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

667 F.2d 1269 9 Fed. R. Evid. Serv. 1432 , 9 Fed. R. Evid. Serv. 1649 UNITED STATES of America, Plaintiff-Appellee, v. Gary Wayne GLENN, Defendant-Appellant. No. 80-1619. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 11, 1981. Decided Feb. 1, 1982. Edward P. Moffat, Asst. Federal Defender, Fresno, Cal., for defendant-appellant. Phil Cronin, Asst. U. S. Atty., Fresno, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before ADAMS, * KENNEDY and FLETCHER, Circuit Judges. FLETCHER, Circuit Judge: 1 Appellant Gary Wayne Glenn was convicted of possession of marijuana with intent to sell, possession of phencyclidine, and driving under the influence of drugs. He appeals, claiming that (1) some of the marijuana found in his car was the product of an illegal search, and should have been suppressed; (2) the evidence was insufficient to prove his intent to sell the marijuana; (3) evidence of his two prior convictions should not have been admitted; and (4) his sentence under the Federal Youth Corrections Act was impermissibly long. We remand for resentencing on the possession of phencyclidine and…

Appellant Gary Wayne Glenn was convicted of possession of marijuana with intent to sell, possession of phencyclidine, and driving under the influence of drugs. He appeals, claiming that (1) some of the marijuana found in his car was the product of an illegal search, and should have been suppressed; (2) the evidence was insufficient to prove his intent to sell the marijuana; (3) evidence of his two prior convictions should not have been admitted; and (4) his sentence under the Federal Youth Corrections Act was impermissibly long. We remand for resentencing on the possession of phencyclidine and driving under the influence counts.

I

LEGALITY OF THE SEARCH

On June 6, 1980, Glenn was stopped by Ranger Matthew Ducasse while driving through Yosemite National Park. His driving was erratic, and his behavior after being stopped suggested that he might be under the influence of drugs.

Ducasse asked Glenn to get out of his car. He then spotted a glass jar containing hand-rolled cigarettes on the floor of the car. Glenn concedes that the cigarettes were in plain view. The cigarettes proved to contain phencyclidine (PCP), a controlled substance. High levels of PCP were found in Glenn’s…

concurring specially:

I concur in the result.