807 F.2d 1185 (5th Cir. 1986), 86-1226, United States v. Jackson

Docket Nº:86-1226, 86-1381.
Citation:807 F.2d 1185
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles JACKSON and Anthony Wayne Browning, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Michael RYAN, Defendant-Appellant.
Case Date:December 24, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1185

807 F.2d 1185 (5th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles JACKSON and Anthony Wayne Browning, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael RYAN, Defendant-Appellant.

Nos. 86-1226, 86-1381.

United States Court of Appeals, Fifth Circuit

December 24, 1986

Rehearing En Banc Granted Feb. 10, 1987.

Page 1186

Reavley, Circuit Judge, concurred specially and filed opinion.

See also, 634 F.Supp. 1101, 760 F.2d 570.

Opinion on rehearing, 5th Cir., 811 F.2d 269.

Page 1187

Roddy L. Harrison, Pecos, Tex., for Jackson.

Robert Ramos, Fed. Public Defender, Kevin E. Shannon, Asst. Fed. Public Defender, El Paso, Tex., for Browning.

Sidney Powell, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for U.S.

Charles Louis Roberts, Joseph (SIB) Abraham, Jr., El Paso, Tex., for Ryan.

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

Before CLARK, Chief Judge, REAVLEY and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellants Charles Jackson and Anthony Wayne Browning were convicted of conspiracy to possess controlled substances with intent to distribute and of possession of controlled substances with intent to distribute. Appellant Michael Ryan, in a wholly separate episode, was convicted of possession of controlled substances with intent to distribute. We have consolidated these three cases for consideration on appeal. All three appellants challenge the legality of searches conducted at the Sierra Blanca, Texas, checkpoint, operated by Border Patrol agents of the Immigration & Naturalization Service. We continue to hold that searches at this checkpoint are the functional equivalent of border searches, and we affirm the convictions.

I.

  1. Jackson and Browning

    On March 31, 1984, appellants Charles Jackson and Anthony Wayne Browning drove a 1984 Chrysler with California plates eastbound on Interstate 10 across west Texas. At about 3:30 p.m., they reached the Sierra Blanca Border Patrol checkpoint, located approximately four miles west of Sierra Blanca, Texas, approximately twenty miles from the Mexican border, and approximately eighty miles southeast of El Paso. Jackson was driving the car, and Browning was lying on the back seat.

    At the checkpoint, Border Patrol Agent Fogt approached the car and questioned appellants about their citizenship. Both men answered that they were American citizens. Fogt testified that the men responded to his question reluctantly. Through the window of the auto, Fogt observed cigarette rolling papers on the floor of the back seat, and a small glass pipe on the rear floorboard. 1 After viewing these items, Fogt opened the back door of the car and inspected the pipe and rolling papers, noting that the mouthpiece of the pipe was covered with a white residue. 2

    At Fogt's request, Jackson opened the trunk of the car. There, Fogt found a woman's red cosmetic case, labelled as belonging to Sherry Bradley. Inside the case

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    was a bottle of pills which Jackson identified as antihistamines. In fact, the pills were "Preludin," a controlled substance. Inspecting the rest of the trunk, Fogt found boxes and sacks containing over 3500 "Preludin" pills. Further inspection of the back seat of the Chrysler led to the discovery of marihuana residue.

    At first, appellants denied any knowledge that there were drugs in the car, asserting that the Chrysler had been rented and loaded by a person otherwise not involved in the case, Jim Johnson, in California. However, Jackson was listed as a driver on the rental contract, and he later admitted that he knew the drugs were in the car. Browning never admitted to such knowledge. 3 He did admit, however, that he saw in the trunk the boxes and red cosmetic case which contained the pills and that the cigarette rolling papers in the back seat had fallen out of his pocket.

    Appellants were indicted for conspiracy to possess Preludin with intent to distribute and for the substantive offense of possession with intent to distribute. At trial, they moved to suppress all the evidence seized at the Sierra Blanca checkpoint, and the district court granted the motion. See United States v. Oyarzun, 582 F.Supp. 121 (W.D.Tex.1984). We reversed and remanded, holding that the search of the car at Sierra Blanca was valid because the checkpoint was the functional equivalent of the border. United States v. Oyarzun, 760 F.2d 570 (5th Cir.1985).

    On remand, appellants requested that a traffic survey be conducted at Sierra Blanca to test the validity of the checkpoint's "functional equivalent" status. The district court granted the request, ordering the Border Patrol to conduct a survey of all traffic passing through the Sierra Blanca checkpoint for a period of two weeks. We stayed the order, then vacated it in a writ of mandamus issued on October 21, 1985. Appellants made a second motion requesting that the Federal Public Defender's office be given authority to take a survey. The district court granted this motion. After setting various guidelines, we granted the Public Defender's office the requested authority to conduct a survey from January 8 through January 15, 1986.

    The survey, at the request of appellants, asked drivers to state (1) the point of origin of their present trip, and, if that point was outside the United States, (2) whether the traveler had already been stopped and inspected or questioned at a port of entry into this country or at some other checkpoint. The overwhelming majority of the drivers stopped at the Sierra Blanca checkpoint stated either that they had begun their trip in the United States, or that they had already been stopped at a port of entry or other checkpoint. 4

    Appellants presented the survey results to the district court. The court held that the survey evidence, collected in January 1986, did not establish the conditions present in March 1984, when appellants were stopped. Accordingly, the court held that the checkpoint's status as the functional equivalent of the border in 1984 was unaffected by the new evidence. 5 Subsequently, the court found appellants guilty

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    on all counts, and sentenced them to concurrent three-year terms of imprisonment.

    Before passing sentence on appellant Browning, the district court gave him the opportunity to address the court, and he did so. The court did not, however, give Browning's counsel the opportunity to address the court on Browning's behalf before sentence was pronounced. Browning's counsel pointed out that he had not waived his own right of allocution. The district court apologized, and then gave appellant's counsel the opportunity to address the court. Browning's counsel did so, after which the court stated: "I apologize to counsel for overlooking allocution. My sentence would be the same, even though I would consider the remarks."

    Appellants now claim that the Sierra Blanca checkpoint did not meet the requirements for classification as the "functional equivalent of the border" at the time of their arrest, and that probable cause did not exist to search their vehicle. Appellant Browning also challenges the sufficiency of the evidence regarding his convictions for conspiracy and possession, and claims prejudicial error in his sentencing before his attorney's allocution.

  2. Ryan

    On February 7, 1986, approximately one month after the Sierra Blanca survey had been conducted by the Federal Public Defender's office, appellant Michael Ryan drove a white Chevrolet up to the Sierra Blanca checkpoint. Border Patrol Officer Felix Chavez noticed that Ryan's vehicle swerved and halted suddenly several times as it approached the checkpoint. Chavez questioned Ryan about his citizenship, and Ryan responded hesitantly. He appeared dazed and disoriented, to the point of appearing intoxicated, although Chavez smelled no alcohol. 6

    Chavez asked Ryan to step out of the car and open the trunk. Ryan walked very unsteadily to the back of the car, and had trouble getting his key in the trunk lock. The trunk contained a backpack and a suitcase. Chavez noticed that Ryan became visibly nervous when the officer felt the backpack. Chavez instructed Ryan to open the suitcase. Ryan asked, "Do I have to?", and Chavez answered, "Yes, sir, you have to." Chavez discovered approximately seven pounds of cocaine in the suitcase.

    Appellant was immediately arrested by the Border Patrol. Four hours later, a representative from the Drug Enforcement Agency arrived to take custody of Ryan. Ryan appeared "totally stoned" to the DEA agent: his speech was incoherent, his gait unsteady, and he smelled very strongly of ether. Ryan told the agent that his occupation was "to move things around." While being driven to Pecos, Texas, Ryan claimed that he was being kidnapped and asked the DEA agent if he could call the FBI.

    Ryan was charged with possession of cocaine with intent to distribute. He moved to suppress all the evidence obtained at the Sierra Blanca checkpoint on the basis that the search conducted there was illegal. The district court held that the checkpoint, in February, 1986, was not "the functional equivalent of the border," but nevertheless denied appellant's motion to suppress on the basis that "ample reasonable suspicion" was present to justify the search in his case. The court found appellant guilty as charged, and sentenced him to a ten-year prison term. Appellant now claims that "probable cause," not "reasonable suspicion," was the proper standard to apply in order to test the validity of the search, and that such probable cause did not exist.

    II.

    All of the appellants raise the issue of the status of the Sierra Blanca...

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