517 F2d 922 United States v. Santibanez

517 F.2d 922

UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Rodriguez SANTIBANEZ, Defendant-Appellant.

No. 74-3382

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Aug. 11, 1975.

L. Aron Pena, Edinburg, Tex., for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

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1

Santibanez was stopped for an immigration check at the La Gloria checkpoint. While interrogating Santibanez concerning his citizenship the immigration officer smelled the odor of marijuana coming from the interior of the vehicle. His assistant thereupon opened the rear door of the station wagon and found 240 pounds of marijuana. Santibanez moved to suppress this evidence. The motion was denied. Santibanez was found guilty of possession of marijuana with the intent to distribute. He appeals, contending that the search and seizure were illegal. We affirm.

2

We find no constitutional dereliction in stopping vehicles at this permanent checkpoint for the purpose of determining the occupant's citizenship. Such a stop is considerably less intrusive than a search, Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Cf. United States v. Ortiz, 422 U.S. ---, 95 S.Ct. 2585, 44 L.Ed.2d ---, 43 L.W. 5026 (June 30, 1975).1

3

The odor of marijuana emanating from the vehicle's interior gave the immigration officer probable cause to then conduct the search. The motion to suppress the evidence was thus properly denied.

4

Affirmed.

*

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

1

The question here presented was expressly reserved by the Supreme Court in Ortiz