506 F.2d 887 (5tht Cir. 1975), 73-3949, United States v. Hart

Docket Nº:73-3949.
Citation:506 F.2d 887
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Edward HART, Defendant-Appellant.
Case Date:January 15, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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506 F.2d 887 (5tht Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lawrence Edward HART, Defendant-Appellant.

No. 73-3949.

United States Court of Appeals, Fifth Circuit.

January 15, 1975

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Johnny Searls (Court-appointed), Larry Victorson, El Paso, Tex., for defendant-appellant.

William S. Sessions, U.S. Atty., San Antoino, Tex., Ronald Ederer, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before TUTTLE, RONEY and GEE, Circuit Judges.

RONEY, Circuit Judge:

This case involves the effect of the Supreme Court's decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) on a search and seizure at a permanent United States Border Patrol checkpoint near Sierra Blanca, Texas. Holding that the principle announced in Almeida-Sanchez does not militate against the legality of this search under our prior decisions, we affirm these convictions for possession of 397 pounds of marijuana with intent to distribute, 21 U.S.C.A. 841(a)(1), and for escape from custody pursuant to lawful arrest, 18 U.S.C.A. 751(a).

On October 9, 1973, at approximately 6:30 a.m., Lawrence Edward Hart was stopped at a permanent United States Border Patrol checkpoint on Interstate Highway 10, 85 miles east of El Paso, Texas, and 4 miles west of Sierra Blanca, Texas. Border Patrol agent Charles Elmore inquired as to Hart's citizenship and requested that Hart open the trunk of his automobile. When Hart complied, Border Patrol agent Tom Moore detected an odor of marijuana and observed a white sheet covering the contents of the trunk. Agent Elmore pulled back a corner of the sheet and observed 'kiloshaped' bricks of marijuana. A count of the bricks disclosed 185 kilo packages, or approximately 397 pounds of marijuana.

The agents advised Hart that he was under arrest, placed him in handcuffs,

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and confined him in the rear of the trailer-office at the checkpoint. Hart, however, managed to escape. The following day, Border Patrol agents apprehended Hart in Lordsburg, New Mexico, where they found Hart hiding in a freight car, still handcuffed. Hart attempted to escape from the agents a second time, however, they successfully returned him to El Paso.

On November 7, 1973, Hart was indicted on one count of possession of a Schedule I Controlled Substance with intent to distribute in violation of 21 U.S.C.A. 841(a)(1), and one count of escape from the custody of an officer of the United States pursuant to a lawful arrest in violation of 18 U.S.C.A. 751(a). On November 9, Hart filed a motion to suppress evidence which alleged that the Border Patrol agents at Sierra Blanca checkpoint had conducted the search of Hart's car in violation of the Fourth Amendment. On November 28, a jury having been waived, the United States District Court for the Western District of Texas proceeded to hear the merits of Hart's case. At the conclusion of the evidence, the court overruled Hart's motion to suppress and found Hart guilty on both counts. On December 4, the court sentenced Hart to five years imprisonment on each count, such sentences to run concurrently, and five years special parole on count one.

On appeal, Hart asserts two grounds for the reversal of his conviction. First, Hart argues that his conviction for possession of marijuana with intent to distribute should be reversed because the evidence against him was obtained as a result of an unconstitutional search and seizure. Second, Hart contends that his conviction for escape should be set aside because there was no lawful arrest, the stop and search which led to the arrest being illegal. At oral argument before this Court, Hart's attorney properly conceded that the question of the constitutionality of the search at the Sierra Blanca checkpoint controls the disposition of both convictions.

On every occasion that the question has previously been presented to us, we have upheld, as constitutional, searches conducted pursuant to 8 U.S.C.A. 1357(a) at permanent checkpoints. See United States v. Phillips, 496 F.2d 1395 (5th Cir. 1974); United States v. McGlynn, 496 F.ed 1316 (5th Cir. 1974), cert. applied for December 4, 1974; United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974); United States v. Merla, 493 F.2d 910 (5th Cir. 1974); United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972); United States v. DeLeon, 462 F.2d 170 (5th Cir. 1972), cert. denied, 414 U.S. 853, 94 S.Ct. 148, 38 L.Ed.2d 102 (1973). In two recent decisions covering pre-Almeida-Sanchez searches, we have specifically held that border agents may stop vehicles at the Sierra Blanca checkpoint and search the trunks of those vehicles for aliens illegally in the United States. United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974); United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974).

As an aid in deciding this case, we have compiled in two ways the so-called Texas border search cases decided by this Court in the past ten years and set forth both lists in the margin: first, we have listed the cases according to the location of the search, 1 and second, we

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have listed them according to the kind of checkpoint or stop involved. 2 From this compilation, it can be seen that we have never held unconstitutional a search with

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the characteristics of a border search when made at a permanent checkpoint. Nor have we even held invalid a search at what we have called a permanent/temporary checkpoint, that is, a permanent checkpoint area where the physical location of the checkpoint may be changed from time to time, as in Laredo.

The searches which have been held invalid occurred at clearly temporary checkpoints, United States v. Diemler, 498 F.2d 1970 (5th Cir. 1974) and United States v. Speed, 497 F.2d 546 (5th Cir. 1974), but see United States v. Cantu, 504 F.2d 387 (5th Cir. 1974) (now pending on petition for rehearing); were by roving patrols, United States v. Byrd, 483 F.2d 1196 (5th Cir. 1973), modified 494 F.2d 1284 (5th Cir. 1974); United States v. McKim, 487 F.2d 305 (5th Cir. 1973); United States v. Storm, 480 F.2d 701 (5th Cir. 1973); or were otherwise nonpermanent checkpoint cases, United States v. Olivares, 496 F.2d 657 (5th Cir. 1974); United States v. Bursey, 491 F.2d 531 (5th Cir. 1974).

The law of this Circuit thus seems to be clear that permanent checkpoint searches of motor vehicles conducted as 'border searches' for aliens have been held to meet the reasonableness standards of the Fourth Amendment.

Because the congressional authority for permanent checkpoints, temporary checkpoints, and roving patrols is contained in the same Act, the recent decision of the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), concerning roving patrols, requires us to reconsider the constitutionality of all warrantless searches conducted pursuant to 8 U.S.C.A. 1357(a). Under section 287(a) of the Immigration and Nationality Act, 8 U.S.C.A. 1357(a), Congress extended the warrantless border search to empower any officer or employee of the Service without a warrant,

(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, . . . for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.

8 U.S.C.A. 1357(a)(3).

In Almeida-Sanchez, a roving patrol of the United States Border Patrol stopped a Mexican citizen holding a valid United States work permit, searched his vehicle, and discovered a large quantity of marijuana. The search was conducted some 25 miles north of the Mexican border, on an east-west state highway in California which is at all points at least 20 miles north of the border. Between the state highway and the border lies a major east-west federal highway. After conviction of having knowingly received, concealed and facilitated the transportation of illegally imported marijuana in violation of 21 U.S.C.A. 176(a), defendant appealed on the ground that the search of his automobile by the roving patrol was unconstitutional under the Fourth Amendment and that, under the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1913), the marijuana should not have been admitted as evidence against him. The Ninth Circuit upheld the validity of the search, United States v. Almeida-Sanchez, 452 F.2d 459 (9th Cir. 1971), pursuant to 8 U.S.C.A. 1357(a).

Reversing the decision of the Ninth Circuit, the Supreme Court held that a warrantless search for aliens by a roving border patrol without probable cause or consent violates the Fourth Amendment guarantee against unreasonable searches and seizures. Finding no support for such a breach in either its automobile search decisions or its administrative decisions, the Court rejected the Government's argument that the search was justified under 8 U.S.C.A. 1357(a). 'It is clear, of course, that no Act of Congress can authorize a violation of the Constitution.' 413 U.S. at 272, 93 S.Ct. at 2539. Mr. Justice Stewart delivered the opinion of the Court in which Justices Douglas, Brennan, Marshall and Powell joined. Mr. Justice Powell filed a concurring opinion and Mr. Justice White filed a dissenting opinion in which the Chief Justice and Justices Blackmun and Rehnquist joined.

Simplistically speaking, the holding in Almeida-Sanchez could not control the constitutional disposition of a permanent checkpoint case because there was no case and controversy before that Court about permanent checkpoints. The...

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