525 F.2d 1199 (5th Cir. 1976), 73--3949, United States v. Hart

Docket Nº:73--3949.
Citation:525 F.2d 1199
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Edward HART, Defendant-Appellant.
Case Date:January 16, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1199

525 F.2d 1199 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,


Lawrence Edward HART, Defendant-Appellant.

No. 73--3949.

United States Court of Appeals, Fifth Circuit

January 16, 1976

Page 1200

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

William S. Sessions, U.S. Atty., San Antonio, 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.


The Supreme Court of the United States on June 30, 1975, vacated this Court's judgment in this case for further consideration in light of United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). We have carefully considered the opinions filed in these cases and have concluded that they do not require reversal of our judgment.

In Brignoni-Ponce the Supreme Court held that a roving patrol stop must be supported by a reasonable suspicion that the detained vehicle contains aliens illegally in the country. In the case now before us the defendant's car was stopped by officers at the Sierra Blanca permanent checkpoint for a routine immigration check. The border patrol agent inquired as to Hart's citizenship and requested that he open the trunk of the car. When Hart complied the agent detected the odor of marijuana and observed a white sheet covering the contents of the trunk. Approximately 397 pounds of marijuana were discovered in the car's trunk. Under these circumstances, the stop in no way resembled a roving patrol stop as in Brignoni-Ponce. See United States v. Coffey, 520 F.2d 1103 (5th Cir. 1975).

Therefore, if we are required to reverse our original decision to affirm Hart's conviction we must do so on the basis of Ortiz. In that case the Supreme Court held that border patrol officers at fixed checkpoints, other than those located at the border or its functional equivalent, cannot search a vehicle in the absence of probable cause or consent. The Court's reference to the concept of the functional equivalent of the border continues the use of this aphorism originally appearing in Almeida-Sanchez v. United States, 413 U.S. 266, 272-- 273, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In our original opinion in this case we...

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