506 F2d 897 United States v. Janney

506 F.2d 897

UNITED STATES of America, Plaintiff-Appellee,
v.
Marc Alan JANNEY, Defendant-Appellant.

No. 74-1762.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1975.

Ramon (Ray) Ramos, Jr., El Paso, Tex., for defendant-appellant.

William S. Sessions, U.S. Atty., San Antonio, Tex., Ron Ederer, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

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

Before TUTTLE, RONEY and GEE, Circuit Judges.

PER CURIAM:

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1

The single issue on this appeal is the constitutionality of the 8 U.S.C.A. 1357 search of a vehicle conducted by border agents at the permanent border checkpoint at Sierra Blanca, Texas. On the basis of our decision today in United States v. Hart, 506 F.2d 887 (5th Cir. 1975), we hold this search to be constitutional. We affirm the conviction of Marc Alan Janney of one count of possession with intent to distribute approximately 97 pounds of marijuana, a Schedule I Controlled Substance, in violation of 21 U.S.C.A. 841(a)(1).

2

On December 27, 1973, at approximately 7:30 p.m., Marc Alan Janney drove into the permanent border checkpoint which is located four miles west of Sierra Blanca, Texas, on Interstate Highway 10. When Border Patrol Agent Alfonso Saenz leaned over to ask Janney his citizenship, Saenz detected a strong odor of marijuana coming from inside Janney's car. Saenz asked Janney to open the trunk of his car but Janney replied that he did not have the key. At this point, Border Patrol Agent Candy Gutierrez joined Saenz. Gutierrez instructed Janney to pull his car to the right hand side of the checkpoint area and to open his trunk, either by using a key or by removing the back seat. Janney removed the back seat of his vehicle and the border patrol agents seized approximately 97 pounts of marijuana.

3

In United States v. Hart, supra, we held that the decision of the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), did not alter the precedential effect of prior opinions of this Circuit upholding the validity of searches conducted pursuant to 8 U.S.C.A. 1357 at the Sierra Blanca checkpoint. In Hart, border patrol agents at the Sierra Blanca checkpoint stopped defendant's vehicle, requested that defendant give his citizenship, and, as a routine matter, asked defendant to open his trunk so that the agents could search for aliens illegally in the United States. When the trunk was opened, the agents detected an odor of marijuana and discovered quantity of the substance. We upheld the search in Hart as constitutional on the authority of United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974); United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974); United States v. Merla, 493 F.2d 910 (5th Cir. 1974), and other decisions of this Court.

4

There is no substantial difference been the stop and search of Janney's vehicle and that approved in Hart.

5

Affirmed.