U.S. v. Venegas-Sapien, VENEGAS-SAPIE

• Decision Date: 23 May 1985
• Docket Number: VENEGAS-SAPIE,D,No. 84-1882,84-1882
• Citation: 762 F.2d 417
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hectorefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 417

762 F.2d 417

UNITED STATES of America, Plaintiff-Appellee, v. Hector VENEGAS-SAPIEN, Defendant-Appellant.

No. 84-1882.

United States Court of Appeals, Fifth Circuit.

May 23, 1985.

Evelina Ortega, Fed. Public Defender, El Paso, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., El Paso, Tex., Sidney Powell, Thomas J. McHugh, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court For the Western District of Texas.

Before REAVLEY, JOHNSON, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Hector Venegas-Sapien, convicted of transporting and conspiring to transport illegal aliens, argues that the United States Border Patrol violated the Fourth Amendment by stopping his truck at a temporary highway checkpoint without reasonable suspicion of criminal conduct, a stop he urges is analogous to one by a roving patrol. Guided by Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), we reject the argument and affirm the conviction.

I

On June 9, 1984, at about 1:00 a.m., uniformed Border Patrol agents stopped Hector Venegas-Sapien for a citizenship check at the ZT-6 highway checkpoint near Hillsboro, New Mexico. One agent looked through the back window of the camper shell on Venegas-Sapien's Ford pickup, saw eleven people "stacked like a cord of wood," and arrested Venegas-Sapien. In a written order, the district court denied Venegas-Sapien's motion to suppress the fruits of the stop. After a bench trial, Venegas-Sapien was convicted of one count of conspiracy to transport illegal aliens and three counts of transporting illegal aliens, and was sentenced to concurrent three-year terms on each count.

The ZT-6 checkpoint is on an unpopulated stretch of New Mexico Highway 90, a lightly-traveled, two-lane road running roughly northeast to southwest and forming a triangle with Interstates 25 and 10. The checkpoint is about 11 miles east of I-25, and consists of a van parked in a small roadside clearing. Motorists approaching ZT-6 from the east see three signs, which read "Slow," "No Passing," and "Stop Ahead." A series of traffic cones leads from the third sign to the checkpoint. Atop the van is a stop sign with a red blinking light. The van has no Border Patrol insignia or other identifying marks visible to motorists. When ZT-6 is in operation, all westbound vehicles are stopped for a citizenship check.

The ZT-6 checkpoint is meant to catch illegal-alien transporters trying to skirt the permanent checkpoints on I-25 and I-10. ZT-6 has been operated intermittently since June of 1982, with "gaps" caused by insufficient manpower. When Venegas-Sapien was arrested, ZT-6 had been operating continuously for two days.

II

In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court held that the Border Patrol could stop vehicles at permanent highway checkpoints for brief citizenship inquiries without any reasonable suspicion of criminal activity. The Court distinguished United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), which had required reasonable suspicion for roving patrol stops, by noting several ways in which checkpoint stops were less intrusive to motorists. Motorists stopped at checkpoints can see that the roadblock is officially authorized and affects all traffic. Nor by their nature do checkpoint stops present risks of wholly unfettered executive discretion attendant upon roving patrols. Checkpoints both actually and apparently limit the discretion exercised by field agents, in that administrators decide where to locate the roadblocks, and field agents can stop only cars passing those points. There is then little room for agents to exercise arbitrary power. Finally, because motorists can see that checkpoints are run in a "regularized manner," they are subjectively reassured that they are not being randomly harassed. 428 U.S. at 558-59, 96 S.Ct. at 3083-84.

The Court reaffirmed the reasoning of Martinez-Fuerte in Delaware v. Prouse, 440 U.S. 648, 656, 99 S.Ct. 1391, 1397, 59 L.Ed.2d 660 (1979). In Prouse, the Court ruled that random license checks violated the Fourth Amendment, but stated: "Questioning of all traffic at...