NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2958 D.C. No. Plaintiff - Appellee, 4:21-cr-00199-DCN-1 v.

MEMORANDUM*

BENJAMIN C. BROOKS,

Defendant - Appellant.

Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding

Submitted November 21, 2024** Seattle, Washington

Before: MILLER, LEE, and H.A. THOMAS, Circuit Judges.

Benjamin C. Brooks appeals his conviction for possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Brooks’s sole argument is that the district court erred in denying his motion

to suppress evidence found in a search of his car. We review the district court’s

ruling on a motion to suppress de novo, and we review the underlying findings of

fact for clear error. United States v. Peterson, 995 F.3d 1061, 1064 (9th Cir. 2021).

The district court found that Corporal Scheierman smelled marijuana during

“his initial contact with Brooks [which] took place before he lowered his head to

explain the purpose of the stop.” That finding is dispositive of Brooks’s Fourth

Amendment claim because it establishes that Scheierman had probable cause to

search the vehicle before he entered it, so the evidence found during the search was

admissible. See United States v. Guzman-Padilla, 573 F.3d 865, 886 n.5 (9th Cir.

2009); United States v. Garcia-Rodriguez, 558 F.2d 956, 964–65 (9th Cir. 1977).

The district court’s finding was not clearly erroneous. At the suppression

hearing, Scheierman testified that “upon [Brooks] rolling down the window and

then starting to speak with him is when I could detect the odor of marijuana.”

When asked what he did after smelling marijuana, Scheierman testified, “I advised

[Brooks] of the reason why I had stopped him, advised him the window tint was

too dark for Idaho, obtained his driver’s license.” The dash-cam video shows that

Scheierman did not lower his head to cross the threshold of the vehicle’s window

until after he asked Brooks to roll down the passenger window, and after he began

to tell Brooks that the window tint was too dark. The record therefore supports the

2 23-2958 finding that Scheierman smelled marijuana before any entry into the vehicle.

AFFIRMED.1

1 Brooks’s counsel’s motion to participate in oral argument (Dkt. No. 9) is DENIED as moot.

3 23-2958