United States v. Pedro Diaz

Fifth Circuit

United States v. Pedro Diaz

541 F.2d 1165, 1976 U.S. App. LEXIS 6362

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 5, 1976

Docket76-2741

StatusPublished

Cited by14 cases

This text of 541 F.2d 1165 (United States v. Pedro Diaz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Pedro Diaz, 541 F.2d 1165, 1976 U.S. App. LEXIS 6362 (5th Cir. 1976).

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Opinion

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 Miranda 1 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.

1

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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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 Miranda 1 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.

1

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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541 F.2d 1165, 1976 U.S. App. LEXIS 6362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pedro-diaz-ca5-1976.

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