U.S. v. Calvillo, 75-3539

• Decision Date: 16 August 1976
• Docket Number: No. 75-3539,75-3539
• Citation: 537 F.2d 158
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecilio CALVILLO, Andrew Clifton Payne and Roy Lee Burke, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 158

537 F.2d 158

UNITED STATES of America, Plaintiff-Appellee, v. Cecilio CALVILLO, Andrew Clifton Payne and Roy Lee Burke Defendants-Appellants.

No. 75-3539.

United States Court of Appeals Fifth Circuit.

Aug. 16, 1976.

Oscar J. Pena, Laredo, Tex., for Calvillo.

John A. Nuckolls, Atlanta, Ga., for Payne and Burke.

Edward B. McDonough, Jr., U. S. Atty., James R. Gough, George A. Kelt, Jr., Rene J. Gonzalez, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before TUTTLE, AINSWORTH and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The dispositive issue in this direct criminal appeal is the legality of a search conducted by Border Patrol agents at a traffic checkpoint on Highway 59 between Laredo and Freer, Texas. To sustain the search, the government was required to show either that 1) the Freer checkpoint was the functional equivalent of the border, or 2) probable cause for the search. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975). Since neither alternative was proven, we hold the search invalid, the evidence discovered thereby illegally obtained, and reverse appellants' convictions which depended on that evidence.

Calvillo, Payne and Burke were convicted of conspiracy to possess and aiding and abetting in the possession of approximately 285 lbs. of marijuana. 21 U.S.C § 841(a)(1); 18 U.S.C. § 2. Payne was also found guilty of carrying a firearm during commission of a felony. 18 U.S.C. § 924(c)(2). ¹ The characteristics of the checkpoint as well as the facts surrounding the search are relevant to appellants' Fourth Amendment challenge.

The Freer traffic checkpoint is strategically located approximately 30.1 miles east of the border city of Laredo, Texas, on Highway 59, the major route from Laredo to Houston. Only one small country road intersects Highway 59 between the Laredo city limits and the checkpoint. Directly to the east of the checkpoint is one other intersecting paved road on which Border Patrol agents also control traffic. Leading from the border area there is an interior road network providing a possible indirect route to the checkpoint location. Testimony at the suppression hearing established that the Freer checkpoint had relocated three times in the five-year period prior to the search. It has been at its present location, however, from at least September 1, 1974.

At the time of the search, the checkpoint consisted merely of a mobile van parked on the unpaved shoulder of the road. Although classified as permanent by the Immigration and Naturalization Service, the checkpoint's only permanent fixtures were a light standard and a 220 volt electric outlet. When the checkpoint was in operation, the border patrolmen set up portable warning signs and blinking lights on the highway at designated distances from the van. A large sign directed traffic to stop at the point itself. The practice was to visually inspect all vehicles passing through, but only about 41% of the cars were stopped for questioning. The agents searched only a portion of the vehicles stopped. During the relevant two-month period (April and May 1975), the checkpoint operated for only four days.

The challenged search occurred on the evening of May 2, 1975. No precise chronology of events can be gleaned from the often inconsistent testimony of the Border Patrol and DEA agents who testified at the pretrial suppression hearing and at the trial itself. The facts are recited in a manner most favorable to the government's position.

At 9:30 p. m. on the night in question, Border Patrol agent Carl Phillips, stationed approximately one-half mile south of the checkpoint, spotted a car flashing its headlights as if to signal danger. He immediately notified the checkpoint of the suspicious activity. Although Phillips did not note the make of the car with the flashing lights, he recalled that three vehicles had passed him during a very brief time span. Approximately 15 minutes after the alert from Phillips, a 1971 Oldsmobile driven by Rosan Hill approached the checkpoint and stopped. Border Patrol agent Sanderfer, stationed at the checkpoint, questioned Hill about her nationality. As he did so, he detected a perfumed odor which he suspected was too strong to be coming from the woman's person. He then requested Hill to open the trunk of her car. Inside were six suitcases together with some fishing tackle. During this time, a Ford driven by Burke with passengers Payne and Calvillo drove up. Another agent, Maurio Zertuche, approached the Ford and noticed that the men seemed very interested in the Oldsmobile and had "unusual" facial expressions. Zertuche recalled that Calvillo tugged at or nudged Payne. The agent then questioned the three men about their citizenship and asked where they were heading. After receiving a reply that they were going fishing, Zertuche ordered Payne to pull over and open the trunk of the Ford.

By this time, agent Sanderfer had opened the suitcases in the Oldsmobile and had uncovered a large quantity of marijuana bricks masked with talcum powder. The proof as to whether Sanderfer related this discovery to Zertuche is conflicting. Sanderfer testified that the agents exchanged no information. Zertuche claimed that Sanderfer told him that "the young lady had marijuana." In any event, the appellants' Ford was subsequently thoroughly searched. A jar of talcum powder and a spare tire matching the Oldsmobile were found. The other linking evidence consisted of an address book belonging to Calvillo which contained Rosan Hill's name and the Oldsmobile's title certificate which listed the same address as that shown on a fishing license issued to Calvillo.

At the suppression hearing, the government took the position that the Freer checkpoint was a functional equivalent of the border. Much testimony was devoted to describing the location and the physical setup of the checking operation. Although a probable cause justification was not explicitly relied on, the facts surrounding the search of both cars were also explored in some depth. The district court did not give any reasons for denying the suppression motion.

I. Functional Equivalency

Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) established the rule that in the absence of probable cause, routine searches by Border Patrol agents may be made only at the border itself or its functional equivalent. While elaborating on the quantum of knowledge needed for stops and interrogations at "border" locations, the progeny of Almeida-Sanchez has not altered this basic search rule. The difficulty lies in determining which locations qualify for functional equivalency status. Almeida-Sanchez gave two illustrations:

For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.

413 U.S. at 272, 93 S.Ct. at 2535.

The major functional equivalency case in this circuit is United States v. Hart, 506 F.2d 887 (5th Cir. 1975), which dispenses with the probable cause requirement for immigration searches conducted at the Sierra Blanca permanent checkpoint. Hart cited three general characteristics which serve to transform a checkpoint into the border's functional equivalent: the proximity of the checkpoint to the border, the permanent nature of the checkpoint and the hours of its operation. The court thereupon concluded that the Sierra Blanca checkpoint passed the functional equivalency test because of its location on U. S. Highway 10 which paralleled the border for some distance before turning north to the checkpoint; its permanency as an established checkpoint office consisting of trailer mounted on blocks; its operation 16 hours each weekday and 24 hours per day on weekends, when ports of entry were shut down; and its proven effectiveness as a spot for apprehending aliens. 506 F.2d at 896-97.

Hart was vacated and remanded by the Supreme Court following the Ortiz decision prohibiting routine searches at permanent checkpoints. 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706 (1975). Despite the implicit recognition in Ortiz that not all reasonably located permanent checkpoints should be automatically classifiable as functional equivalents of the border, ² we adhered to our original classification of the Sierra Blanca checkpoint as a border equivalent. United States v. Hart, ...