U.S. v. Luddington

• Decision Date: 07 February 1979
• Docket Number: Nos. 78-5394,78-5412,s. 78-5394
• Citation: 589 F.2d 236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles LUDDINGTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Ronald NELUMS, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 236

589 F.2d 236

UNITED STATES of America, Plaintiff-Appellee, v. Charles LUDDINGTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Ronald NELUMS, Defendant-Appellant.

Nos. 78-5394, 78-5412

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Feb. 7, 1979.

Rehearing and Rehearing En Banc Denied March 5, 1979, No. 78-5394.

Rehearing and Rehearing En Banc Denied March 22, 1979, No. 78-5412.

Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., Robert Ramos, Federal Public Defender, El Paso, Tex., for defendant-appellant in No. 78-5394.

Joseph (Sib) Abraham, Jr., Charles Louis Roberts, El Paso, Tex., for defendant-appellant in No. 78-5412.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Richard P. Mesa, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before CLARK, GEE and HILL, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The United States Border Patrol maintains a permanent immigration checkpoint facility on Interstate Highway 10 near Sierra Blanca, Texas. In United States v. Hart, 506 F.2d 887, Vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706, Reaff'd 525 F.2d 1199 (5th Cir. 1976) (on remand), Cert. denied 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226, this court held that the Sierra Blanca checkpoint was the "functional equivalent of the border," thus authorizing the Border Patrol to conduct searches of vehicles traveling through the checkpoint without consent or probable cause. The two appellants in this consolidated appeal were both convicted for the possession of contraband found in their vehicles during searches at the checkpoint conducted without probable cause. Relying on Hart and on new evidence gathered at a hearing concerning the operation of the checkpoint, the district court held that the searches were valid because the checkpoint is the functional equivalent of the border. The appellants invite us to overrule Hart and revoke the Sierra Blanca checkpoint's legal status as the functional equivalent of the border. We decline the invitation and affirm both convictions.

I.

Appellant Joseph Nelums drove up to the Sierra Blanca checkpoint early in the evening of February 9, 1978, driving a 1977 MGB sports car with Texas license plates. Nelums was stopped, and pursuant to normal procedure at the checkpoint, was asked questions by a border patrolman concerning his citizenship. Nelums stated that he was an American traveling from El Paso, Texas, to Houston. Although the patrolman observed nothing suspicious or unusual about Nelum's demeanor, the officer's curiosity was aroused by the presence of several articles of clothing in the passenger seat of the car and by an unusually clean, unused tire strapped to the chrome luggage rack on the trunk. Nelums was directed to open the trunk of the MGB, but the position of the luggage rack and tire prevented the trunk lid from opening more than four inches. Peering into the partially open trunk, the patrolman noticed several packages wrapped in plastic. Nelums was referred to a secondary inspection area where the spare tire was removed and the trunk opened, revealing 138 pounds of marijuana in brick form. Nelums was convicted in a non-jury trial on a single count of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and sentenced to five years' probation and a $1000 fine. The trial court stated at the conclusion of the suppression hearing that it was "plain" that there was no probable cause and that, if the checkpoint was not the functional equivalent of the border, the search was improper. (S.R. 160).

Appellant Charles Luddington drove up to the Sierra Blanca checkpoint on the morning of February 21, 1978, in a 1971 Pontiac. When asked about his citizenship, Luddington stated that he was an American, on his way to Houston from California. The border patrolman thought that Luddington appeared nervous, and asked Luddington to open the trunk of his car. In the trunk, a sawed-off shotgun was found wrapped in burlap among some garment bags. Luddington was convicted before the same district judge as Nelums' of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(c), 5871, and given a four-year suspended sentence with five years' supervised probation. As in Nelums' case, the district court found that there was no probable cause to support a search of the car's trunk. (R. 49).

The Nelums and Luddington cases were consolidated by the district court for a joint hearing on the single issue dispositive of both cases: whether the Sierra Blanca checkpoint should retain its judicially approved certification as the functional equivalent of the border. ¹

II.

The Sierra Blanca checkpoint was declared to be the functional equivalent of the border in United States v. Hart, 506 F.2d 887, Vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706, Reaff'd 525 F.2d 1199 (5th Cir. 1976) (on remand) Cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). Lawrence Hart was stopped at the Sierra Blanca checkpoint and asked about his citizenship. When directed to open the trunk of his car, 397 pounds of marijuana were found. Although this circuit had previously upheld the legality of trunk searches at the Sierra Blanca checkpoint, United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974); United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974), Hart was the first case to uphold such a search based upon a finding that the checkpoint was the functional equivalent of the border.

The phrase "functional equivalent of the border" was used for the first time by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). Almeida-Sanchez struck down Roving border patrol searches made without probable cause, but differentiated such roving searches from searches at permanent checkpoints at the border itself or at its "functional equivalents." 413 U.S. at 272, 93 S.Ct. at 2539. The Court cited as examples of "functional equivalents" "an established station near the border, at a point marking the confluence of two or more roads that extend from the border" and "a search of passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City." 413 U.S. at 273, 93 S.Ct. at 2539.

"Hart I," reported at 506 F.2d 887, held that the Sierra Blanca checkpoint was the functional equivalent of the border as that term was used in Almeida-Sanchez. Hart I reached its conclusion with the following discussion:

The Sierra Blanca checkpoint is located approximately 75-85 miles southeast of El Paso, Texas, and 4 miles west of Sierra Blanca, Texas, on Interstate Highway 10. Leaving El Paso Interstate 10 parallels the United States-Mexico border in a southeasterly direction for approximately 50 miles, coming within two miles of the border itself at many places. Before reaching the checkpoint, Interstate Highway 10 turns in a northeasterly direction away from the border with the result that, at the checkpoint itself, the highway runs in an east-west direction.

Along the 85 mile stretch of road between El Paso and the Sierra Blanca checkpoint, there are three ports of entry. The first is located at Ysleta, Texas, a suburb of El Paso. The second port of entry is located at Fabens, Texas, approximately 30 miles southeast of Ysleta, and the third is situated at Fort Hancock, Texas, roughly 18 miles southeast of Fabens. Paralleling the border, the distance from the Fort Hancock port of entry to the Sierra Blanca checkpoint is about 30 miles.

The ports of entry at Fabens and Fort Hancock are opened at 6:00 a. m. and closed at 9:00 p. m. on a daily basis. When a port of entry is closed, a gate is positioned across the road to prevent traffic from proceeding. The fact that these ports are closed, however, does not mean vehicles or individuals cannot cross the border, inasmuch as there are numerous roads, both paved and dirt, which lead from the banks of the Rio Grande River, which marks the border, to Interstate Highway 10 and do not pass through a port of entry.

The Sierra Blanca checkpoint itself is situated 20 land miles and 14 air miles from the United States-Mexico border. Since July 8, 1973, the checkpoint has been manned 16 hours a day on weekdays and 24 hours a day on weekends, weather and manpower permitting. The hours of operation of the Sierra Blanca checkpoint are approximately 4:00 p. m. to 8:00 a. m.

The purpose of the instant checkpoint is to detect and apprehend aliens who have entered the United States illegally. Between November 1, 1972, and November 30, 1973, officials at the Sierra Blanca checkpoint apprehended 1,291 such aliens. Although the Quitman Mountains are immediately south of the checkpoint, there are various paths and trails leading from the border, through the mountains, into the United States and to Interstate Highway 10.

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 direct all traffic onto a paved access road to the checkpoint. At the checkpoint itself, there are three stop signs, two with flashing red lights, and a trailer mounted on blocks which the checkpoint officials use as an office. Although all vehicles traveling east on Interstate Highway 10 pass through the checkpoint when it is in operation, the officials do not stop every vehicle...