Morales v. United States, 23790.

• Decision Date: 08 June 1967
• Docket Number: No. 23790.,23790.
• Citation: 378 F.2d 187
• Parties: Arturo Duran MORALES, Appellant, v. UNITED STATES of America, Appellee. Jesus Ortiz VILLASENOR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

378 F.2d 187 (1967)

Arturo Duran MORALES, Appellant, v. UNITED STATES of America, Appellee.

Jesus Ortiz VILLASENOR, Appellant, v. UNITED STATES of America, Appellee.

No. 23790.

United States Court of Appeals Fifth Circuit.

June 8, 1967.

Stanley Freed, Laredo, Tex., James R. Gillespie, San Antonio, Tex., for appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., William L. Johnson, Jr., Asst. U. S. Atty., Fort Worth, Tex., Morton L. Susman, U. S. Atty., Ronald J. Blask, Asst. U. S. Atty., for appellee.

Before THORNBERRY, GOLDBERG and DYER, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellants Morales and Villasenor were each convicted on all counts of a three-count indictment, charging respectively the smuggling, willful transportation and concealment, and failure to pay the transfer tax on thirteen pounds of marihuana, in violation of 21 U.S.C. § 176a and 26 U.S.C. § 4744(a) (2). A third defendant, one Gonzaba, pled guilty to the tax count and testified for the government at the trial of Morales and Villasenor.

Appellants, by this appeal, complain that certain evidence, instrumental to their conviction, was obtained by means of an illegal search of Morales' automobile in violation of the Fourth Amendment to the United States Constitution. The government contends, however, that the actions complained of constituted a valid "border search."

Customs agents of the United States are given broad statutory power to search for goods illegally introduced into this country. 19 U.S.C. §§ 482, 1581, 1582. Searches made pursuant to these statutes constitute a classification separate and distinct from ordinary searches, and their validity is measured by different criteria. They are not, of course, exempt from the constitutional test of "reasonableness." Thomas v. United States, 5th Cir. 1967, 372 F.2d 252; Marsh v. United States, 5th Cir. 1965, 344 F.2d 317. "Probable cause," however, is not required and mere "suspicion" alone is sufficient to meet the constitutional standard. Alexander v. United States, 9th Cir. 1966, 362 F.2d 379; Valadez v. United States, 5th Cir. 1966, 358 F.2d 721; Mansfield v. United States, 5th Cir. 1952, 308 F.2d 221.¹ As in all cases, a determination of whether the search complained of was indeed a border search and whether it was "reasonable," depends upon an examination of the factual context.

In the early evening of January 19, 1966, Gonzaba entered the United States from Mexico by automobile, crossing the International Bridge at Laredo, Texas. He was stopped, questioned at the customs station, and sent to the secondary inspection area. Further questioning revealed that the automobile was not Gonzaba's but had been borrowed from a friend in San Antonio, Gonzaba's home town. Gonzaba stated that he had been in Mexico two or three days, visiting his girl friend. He had no luggage, but stated that he had stayed at a motel, the name of which he could not remember. Gonzaba was searched, and among his belongings was found a ticket from a San Antonio pawn shop in the amount of $9.60. The car, including the trunk, was also searched in a cursory manner. Gonzaba was then released. The car was not followed, although the searching agent testified that his suspicions had been aroused.

Shortly thereafter, appellant Morales crossed the bridge, coming from Mexico on foot. The agent who had questioned Gonzaba detained Morales and took him to the secondary inspection station where he was searched. In examining Morales' personal effects, the agent found a receipt for a $9.60 payment of a traffic violation. He also found in Morales' wallet a draft card bearing Gonzaba's name. On being questioned, however, Morales denied knowing Gonzaba. Thereupon, the agent notified his superior. Two agents were called in, briefed on the situation, and instructed to follow Morales when he left the bridge.

Morales, under surveillance, left the customs office and followed a circuitous route on foot until he was picked up by two persons in the automobile that Gonzaba had driven across the bridge. After the car had traveled a short distance, the agents stopped it. The occupants, Morales, Gonzaba, and Villasenor, were ordered out of the car and were searched for weapons. The occupants and the car were then taken back to the bridge customs station. A subsequent search of the car revealed the thirteen pounds of marihuana hidden in a spare tire in the trunk.

Appellants vigorously urge that the search which revealed the contraband marihuana cannot be considered a border search because of the prior examination of the car that took place when Gonzaba originally crossed the bridge. With this contention we cannot agree. The job of policing our international borders is indeed a difficult one, a fact the courts have recognized in giving the statutory powers of our customs agents the broadest interpretation compatible with constitutional principles. See King v. United States, 9th Cir. 1965, 348 F.2d 814; United States v. Rodriquez, S.D.Tex.1960, 195 F.Supp. 513, aff'd. 1961, 292 F.2d 709. It would be clearly contrary to the policies that justify our border search laws to hold that once a person or vehicle has been examined, any further search must be...