561 F.2d 620 (5th Cir. 1977), 75-3537, United States v. Alvarez-Gonzalez

Docket Nº:75-3537.
Citation:561 F.2d 620
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Enrique ALVAREZ-GONZALEZ, Defendant-Appellant.
Case Date:October 25, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 620

561 F.2d 620 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Enrique ALVAREZ-GONZALEZ, Defendant-Appellant.

No. 75-3537.

United States Court of Appeals, Fifth Circuit

October 25, 1977

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Nelson R. Sharpe, Jr., Kingsville, Tex., Leo Villarreal, Kingsville, Tex., for defendant-appellant.

James R. Gough, 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:

The affirmance or reversal of appellant's conviction depends on whether a limited search conducted at the La Gloria, Texas, Border Patrol Checkpoint in 1974 was valid. Drugs were discovered in the course of the search for illegal aliens, but since the search was concededly carried out without benefit of either warrant or probable cause, this evidence must be suppressed unless the checkpoint is a functional equivalent of the border. If it is, such justifications are not required for routine searches conducted there of automobile trunks and other large spaces in which aliens may be concealed.

In an earlier opinion in this case, 1 we reviewed some of the authority concerning functional equivalency handed down since the Supreme Court noted, in Almeida-Sanchez, that "(border) searches . . . may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. 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." 413 U.S. 266, at 272-3, 93 S.Ct. 2535, at 2539, 37 L.Ed.2d 596. And on a consideration of our opinion in United States v. Hart, 2 we isolated three major considerations in determining functional equivalence of an interior checkpoint to 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

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traffic not otherwise controllable. 3 Believing that further findings of fact by the district court, findings which focused on these considerations, were needful to an evaluation by us of its ultimate determination that La Gloria was the border's functional equivalent, we remanded to the district court for such findings. In so doing, we expressly authorized the experienced trial judge to consider and make findings upon any other matters he deemed appropriate to the inquiry. Having done so, he has again concluded that the La Gloria checkpoint is the functional equivalent of the border for immigration purposes. After examining the evidence and the district court's findings, we agree.

The first major issue we asked the district court to examine concerned the character of the checkpoint: "that it functions like a permanent border checkpoint and not like the roving patrol condemned in Almeida-Sanchez or on a radically shifting basis approximating the peregrinations of such a patrol." Alvarez-Gonzalez, supra at 229. As we noted in our first opinion in this case, we have already determined that La Gloria is a permanent checkpoint for the purposes of detaining vehicles for citizenship checks. See United States v. Santibanez, 517 F.2d 922, 923 (5th Cir. 1975). The district court heard testimony confirming this classification. Although prior to 1973 the checkpoint was shifted along Highway 1017, the Border Patrol has established the La Gloria checkpoint at a single location. No permanent houses are located at the checkpoint, but it does have permanent road signs, a light pole, an electric power drop, telephone lines and a paved apron for secondary inspections. 4 The Border Patrol classifies La Gloria as a permanent checkpoint a decision entitled to some deference, see United States v. Calvillo, 537 F.2d 158, 161 n.3 (5th Cir. 1976), but manpower shortages prevent the Border Patrol from operating the checkpoint 24 hours a day. Nevertheless, these facts demonstrate that the La Gloria checkpoint has the permanence necessary to alert motorists to its presence and thus reduce the intrusiveness of the stop. See United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116, 1129 (1976). Further, all northbound traffic on Highway 1017 is diverted through the checkpoint during its hours of operation just as all traffic at ports of entry is diverted. See United States v. Hart, 506 F.2d 887, 896 (5th Cir.), vacated and remanded,422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706 (1975), reaff'd, 525 F.2d 1199 (5th Cir. 1976) (on remand). In short, we agree that the La Gloria checkpoint functions like a permanent border checkpoint.

The second major issue relevant to defining the La Gloria checkpoint as the functional equivalent of the border involves the ratio between international and domestic traffic passing through the checkpoint: "The presence of a continuing and significant percentage of domestic traffic through a given checkpoint cannot but be seen as militating against granting the status of functional equivalency." Alvarez-Gonzalez, supra at 229. The district court examined evidence presented by the Border Patrol on the nature of the traffic through the La Gloria checkpoint and concluded that "the interdiction of domestic traffic at the La Gloria checkpoint is relatively minimal." After reviewing the district court's method and the evidence presented, we agree.

Following our earlier remand, the Border Patrol conducted a survey of the traffic passing through the La Gloria checkpoint from December 26, 1976, through January 13, 1977. During this period the Border

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Patrol surveyed 2,216 vehicles. One thousand three hundred thirty-nine vehicles, 60.42% of the total, were determined to be international traffic; 483, or 21.80% of the total, were classified as domestic private vehicles; and 394, or 17.78% of the total, were found to be domestic commercial vehicles. A second survey conducted from January 22, 1977, through January 29, 1977, produced a higher percentage of international traffic. This was understandable, since the first survey was partially taken during the deer season in South Texas during which numerous hunters travelling back and forth repetitively added to the domestic traffic count. 5

Although this ratio of international to domestic traffic is somewhat low, it is not so low as to foreclose functional equivalent status for the La Gloria checkpoint. International traffic clearly predominates at the checkpoint; the surveys indicate that domestic traffic at the checkpoint does not approach the "majority percentage" that concerned us in Alvarez-Gonzalez. 542 F.2d at 229.

One remaining question about this statistical evidence concerns the definition of "international" that lies at its basis. In assessing the checkpoint's "international" traffic, the Border Patrol measured traffic whose journeys leading to the La Gloria checkpoint began in the "immediate border area." In the context of this checkpoint, the "immediate border area" was defined as the area south of U.S. Highway 83, a highway running parallel to and within a few miles of the Texas-Mexico border in South Texas. Thus, the definition included not only those trips to the north that actually commenced across the border but also those that began on the Texas shore of this sparsely populated segment of the Rio Grande, including vehicles with registrations from locations in the United States. 6

The district court adopted this measurement, finding it justified on several grounds. First, it noted our language in the United States v. Hart, supra, rejecting "the idea that every vehicle must be shown to have probably crossed the border to be legally stopped at the . . . checkpoint . . . ."506 F.2d at 895. Second, the district court determined that extreme proximity to the border and the frequency with which persons living along the Texas shore of the Rio Grande visit Mexico support an assumption that a very high proportion of persons travelling from the immediate border area, at least in these long vacant stretches of the river, have crossed the border recently. Third, and most important, evidence of the practical operations of alien smuggling a matter with which the district judge has long trial experience persuaded the court to adopt this definition. As the court found, amidst all the permutations and variables of this criminal endeavor as practiced along the Texas-Mexican border, there may be isolated two stable elements almost invariably to be found in every scheme: a rendezvous on the Texas shore of the Rio Grande, with the aliens being responsible for fording the river on foot and presenting themselves there for departure inland, and a resident alien or United States citizen at the rendezvous point who undertakes to smuggle the aliens concealed in an automobile bearing Texas license plates and registration. It is therefore precisely such northward automobile trips as originate on the Texas side of the international boundary, and not those which originate in Mexico, which are most likely to involve alien smuggling. It would make little sense indeed to adopt a definition of "international" for this purpose which excluded

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those very journeys which evidence and practical experience have demonstrated are most likely to commence with an illegal international border crossing. In such situations, although the vehicle has not crossed the border, its cargo has. For purposes, then, of distinguishing between the sort of "international" traffic which the checkpoint should properly scrutinize and the sort of domestic traffic with which it is desired to interfere no...

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