U.S. v. Dreyfus-de Campos, 82-1368

• Decision Date: 28 January 1983
• Docket Number: No. 82-1368,82-1368
• Citation: 698 F.2d 227
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Olga Guadalupe DREYFUS-de CAMPOS, Jose Raul Veliz-Valladres and Cesar Agusto Aranda-Arguello, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 227

698 F.2d 227

UNITED STATES of America, Plaintiff-Appellee, v. Olga Guadalupe DREYFUS-de CAMPOS, Jose Raul Veliz-Valladres and Cesar Agusto Aranda-Arguello, Defendants-Appellants.

No. 82-1368

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 28, 1983.

Joseph A. Calamia, El Paso, Tex. (court-appointed), for Dreyfus-de campos.

Charles Michael Mallin, El Paso, Tex. (court-appointed), for Veliz-Valladres and Aranda-Arguello.

Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Convicted of conspiracy to possess cocaine with intent to distribute and of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 846 and 841(a)(1), Olga Guadalupe Dreyfus-de Campos, Jose Raul Veliz-Valladres and Cesar Agusto Aranda-Arguello appeal, challenging: (1) the status of the Sierra Blanca, Texas checkpoint as a functional equivalent of the border, and (2) the sufficiency of the evidence. Finding no merit in either assignment of error, we affirm.

Factual Context

On the morning of March 5, 1982, Dreyfus, Veliz and Aranda were proceeding east on Interstate 10 when their vehicle was stopped at a U.S. Border Patrol checkpoint located four miles west of Sierra Blanca, Texas. Upon learning that all occupants of the vehicle were aliens, the border patrol officer asked to examine their immigration papers. When only Aranda could produce the documents the officer directed the vehicle to a secondary inspection site.

During the ensuing questioning Veliz stated that he had entered the United States the previous month, that his passport had been left in Los Angeles and that the only document in his possession was a temporary identification card issued by the state of California. This card, issued in 1980, contradicted Veliz's statement regarding his date of entry. The officer grew suspicious; Veliz noticeably nervous. Veliz confessed that more papers were in the trunk of the auto, papers which disclosed that Veliz had remained in the United States beyond the period permitted by the immigration authorities. While examining Veliz's papers the officer saw Veliz toss onto the rear seat a shaving kit which the officer had removed from Veliz's suitcase and placed on the fender. The officer searched the kit, found a bag of marihuana, and placed Veliz under arrest.

When Veliz was arrested, Aranda, who had been fidgeting in the front seat, exited the auto and protested that he was merely a passenger and knew nothing about drugs. At this point the vehicle and its contents were searched. More drugs were found: a small packet of cocaine and hashish was wedged between the front bucket seats, a vial of cocaine was discovered in the glove compartment and approximately 12 ounces of cocaine were found in Ms. Dreyfus's suitcase. Later an additional two ounces were discovered in a hidden compartment in Ms. Dreyfus's briefcase.

Border Check

The defendants sought suppression of the fruits of the search. The district court denied this relief on the grounds that the Sierra Blanca checkpoint is the functional equivalent of the border, and therefore the search was valid as a border search.

We have twice found the Sierra Blanca permanent immigration checkpoint to be the functional equivalent of the border. See United States v. Hart, 506 F.2d 887 (5th Cir.), vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706 (1975), reaff'd on remand, 525 F.2d 1199 (5th Cir.), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); United States v. Luddington, 589 F.2d 236 (5th Cir.1979). We applied a tripartite test in determining functional equivalency: "relative permanence of the checkpoint; minimal interdiction by the checkpoint of the flow of domestic traffic; and the practical necessity of the substitution of the interior checkpoint for the border in order to monitor international traffic." United States v. Reyna, 572 F.2d 515, 517 (5th Cir.1978). Unless facts relating to these criteria have changed since the Luddington decision in 1979, examination of the status of the Sierra Blanca checkpoint as the functional equivalent of the border is foreclosed. In United States v. Salinas, 611 F.2d 128, 130 (5th Cir.1980), we held:

It is not required that the underlying facts concerning a particular checkpoint location be proved over and over again in each case arising out of the same checkpoint location, so long as such facts remain...