United States v. Byrd

• Decision Date: 08 November 1973
• Docket Number: No. 73-1426 Summary Calendar.,73-1426 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Glynn BYRD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 1196 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Richard Glynn BYRD, Defendant-Appellant.

No. 73-1426 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 7, 1973.

As Modified November 8, 1973.

Warren Heagy, Odessa, Tex., for defendant-appellant.

Anthony J. P. Farris, U.S. Atty., Robert G. Darden, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Before BELL, GODBOLD and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Appellant Richard Glynn Byrd was convicted in a nonjury trial of possessing with intent to distribute 300 pounds of marijuana¹ and of carrying a firearm while committing this felony.² Byrd seeks reversal of his conviction on the basis that the marijuana was discovered in a constitutionally illegal search and is therefore inadmissible as evidence against him. On the facts of this case, the warrantless search of appellant's vehicle by roving border patrol agents forty-five miles from the Mexican border cannot be upheld. The judgment is reversed.

The facts are typical and undisputed. At 1.30 A.M. on May 9, 1972, Byrd was driving northeast on Highway 59 toward Freer, Texas. At a distance of forty-five miles from the Mexican border at Laredo, Texas, Byrd was stopped by a roving border patrol manned by Officers Escobedo and Lohman of the United States Immigration and Naturalization Service. After ascertaining that Byrd was a United States citizen and had a valid Texas driver's license, Escobedo inspected the rear seat of appellant's car to determine if he was importing illegal aliens into the country. At a time when he had the upper half of his body inside the automobile, he detected the pungent odor of marijuana³ emanating from somewhere within the vehicle. The officer then obtained the trunk key, opened the trunk, and found that his nose had not betrayed him; 300 pounds of marijuana was discovered in the trunk. After advising Byrd of his Miranda rights, the officers were informed that a loaded pistol was under the front seat, which they then recovered.

At trial the only issue was whether the marijuana was discovered in a constitutionally permissible search and thereby admissible as evidence. Officer Escobedo testified that Byrd's car was stopped for a routine immigration inspection. Other than the presence of the car on the highway at an hour when few vehicles were traveling between Laredo and Freer and the officer's knowledge that "many cases" had been made "at that time of morning ... out there on that particular road," there were no facts to arouse the officer's suspicions that Byrd was transporting illegal aliens. Officer Escobedo said he and his partner would have been just as suspicious of any other vehicle.

The district court upheld the search on the basis of a two pronged analysis. First, the court believed that the initial intrusion, the stop, was justified by 8 U.S.C. § 1357(a) and the accompanying regulation, 8 CFR § 287.1(a)(2), which authorize immigration officials to conduct warrantless searches of vehicles for illegal aliens within one hundred miles of an international border. The court next reasoned that once a vehicle has been validly stopped for an immigration search and the immigration officers, in the course of a search for aliens, detect circumstances—the smell of marijuana for example—supporting the belief that the customs laws are being violated, the officers may then don their customs hats and complete the search to determine if illegal contraband is being transported.

The second facet of the district court's analysis is a correct application of the principles of law relating to searches by border patrol officers. See United States v. Wright, 476 F.2d 1027 (5th Cir., 1973); United States v. Thompson, 475 F.2d 1359 (5th Cir., 1973); United States v. McDaniel, 463 F.2d 129 (5th Cir., 1972); United States v. Maggard, 451 F.2d 502 (5th Cir.,1971).⁴ Whether the search here passes constitutional muster depends, therefore, on the propriety of the initial intrusion by the border patrol agents when they stopped Byrd's vehicle to search for aliens. To resolve this issue we must examine it against the standards established in the recent Supreme Court decision of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).

The facts there are very similar to those in the case at bar:

"Almeida-Sanchez was stopped by the United States Border Patrol on State Highway 78 in California, and his car was thoroughly searched. The road is essentially an east-west highway that runs for part of its course through an undeveloped region. At about the point where the petitioner was stopped the road meanders north as well as east—but nowhere does the road reach the Mexican border, and at all points it lies north of Interstate 80, a major east-west highway entirely within the United States that connects the Southwest with the west coast. The petitioner was some 25 air miles north of the border when he was stopped. It is undenied that the Border Patrol had no search warrant, and that there was no probable cause of any kind for the stop or the subsequent search—not even the `reasonable suspicion\' found sufficient for a street detention and weapons search in Terry v. Ohio, 392 U.S. 1 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams, 407 U.S. 143 92 S.Ct. 1921, 32 L.Ed. 2d 612."

Id. at 267, 93 S.Ct. at 2536. The government defended the search on the basis of "§ 287(a) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a), which simply provides for warrantless searches of automobiles and other conveyances `within a reasonable distance from external boundary of the United States,' as authorized by regulations to be promulgated by the Attorney General. The Attorney General's regulation, 8 CFR § 287.1, defines `reasonable distance' as `within 100 air miles from any external boundary of the United States.'" Id. at 268, 93 S.Ct. at 2537.⁵

The Court first noted that the search could not be justified on the basis of the automobile search exception to the Fourth Amendment's warrant requirement because there was not probable cause to believe that Almeida-Sanchez was violating any law. Although warrantless searches of automobiles may sometimes be necessary as a result of exigent circumstances, e. g. Carlton v. Estelle, 480 F.2d 759 (5th Cir.1973), such searches must nevertheless be founded on probable cause. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See Carlton v. Estelle, supra; United States v. Soriano, 482 F.2d 469 (5th Cir.1973) No. 72-1520, July 2, 1973. "Automobile or no automobile, there must be probable cause for the search." Almeida-Sanchez v. United States, 413 U.S. at 269, 93 S.Ct. at 2537. It is readily apparent, and the government does not argue to the contrary, that the search in question here does not fit within the narrow automobile search exception to the warrant requirement.

After holding that the search was not supported by cases dealing with administrative inspections,⁶ the Court was faced with the issue whether "the statute that purports to authorize automobiles to be stopped and searched, without a warrant and `within a reasonable distance from any external boundary of the United States,'" id. at 272, 93 S.Ct. at 2539, was a constitutionally sufficient basis upon which to predicate the border patrol's stop and ensuing search of Almeida-Sanchez's vehicle.

The Court began by distinguishing between a border search, meaning a search at the border or its functional equivalent,⁷ and a search which occurs near a border.⁸ This distinction is significant because the analysis it mandates will ultimately determine the standard for measuring the constitutionality of a particular search. The Court reasoned that searches at the border or its functional equivalent were not governed by normal Fourth Amendment principles. The federal government's undoubted power to exclude aliens "can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders." Id. at 272, 93 S.Ct. at 2539. "When a person or vehicle is detained at the border just after entering the country, the agent's statutory authority to search is virtually unfettered except perhaps as to due process concerning the manner, not the cause, of the search. E.g., Lane v. United States, 5 Cir., 1963, 321 F.2d 573; Blackford v. United States, 9 Cir., 1957, 247 F.2d 745; King v. United States, 5 Cir., 1958, 258 F.2d 754." United States v. Storm, 480 F.2d 701, at 704 (5th Cir.1973) (Emphasis added). Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), provides the rationale for searches of this nature:

"It would be intolerable and unreasonable if a prohibition agent were 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. Travellers 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."

As a result of this reasoning it will be necessary for the courts to make an initial determination of whether a search is a border search as that term was narrowly defined by Almeida-Sanchez. This will be a somewhat different methodology than that required in the usual case where the rule is that warrantless searches "are per se unreasonable under the Fourth Amendment—subject only to a few well-delineated exceptions," with "the burden ... on those seeking the exemption to show the need for it." Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). See United States v. Soriano, supra, 482 F.2d at 472, n. 3. The special nature of a...