United States v. Fulero, 73-1923.
| Decision Date | 14 June 1974 |
| Docket Number | No. 73-1923.,73-1923. |
| Citation | 498 F.2d 748 |
| Parties | UNITED STATES of America v. Solomon M. FULERO, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Sherman L. Cohn, Washington, D. C. (appointed by this court), was on the brief, for appellant.
Earl J. Silbert, U. S. Atty., John A. Terry, John H. Bayly and David R. Addis, Asst. U. S. Attys., were on the brief, for appellee.
Before McGOWAN, ROBINSON and ROBB, Circuit Judges.
An indictment in two counts charged the appellant with unlawful possession of marijuana with intent to distribute it (21 U.S.C. § 841(a)) and with unlawful possession of the same marijuana in violation of 33 D.C.Code § 402. The appellant was tried without a jury before the District Court, found guilty, and placed on probation under the Youth Corrections Act, 18 U.S.C. § 5010(a). On this appeal he claims that the marijuana introduced in evidence against him was seized during the course of an unlawful search.
The circumstances of the search and seizure were explored at a hearing on a motion to suppress. The record discloses that an employee at the Greyhound Bus Depot in Yuma, Arizona, telephoned Sergeant Kindle of the Yuma City Narcotic Task Force and told him "three hippies had brought in two footlockers that were being sent to Washington, D. C. and that the situation appeared suspicious." Shipping marijuana through Greyhound was "normal practice in Yuma" (Tr. 7) and on many prior occasions agents of the depot had spotted packages containing marijuana. Sergeant Kindle went to the depot and looked at the footlockers, one of which was green and the other blue. The name of Frank Delgado was on them as the shipper. Delgado was known to Sergeant Kindle as a man probably involved in the narcotics traffic. The sergeant noticed that the footlockers smelled of mothballs which was significant because mothballs are frequently used in an attempt to conceal the odor of marijuana, and Kindle had on many occasions found marijuana shipped in this fashion.
With these facts before him the sergeant called the United States Customs Service and obtained the services of a dog handler and a marijuana-sniffing dog, Chief. When the handler and Chief arrived the two footlockers were placed "in different positions on the baggage floor with approximately ten to 12 sic other valises, pack, boxes, and so forth, all around the area, and then the dog handler was told to go ahead and run the dog through the packages." (Tr. 13.)...
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