The Honorable Robert T. Dawson, United States District Judge for the Western * District of Arkansas, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1980EA

_____________ United States of America, * * Appellee, * Appeal from the United States

* District Court for the Eastern v. * District of Arkansas. * Genevieve "Jenny" Nichols, * [UNPUBLISHED] * Appellant. *

_____________ Submitted: November 17, 1998

Filed: November 27, 1998

_____________ Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON, District * Judge.

_____________ PER CURIAM. An Ark ansas police officer stopped Genevieve “Jenny” Nichols for followin g anotherv ehicle too closely on the freeway. As the officer approached Nichols’s U

Haul vehicle, he s melled marijuana, and when Nichols voluntarily opened the back of the vehicle, the off

icer noticed a stronger marijuana odor. In response to the officer’s question, Nichols denied she was carrying any contraband. Nichols then signed a consent form and permitted the officer to search her vehicle, where the officer found-2-

more than four hundred pounds of marijuana. Nichols moved to suppress this evidence, arguing the officer’s stop and search vi olated the Fourth Amendment. After a hearing, the d istrict court denied the motion. Nichols entered a conditional guilty plea t o poss essionwith intent to distribute marijuana and the district court sentenced her t o thirty months in prison. Nichols appeals her conviction and sentence. We affirm. Nichols challenges the district court’s denial of her suppres sion motion, claiming the officer did not have probable cause for the stop. Nichols also claims she did not voluntarily consent to the search of her vehicle because the officer coerced her int o op ening her vehicle and she later signed the consent form merely as authorization o f this search. We rejec t Nichols’s contentions. First, the officer saw Nichols commit a tr affic violation, which created probable cause for the stop. See United States v

. Johnson , 58 F.3d 356, 357 ( 8th Cir. 1995). Second, contrary to Nichols’s contention, the officer testified Nichols volunteered to open her vehicle, and even if Nichols had not opened her vehicle or signed the consent form, the marijua na odor created probable cause that justified the officer’s search. See United States v. Gipp , 147 F.3d 680, 685 (8t h Cir. 1998). The district court found the officer’s testimony at the suppressio n hearing more credible, and having reviewed the record, we conc lude the district court’s factual findings supporting its denial of Nichols’s suppression motion are not clearly erroneous. See United States v. White , 42 F.3d 457, 459 (8th Cir. 1994).
We turn to Nichols’s remaining contentions. First, the district court did no t ab use its discretion when it refused to admit the hearsay testimony of Nichols’ s passenger. Although this type of hearsay testimony may be admissible, the distric t court properly excluded the passe nger’s proffered statement because it did not subject the pass enger to criminal liability. See Fed. R. Evid. 804(b)(3). Next, we also reject Nichols’ s claim that the district court erroneously denied her request for a downward departure at sentencing. See U.S. Sentencing Guideline Manual § 5K2.0 (1997). We review the dis trict court’s downward-departure ruling for an abuse of discretion. See Koon v. United States , 518 U.S. 81, 98-100 (1996). Nichols claims she is entitled to-3-

the departure fo r reasons of economic hardship, favorable employment record, family ties and responsibilities, extraordinary remorse, and that her offense was a single act of aberrant behavior. The district court correctly concluded these reasons were either forbidden factors una

vailable for departure purposes or discouraged and unmentioned factors that, based on the particular circumstances, were within the heartland of th e ap plicable guidelines and did not warrant a downward departure. See United State s v. We ise , 128 F.3d 672, 673-74 (8th Cir. 1997). Having considered the record, w e believe the district court correctly calculated Nichols’s guideline sentence.
We affirm Nichols’s conviction and sentence. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.