People v. Cummings

• Decision Date: 18 December 1974
• Docket Number: Cr. 6396
• Citation: 43 Cal.App.3d 1008,118 Cal.Rptr. 289
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Peter CUMMINGS, Defendant and Appellant.

Page 289

118 Cal.Rptr. 289

43 Cal.App.3d 1008

PEOPLE of the State of California, Plaintiff and Respondent, v. Peter CUMMINGS, Defendant and Appellant.

Cr. 6396.

Court of Appeal, Fourth District, Division 2, California.

Dec. 18, 1974.

Hearing Denied Feb. 13, 1975.

Ron Minkin, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

THE COURT ^*

Defendant was charged by information with possession of marijuana for sale (Health & Saf.Code, § 11359) and transportation of marijuana (Health & Saf.Code, § 11360).

Defendant personally waived jury trial, was advised of and waived related constitutional rights and stipulated to submission of the case on the transcript of the preliminary examination. He was found guilty as to each count.

Imposition of sentence was suspended and defendant was granted probation for three years.

FACTS

At approximately 8:35 p.m. on September 5, 1973, defendant, driving a 1968 Cadillac with Nevada plates, approached the permanent Border Patrol checkpoint about one mile south of Temecula (on Highway 395) and 70 miles north of the United States--Mexican border (hereinafter referred to as Temecula checkpoint).

At the checkpoint defendant was directed to pull off the road for a secondary inspection. Agent Abreu conducted the secondary inspection, the primary inspection having consisted of observation of defendant and his vehicle as it pulled up to the checkpoint. Agent Abreu asked defendant where he was born and received a reply that he was born in the United States. The agency then asked defendant to open his trunk for a routine immigration inspection, and defendant did so. The reason the agent asked defendant to open the trunk was because of past experience that aliens were smuggled in that manner. Abreu had himself found aliens in car trunks 30 to 50 times.

When defendant opened the trunk, Abreu observed a sleeping bag spread out over the trunk and noticed a flour sack with Mexican writing on it in the corner. He moved closer and smelled what he thought was the odor of marijuana. He examined the flour sack and found that it contained marijuana, then lifted the sleeping bag and found a grocery bag containing more marijuana. It was stipulated the items discovered by Abreu consisted of approximately 13 kilograms of marijuana.

The sole issue on appeal concerns the constitutionality of the Border Patrol checkpoint at Temecula. Defendant relies on Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, for the proposition that Border Patrol searches at permanent checkpoints are unconstitutional. Defendant Does not contend that even if the stop and search for illegal aliens was proper, the actual discovery of the marijuana was unlawful.

In Almeida-Sanchez the defendant's vehicle was stopped by a 'roving patrol' of the Border Patrol and a search conducted revealed marijuana. There was neither probable cause for the stop nor the search and, of course, no warrant. The stop was made on State Highway 78 in California at a point approximately 25 air miles north of the Mexican border. Highway 78 does not reach the Mexican border and at all points lies north of Interstate 80, a major eastwest highway which is entirely within the United States.

The government unsuccessfully relied on the provisions of 8 U.S.C. section 1357 and the Attorney General's regulations which define a reasonable distance as within 100 air miles from any external boundary of the United States. ¹ The court reversed the defendant's conviction which had been affirmed by the Ninth Circuit. The court observed that the Border Patrol conducted three types of surveillance along inland roadways, to wit: (1) permanent checkpoints; (2) temporary checkpoints; and (3) roving patrols.

The court held in Almeida-Sanchez that the Border Patrol must have either a warrant or probable cause when a roving patrol of the Border Patrol stops and searches a vehicle. Mr. Justice Powell in his concurring opinion suggests that roving patrols may still be allowed to operate by obtaining in advance an 'area' warrant based upon a sufficient showing. This would eliminate the need of having specific information as to a particular vehicle.

As to checkpoints, we find the following language in Almeida-Sanchez: 'Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For example, searches 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.' The court reasonably suggests that established stations meeting this definition may stop passing vehicles and search for aliens without a warrant or probable cause. (Cf. fn. 5 of the opinion.) ²

The concurring opinion of Mr. Justice Powell in Almeida-Sanchez further clarifies its limited scope. He states: 'The search here involved was carried out as a part of a roving search of automobiles in an area generally proximate to the Mexican border. It was not a border search, nor can it fairly be said to have been a search conducted at the 'functional equivalent' of the border. Nor does this case involve the constitutional propriety of searches at permanent or temporary check points removed from the border or its functional equivalent. Nor, finally, was the search based on cause in the ordinary sense of specific knowledge concerning an automobile or its passengers. (Footnote omitted). The question posed, rather, is whether and under what circumstances the Border Patrol may lawfully conduct roving searches of automobiles in areas not far removed from the border for the purpose of apprehending aliens illegally entering or in the country.'

In United States v. Bowen (1974) 500 F.2d 960, the Circuit Court of Appeal for the Ninth Circuit in a 7 to 6 decision held that the rule of Almeida-Sanchez applies to permanent checkpoints. However, a petition for writ of certiorari has been granted by the United States Supreme Court in that case. (No. 73--6848.)

We deem it appropriate to quote at length from the dissenting opinion in Bowen authored by Mr. Justice Wallace which we find more persuasive than the opinion of the majority: 'With one fell swoop, the majority . . . hews down a law enforcement procedure uses for 44 years to curtail the ever-increasing tidal wave of illegal aliens. The use of fixed checkpoints has been neither secret nor clandestine. The procedure has come before our court on numerous occasions (footnote omitted) with no hint that the practice was constitutionally infirm. For us to reverse ourselves at this late date requires clear and convincing reasons. (Citation omitted.) I fail to see them in the majority decision. The only apparent change is the opinion, or better said opinions, in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). A careful analysis, therefore, is required to see if that case dictates our reversal of a longstanding and accepted police practice. ( ) The majority concedes that Almeida-Sanchez is a case involving stops and searches by roving border patrol officers. But by some mystic bridging, it holds that Almeida-Sanchez also requires that we outlaw searches at fixed checkpoints. The Opinion of the Court was delivered by Justice Stewart and concurred in by Justices Douglas, Brennan and Marshall. That opinion becomes the majority only with the added vote of Justice Powell. . . . Justice Powell's concurrence, therefore, adds a fifth Justice, and thus a majority, only to that part of the Justice Stewart opinion which invalidates the type of search 'conducted in (that) case'--a roving patrol search. (Footnote omitted.) ( ) This critical distinction is brought into even closer focus by Justice Powell's demarcation of the four areas where searches typically occur: . . . Thus, one could infer from his statement that searches can constitutionally occur at (1) the border, (2) functional equivalents of the border, (3) permanent checkpoints and (4) temporary checkpoints. He emphasized that the search in question did not occur in any of the four categories. His concurrence, therefore, cannot be said to give any weight to projecting Almeida-Sanchez to cover searches for aliens at fixed checkpoints. He specifically and emphatically limited his concurrence to answering the question of 'whether and under what circumstances the Border Patrol may lawfully conduct roving searches of automobiles in areas not far removed from the border for the purpose of apprehending aliens illegally entering or in the county.' 413 U.S. at 276, 93 S.Ct. 2535. ( ) Ignoring the significance of Justice Powell's limited concurrence, the majority relies basically upon the language quoted by Justice Stewart from Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and contends that that language demonstrates that Almeida-Sanchez also controls the question of searches at fixed checkpoints. However, here the majority falls into the trap of failing to realize that Justice Powell's concurrence does not necessarily make the language in the Justice Stewart opinion a pronouncement by a majority of the Court. ( ) Because of the close fragmented vote and because Justice Stewart's opinion must be limited in application to roving patrols, great insight can be secured from the dissenting opinion of Justice White in which the Chief Justice and Justices Blackmun and Rehnquist concurred. Justice White, after noting that the Court in Carroll v. United States, 267 U.S. at 154, 45 S.Ct. 280, recognized that neither a warrant nor probable cause is required to stop and search at the...