589 F.2d 236 (5th Cir. 1979), 78-5394, United States v. Luddington
|Docket Nº:||78-5394, 78-5412|
|Citation:||589 F.2d 236|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Charles LUDDINGTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Ronald NELUMS, Defendant-Appellant.|
|Case Date:||February 07, 1979|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
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.
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
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.
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