553 F.2d 389 (5th Cir. 1977), 76-3003, United States v. Barnard

Docket Nº:76-3003.
Citation:553 F.2d 389
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Brian Dennis BARNARD, Defendant-Appellant.
Case Date:May 31, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 389

553 F.2d 389 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Brian Dennis BARNARD, Defendant-Appellant.

No. 76-3003.

United States Court of Appeals, Fifth Circuit

May 31, 1977

Page 390

Daniel V. Alfaro, Albert R. Huerta, Corpus Christi, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Rene J. Gonzalez, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before SIMPSON, GEE and HILL, Circuit Judges.

GEE, Circuit Judge:

For his alleged role in transporting marijuana away from the Texas-Mexico border, Brian Dennis Barnard was convicted in a nonjury trial of conspiracy to possess and possession of marijuana in violation of 21 U.S.C. §§ 846 and 841(a) (1) (1970). He received on each count a three-year sentence with a two-year special parole term, the sentences to run concurrently. Finding as we do that the search during which the contraband was discovered was constitutionally permissible and that sufficient evidence in the record supports the conviction, we affirm.

While tracking illegal aliens on Texas Farm Road 649 near its intersection with Farm Road 2686 some 20 miles north of the

Page 391

Rio Grande on the morning of January 19, 1976, Border Patrol Officer Webster Ozuna was passed by two automobiles proceeding north on 649 about a mile apart. Officer Ozuna had been in the area for about half an hour, and the two cars were the first he had seen. First to pass him was an MG sports car with two occupants and a citizen's band (CB) radio antenna; the driver appeared to be talking into a microphone as the MG passed. Following at a distance of about one mile was a white Mercury which, like the MG, carried a CB antenna. Officer Ozuna noticed that the license plates on the Mercury included the same three-letter prefix, FBU, as the MG's license plates, indicating that both automobiles were registered in the same county and in one other than Starr County, through which they were driving. 1 Further, the driver and sole occupant of the Mercury appeared nervous, looking repeatedly at the officer, and the rear end of the car appeared to be riding low. Suspecting that the trunk of the Mercury might contain illegal aliens, Officer Ozuna got in his jeep and began following it. He testified that the Mercury was driven erratically, at speeds ranging from 35 to 60 miles per hour, and that the MG, in view up ahead on the straight road, varied its speed to maintain a constant distance between it and the Mercury. After following for 10 or 15 miles, Officer Ozuna stopped the Mercury and watched the MG accelerate out of sight.

Meeting the driver, Crabb, 2 at the rear bumper of the Mercury, Ozuna smelled the odor of marijuana and asked for a trunk key. Crabb replied that he did not own the car and did not have a trunk key. Glancing inside the Mercury, Ozuna saw on the key ring a round-headed key and asked Crabb to use it to open the trunk. Crabb instead gave the keys to Ozuna, who then opened the trunk and found 84 pounds of marijuana in kilo bricks. Ozuna arrested Crabb and radioed ahead for other officers to stop the MG, giving a description and the license prefix. About 20 miles north and a half hour later, the MG was stopped; officers learned the identity of the driver, appellant Barnard, and passenger, Walters, 3 and then allowed them to proceed.

I. Legality of the Stop and Search.

After the initial stop of the Mercury, the odor of marijuana emanating from the trunk furnished probable cause for the search of the trunk. United States v. Diaz, 541 F.2d 1165, 1166 (5th...

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