United States of America, Plaintiff-appellee, v. Catarino Capatillo Gutierrez, Defendant-appellant, 560 F.2d 195 (5th Cir. 1977)Annotate this Case
United States Court of Appeals,Fifth Circuit.
Sept. 28, 1977.
Homer Salinas, Robert J. Salinas, Mercedes, Tex., Phil M. Harris, Weslaco, Tex., for defendant-appellant.
James R. Gough, U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BROWN, Chief Judge, and RONEY and HILL, Circuit Judges.
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.1; 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.
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