U.S. v. Woody

• Decision Date: 17 February 1978
• Docket Number: 77-5292,Nos. 77-5181,s. 77-5181
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary WOODY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Blanchard L. SAVANT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1353

567 F.2d 1353

UNITED STATES of America, Plaintiff-Appellee, v. Gary WOODY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Blanchard L. SAVANT, Defendant-Appellant.

Nos. 77-5181, 77-5292.

United States Court of Appeals Fifth Circuit.

Feb. 17, 1978.

Virgil Howard, Thomas D. McDowell, Corpus Christi, Tex., for Gary woody.

Jimmy Phillips, Jr., Angleton, Tex., for Blanchard L. Savant.

J. A. Canales, U. S. Atty., Anna E. Stool, George A. Kelt, Jr., John T. Johnson, Mary L. Sinderson, James R. Gough, Asst. U. S. Attys., Houston, Tex., Robert Berg, Asst. U. S. Atty., Corpus Christi, Tex., for the U. S.

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

Before GOLDBERG, AINSWORTH and FAY, Circuit Judges.

FAY, Circuit Judge:

The trial judges in the above-styled cases relied upon undisclosed information contained in presentence investigation reports in imposing sentence. These cases involve the common issue of whether, under the facts and circumstances of each case, the summary of the undisclosed information provided to the defendant pursuant to Rule 32(c)(3)(B) of the Federal Rules of Criminal Procedure was sufficient. ¹ The appellant in No. 77-5181, Gary Woody, also contests the validity of a search of his car conducted by border patrol agents approximately two miles north of the permanent checkpoint near Falfurrias, Texas. We have concluded that the search was lawful and affirm the conviction of the defendant Woody. We further conclude, however, that the sentences imposed upon the defendants Woody and Savant must be vacated and the cases remanded for further proceedings and resentencing consistent with this opinion.

I. FACTS

A. The facts in Case No. 77-5181, considered in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), indicate that on December 8, 1975, the defendant, Gary Woody, stopped his vehicle at the permanent Border Patrol checkpoint located on U.S. Highway 83 approximately seven miles south of Falfurrias, Texas. ² As the Border Patrol agent approached the vehicle, Woody partially rolled down the window. While in the process of questioning the defendant concerning his citizenship, the agent detected the odor of marijuana emanating from the defendant's vehicle. The agent then instructed the defendant to open his trunk. The defendant responded by speeding away. After a high-speed chase covering approximately two or three miles, the defendant was apprehended and his vehicle was searched. A search of the trunk revealed a large quantity of marijuana. The defendant was subsequently convicted of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). At the trial the agent who made the initial checkpoint stop testified on direct examination that on many prior occasions he had had the opportunity to detect the odor of marijuana. On cross-examination the agent further testified that marijuana smells like marijuana. Counsel for the defendant moved to strike the testimony of the agent on the ground that the evidence failed to establish that the agent was qualified as an expert in the detection of marijuana by smell. The court denied the defendant's motion to strike, and subsequently found the defendant guilty of the offense charged in the indictment.

Prior to sentencing, the defendant's counsel was permitted to read the presentence investigation report, excluding certain material kept secret pursuant to Rule 32(c)(3)(A) of the Federal Rules of Criminal Procedure. The portion of the report disclosed to the defendant's attorney contained a summary of the undisclosed material.

B. The defendant in Case No. 77-5292, Blanchard L. Savant, entered a plea of guilty to the charge of unlawful possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. Prior to sentencing, the trial judge ruled that a portion of the presentence investigation report would not be disclosed pursuant to Rule 32(c)(3)(A) of the Federal Rules of Criminal Procedure. The trial judge did permit the defendant's attorney to inspect the remaining portion of the report and provided a summary of the information contained in the undisclosed segment of the presentence investigation report as required by subsection (c)(3)(B) of Rule 32. This defendant's contentions on appeal deal solely with the degree of disclosure permitted by the trial judge.

II. MERITS

A. The Automobile Search

The defendant Woody contends that the search of his automobile by the border patrol agent was conducted in violation of the Fourth Amendment to the United States Constitution because the agent lacked probable cause to effect such a search. The defendant argues that the government failed to establish that the agent possessed the superior skill or knowledge required to detect the odor of marijuana. Specifically, the defendant contends that the trial court committed reversible error in not excluding the testimony of the agent who detected the odor of marijuana because the agent failed to adequately describe the odor or enumerate the qualitative basis of his conclusion that the odor which he detected at the time of the stop was indeed the odor of marijuana.

At the outset, we note that the government has not contended in brief or in oral argument that the permanent checkpoint ³ located approximately seven miles south of Falfurrias, Texas, is the functional equivalent of the border. Of course, if it were established that the permanent checkpoint in question is the functional equivalent, ⁴ the defendant's automobile could be searched without probable cause. ⁵

It is settled that Border Patrol agents may stop vehicles at permanent checkpoints for the purpose of investigating the citizenship of the occupants. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Andrade, 545 F.2d 1032 (5th Cir. 1977). However, in order to conduct a search of the vehicle at the permanent checkpoint, probable cause justifying the search must exist. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 46 L.Ed.2d 623 (1975).

The defendant's contention that probable cause to search his automobile was lacking in the case at bar is belied by recent decisions of this court. The case of United States v. Andrade, 545 F.2d 1032 (5th Cir. 1977) is directly on point. In Andrade we succinctly held that:

The odor of marihuana emanating from appellant's vehicle gave the officer probable cause to detain appellant and search his car. United States v. McCrary, supra; United States v. Kidd, 5 Cir. 1976, 540 F.2d 210; United States v. Garza, supra; United States v. Torres, 5 Cir. 1976, 537 F.2d 1299.

545 F.2d at 1033.

In United States v. Arrasmith, 557 F.2d 1093 (5th Cir. 1977), this court rejected the defendant's contention that the district court committed error by considering the testimony of the border patrol agent that in his opinion the odor emanating from the vehicle was the odor of marijuana. Arrasmith recognizes that the trial judge possesses broad discretion in determining whether to permit a witness to testify that something smells like marijuana or whether to require further description of the precise odor. As we recognized in Arrasmith :

But triers of fact are also free to employ their common sense and to take into account the lessons of common, ordinary experience. The district court did not take improper judicial notice by recognizing that odors are difficult of precise description and by accepting the agent's testimony that marijuana smelled like marijuana.

557 F.2d at 1094, 1095.

In the case at bar, as in Arrasmith, there is testimony in the record that the agent had smelled marijuana on many occasions. The district judge's denial of the defendant's motion to strike the testimony of the border patrol agent did not constitute an abuse of discretion. ⁶ Accordingly, the conviction of the defendant, Gary Woody, is affirmed.

B. Disclosure of the Presentence Investigation Report

The defendants in the above-styled cases both contend that the district court erred at sentencing in failing to summarize more fully material contained in the presentence investigation reports prepared in each case, ⁷ and request that the sentences be vacated and the cases be remanded for resentencing. Before evaluating the claims of the defendants regarding the alleged inadequacies in the summaries of the contents of the undisclosed portions of the presentence investigation reports relied upon by the trial judge in imposing sentence, it is necessary to glean an understanding of the history and application of Rule 32(c) of the Federal Rules of Criminal Procedure.

Rule 32(c) has historically been interpreted to place much discretion in the hands of the trial judge regarding the extent to which the defendant is to be apprised of the contents of the presentence investigation report. ⁸ Prior to the 1966 amendment of Rule 32, ⁹ the rule was silent concerning the disclosure of the contents of the presentence investigation reports and was accordingly applied in a diverse manner. Some federal judges followed a practice of denying disclosure altogether, some judges provided excerpts of the reports, while others provided full disclosure. ¹⁰

The disparate policies practiced by the federal courts concerning disclosure of the presentence investigation report led to the expression of opposing views concerning the propriety of disclosure. The primary argument in favor of disclosure is that disclosure is necessary to assure that the trial judge does not rely upon erroneous or inaccurate information in imposing sentence. See United States v. Long, 411 F.Supp. 1203 (E.D.Mich.1976). ¹¹ Prestigious professional organizations, such as the American Law Institute ¹² and the National Council on Crime and Delinquency, ¹³ have strongly recommended that the federal courts adopt a policy of disclosure. ¹⁴ The...