United States v. McKim, 73-1787 Summary Calendar.

• Decision Date: 29 November 1973
• Docket Number: No. 73-1787 Summary Calendar.,73-1787 Summary Calendar.
• Citation: 487 F.2d 305
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene Cecil McKIM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 305 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Eugene Cecil McKIM, Defendant-Appellant.

No. 73-1787 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 12, 1973.

Rehearing Denied November 29, 1973.

Oscar J. Pena, Laredo, Tex. (Court-appointed), for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant Eugene Cecil McKim was convicted of conspiring to import, possessing with intent to distribute and importing into the United States from Mexico, approximately 60 pounds of marihuana, in violation of 21 U.S.C. §§ 952(a), 841(a)(1) and 960(a)(1), respectively. On appeal he contends that the district court erred in allowing, over his objection, the use of illegally obtained evidence, to-wit, the marihuana. Because of 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), and our later decision in United States v. Byrd, 5 Cir., 1973, 483 F.2d 1196, we reverse.

On September 9, 1972, at approximately 2:30 a. m., appellant, accompanied by two passengers, was driving a 1972 Ford automobile on Texas Highway 1017 in a northerly direction, about 55 miles from the Mexican border when the vehicle was stopped by two United States Border Patrol Agents for a routine immigration check. At the request of the agents McKim opened the trunk of the vehicle and the agents detected a strong odor of marihuana emanating therefrom. A subsequent search of the trunk revealed marihuana contained in four plastic bags, which was seized and later introduced in evidence at the trial.

Border Patrol Agent Ostrowski testified that he did not notice anything unusual when he approached the automobile to conduct an investigation for aliens, that he and his partner had been assigned to the area to make routine immigration inspections of vehicles to prevent the illegal entry of aliens into the United States. They were "taking a roving checkpoint" when they stopped McKim. The agent distinguished a "roving checkpoint" from any other checkpoint, saying, "It is not a stationary checkpoint with stop signs and stuff like that on the highways. My partner and I rode different highways at random and we stopped the traffic to conduct our immigration inspections." He testified that he did not know whether or not the vehicle had been to Mexico or anywhere close to the border, that he was not looking for that particular car and had no search or arrest warrant.¹

The facts here closely resemble those in Almeida-Sanchez, supra, in which the Supreme Court reversed a judgment of conviction, having found no support for the constitutionality of a stop and search where the search was not a border search nor the functional equivalent thereof, and there was no probable cause for stopping and searching and no consent thereto by petitioner. In that case,

"The petitioner 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 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 South-west 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." 413 U.S. at 267, 93 S.Ct. at 2536.

In reversing the judgment of conviction, the Supreme Court ...