UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CATARINO CAPATILLO GUTIERREZ, DEFENDANT-APPELLANT
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The court held that the appellant's contentions regarding the checkpoint's status, probable cause for the search based on marijuana odor, and the admissibility of officer testimony were without merit.
Appellant was convicted for possession of marijuana with intent to distribute after being stopped at a checkpoint. The search of his vehicle was based…
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[*196] PER CURIAM:
This appeal is taken from a jury conviction for possession of 292 pounds of marijuana with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). The appellant contends that the checkpoint, seven miles south of Falfurrias, Texas, where he was stopped for a citizenship check, has not previously been adjudicated to be a permanent checkpoint. This Court’s jurisprudence shows otherwise. United States v. Kalie, 5 Cir. 1976, 538 F. 2d 1201, 1202, n.l; also, United States v. Andrade, 5 Cir. 1977, 545 F. 2d 1032; United States v. Diaz, 5 Cir. 1976, 541 F. 2d 1165; United States v. Garza, 5 Cir. 1976, 539 F. 2d 381.
The appellant also contends that the odor which the officer believed to be marijuana did not provide probable cause to search the vehicle. The odor of marijuana emanating from a vehicle constitutes probable cause to search. United States v. Torres, 5 Cir. 1976, 537 F. 2d 1299; United States v. Andrade, supra; United States v. Diaz, supra.
He also contends that the officer’s testimony should not have been admitted because he was not qualified as an expert as to the odor of marijuana. Since the appellant did not object to the officers qualifications, and since the testimony involved does not constitute clear error, the issue is waived. Rule 51, F.R.Cr.P; United States v. Fendley, 5 Cir. 1975, 522 F. 2d 181, 185-86; United States v. Maddox, 5 Cir. 1974, 492 F. 2d 104, cert. denied 419 U.S. 851, 95 S.Ct. 92, 42 L.Ed.2d 82. The judgment below is affirmed.
AFFIRMED.
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- Wilford v. United States, 419 U.S. 851 (U.S. 1974)
- Herships v. California, 419 U.S. 851 (U.S. 1974)
- United States v. Maddox, 492 F.2d 104 (5th Cir. 1974)
- United States v. Diaz, 541 F.2d 1165 (5th Cir. 1976)
- United States v. Valentine Kalie, 538 F.2d 1201 (5th Cir. 1976)
- United States v. Eliseo Andrade, 545 F.2d 1032 (5th Cir. 1977)
- United States v. Atanacio Esparza Garza, 539 F.2d 381 (5th Cir. 1976)