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United States v. Atanacio Esparza Garza , 539 F.2d 381 ( 1976 )


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  • 539 F.2d 381

    UNITED STATES of America, Plaintiff-Appellee,
    v.
    Atanacio Esparza GARZA, Defendant-Appellant.

    No. 76-2413

    Summary Calendar.*
    United States Court of Appeals,
    Fifth Circuit.

    Sept. 7, 1976.

    John F. Dominguez, Mercedes, Tex., (Court-appointed), for defendant-appellant.

    Edward B. McDonough, Jr., U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Robert A. Berg, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

    Appeal from the United States District Court for the Southern District of Texas.

    Before DYER, CLARK and HILL, Circuit Judges.

    PER CURIAM:

    1

    Garza appeals a judgment of conviction for possession of ninety-four pounds of marijuana with intent to distribute, a violation of 21 U.S.C.A. § 841(a)(1). We affirm.

    2

    The facts are stipulated by the parties. On April 25, 1975, Garza stopped at a permanent immigration checkpoint, manned by the Border Patrol, located seven miles south of Falfurrias, Texas, about 77 highway miles from the Mexican border. While questioning Garza, the officer noticed an odor of marijuana and requested him to open the trunk. Three suitcases were found which contained marijuana. Garza, in a motion to suppress, challenged the constitutionality of the search, contending that there was no probable cause to search. He also challenged the authority of the Border Patrol to stop vehicles at the checkpoint. The district court denied the motion.

    3

    In Sifuentes v. United States, 1976, --- U.S. ----, ----, 96 S. Ct. 3074, 3086, 49 L.Ed.2d ----, the Court held that ". . . stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment * * * ", and that a search thereafter was proper if based upon consent or probable cause. The Falfurrias checkpoint is a permanent checkpoint within the parameters of Sifuentes, supra. Thus, the stop was constitutionally valid and the odor of marijuana emanating from the vehicle gave the officer probable cause to conduct the search. United States v. Coffey, 5 Cir. 1975, 520 F.2d 1103.

    4

    AFFIRMED.

    *

    Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I