UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PEDRO DIAZ, DEFENDANT-APPELLANT
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The court held that the odor of marijuana emanating from the appellant's car provided probable cause for the search, justifying the admission of the marijuana into evidence.
Appellant was stopped at a permanent border checkpoint where an officer detected the strong odor of marijuana. A subsequent search of the car's trunk …
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PER CURIAM:
On January 29, 1975, at approximately 9:30 a. m., appellant stopped at the alien checkpoint approximately 8 miles below Falfurrias, Texas. The border patrol officer questioned the appellant and his wife as to their citizenship. During the course of this questioning the officer smelled the strong odor of marijuana emanating from the appellant’s car. The officer thereupon had appellant open the trunk and there found several loosely wrapped packages containing a total of approximately 79 pounds of marijuana. The appellant was arrested and read the Miranda1 warning by the patrol officer. The district court stated two alternative grounds for not granting the motion to suppress. The first ground was that the Falfurrias checkpoint is the functional equivalent of the border. The second ground was that the stop for questioning was legal and the subsequent odor of marijuana provided the necessary probable cause to justify a search. This latter ground is conclusive on the facts and pretermits examination of the first ground.
The checkpoint at Falfurrias, Texas, is a permanent checkpoint under United States v. Martinez-Fuerte [Sifuentes v. United States], - U.S. -, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). See United States v. Torres, 5 Cir., 1976, 537 F. 2d 1299; United States v. Dimas, 5 Cir., 1976, 537 F. 2d 1301; United States v. Howie, 5 Cir., 1976, 537 F. 2d 1302. Thus a stop for brief questioning is consistent with the Fourth Amendment. This Court said in United States v. Kalie, 5 Cir., 1976, 538 F. 2d 1201:
United States v. Ortiz, 1975, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623, holds that a search of a vehicle at a permanent checkpoint must be based on probable cause. The probable cause requirement has been held retroactive by this Circuit in United States v. Martinez, 5 Cir., 1976, 526 F. 2d 954, 955.
Kalie, supra, 538 F. 2d at 1203.
Here, after the border patrol agent smelled the strong odor of marijuana, probable cause had been properly established. The marijuana was properly admitted into evidence.
The decision of the district court is affirmed.
AFFIRMED.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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Cited By (12 total)
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United States v. Villarreal, 565 F.2d 932 (5th Cir. 1978)
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United States v. Barnard, 553 F.2d 389 (5th Cir. 1977)
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United States v. Lueck, 678 F.2d 895 (11th Cir. 1982)
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- United States v. Martinez-Fuerte, 428 U.S. 543 (U.S. 1976)
- United States v. Ortiz, 422 U.S. 891 (U.S. 1975)
- United States v. Adan Serna Torres, 537 F.2d 1299 (5th Cir. 1976)
- United States v. Martinez, 526 F.2d 954 (5th Cir. 1976)
- United States v. Dimas, 537 F.2d 1301 (5th Cir. 1976)
- United States v. Valentine Kalie, 538 F.2d 1201 (5th Cir. 1976)
- United States v. Howle, 537 F.2d 1302 (5th Cir. 1976)