Opinion
No. 71-2174. Summary Calendar.
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
November 15, 1971.
Robert O'Conor, Jr., Laredo, Tex., Court-appointed, for defendant-appellant.
Anthony J. P. Farris, U.S. Atty., James R. Gough, Anthony C. Aguilar, Mary L. Sinderson, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
There are two assignments of error on this appeal. The first is that the district court erred in denying a motion to suppress the marihuana which was the basis for the indictment and convictions of smuggling and transporting marihuana. Title 21, § 176a. The search qualified as a border search based on proximity to border, knowledge of searching officer of recent crossing of the border, an imminent shipment by transients who fled the scene and the odor of marihuana emanating from the footlocker containing the marihuana. Cf. United States v. Barsaloux, 5 Cir., 1969, 419 F.2d 1299 ( Barsaloux differs in the degree that there was no pre-search surveillance in progress here, a difference we do not find controlling). The district court did not err in denying the motion to suppress.
The assignment of error based on the denial of trial counsel's motion to withdraw as counsel immediately before trial is also without merit.
Affirmed.