452 F.2d 459 (9th Cir. 1971), 26514, United States v. Almeida-Sanchez

Docket Nº:26514.
Citation:452 F.2d 459
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Condrado ALMEIDA-SANCHEZ, Defendant-Appellant.
Case Date:September 27, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 459

452 F.2d 459 (9th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellee,

v.

Condrado ALMEIDA-SANCHEZ, Defendant-Appellant.

No. 26514.

United States Court of Appeals, Ninth Circuit.

Sept. 27, 1971

Rehearing In Banc Denied Feb. 3, 1972.

Page 460

James A. Chanoux, San Diego, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Robert H. Filsinger, Shelby R. Gott, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.

Before BROWNING, CARTER and TRASK, Circuit Judges.

PER CURIAM:

Almeida-Sanchez appeals from a conviction for knowingly receiving, concealing and facilitating the transportation and concealment of approximately 161 pounds of illegally imported marijuana. 21 U.S.C. § 176a. His sole contention is that the district court erroneously denied a motion to suppress evidence, marijuana, found in a search of his car, without a warrant. We affirm.

Appellant's vehicle was stopped by two officers of the Immigration and Naturalization Service who were conducting a roving check for aliens some 50 miles north of the Mexican border on Highway 78. One of the officers looked under the rear seat of the automobile and discovered packages that he believed to be marijuana. A subsequent search revealed many other packages of marijuana distributed throughout various parts of the vehicle. While the officer himself had never found aliens under the rear seat of an automobile, he had heard of several instances in which aliens had been concealed there. The officers had just received an information bulletin from the headquarters of the Border Patrol stating that aliens entering the United States illegally, had recently adopted the practice of sitting up directly behind the back seat of an automobile with their feet and legs doubled up under the rear seat cushion; springs would be removed from the rear seat to provide space for their legs.

This court has approved the right of Immigration Officers acting under 8 U.S.C. § 1357, 8 C.F.R. § 287.1, to stop and investigate vehicles for concealed aliens within a hundred air miles from any external boundary without a

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showing of probable cause. Duprez v. United States (9 Cir. 1970) 435 F.2d 1276; Fumagalli v. United States (9 Cir. 1970) 429 F.2d 1011; Miranda v. United States (9 Cir. 1970) 426 F.2d 283. A stop and search effected under 8 U.S.C. § 1357 is not a "border search" and does not depend for its validity upon the law of border searches. See Duprez v. United States, supra.

Since the initial search under the rear seat of appellant's automobile was confined to a place where an alien might be concealed, the search was reasonable in scope. See Miranda v. United States, supra.

Affirmed.

BROWNING, Circuit Judge (dissenting):

The majority holds that an Immigration and Naturalization officer checking for aliens illegally in this country may stop and search any automobile within one hundred air miles of an external boundary of the United States, at random, without a warrant, and without cause. The majority relies upon prior decisions of this court; and these, in turn, find authority for such conduct in a statute 1 and an administrative regulation. 2

*****

* * *

Of course, prior decisions of other panels of the court bind this panel, Etcheverry v. United States, 320 F.2d 873, 874 (9th Cir. 1963) ,

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but the decisions relied upon by the majority are so clearly at odds with the requirements of the Fourth Amendment that they should be overruled.

I

As a general rule, to satisfy the Fourth Amendment, a search and seizure must be based upon probable cause and must be authorized by a warrant issued by a judicial officer. An authorized officer may stop and search an automobile on a public highway without a warrant, however, because a moving automobile would disappear before a warrant could be obtained. But, to conduct a constitutional search, the officer must have probable cause to believe the vehicle is carrying contraband; nothing in the mobility of the automobile justifies an intrusion upon personal privacy at the whim or on the unsupported hunch of a government agent. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Dyke v. Taylor Implement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

There is an exception to the probable cause requirement applicable to "border searches" of persons and vehicles. 3 The exception is recognized in the following passage in Carroll v. United States, supra, 267 U.S. at 153-154, 45 S.Ct. at 285:

"Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such a search may be made. It would be intolerable and unreasonable if a prohibition agent was authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise * * *" (emphasis added. 4

Conceptually, as Carroll suggests the "border search" exception rests upon the inherent right of sovereignty to protect its territorial integrity against intrusion of unauthorized persons or things. See also United States v. Weil, 432 F.2d 1320, 1323 (9th Cir. 1970); Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966); Fernandez v. United States, 321 F.2d 283, 285 (9th Cir. 1963); Witt v. United States, 287 F.2d 389, 391 (9th Cir. 1961). Practically, it is justified by "the peculiar and difficult law enforcement problems that necessarily are presented by the effective policing of our extensive national boundaries." King v. United States, 348 F.2d 814, 818 (9th Cir. 1965). See also United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968); Morales v. United States, 378 F.2d 187, 189 (5th Cir. 1967).

The "border search" exception to the probable cause requirement can extend no further than these conceptual and practical considerations that justify its existence. And since the exception is in derogation of normal Fourth Amendment principles, it must be narrowly construed.

Because the power to conduct a border search without probable cause "stems from illegal entry of goods or persons,"

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United States v. Markham, 440 F.2d 1119, 1123 (9th Cir. 1971), it may be exercised only in connection with a border crossing. This does not mean that a "border search" may be conducted only at a point of entry. It does mean, however, that to fall within the bordersearch exception to the probable cause requirement of the Fourth Amendment, a search conducted away from the immediate vicinity of the border must be the substantial equivalent of a search on entry. As usually stated, it must be "reasonably certain" from all the circumstances that any contraband that may be found aboard the vehicle would have been there at the time of entry. Thus, in Alexander v. United States, supra, 362 F.2d at 382-383:

"Where * * * a search for contraband by Customs officers is not made at or in the immediate vicinity of the point of international border crossing, the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of search was aboard the vehicle at the time of entry into the jurisdiction of the United States." 5

Recent cases appear to shift the emphasis from reasonable certainty that the contents of the vehicle were present at the time of entry, to reasonable certainty that the vehicle contains either goods that have just been smuggled or a person who has just crossed the border illegally. United States v. Weil, supra, 432 F.2d 1323; United States v. Markham, supra, 440 F.2d 1119. This formulation suggests that in order to justify a search of an automobile at any place other than the immediate border area, the searching officer must have reason to believe that goods are being brought into the country in the vehicle illegally-in short, a degree of reasonable cause to search is required, though less than the traditional "probable cause." 6

Whatever the precise definition, however, a border search must be directly related to an entry across a border. A search that is not so related requires probable cause, see United States v. Ardle, 435 F.2d 861, 862 (9th Cir. 1971); United States v. Kandlis, 432 F.2d 132, 135 (9th Cir. 1970); for, to repeat, "those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. * * *" Carroll v. United States, supra, 267 U.S. at 154, 45 S.Ct. at 285.

II

There is no apparent reason why these Fourth Amendment principles do not apply with the same force to...

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