[DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 06-16098                   MAY 25, 2007
                           Non-Argument Calendar            THOMAS K. KAHN
                         ________________________               CLERK


                 D. C. Docket No. 06-00120-CR-ORL-31DAB

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellant,

                                    versus

BERNARD KENNETH JENNINGS, JR.,

                                                        Defendant-Appellee.
                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                (May 25, 2007)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      The United States appeals the district court’s grant of Bernard Kenneth

Jennings’s motion to suppress evidence obtained during a search of his truck and

subsequently discovered as a result of that search.   The search was conducted
incident to a traffic stop.   Jennings was arrested for possessing 7.3 grams of

marijuana and two “cigar-style marijuana cigarettes,” all found during the initial

search incident to the traffic stop. After Jennings was arrested, law enforcement

discovered three large plastic “baggies” that contained fifteen separate baggies of

crack cocaine, weighing 137.1 grams; a plastic baggie that contained two cookies

of crack cocaine, weighing 32.5 grams; another plastic baggie that contained 6.7

grams of marijuana; a razor blade; and $1630 in cash. Jennings moved to suppress

all of the evidence obtained from his truck on the ground that the officer who

stopped his vehicle, Officer Brian Cavanaugh, did not have probable cause for the

search because the officer’s claim that he smelled marijuana in the truck was not

possible under the factual circumstances. After an evidentiary hearing, the district

court agreed, in essence making an adverse credibility determination as to

Cavanaugh’s testimony, and concluded that there had not been probable cause to

search Jennings’s truck.      The court discredited the testimony of Officer

Cavanaugh, who claimed that he searched the truck only after smelling a strong

odor of fresh, unsmoked marijuana emanating from it as soon as Jennings opened

the door.   The district court squarely rejected the officer’s testimony that he

smelled marijuana in the truck this way: “Taking into account Cavanaugh’s

admission that he could not smell the cannabis when presented to him in the



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courtroom, as well as the fact that only a small amount of cannabis in a sealed,

plastic bag was recovered from the center console of the truck, the Government’s

uncorroborated contention that Cavanaugh smelled the cannabis from several feet

away is not credible.”

      On appeal, the government argues that in granting the motion to suppress,

the district court improperly weighed Officer Cavanaugh’s testimony and the other

evidence presented. After thorough review of the record and careful consideration

of the parties’ briefs, we affirm.

      “A district court’s ruling on a motion to suppress presents mixed questions

of law and fact.”     United States v. Ramirez-Chilel, 

, 748-49 (11th

Cir. 2002).    We accept the district court’s factual findings as true unless the

findings are shown to be clearly erroneous. 

All facts are construed in

the light most favorable to the prevailing party below. United States v. Bervaldi,

, 1262 (11th Cir. 2000). The district court’s application of the law to

the facts is reviewed de novo. 

.

      It is well-settled that we accord considerable deference to the district court’s

credibility findings. 

are typically the province of

the fact finder because the fact finder personally observes the testimony and is thus

in a better position than a reviewing court to assess the credibility of witnesses.”



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we must accept the district court’s credibility findings “unless we

are left with the definite and firm conviction that a mistake has been committed.”

United States v. Chirinos, 

, 1102 (11th Cir. 1997) (internal

quotations omitted). Put another way, we will accept the district court’s credibility

determination “unless it is contrary to the laws of nature, or is so inconsistent or

improbable on its face that no reasonable factfinder could accept it.”

(citation omitted).

        Although the government characterizes the district court’s alleged error as

legal    in   nature,   the   challenged   rulings   are   unquestionably    credibility

determinations and thus are factual findings. The district court’s credibility ruling

in this case was not the product of legal error nor was it an abuse of discretion.

Indeed, it was supported by the evidence cited by the district court at the

evidentiary hearing and in its written order, including the fact that only a small

amount of marijuana was found in a sealed, plastic bag that was in the center

console of the truck.

        In short, it was within the district court’s broad discretion on such matters to

choose not to believe Officer Cavanaugh’s version of the events, given the

foregoing factual circumstances. The district court determined that in order for

Officer Cavanaugh to smell the marijuana, the officer would have had to be closer



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to the drugs. This determination is entitled to considerable deference on appeal.

We cannot say that the district court’s rejection of Cavanaugh’s factual assertion

that he detected the odor of fresh, unsmoked marijuana was clearly erroneous. We

have reviewed the government’s claims of error but conclude that the district

court’s credibility determination does not leave us with a definite and firm

conviction that a mistake was made.         We discern no reversible error and

accordingly affirm.

      AFFIRMED.




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