825 F.2d 853 (5th Cir. 1987), 86-1226, United States v. Jackson

Docket Nº:86-1226, 86-1381.
Citation:825 F.2d 853
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:August 17, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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825 F.2d 853 (5th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Charles JACKSON, and Anthony Wayne Browning, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,


Michael RYAN, Defendant-Appellant.

Nos. 86-1226, 86-1381.

United States Court of Appeals, Fifth Circuit

August 17, 1987

        Rehearings Denied Oct. 1, 1987.

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

        Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for Browning.

        Sidney Powell, LeRoy Morgan Jahn, Asst. U.S. Attys., 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.


        REAVLEY, Circuit Judge:

        The purpose of this en banc rehearing is to reconsider Fifth Circuit precedent deeming a checkpoint on an interstate highway at Sierra Blanca to be a "functional equivalent of the border." Appellants' drug law violations were discovered by full searches of their automobiles at this checkpoint. In one case capsules of a controlled substance were found in a cosmetics case in the car trunk; in the other case cocaine was found in a suitcase in the car trunk. Adhering to our prior decisions, a panel of this court upheld the appellants' convictions, and approved the searches at Sierra Blanca on the ground that this checkpoint is the "functional equivalent of the border." The en banc court now decides that the Sierra Blanca checkpoint should not have been regarded as a border equivalent. We further hold that the plenary searches presently conducted at the Sierra Blanca checkpoint are unreasonable under the Fourth Amendment. However, given the significant government interest in controlling illegal immigration, we consider the availability of area warrants that would allow inspections for illegal aliens at checkpoints near the border. Finally, we affirm the appellants' convictions because the instant searches were conducted in good faith reliance upon our earlier decisions.


Functional Equivalence and The Sierra Blanca Checkpoint

        The circumstances responsible for bringing the appellants before this court have been recited previously, and need not be repeated here. See United States v. Jackson, 807 F.2d 1185, 1187-90 (5th Cir.1986); United States v. Oyarzun, 760 F.2d 570, 572-73 (5th Cir.1985). Instead, we begin by telling how the Fifth Circuit developed its own functional equivalent for controlling Fourth Amendment law.

        The Supreme Court first coined the phrase "functional equivalent" of the border in Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973), describing two possible examples as follows:

[S]earches 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 functional equivalents 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.

        The Almeida-Sanchez Court did not otherwise explain the meaning of this new concept, nor has the Court since elaborated its

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understanding of what types of checkpoints qualify as functionally equivalent to the border. The circuit courts, however, have examined in some detail the notion of functionally equivalent borders. In this section we consider the Fifth Circuit's use of the term.

        The Sierra Blanca checkpoint served as the proving ground for this court's first interpretation of the phrase "functional equivalent" of the border in 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). 1 The defendant in Hart I was arrested after a border patrol agent discovered approximately 397 pounds of marijuana in the trunk of his car following a routine search at the checkpoint. The Hart I court interpreted the Supreme Court's functional equivalency concept broadly, believing that it referred to the same permanent checkpoints for which we had long upheld warrantless searches for illegal aliens. 506 F.2d at 889-92 n. 1 (see cites contained therein). 2 The court identified three characteristics that "transform" a checkpoint into the border's functional equivalent and make searches there reasonable: "the proximity of the checkpoint to the border, the permanent nature of the checkpoint and the hours of operation." Id. at 895. The original rationale for affixing the "functional equivalent" label to the Sierra Blanca checkpoint, therefore, did not depend on its functioning the same as actual border checkpoints where traffic is stopped as it enters the country; it was based on the reasonableness, under the Fourth Amendment, of stopping vehicles in the border region to check passengers' citizenship status under 8 U.S.C. Sec. 1357(a)(3). 3 Id. at 894. The court explained as follows:

[A]long much of the Mexican-United States border runs the Rio Grande River,

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which, in spite of a name indicating contrary magnificence, can be driven across, waded across, and easily swim across at all times, and much of the time can be walked across without wetting a foot. With so much access to a highway parallel to the border by aliens who could easily have walked across the border, we think the Fourth Amendment rule of reason would permit a search for those aliens of vehicles that may have taken them aboard after their arrival by other means within our boundaries. With almost 2000 miles of Mexican border from Brownsville, Texas to San Diego, California, contiguous to four of the states of the Union, the impracticality of guarding every part where human crossing could be made should be so apparent as to make inexorably reasonable some method of curtailing illegal entry such as established at the Sierra Blanca checkpoint.

        Id. at 897.

        The next important Fifth Circuit case to consider what kind of checkpoint merits functional equivalency status was United States v. Alvarez-Gonzalez, 542 F.2d 226 (5th Cir.1976) (Alvarez-Gonzalez I ), a case concerned with a checkpoint at La Gloria, Texas. The Alvarez-Gonzalez I court adopted a tripartite test for determining functional equivalency: (1) the ratio between international and domestic traffic passing through such checkpoints must not be disproportionately domestic; (2) it must be a permanent checkpoint; and (3) as to international traffic, it must approximate the effect of one physically located at the border. Id. at 229. The test prescribed in Alvarez-Gonzalez I appeared to narrow the Hart I test somewhat, by limiting functional equivalent of the border checkpoints to ones interdicting predominantly "international traffic." On remand, the district court found that the La Gloria checkpoint merited functional equivalency status under the Alvarez-Gonzalez I test, and we affirmed. United States v. Alvarez-Gonzalez, 561 F.2d 620 (5th Cir.1977) (Alvarez-Gonzalez II ).

        Following the court's earlier remand, the border patrol conducted a survey to assess the ratio of international to domestic traffic passing through the checkpoint. The survey indicated that sixty percent of this traffic was international in origin. Significantly, however, the survey included as "international traffic" vehicles that had originated in the "immediate border area" on the American side. The court defended the use of this measure as follows:

It would make little sense indeed to adopt a definition of "international" for this purpose which excluded those very journeys which evidence and practical experience have demonstrated are most likely to commence with an illegal international border crossing. In such situations, although the vehicle has not crossed the border, its cargo has.

        Id. at 623-24.

        By adopting a definition of international traffic that included domestic traffic, the Alvarez-Gonzalez II court, like Hart I before it, "struck a balance between the needs of law enforcement and the constitutional rights of residents near the Mexican border." Id. at 625. The court determined that the Fourth Amendment's rule of reason allowed the government at the La Gloria checkpoint to conduct "a cursory inspection for alien passengers limited to cavities large enough to contain a human form." Id. The court specifically noted, however, that a more intrusive search for contraband "could well result in the striking of a different balance in determining a checkpoint's status as a functional equivalent of the border." Id.

        We returned to the Sierra Blanca checkpoint in 1979 to consider the constitutionality of a search that uncovered 138 pounds of marijuana in the trunk of an MGB sports car. United States v. Luddington, 589 F.2d 236, 237 (5th Cir.), cert. denied, 441 U.S. 936, 99 S.Ct. 2061, 60 L.Ed.2d 666 (1979). Relying on Hart I and Alvarez-Gonzalez II, the Luddington court upheld the constitutionality of the search on the basis of the continuing need to carefully monitor the border area in order to intercept aliens who had recently crossed the border unchecked. The court also observed that the checkpoint only minimally affects domestic traffic, but at the same

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time reiterated the need for a definition of international traffic not limited to traffic which has crossed the border, "since vehicles which remain in this country and await their illegal human cargo...

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