United States of America, Plaintiff-appellee, v. Gilbert Salas Rodriguez, Defendant-appellant, 556 F.2d 277 (5th Cir. 1976)

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US Court of Appeals for the Fifth Circuit - 556 F.2d 277 (5th Cir. 1976)

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United States Court of Appeals,Fifth Circuit.

July 21, 1977.

Robert Nino, Houston, 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 GOLDBERG, CLARK and FAY, Circuit Judges.


Rodriguez appeals from his conviction of possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). On February 3, 1976, appellant with his wife and child drove a car through the permanent immigration checkpoint at Falfurrias, Texas. A Border Patrol agent at the checkpoint discovered marijuana in the car's trunk. Rodriguez asserts on appeal the illegality of the agent's search and the insufficiency of the evidence that the prosecution presented to the jury regarding possession. We affirm.

(1, 2) The agent could legally stop the automobile for brief citizenship questioning at the Falfurrias permanent checkpoint, even in the absence of reasonable suspicion. See United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976); United States v. McCrary, 543 F.2d 554 (5th Cir. 1976); United States v. Diaz, 541 F.2d 1165 (5th Cir. 1976); United States v. Torres, 537 F.2d 1299 (5th Cir. 1976). While he had stopped appellant at the checkpoint, the agent detected a strong odor of marijuana coming from the car. Thereupon the Border Patrol agent had probable cause to search the automobile and legally proceeded to do so. See, e.g., United States v. Diaz, supra, 541 F.2d at 1166; United States v. McCrary, supra.

(3) Second, the evidence was compelling that Rodriguez had exclusive dominion and control of the marijuana discovered in the trunk of the car. The evidence was sufficient for the jury to find appellant in constructive possession of the contraband. See United States v. Maspero, 496 F.2d 1354 (5th Cir. 1974).



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