United States v. Gordo-Marin, 80-264-Cr-SMA.

Decision Date10 September 1980
Docket NumberNo. 80-264-Cr-SMA.,80-264-Cr-SMA.
PartiesUNITED STATES of America, Plaintiff, v. Reynaldo GORDO-MARIN, Defendant.
CourtU.S. District Court — Southern District of Florida

Atlee W. Wampler, III, U. S. Atty., Miami, Fla., for plaintiff.

Theodore J. Sakowitz, Federal Public Defender, Miami, Fla., for defendant.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO SUPPRESS

ARONOVITZ, District Judge.

This matter is before the Court for consideration of Defendant Reynaldo Gordo-Marin's Motion to Suppress certain tangible evidence and allegedly inculpatory statements. The Court previously referred the matter to the United States Magistrate for the purpose of conducting an evidentiary hearing and preparing a Report and Recommendation. See 28 U.S.C. § 636(b)(1). Based upon the evidence adduced at the hearing, the Magistrate recommended that the motion be denied. Defendant has filed an objection to this recommendation and has petitioned for review by this Court. The Court, having considered Defendant's motion, having conducted a hearing and entertained argument of counsel, and having reviewed the record including the transcript of the proceeding before the Magistrate, and being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED that the recommendation of the Magistrate is adopted, and the Motion to Suppress is DENIED for the reasons noted below.

The facts pertaining to the motion are not in serious dispute. During the summer of 1980, an extraordinary number of Cuban and Haitian refugees entered this country, coming ashore at various points in the Florida Keys. In response to this influx, federal immigration and border authorities set up a vehicle traffic checkpoint on highway U. S. 1, just south of Florida City on the mainland. U. S. 1 spans the length of the Florida Keys, and is the sole means of vehicle access to the mainland therefrom. At the checkpoint, which remained at a fixed location during its period of operation, all vehicles were stopped. The checkpoint operated from approximately April through June, 1980, during the height of the influx of Cuban refugees.

On the morning of June 14, 1980, Defendant's vehicle entered the checkpoint area. Upon being questioned as to his nationality, Defendant claimed to be an American citizen, and produced a birth certificate purportedly issued by the State of Texas, and other identification documents. The Defendant was then referred to a secondary inspection area, where he was questioned further. He was asked how many older brothers and sisters he had, and answered "none." The birth certificate he had produced, however, indicated that he had two older siblings. Upon being confronted with this inconsistency, the Defendant was again asked how many older brothers and sisters he had, and he replied, "I think five or six." Other questions asked by the government officers also yielded inconsistent answers.

Their suspicions aroused, the officers escorted the Defendant into a patrol car and read him his Miranda rights. The officers then gave the Defendant a written form again stating his rights. One officer asked him to read the form to himself, and, upon being asked if he understood the form, the Defendant replied affirmatively. The officer further inquired as to whether the Defendant would be willing to sign the form acknowledging his understanding thereof. The Defendant agreed, and signed the form.

The officer then asked whether the Defendant was willing to answer questions, and again received an affirmative reply. The Defendant further agreed to proceed without an attorney. Upon being confronted with the numerous inconsistencies in his answers to the officers' questions, and upon being told of the officers' suspicions that Defendant was not telling the truth, the Defendant admitted that the birth certificate was not his, and that he was a Mexican citizen. It is upon the Defendant's Motion to Suppress the documents and statements to the officers that this case is before the Court.

I. Legality of the Stop and Subsequent Questioning

Relying on United States v. Luddington, 589 F.2d 236 (5th Cir.), cert. denied 441 U.S. 936, 99 S.Ct. 2061, 60 L.Ed.2d 666 (1979), United States v. Reyna, 572 F.2d 515 (5th Cir.), cert. denied 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 83 (1978), and United States v. Alvarez-Gonzalez, 561 F.2d 620 (5th Cir. 1977), the Defendant argues that the stop of his vehicle and the questioning by the officers was in violation of his Fourth Amendment rights, because the Florida City checkpoint was not the "functional equivalent" of the border.

The concept of functional equivalence comes from Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), where the Supreme Court stated that "border searches .. may in certain circumstances take place not only at the border itself, but at its functional equivalents as well." Id. at 272-73, 93 S.Ct. at 2539. The Fifth Circuit has identified three factors that must be present in order for a checkpoint to be deemed the functional equivalent of the border: "relative permanence of the checkpoint; relatively minimal interdiction by it of domestic traffic; and the checkpoint's capability to monitor portions of international traffic not otherwise controllable." Alvarez-Gonzalez, 561 F.2d at 621-22.

In the instant case, Defendant contends that the Florida City checkpoint fails to meet two of the requirements of the functional equivalence test. First, he argues that because the checkpoint was only existent for a relatively short period of time, it cannot be considered "permanent." Second, he contends that because the government has failed to show that a majority of the traffic passing through the checkpoint was international in origin, the second requirement is also not satisfied.

In resting his argument on the determination of functional equivalence, however, Defendant misconceives the applicable law. The determination of whether a checkpoint is located at a border or its functional equivalent is relevant when the government conducts a general search of the Defendant's person or vehicle. Where, as here, the governmental intrusion is limited to an inquiry concerning the Defendant's citizenship, the inquiry may be conducted at locations other than the border or its functional equivalent.

This is the holding of United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), where the Supreme Court sustained, inter alia, the use of a checkpoint located on Interstate 5 between San Diego and Los Angeles. That checkpoint operated in a similar manner to the one used in Florida City: all vehicles passed through the checkpoint, and some of the vehicles were singled out for a secondary inquiry. In affirming the use of such an enforcement technique, the Court stated:

Our previous cases have recognized that maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border... These checkpoints are located on important highways; in their absence such highways would offer illegal aliens a quick and safe route into the interior.

Id. at 556-57, 96 S.Ct. at 3082. (emphasis added). The Court rejected the contention that the officers needed to have some articulable suspicion in order to make the stops: "a requirement that stops on major routes inland always be based on a reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens." Id. at 557, 96 S.Ct. at 3082.

The reason for distinguishing between general searches of a defendant's person or vehicle and limited inquiries as to citizenship is simply that the latter is minimally intrusive for Fourth Amendment purposes. As the Court stated in Martinez-Fuerte,

The potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Furthermore, checkpoint operations both appear to and actually involve less discretionary enforcement activity.

Id. at 559, 96 S.Ct. at 3083.

In Martinez-Fuerte, the Court also sustained the practice of referring some vehicles to secondary inspection areas, as was done in the case sub judice. Like the initial stop of the vehicle, the Court refused to impose any requirement of reasonable suspicion or probable cause in such referrals. "Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal." Id. at 560, 96 S.Ct. at 3084.

The Fifth Circuit recently relied on Martinez-Fuerte in United States v. Garcia, 616 F.2d 210 (5th Cir. 1980). In Garcia, the Defendant also was stopped at a traffic checkpoint and questioned concerning his citizenship. He was referred to a secondary...

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3 cases
  • Jasinski v. Adams, 83-5176
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 3, 1986
    ...the reasonableness of the checkpoint was conclusively determined in a case considering that prior operation. See United States v. Gordo-Marin, 497 F.Supp. 432 (S.D.Fla.1980). See also infra note 13.12 Plaintiff alleges that the checkpoint caused a traffic jam extending 20 miles south on U.S......
  • U.S. v. Venegas-Sapien, VENEGAS-SAPIE
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 23, 1985
    ...& n. 10. As in this case, part of the "down" time in Martinez-Fuerte resulted from personnel shortages. Id. See United States v. Gordo-Marin, 497 F.Supp. 432, 435 (S.D.Fla.1980) ("[T]he 'permanence' requirement refers not to the duration of the checkpoint, but to its location."), aff'd on b......
  • U.S. v. Gordo-Marin, GORDO-MARI
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 15, 1981
    ...of the district court on the basis of the apposite portion of the memorandum opinion of the Honorable Sidney M. Aronovitz at 497 F.Supp. 432, 433-36 (S.D.Fla.1980). * Former Fifth Circuit case, Section 9(1) of Public Law 96-452 October 14, 1980.** Judge of the U.S. Court of Claims, sitting ......

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