UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4806

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SHANNON JARRELL BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Roanoke. Samuel G. Wilson, District

Judge. (7:05-cr-00082)

Submitted: February 21, 2007 Decided: April 6, 2007

Before WILLIAMS, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Randy V. Cargill, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Roanoke, Virginia, for Appellant. Ronald Andrew Bassford,

OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Shannon Jarrell Brown entered a conditional plea of

guilty to one count of possession with intent to distribute cocaine

and one count of possession of a firearm during and in relation to

a drug trafficking crime, in violation of 18 U.S.C. § 924(c); 21

U.S.C. § 841(a)(1), (b)(1)(C) (2000). The district court sentenced

Brown to a total of 240 months’ imprisonment. We find no error and

affirm Brown’s convictions and sentence.

On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting there were no

meritorious grounds for appeal, but questioning whether the

district court erred in denying Brown’s motion to suppress. In his

pro se supplemental brief, Brown joins his counsel’s argument

regarding the motion to suppress. Additionally, Brown contends his

counsel provided ineffective assistance by “allowing” him to plead

guilty to charges that were not supported by sufficient evidence.

The Government elected not to file a responsive brief.

Brown initially contends the district court erred in

denying his motion to suppress. We review the factual findings

underlying the denial of a motion to suppress for clear error and

its legal conclusions de novo. United States v. Johnson, 400 F.3d

187, 193 (4th Cir.), cert. denied, 126 S. Ct. 134 (2005). The

evidence is construed in the light most favorable to the prevailing
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party below. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.

1998). 

Law enforcement discovered Brown passed out in his

vehicle in the middle of an intersection. After noting “a strong

odor of alcoholic beverage coming from [Brown’s] vehicle,” the

initial responding officer performed a field sobriety test on

Brown. This resulted in Brown’s arrest for driving under the

influence and for being an habitual offender. A search of the

interior passenger compartment of Brown’s vehicle was performed

incident to his arrest. The search rendered a set of digital

scales. Additionally, the officer performing the search noted the

smell of unburned marijuana emanating from a partial opening

between the trunk and back seat area. The officer subsequently

investigated the trunk and discovered marijuana, a firearm,

cocaine, and Brown’s wallet.

Brown concedes in his pro se supplemental brief that the

search of the interior passenger compartment of his vehicle, which

rendered the set of digital scales, was proper. See New York v.

Belton, 453 U.S. 454, 460-61 (1981) (passenger compartment of

vehicle and containers therein may be searched without warrant and

without further showing of probable cause when individual is

lawfully arrested in or near vehicle). However, Brown argues the

search of his trunk was improper because he was “drunk and under

the safe custody” of law enforcement officers. Because “he was
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going nowhere and neither was his car,” he concludes officers

should have been required to secure a warrant prior to searching

the trunk of his vehicle. Additionally, Brown argues that the

officer lacked probable cause for the search as the officer’s

testimony that he could detect the smell of unburned marijuana was

incredible.

A warrantless search of an automobile is lawful if there

is probable cause to believe that it contains evidence of a crime.

See Chambers v. Maroney, 399 U.S. 42, 48-52 (1970). Moreover, “a

search warrant [is] unnecessary where there is probable cause to

search an automobile stopped on [a public road]; the car is

movable, the occupants are alerted, and the car’s contents may

never be found again if a warrant must be obtained. Hence an

immediate search is constitutionally permissible.” Id. at 51. As

the officer had probable cause to search the trunk of Brown’s

vehicle, and the vehicle was located on a public road and thus a

fleeting target for a search, we conclude the warrantless search

did not violate the Fourth Amendment. Though Brown asserts the

testimony of the officer performing the search was incredible, it

is not the province of this court to second-guess the credibility

determinations of the factfinder. See United States v. Saunders,

886 F.2d 56, 60 (4th Cir. 1989). Therefore, under these

circumstances, the district court did not err in its denial of

Brown’s motion to suppress.
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Brown also contends that his counsel provided ineffective

assistance by “allowing” him to plead guilty despite a lack of

evidence to support the plea. An ineffective assistance of counsel

claim is generally not cognizable on direct appeal, but should

instead be asserted in a post-conviction petition under 28 U.S.C.

§ 2255 (2000). See United States v. Richardson, 195 F.3d 192, 198

(4th Cir. 1999). However, we have recognized an exception to the

general rule when “it ‘conclusively appears’ from the record that

defense counsel did not provide effective representation.” Id.

(quoting United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir.

1994)). Because the record does not conclusively establish that

Brown’s counsel was ineffective, Brown’s claim is not cognizable on

appeal.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. Accordingly we affirm Brown’s convictions and sentence.

This court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further review. If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel may move this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on the client. We dispense with oral argument because

the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the

decisional process.

AFFIRMED