IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40458 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN ROY ETHRIDGE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:98-CR-29-ALL -------------------- March 1, 2000

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

John Roy Ethridge appeals the district court’s denial of his

motion to suppress the marijuana found in his van during a traffic

stop and his nonverbal response to the officer’s question whether

the officer smelled marijuana after opening the passenger side door

of the van. Ethridge argues that he did not violate Texas

Transportation Code Ann. § 545.060 and there was no basis for the

traffic stop; that the officer exceeded the scope of Ethridge’s

consent by opening the passenger side door; that the district court

should have determined whether Ethridge’s consent was an

1 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. independent act of free will unrelated to the stop because the stop

was unjustified; and that, when Ethridge nodded affirmatively to

the officer’s question whether the smell emanating from the van was

marijuana, Ethridge was in custody, and the response was

inadmissible because he had not yet been given Miranda2 warnings.

The evidence at the suppression hearing revealed that the

officers observed Ethridge’s van stray over the right shoulder line

three times in a mile distance. Even if strong winds had made

Ethridge’s control of the van difficult, the officers were not

unjustified for stopping Ethridge for being in violation of §

545.060. See United States v. Zucco,

(5th Cir.

1995). Because the stop was justified, we need not determine

whether Ethridge’s consent was an independent act of free will.

See United States v. Chavez-Villarreal,

(5th

Cir. 1993).

Ethridge gave the officer permission to look at a U-Haul box

in the van, and Ethridge unlocked the doors to the van with the

automatic lock while he was standing at the driver side door of the

van. The officer did not exceed the scope of the consent by

opening the passenger side door upon hearing the door unlock. See

United States v. Stewart,

(5th Cir. 1996); United

States v. Rich,

(5th Cir. 1993). Ethridge’s

response to the officer’s question whether he smelled marijuana was

not given while Ethridge was in custody for Miranda purposes. See

United States v. Bengivenga,

(5th Cir. 1988).

AFFIRMED.

2 Miranda v. Arizona,

(1966).