United States v. Durke

*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opinion should not be published and is not precedent except under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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41346
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID WAYNE DURKE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CR-168-1
August 31, 2001
Before GARWOOD, BARKSDALE and DEMOSS, Circuit Judges.
PER CURIAM:*
David Wayne Durke (Durke) appeals his conviction for
possession with intent to distribute methamphetamine in violation
of 21 U.S.C. § 841(a). Durke challenges the district court’s
denial of his motion to suppress. He argues that the search of his
vehicle was unconstitutional because, inter alia, the officers only
had a “hunch” that he would have marihuana in the vehicle.

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2
As noted in United States v. Reed, 822 F.2d 147, 149 (5th Cir.
1989), the distinct odor of burnt marihuana, by itself, will
provide probable cause to search a vehicle. Moreover, the
detection of the odor of marihuana justifies a search of the entire
vehicle, including locked compartments where contraband is likely
to be concealed. Id. See also United States v. McSween, 53 F.3d
684, 686-87 (5th Cir. 1995).
In reviewing a ruling on a motion to suppress, this court
reviews factual findings for clear error. United States v. Jordan,
232 F.3d 447, 448 (5th Cir. 2000). This court must view the
evidence in the light most favorable to the prevailing party. Id.
As in Reed, “the resolution of this issue simply boiled down to a
credibility choice,” Reed, 882 F.2d at 149, and the district
court’s express choice to believe the officers’ testimony that they
smelled a burned marihuana odor coming from the vehicle, and thus
to deny the motion to suppress, was not clear error. “It is not
controlling that the substance eventually discovered in the vehicle
was [methamphetamine], and that no marihuana was ever found.” Id.
“It is settled that the presence or absence of probable cause to
search is not determined by what the search does or does not
ultimately reveal.” Id. See also McSween supra.
Durke’s conviction is AFFIRMED.

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