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555 F2d 1327 United States v. Cantu

555 F.2d 1327

UNITED STATES of America, Plaintiff-Appellee,
v.
Ramon Alberto CANTU, Defendant-Appellant.

No. 76-3704

Summary Calendar.*
United States Court of Appeals,

Fifth Circuit.
July 18, 1977.

Roberto J. Yzaquirre, McAllen, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U.S. Atty., Anna E. Stool, George A. Kelt, Jr., Asst. U.S. Attys., Houston, Tex., Robert A. Berg, Asst. U.S. Atty., Corpus Christi, Tex., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before THORNBERRY, RONEY and HILL, Circuit Judges.

PER CURIAM:

1

Appellant, Ramon Alberto Cantu, was convicted at a bench trial of one count of possession of marihuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). His sole contention on appeal is that the district court erred in refusing to allow an in-court experiment to test the arresting Border Patrolman's ability to identify marihuana by smell.

2

Appellant's vehicle was stopped for a citizenship check at the permanent checkpoint seven miles south of Falfurrias, Texas. Upon smelling a "strong odor" of marijuana and the odor of a spray deodorant coming from the interior of the vehicle, the officer had probable cause to search it. United States v. Vallejo, 5 Cir. 1976, 541 F.2d 1164. The search revealed 270 pounds of marihuana in the trunk of the vehicle, resulting in appellant's arrest and these proceedings.

3

At the combined bench trial1 and hearing on his motion to suppress, defense counsel requested permission to test the officer's ability to detect the smell of marihuana when mixed with other strong odors. Counsel proposed to test the officer by means of five packets containing, respectively, marjoram, tarragon, basil, oregano with coriander, and molokheia, some of them mixed with marihuana. The district court's refusal of this request is assigned as error on appeal.

4

We find no error in the ruling complained of. It is in accord with two of our recent decisions. United States v. Vallejo, supra; United States v. Torres, 5 Cir. 1976, 537 F.2d 1299. The judgment of the district court is

5

AFFIRMED.

*

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

1

At arraignment on April 23, 1976, defendant waived reading of the indictment, pled not guilty, and signed a written waiver of speedy trial