United States v. Bursey

• Citation: 491 F.2d 531
• Decision Date: 22 March 1974
• Docket Number: No. 73-2483.,73-2483.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brett Allen BURSEY and Frances Rutledge Elliott, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

491 F.2d 531 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Brett Allen BURSEY and Frances Rutledge Elliott, Defendants-Appellants.

No. 73-2483.

United States Court of Appeals, Fifth Circuit.

March 22, 1974.

Cameron M. Cunningham (Court-appointed), Brady S. Coleman, Austin, Tex., for defendants-appellants.

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

Before BELL, THORNBERRY and DYER, Circuit Judges.

DYER, Circuit Judge:

Bursey and Elliott were convicted in a jury trial of possession with intent to distribute peyote, a controlled substance, in violation of 21 U.S.C.A. § 841(a). On appeal they contend that two separate automobile searches resulting in the Government's discovery of the contraband were violative of their fourth amendment rights. Because we find this contention meritorious, we reverse the judgment below.¹

As is usual in the search and seizure area, the particular factual setting is of critical importance to the disposition of this case. Viewed most favorably to the Government, the evidence adduced at trial showed that on December 5, 1971, Bursey and Elliott, a married couple traveling under an assumed name, were in the company of two other individuals, including co-defendant Charles Mann, in a green Chevrolet. On that date, this vehicle and its four occupants crossed the border into the United States from Mexico at the Roma, Texas port of entry, where the name of the fourth member of the party, Pat Panella, triggered the customs office computer or "cadpin" machine. The computer printout indicated that Panella had previously crossed the border in possession of marijuana seeds. On the basis of this information, surveillance was undertaken by two customs agents as the vehicle left the border station and headed for a motel in Roma. On the following morning, while the surveillance was continuing, the agents met with a reliable informant, who indicated that these four individuals were in town to purchase narcotics. The informant neither related any details of an anticipated transaction nor indicated the source of his information. Nonetheless, on the basis of this accumulated information, customs agents stopped and searched the car thoroughly, but without success, as the vehicle was proceeding from Roma toward McAllen, Texas, on the afternoon of December 6. Undaunted by this unfavorable result, the agents telephoned customs agents based in McAllen to inform them of these events and to advise them that the Chevrolet was headed toward McAllen.

Two days later, the customs agents in McAllen took up surveillance of two vehicles, a Dodge and an Oldsmobile, pursuant to another informant's tip that three persons driving these cars were staying at a local motel and intended to obtain narcotics in nearby Rio Grande City, Texas. The agents then determined that these individuals were three of the occupants² of the Chevrolet which had been searched earlier while it was en route to McAllen.

At approximately 9:00 p. m., minutes after the agents began surveilling the two cars at the motel, the Dodge was driven out of the parking lot, and the single agent in pursuit lost sight of the car. Surveillance was not re-established until approximately 3:30 a. m. the following morning when the agent returned to the motel and spotted the Dodge in the parking lot. Two agents remained at the motel observing the vehicles until approximately 11:00 o'clock, at which time the two cars were driven across the street from the motel to another parking lot. There, the drivers switched cars, with Bursey and Elliott getting into the Dodge and co-defendant Mann occupying the Oldsmobile. One agent again attempted to follow the Dodge, which appeared to him to be weighted down in the rear, but again lost surveillance of the vehicle in the traffic. At this point, the agent radioed instructions to his home office to alert a mobile border patrol checkpoint near Sarita, Texas, located approximately eighty miles north of McAllen, to intercept the Dodge. These orders were carried out, the Dodge was searched later that afternoon at the checkpoint without a warrant, and the peyote was uncovered. Armed with this information, several agents who had been following the Oldsmobile during the interim stopped that car near Refugio, Texas, located about one hundred and fifty miles from the border. The ensuing search of that car revealed another cache of peyote.

BORDER SEARCH

At the suppression hearing, the Government sought to vindicate the warrantless search of the Dodge as a border search, despite the substantial distance between the Sarita checkpoint and the international boundary. The reason for the Government's proffering this rationale is readily apparent: the search was conducted at a mobile border patrol station, following an investigation by customs officials of possible smuggling, and pursuant to the express direction of a customs agent for the checkpoint officers in Sarita to conduct a "customs search." We are firmly convinced, however, that this justification is without constitutional foundation under the circumstances of this case. Since it is elementary that exceptions to the warrant requirement imposed by the fourth amendment are to be jealously and carefully delimited, see Coolidge v. New Hampshire, 1971, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564; Jones v. United States, 1958, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514, it is incumbent on the Government to demonstrate that this warrantless search fits within the parameters of the border search rationale. This burden has not, and indeed could not, be carried.

The evidence of record reveals no connection whatsoever between the...