1 The Honorable Linda R. Reade, United St ates District Judge for the Northern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-2218

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. George Alan Lindsey, * * [UNPUBLISHED] Defendant - Appellant. *

___________ Submitted: December 13, 2005 Filed: December 16, 2005

___________ Before BYE, BEAM, and GRUENDER, Circuit Judges.

___________ PER CURIAM. George Alan Lindsey pleaded guilty to possessing pseudoephedrine pills with intent to use them to manufacture meth amphetamine, in violation of 21 U.S.C. § 841(c)(2). He appeals his conviction claiming the district court 1 erred in denying his motion to suppress evidence. We affirm.

On February 24, 2004, Offi cer Stephen Dudak of the Iowa State Patrol stopped Lindsey on Highway 20 in Delaware County, Iowa, for speeding. Dudak asked-2- Lindsey to step out of his vehicle after observing a chemical odor wafting from the car and three eyeglasses cases in the passenger s eat. He also noticed Lindsey's eyes were glassy and his pupils appear ed small. Lindsey answered all of Dudak's questions without difficulty and denied possessing fi rearms or controlled substances. When asked whether Lindsey possessed methamphetamine, he appeared nervous but responded "no." Dudak then as ked if he could search Lindsey's vehicle. Lindsey gave both oral and written consent, but noted he was embarrassed by "dirty" magazines in the car.

During the search, Dudak found methamphe tamine, a butane lighter, and a drug pipe in one of the eyeglasses cases. Heplaced Lindsey under arrest. Once Lindsey arrived at the sheriff's office, he wa s read his rights under Miranda v. Arizona , 384 U.S. 436 (1966). Lindsey then admitted his involvement in the manufacture of methamphetamine. A urine sample wa s collected, which tested positive for methamphetamine. An inventory search of Lindsey's vehicle uncovered 660 pseudoephedrine pills, starter fluid, lith ium batteries, and other items used to manufacture methamphetamine. Lindsey m oved to suppress the evidence, but the district court denied the motion on the grounds Dudak had probable cause and Lindsey gave consent.

We review the district court's "conc lusions of law regarding a motion to suppress de novo and its fact findings for clear error." United States v. Sanders , 424 F.3d 768, 773 (8th Cir. 2005) (c iting United States v. Booker , 269 F.3d 930, 931 (8th Cir. 2001)).

Under the Fourth Amendment, searches "conducted without a warrant are per se unreasonable, subject to a few well-es tablished exceptions." United States v. Kennedy , 427 F.3d 1136, 1140 (8th Cir. 2005). Under the "automobile exception," an officer can "search a vehi cle without a warrant if [he has] probable cause to believe the vehicle contains evidence of crimin al activity." United States v. Hill , 386 F.3d-3- 855, 858 (8th Cir. 2004) (citing Coolidge v. New Hampshire , 403 U.S. 443, 455 (1971)). In this case, the district court found probable cause because of odors of marijuana and other chemicals from Lindsey's vehicle, Lindsey's glassy eyes and small pupils, the presence of multiple ey eglasses cases on the passenger seat of Lindsey's automobile, and Lindsey's nervous behavior when asked about methamphetamine. We have previously uphe ld warrantless searches based, in part, on suspicious odors emanating from a suspect's automobile. See , e.g. , United States v. Gerard , 362 F.3d 484, 489 (8th Cir. 2004) (noting odor of illegal drugs can be "highly probative in establishing probable cau se for a search"). Viewing the totality of the evidence, seeUnited States v. Caves , 890 F.2d 87, 90 (8th Cir. 1989), the district court did not err.

Additionally, the district court found Linds ay gave valid consent to the search of his vehicle. Consent must be give n knowingly and voluntarily, and the finding of consent is a matter of fact revi ewed for clear error. Sanders , 424 F.3d at 773 (citing United States v. Lee , 356 F.3d 831, 834 (8th Cir. 2003 )). "The test applied to determine if consent is free and voluntary is whether, in light of the totality of the circumstances, consent was given without coercion, express or implied." Id. (citing Schneckloth v. Bustamonte , 412 U.S. 218, 227 (1973)).

The record shows Lindsey was forty-one at the time of the incident, possessed a graduate equivalency degree, and had a not insignificant criminal history. Although he may have been under the influence of drugs at the time he gave consent, there is no evidence of coercion or improper poli ce tactics. United States v. Gipp , 147 F.3d 680, 686 (8th Cir. 1998). The "mere fact thatone has taken drugs, or is intoxicated, or mentally agitated, does not render consent involuntary. " United States v. Rambo , 789 F.2d 1289, 1297 (8th Cir. 1986). In fact, Lindsey was capable of answering Dudak's questions and even stated he wa s embarrassed about the "dirty" magazines in his vehicle. Although Miranda warnings were not administered until after the search was completed, this, too, does not render Lindsey's consent involuntary. See-4- United States v. Fleck , 413 F.3d 883, 892 (8th Cir. 2005). Under the totality of the circumstances, the district court did not cl early err in denying the motion to suppress.

Because the district court did not err in denying Lindsey's motion to suppress the evidence, his later admissions are not "fruit of the poisonous tree." Accordingly, we affirm.

______________________________