760 F.2d 570 (5th Cir. 1985), 84-1258, United States v. Oyarzun

Docket Nº:84-1258, 84-1523.
Citation:760 F.2d 570
Party Name:The UNITED STATES of America, Plaintiff-Appellant, v. Mario Alejandro OYARZUN, Defendant-Appellee. The UNITED STATES of America, Plaintiff-Appellant, v. Charles JACKSON and Anthony Wayne Browning, Defendants-Appellees.
Case Date:May 06, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 570

760 F.2d 570 (5th Cir. 1985)

The UNITED STATES of America, Plaintiff-Appellant,

v.

Mario Alejandro OYARZUN, Defendant-Appellee.

The UNITED STATES of America, Plaintiff-Appellant,

v.

Charles JACKSON and Anthony Wayne Browning, Defendants-Appellees.

Nos. 84-1258, 84-1523.

United States Court of Appeals, Fifth Circuit

May 6, 1985

Page 571

Edward C. Prado, U.S. Atty., Sidney Powell, Asst. U.S. Atty., Ricardo Gonzales, San Antonio, Tex., for plaintiff-appellant in No. 84-1258.

Albert Diamond, Miami, Fla., for defendant-appellee in No. 84-1258.

Helen M. Eversberg, U.S. Atty., Sidney Powell, Ricardo Gonzalez, San Antonio, Tex., for plaintiff-appellant in No. 84-1523.

Roddy Harrison, Pecos, Tex., for Jackson.

Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., Kevin E. Shannon, Robert Ramos, Asst. Federal Public Defenders, El Paso, Tex., for Browning.

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

Before JOHNSON and HILL, Circuit Judges, and BOYLE [*], District Judge.

JOHNSON, Circuit Judge:

This consolidated appeal arises from two separate automobile searches by United States Border Patrol agents at the Sierra Blanca, Texas, permanent checkpoint. Defendant Oyarzun was arrested after a search of his vehicle uncovered a firearm, with its serial number filed off, hidden underneath the back seat of the car. Defendants Jackson and Browning were arrested after border patrol agents found approximately 3,500 Preludin pills in a cosmetic case in the trunk of their car. In separate proceedings in district court, the defendants in both cases filed motions to suppress the evidence obtained in the searches. The court, the same judge presiding at both proceedings, ordered suppression of the seized evidence on grounds that each search exceeded the scope of a valid search at a permanent border patrol checkpoint. The Government appeals, contending that law enforcement officers may search a vehicle for contraband at a checkpoint that operates as the functional equivalent of the border without consent, probable cause, a warrant, or even reasonable suspicion. For the reasons set forth below, we vacate the district court's order suppressing the evidence in both cases.

I. FACTS AND PROCEDURAL HISTORY

A. United States v. Oyarzun

The evidentiary hearing on Oyarzun's motion to suppress established the following facts: On December 17, 1983, Oyarzun, driving a 1983 Pontiac Grand Prix, approached the Sierra Blanca checkpoint. 1 Oyarzun was hesitant in approaching the stop. When border patrol agent Robert Saenz asked Oyarzun about his citizenship, first in English and then in Spanish, Oyarzun looked surprised and did not respond. Saenz asked Oyarzun for his permit. Because Oyarzun still looked surprised, Saenz told him to pull off the road into the secondary inspection area.

At the secondary inspection area, Oyarzun got out of his car, fumbling around in his wallet as border patrol agents Arthur Bullock and John Stensel approached him. Agent Stensel asked Oyarzun in Spanish

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for his immigration papers and Bullock asked him to open the trunk. When Oyarzun opened the trunk, Bullock noticed that the spare tire was not securely mounted and that the trunk frame next to the back seat had been taped with gray duct tape. Bullock's two years' experience as a border patrol agent led him to suspect that contraband might be hidden in the car. He slit the duct tape, but saw nothing.

Meanwhile, Stensel was interviewing Oyarzun. Oyarzun produced documentation establishing that he was a Chilean national and that he was legally residing in the United States on a temporary basis. Bullock relayed his suspicions to Stensel, and Stensel then conducted an interior examination of the car. Stensel saw that the rear seat was not fastened to the floorboard, and lifted the seat. He there discovered a .38 caliber automatic pistol from which the serial number had been filed away. While Stensel was examining the interior of the car, Bullock continued his search of the trunk and discovered a brown paper bag and a suitcase which together contained over $30,000 in cash. Oyarzun's arrest followed.

A federal grand jury indicted Oyarzun on one count of unlawfully transporting in interstate commerce a firearm with the serial number obliterated, in violation of 18 U.S.C. Secs. 922(k) and 924(a). 2 Oyarzun moved to suppress the evidence seized during the search of his car on the grounds that the search exceeded the scope of a valid checkpoint search for illegal aliens and that the border patrol agents lacked probable cause to search for contraband. The district court granted the motion in open court, followed by its filing of written findings pursuant to Federal Rule of Criminal Procedure 12(e).

B. United States v. Jackson and Browning

On March 31, 1984, Charles Jackson drove a 1984 Chrysler LeBaron bearing California license plates into the Sierra Blanca checkpoint. Anthony Wayne Browning was a passenger in the car. 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 Fogt's direction, Jackson opened the trunk, where the agent found a cosmetic case containing bottles of pills and a cardboard box containing twenty-four 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.

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. Secs. 841(a)(1) and 846. 3

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Both defendants moved to suppress the evidence seized from their automobile. The district court granted the motion.

C. District Court's Findings

In Oyarzun, the district court initially acknowledged that this Court has held the Sierra Blanca checkpoint to be the functional equivalent of the border. 4 See United States v. Dreyfus-de Campos, 698 F.2d 227 (5th Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983); United States v. Luddington, 589 F.2d 236 (5th Cir.), cert. denied, 441 U.S. 936, 99 S.Ct. 2061, 60 L.Ed.2d 666 (1979); United States v. Hart, 506 F.2d 887 (5th Cir.) (Hart I ), 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.) (Hart II ), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). After analyzing Fifth Circuit precedent, 5 the district court concluded that our cases have restricted searches without probable cause at functional equivalents of the border to searches for illegal aliens. Having made this determination the district court went on to establish the scope of a vehicle search at a permanent checkpoint such as Sierra Blanca: Agents may validly stop any vehicle for any reason and may search the vehicle for illegal aliens. The scope of the search, which may be conducted without probable cause or reasonable suspicion, is limited to large areas of the vehicle in which aliens could be hidden. Agents may not conduct any further search of the vehicle or its contents, however, unless they have probable cause to continue the search or have obtained a valid search warrant or the consent of the vehicle's occupants. The district court then held that the border patrol agents lacked probable cause to search Oyarzun's car for contraband, that an illegal alien could not have hidden under the rear seat, and that the search was therefore unlawful.

In Jackson and Browning, the district court rejected the Government's contentions that the scope of vehicle searches at the Sierra Blanca checkpoint is unfettered by any restraints whatsoever. Instead, the court found that some measurable objective criteria of criminal activity must be in evidence. Further, the court held that the agent was fully justified in examining the trunk area of Jackson and Browning's car; but in the absence of probable cause or reasonable suspicion of criminal activity, defendants' luggage could not be validly searched. Jackson and Browning, Record Vol. 2 at 22.

II. THE LAW

The issue raised by this appeal--whether law enforcement officers may search a vehicle for contraband (as well as aliens) at a functional equivalent of the border without a warrant, consent, probable cause, or even reasonable suspicion--points up the uncertain and ostensibly conflicting state of Fifth Circuit border search case law. We

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therefore think it helpful to examine the development of the law governing warrantless searches at permanent checkpoints that have been determined to be the functional equivalent of the border.

In general, warrantless searches and seizures are unreasonable under the fourth amendment. An exception to this general rule is the warrantless search at the international border, which is justified on the basis of sovereign self-protection. United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977); Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). Indeed, "[t]he fact that one is in the process of crossing an international boundary provides sufficient reason in itself to permit a search for aliens or contraband, without the presence of any other circumstance that would normally have to attend the requirements of the fourth amendment...." United States v. McDaniel, 463 F.2d 129, 132 (5th Cir.1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973) (quotation...

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