United States v. Catarino Capatillo Gutierrez

560 F.2d 195, 1977 U.S. App. LEXIS 11373

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 28, 1977
• Docket: 77-5081
• Status: Published

Opinion

PER CURIAM:

This appeal is taken from a jury conviction for possession of 292 pounds of marijuana with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). The appellant contends that the checkpoint, seven miles south of Falfurrias, Texas, where he was stopped for a citizenship check, has not previously been adjudicated to be a permanent checkpoint. This Court’s jurisprudence shows otherwise. United States v. Kalie, 5 Cir. 1976, 538 F.2d 1201, 1202, n.l; also, United States v. Andrade, 5 Cir. 1977, 545 F.2d 1032; United States v. Diaz, 5 Cir. 1976, 541 F.2d 1165; United States v. Garza, 5 Cir. 1976, 539 F.2d 381.

The appellant also contends that the odor which the officer believed to be marijuana did not provide probable cause to search the vehicle. The odor of marijuana emanating from a vehicle constitutes probable cause to search. United States v. Torres, 5 Cir. 1976, 537 F.2d 1299; United States v. Andrade, supra; United States v. Diaz, supra.

He also contends that the officer’s testimony should not have been admitted because he was not qualified as an expert as to the odor of marijuana. Since the appellant did not object to the officers qualifications, and since the testimony involved does not constitute clear error, the issue is waived. Rule 51, F.R.Cr.P; United States v. Fendley, 5 Cir. 1975, 522 F.2d 181, 185-86; United States v. Maddox, 5 Cir. 1974, 492 F.2d 104, cert. denied 419 U.S. 851, 95 S.Ct. 92, 42 L.Ed.2d 82. The judgment below is affirmed.

AFFIRMED.