United States of America, Plaintiff-appellee, v. Arturo Valadez Trevino, Defendant-appellant, 560 F.2d 194 (5th Cir. 1977)

Trevino appeals from his conviction for possession of marijuana with intent to distribute, 21 U.S.C.A. § 841(a) (1) (1972). His sole contention on appeal challenges the sufficiency of the evidence to sustain his conviction. We affirm.

The appellant was a passenger in a car which was stopped at the permanent Border Patrol checkpoint seven miles south of Falfurrias, Texas. While questioning the driver, the Border Patrol Agent detected the odor of marijuana. He had probable cause for the search and asked for the key to the trunk, but the driver said he did not have one in his possession. During the questioning, however, a state game warden standing near the car saw the driver hand Trevino a set of keys, one of which he recognized as a trunk key. The appellant took the keys and made a downward motion with his hand as though to hide them. The warden then reached into the car, grabbed the keys, and opened the trunk which contained 141 pounds of marijuana.

Trevino's action in surreptitiously taking the key to the car's trunk after the driver had told the Agent he did not have one amply supports the inference that Trevino was aiding and abetting the possession of marijuana.

AFFIRMED.