for
multiple traffic violations by Officer Brant Maley of the Penbrook Police Department.
Upon approaching the car, Officer Maley detected the scent of marijuana emanating from
the driver’s side window. Officer Maley proceeded to run Simmons’s license, and
discovered that he was not the owner of the car and had a criminal record. Officer Maley
conducted a pat down of Simmons, which led to the discovery of what felt like a large
amount of money in his pockets. Around this time, a second officer, William Rietheimer,
appeared on the scene and noted the odor of marijuana.
The officers decided to pursue consent for a search from the car’s owner, Chanika
Brown, and asked Simmons to contact her via his cell phone. The initial attempt was
unsuccessful, but Brown returned Simmons’s call a short time later and Officer Maley
spoke to her. After learning that Simmons was Brown’s boyfriend and had permission to
drive the car, Officer Maley asked for Brown’s consent to search her vehicle. Brown
asked what would happen if she refused, to which Officer Maley responded that the
officers would pursue a warrant. Brown does not recall whether she responded “yes” or
“okay,” but does not dispute consenting to the search.
During the search, a “blunt” was found in the car’s ashtray that field-tested
positive for marijuana. Officer Maley placed Simmons under arrest and removed the

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money from his pockets, which amounted to $2,610 separated into $80 and $200 folds.
While Officer Maley counted the money, Officer Rietheimer completed the search of
Simmons’s person, and located 61.9 grams of cocaine base (crack) in Simmons’s groin
area.
On February 1, 2006, a grand jury sitting in Harrisburg, Pennsylvania, returned a
one-count indictment against Simmons, charging him with possession with intent to
distribute five or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
Simmons filed a motion to suppress physical evidence on Fourth Amendment grounds
and the District Court held a suppression hearing.
At the suppression hearing, Simmons called two witnesses, his girlfriend Chanika
Brown and Aleem Harden. Brown testified that the reason Simmons had her car was that
she was too intoxicated to drive herself home, having had approximately six drinks
between the hours of 10:30 p.m and 12:30 a.m. that night. She also admitted to a
previous perjury conviction. Harden, a resident of the area who described Simmons as an
“acquaintance,” witnessed the traffic stop from the porch of his home. He testified that
the officers searched the car three times, at least twice prior to any phone conversation.
This testimony contradicted that of Officer Maley and the police records, which indicate
only one search pursuant to Brown’s consent.
On May 9, 2006, the District Court issued a Memorandum Opinion and Order,
denying Simmons’s motion to suppress on the grounds that Brown validly consented to

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the search and the odor along with the discovery of marijuana was sufficient grounds for
probable cause to arrest.
Thereafter, on May 22, 2006, Simmons and the Government entered into a written
plea agreement pursuant to which Simmons pleaded guilty to possession with intent to
distribute an indeterminate amount of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
Simmons preserved his right to appeal the suppression issues, however.
II.
The standard of review for the denial of a motion to suppress is multi-tiered; the
District Court’s findings of fact are reviewed for clear error, while the application of law
to these facts is reviewed de novo. United States v. Givan, 320 F.3d 452, 458 (3d Cir.
2003).
III.
We begin with the search of the vehicle. Searches pursuant to voluntary consent
are a recognized exception to the warrant requirement of the Fourth Amendment.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Whether a search was voluntarily
consented to is a question of fact reviewed for clear error under the totality of the
circumstances. Id. at 229. Standard considerations for whether consent is voluntary
include: “the setting in which the consent was obtained, the parties' verbal and
non-verbal actions, and the age, intelligence, and educational background of the
consenting individual.” Givan, 320 F.3d at 459. Intoxication is also an element to be
considered in applying the totality of circumstances test. Indeed, courts have found that

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intoxication may override voluntary consent, but only when it is clear from the situation
that the person did not comprehend the implications of consent. See U.S. v. Schecter, 717
F.2d 864, 866 (3d Cir. 1983).
In this case, it is clear from the record that Chanika Brown voluntarily consented
to the search of her vehicle. Although she drank alcohol during the evening in question,
Brown inquired what would happen if she refused consent, thus demonstrating that she
comprehended the implications of that consent. Moreover, she was able to remember the
manner in which she got home, the location of her car, and the bulk of her conversation
with Officer Maley, all of which are consistent with her ability to give consent to search.
Finally, Officer Maley did not report Brown as having any difficulties in maintaining the
conversation with him, such as slurred speech or impaired capacity.
Thus, there was ample evidence on the record for the District Court to have
concluded that Brown voluntarily consented to the search of her vehicle.
IV.
Having found that the search of the vehicle was proper, we next consider whether
the officers had probable cause to search Simmons incident to arrest. A determination of
probable cause is a matter of law reviewed de novo. United States v. Harple, 202 F.3d
194, 196 (3d Cir. 1999). When considering a finding of probable cause, a court must
consider “whether at that moment [of arrest] the facts and circumstances within [the
officers’] knowledge and of which they had reasonably trustworthy information were

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sufficient to warrant a prudent man in believing that the [suspect] had committed or was
committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964).
In this case, there is no doubt that the officers had probable cause to arrest
Simmons. In the context of traffic stops, the smell of marijuana alone, if articulable and
particularized (as it was in this case), may establish not merely reasonable suspicion, but
probable cause. United States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006). Moreover,
while the scent of marijuana was sufficient to establish probable cause, the officers in this
case went one step further. They secured voluntary consent from the car’s owner,
searched the vehicle, and found a blunt. Accordingly, the District Court did not err when
it found that the officers had probable cause to arrest Simmons and search his person
incident to arrest.
V.
For the foregoing reasons, it is apparent from the record that the police did not
violate Simmons’s Fourth Amendment rights and the District Court did not err in denying
his motion to suppress. Therefore, we will affirm the judgment below.

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