United States v. Browning, P-84-CR-15.

• Decision Date: 15 April 1986
• Docket Number: No. P-84-CR-15.,P-84-CR-15.
• Parties: UNITED STATES of America v. Anthony Wayne BROWNING and Charles Jackson.
• Court: U.S. District Court — Western District of Texas

634 F. Supp. 1101

UNITED STATES of America v. Anthony Wayne BROWNING and Charles Jackson.

No. P-84-CR-15.

United States District Court, W.D. Texas, Pecos Division.

April 15, 1986.

James Blankenship, Asst. U.S. Atty., Midland, Tex., for plaintiff.

Roddy Harrison, Pecos, Tex., Robert Ramos, El Paso, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

BUNTON, District Judge.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., Amend. IV.

The Fourth Amendment of the United States Constitution was written to protect Americans from government tyranny. The basis for this constitutional aspiration was recognized by Supreme Court Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928).

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be left alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

It is with this thought in mind that the Court now focuses its attention on the matter at hand.

Before the Court is the Defendants' motion to suppress evidence. The Defendants are challenging the status of the Sierra Blanca Checkpoint as a "functional equivalent of the Border."

After considering the evidence presented, and after a review of the controlling legal authorities, the Court's opinion is as follows:

I.

Factual Background

On March 31, 1984, CHARLES JACKSON and ANTHONY WAYNE BROWNING drove up to the Sierra Blanca Checkpoint in a 1984 Chrysler LeBaron bearing California license plates. Defendant JACKSON was the driver of the automobile and Defendant BROWNING was in the passenger seat. While Border Patrol Agents were questioning JACKSON and BROWNING about their citizenship, Agent Fogt observed cigarette rolling papers and a glass pipe on the rear floorboard of the vehicle. At this point, Agent Fogt directed JACKSON to open the trunk, whereupon the agent found a cosmetic case containing 24 bottles marked "Preludin", with 100 pills in each bottle. The agents also discovered a small amount of marijuana residue in the back seat of the car and a paper bag containing cotton balls and a metal scrub pad underneath the front seat.

Based upon the evidence discovered, JACKSON and BROWNING were indicted by a Federal Grand Jury on April 18, 1984, with conspiracy to possess Preludin, a controlled substance, with intent to distribute and with possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 846.

Both Defendants moved to suppress the evidence seized from the automobile. On March 5, 1984, this Court granted the Defendants' motion to suppress the evidence seized by the government. United States v. Oyarzun, 582 F.Supp. 121 (W.D.Tx. 1984). The United States appealed the District Court decision and the Fifth Circuit reversed and remanded the case for trial. United States v. Oyarzun, 760 F.2d 570 (5th Cir.1985).

On remand, the Defendants filed a second motion to suppress in which the status of the Sierra Blanca Checkpoint as a "functional equivalent of the border" was challenged. The Defendants also requested that a traffic survey be conducted at the checkpoint by the Border Patrol. This Court entered an order requiring the United States Border Patrol to conduct a survey of all traffic passing through the checkpoint for a period of two weeks, 24 hours a day. The Fifth Circuit vacated that order in a Writ of Mandamus issued on October 21, 1985 (# 85-1604, unpublished).

On November 20, the Defendants filed a second motion for authority to conduct a traffic survey at the Sierra Blanca Checkpoint by members of the Federal Public Defender's staff. This Court granted the Defendants' motion. The government then sought a second Writ of Mandamus to enforce the Circuit's prior Mandate. The Fifth Circuit denied the government's request and entered an order setting forth the restrictions under which the Public Defender could conduct a survey.

The survey was specifically limited to inquiry of the drivers of the vehicles that were stopped by the Border Patrol Agents manning the checkpoint. The Federal Public Defender's inquiry of drivers was limited by the Fifth Circuit to two questions:

1. The driver could be asked to state the point of origin of his present trip; then, and only if the answer to that question indicated that the point of origin was outside the United States, the surveyor was permitted to ask a follow-up question;

2. Whether the traveler had already been stopped and inspected or questioned at a point of entry into this country or at some other checkpoint.

Pursuant to the order of this Court dated November 25, 1985, and as modified by orders of the Fifth Circuit dated December 6 and December 30, 1985, the staff of the Federal Public Defender for the Western District of Texas conducted a 24-hour a day, week long survey during January 8-15, 1986, at the Sierra Blanca Checkpoint. The purpose of the survey was to investigate the possibility that the circumstances at the Sierra Blanca Checkpoint have changed to the point that the checkpoint could no longer be the "functional equivalent of the border."

II.

It is without doubt that the UNITED STATES has the authority to look after and protect its borders. This power can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders.

This power was recognized by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925):

Travelers may be so stopped in crossing an international boundary, because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.

Id. at 154, 45 S.Ct. at 285.

The United States Supreme Court, citing the dictum from the Carrol case, stated in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, (1973), that such searches in certain circumstances may take place not only at the border itself, but at its functional equivalents as well. This case marked the first time that the Supreme Court used the term "functional equivalent of the border." It should be noted that the discussion in Almeida-Sanchez vis a vis the "functional equivalent of the border" was obiter dictum. Furthermore, the Supreme Court's definition of the term "functional equivalent" was not very clear. The Court stated:

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 the functional equivalent 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.

Id. at 273, 93 S.Ct. at 2539.

The only clear guidance that the Supreme Court's definition provides is that travelers coming into the United States from a foreign country, may be inspected at their original point of entry into this country, no matter where that point of entry may be. As to the first example given, the Court's meaning is quite unclear. In addition, the Court itself was unsure whether such a location would qualify as a functional equivalent of the border. They said such location "might be a functional equivalent." This clearly is in contrast to their second example which they state "would clearly be a functional equivalent of the border."

The Fifth Circuit sought to shed light on the Supreme Court's examples in a thorough and well reasoned opinion in United States v. Brennan, 538 F.2d 711 (5th Cir. 1976). The Court stated;

In the first example there inheres a high degree of probability that a border crossing took place and an attendant likelihood that nothing about the object of the search has changed since the crossing ... In the case of the airport search of the nonstop flight, both assumptions become certainties. Id. at 715.

At about the same time, the Fifth Circuit also stated that "the functional equivalency label is one not lightly to be bestowed." United States v. Calvillo, 537 F.2d 158 (5th Cir.1976).

The Fifth Circuit first addressed the issue of whether the Sierra Blanca Checkpoint was a functional equivalent of the border in United States v. Hart, 506 F.2d 887 (5th Cir.1975), vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706 (1975), 525 F.2d 1199 (5th Cir.1976) (on remand). In Hart, I, the Court determined that the Sierra Blanca Checkpoint was a "functional equivalent." However, the Court said that the checkpoint was a "functional equivalent" for § 1357 searches for aliens. The Court's decision did not say whether a traditional border search could occur at the checkpoint. In fact, the Court implies...