542 F.2d 226 (5th Cir. 1976), 75-3537, United States v. Alvarez-Gonzalez

Docket Nº:75-3537.
Citation:542 F.2d 226
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Enrique ALVAREZ-GONZALEZ, Defendant-Appellant.
Case Date:October 27, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 226

542 F.2d 226 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

Enrique ALVAREZ-GONZALEZ, Defendant-Appellant.

No. 75-3537.

United States Court of Appeals, Fifth Circuit

October 27, 1976

Page 227

Nago L. Alaniz, San Diego, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GEE, Circuit Judge:

Appellant Enrique Alvarez-Gonzalez appeals from his conviction in a bench trial for possession of approximately 152 pounds of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1970). The sole question on appeal concerns the validity of the district court's ruling that the search of appellant's trunk by a Border Patrol officer at a Border Patrol checkpoint near La Gloria, Texas, was a search at the "functional equivalent" of the border. 1 See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Lacking sufficient factual findings by the district court to evaluate its conclusion and desiring to clarify this somewhat unclear area of the law, we remand the case to the district court for further factual findings relevant to the principles expressed herein.

The La Gloria checkpoint is located on Highway 1017, about eight miles northwest of La Gloria, Texas, and about 42 highway miles from the nearest port of entry from Mexico at Rio Grande City, Texas. It is a permanent checkpoint, see United States v. Santibanez, 517 F.2d 922, 923 (5th Cir. 1975), a status that allows Border Patrol officers to stop vehicles at it for citizenship checks without probable cause, see United States v. Martinez-Fuerte, --- U.S. ----, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), but does not abrogate the requirement that Border Patrol officers have probable cause to proceed further and search

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vehicles so detained. See United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975). 2 Only at the border or its functional equivalent may Border Patrol officials conduct searches without probable cause, see Almeida-Sanchez v. United States,supra, 413 at 272-73, 93 S.Ct. 2535, and as yet we have not determined whether the La Gloria checkpoint is functionally equivalent to the border. 3 Nor do we do so now, since factual determinations are required which were not made below, determinations which should first be addressed by the district court.

Since such an address seems necessary, we think it appropriate to attempt to assist that court by setting out what matters we presently believe it should consider on the remand which we direct. Most of these are suggested, to one degree or another, by our discussion of the Sierra Blanca checkpoint in United States v. Hart : 4

The Sierra Blanca checkpoint is permanent in nature. Approximately one mile west of the checkpoint on Interstate Highway 10, there is a sign which reads, "Inspection station, all vehicles exit one mile." Somewhat closer to the checkpoint, between one-half and three-fourths of a mile west, a second sign reads, "Form one lane right." One thousand yards west of the checkpoint, a third sign states, "Inspection station, all vehicles right lane."

During the hours that the Sierra Blanca checkpoint is open, there are cones positioned in the highway which...

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