United States v. Gilbert

ROOT, Judge

(concurring):

I concur completely with the determination of Senior Judge Dunbar, but would add the observation that, upon the proper seizure of the package of marijuana, the contemporaneous seizure of the vial which contained a substance later proven to be methamphetamine was legal, even if the methamphetamine was unidentified at the time by Sergeant McGee. The circumstances surrounding this particular seizure would justify a prudent man in believing that an unidentified substance contained in a vial, at the same place and time, and obviously just having been received in the same package as the identified bag of marijuana, would probably also be contraband. With these facts, I do not believe that actual identification of the substance, which would probably have required the services of a trained chemist, is necessary. The cases cited by Judge Michel, in his dissent are, in my opinion, distinguishable. I think that Prosecution Exhibit 3 was legally admissible and that appellant is properly convicted of specification 2 of the charge.