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United States v. Pedro Diaz

UNITED STATES of America, Plaintiff-Appellee, v. Pedro DIAZ, Defendant-Appellant

United States v. Diaz, 541 F.2d 1165 (5th Cir. 1976)
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Court
Court of Appeals for the Fifth Circuit · U.S. Courts of Appeals
Decided
November 5, 1976
Docket
No. 76-2741
Judges
Ainsworth, Godbold, Per Curiam, Roney
Citations
541 F.2d 11651976 U.S. App. LEXIS 6362

Opinion — Per Curiam

PER CURIAM:

On January 29, 1975, at approximately 9:30 a. m., appellant stopped at the alien checkpoint approximately 8 miles below Falfurrias, Texas. The border patrol officer questioned the appellant and his wife as to their citizenship. During the course of this questioning the officer smelled the strong odor of marijuana emanating from the appellant’s car. The officer thereupon had appellant open the trunk and there found several loosely wrapped packages containing a total of approximately 79 pounds of marijuana. The appellant was arrested and read the Miranda 1

warning by the patrol officer.

The district court stated two alternative grounds for not granting the motion to suppress. The first ground was that the Falfurrias checkpoint is the functional equivalent of the border. The second ground was that the stop for questioning was legal and the subsequent odor of marijuana provided the necessary probable cause to justify a search. This latter ground is conclusive on the facts and pretermits examination of the first ground.

The checkpoint at Falfurrias, Texas, is a permanent checkpoint under United States v. Martinez-Fuerte [Sifuentes v. United States], - U.S. -, 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976).

See United States v. Torres, 5 Cir., 1976, 537 F.2d 1299 ;

United States v. Dimas, 5 Cir., 1976, 537 F.2d 1301 ;

United States v. Howie, 5 Cir., 1976, 537 F.2d 1302 . Thus a stop for brief questioning is consistent with the Fourth Amendment. This Court said in United States v. Kalie, 5 Cir., 1976, 538 F.2d 1201 :

United States v. Ortiz, 1975, 422 U.S. 891 , 95 S.Ct. 2585 , 45 L.Ed.2d 623 , holds that a search of a vehicle at a permanent checkpoint must be based on probable cause. The probable cause requirement has been held retroactive by this Circuit in United States v. Martinez, 5 Cir., 1976, 526 F.2d 954, 955 .

Kalie, supra, 538 F.2d at 1203 .

Here, after the border patrol agent smelled the strong odor of marijuana, probable cause had been properly established. The marijuana was properly admitted into evidence.

The decision of the district court is affirmed.

AFFIRMED.

1

.

Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 14 cases

View all citing references →
1977: 91978: 11982: 21984: 12026: 119772026peak 1977 · 9

Relies on it most ⓘ

  1. United States v. Gilbert Salas Rodriguez556 F.2d 277 (5th Cir. 1977)
  2. United States v. Catarino Capatillo Gutierrez560 F.2d 195 (5th Cir. 1977)
  3. United States v. Arthur Mitchell Lueck678 F.2d 895 (11th Cir. 1982)
  4. United States v. Brian Dennis Barnard553 F.2d 389 (5th Cir. 1977)
  5. United States v. Jesus Ybarra Villarreal and Abundio Hernandez Martinez565 F.2d 932 (5th Cir. 1978)
  6. United States v. Ronald Dale Dunn and Robert Lyle Carpenter674 F.2d 1093 (5th Cir. 1982)

Most recent

  1. United States v. Nicholas SmithNo. 24-13904 (11th Cir. July 2, 2026)
  2. United States v. Oyarzun582 F. Supp. 121 (W.D. Tex. 1984)
  3. United States v. Arthur Mitchell Lueck678 F.2d 895 (11th Cir. 1982)
  4. United States v. Ronald Dale Dunn and Robert Lyle Carpenter674 F.2d 1093 (5th Cir. 1982)
  5. United States v. Jesus Ybarra Villarreal and Abundio Hernandez Martinez565 F.2d 932 (5th Cir. 1978)
  6. United States v. Catarino Capatillo Gutierrez560 F.2d 195 (5th Cir. 1977)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 8

DepthCaseCited by
Miranda v. Arizona, 384 U.S. 436 (1966) 50,292
United States v. Ortiz, 422 U.S. 891 (1975) 446
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) 1,657
United States v. Kalie, 538 F.2d 1201 (5th Cir. 1976) 9
United States v. Martinez, 526 F.2d 954 (5th Cir. 1976) 23
United States v. Torres, 537 F.2d 1299 (5th Cir. 1976) 22
United States v. Dimas, 537 F.2d 1301 (5th Cir. 1976) 8
United States v. Howle, 537 F.2d 1302 (5th Cir. 1976) 3

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