State v. Castro

• Decision Date: 09 September 1976
• Docket Number: No. 1,CA-CR,1
• Citation: 554 P.2d 919,27 Ariz. App. 323
• Parties: STATE of Arizona, Appellee, v. Juan Luna CASTRO, Appellant. 1226.
• Court: Arizona Court of Appeals

Page 919

554 P.2d 919

27 Ariz.App. 323

STATE of Arizona, Appellee, v.Juan Luna CASTRO, Appellant.

No. 1 CA-CR 1226.

Court of Appeals of Arizona, Division 1, Department A.

Sept. 9, 1976.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Chief Counsel, Shirley H. Frondorf, Asst. Atty. Gen., Phoenix, for appellee.

Westover, Choules, Shadle & Bowen by Allen J. Clark, Yuma, for appellant.

OPINION

FROEB, Judge.

The appellant, Juan Luna Castro, was found guilty by a jury on Count I, importing marijuana (A.R.S. § 36--1002.07), Count II, transporting marijuana (A.R.S. § 36--1002.07), and Count III, possession of marijuana for sale (A.R.S. § 36--1002.06).The trial court sentenced appellant to a term of not less than two nor more than six years on Count III, possession of marijuana for sale, and, after determining that for the purpose of sentencing Count I, importing marijuana, should be combined with Count II, transporting marijuana, suspended imposition of sentence on Count II and placed appellant on probation for a period of five years.On appeal from the convictions and sentence the appellant contends that evidence was seized from his possession in violation of the fourth amendment of the United States Constitution and should have been suppressed.On review we consider this issue as well as the propriety of the sentence which, although not briefed, was raised by counsel at oral argument.

The undisputed facts indicate that the search involved here occurred near the international border at San Luis, Mexico, which the parties stipulated was an area known for a high incidence of smuggling.The specific area does not appear from the record to be inhabited, with the exception that in the vicinity there was a tent used by the United Farm Workers union as a station for members assigned to watch the general area for illegal aliens, an effort apparently made by the union to assist the Border Patrol.There is a dirt road leading away from the area of the tent which extends away from the border and eventually connects with other roads.None of the events of the case involve the use of this road.

Officer Monwell Fuller, a United States customs patrol officer, was on duty the night of December 19, 1974, in the area described.After parking his car about 100 yards from the international fence, he noticed a 1965 Buick driving west along the fence on a sandy track known as a 'drag strip.'While not a road, the 'drag strip' is traversable by car and is used by border patrol agents to patrol the international fence and to detect alien traffic.There is no indication from the record whether the drag strip is used by the public for car travel, but there is an implication that it is not so used, as it is periodically dragged smooth to detect tire and foot prints.There is no showing, one way or the other, as to whether the drag strip is posted against public use.When appellant's car was seen proceeding along the fence, Fuller started his car and followed it to the paved road, where he stopped it.He approached the driver, identified himself and asked appellant, the driver and sole occupant, to open the trunk.When Fuller saw the load of 221 marijuana bricks in the compartment, he placed appellant under arrest and called on the radio for an interpreter, as appellant spoke to him only in Spanish.Meanwhile, narcotics agents were notified and appeared on the scene.The appellant was arrested and the marijuana seized for evidence.

While unknown to Officer Fuller prior to the arrest, he later learned from other agents that there was an opening in the international fence about one mile from where he first noticed appellant's car and that an entry across the border had been made through it.Since this knowledge on the part of Fuller did not precede his arrest of appellant, it cannot be given any significance in evaluating the circumstances of the arrest in terms of compliance with the requirements of the fourth amendment.

It is well to state at the outset that, for the purposes of the fourth amendment, there is a constitutional difference between houses and cars, which in certain cases will justify a warrantless search.State v. Benge, 110 Ariz. 473, 520 P.2d 843(1974).The difference turns primarily on the mobility of the automobile and the impracticability of obtaining a warrant in many instances.'Warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not.'South Dakota v. Opperman, --- U.S. ---, 96 S.Ct. 3092, 49 L.Ed.2d ---(Decided July 6, 1976).One reason, as this recent United States Supreme Court case points out, is that there is, with an automobile, a lesser expectation of privacy.In upholding the search here, this factor would most certainly be present.

We turn, then, to whether the search and seizure were lawful.

The law is well-settled as to the search of cars by law enforcement authorities in areas not associated with the United States border.Absent a valid warrant, a car may be searched only where there is probable cause to believe that the car is carrying contraband or illegal merchandise.Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543(1925);State v. Sardo, 112 Ariz. 509, 543 P.2d 1138(1975).We assume, without deciding, that the circumstances which were apparent to Officer Fuller on the night here in question did not rise to that level.¹

The law is less settled with respect to searches associated with the border.With respect to this category, a distinction must be drawn between searches for aliens and illegal contraband conducted some distance from the border and those conducted At the border or 'its functional equivalent.'While we place the search here in the latter category, some mention of the former is warranted.

The United States Supreme Court has ruled that a search made by a roving patrol unit without probable cause on a California state highway 25 miles north of the Mexican border violated the fourth amendment, even though conducted by the United States Border Patrol in performance of its duties under United States immigration laws.Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596(1973).Prior to Almeida-Sanchez, it had frequently been held that a causeless search for aliens could be conducted within 100 miles of the border.²In 1975, the Supreme Court decided that the Almeida-Sanchez rule also applied to searches at fixed checkpoints located away from the border.United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623(1975).³Searches of vehicles for aliens and contraband away from the border made without probable cause also have been approved in certain limited instances where the search is reasonably equivalent to a search at the border.One example is a 'deferred' border search, where a vehicle is known to have crossed the border without inspection and is kept in view after it leaves the border.If the ensuing search uncovers contraband which was, with reasonable certainty in the vehicle at the time of the border crossing, it has been upheld.SeeAlexander v. United States, 362 F.2d 379(9th Cir.1966).Another instance is where the person or vehicle searched has not been seen to cross the border, but, from the circumstances, it appears with reasonable certainty that the person or vehicle crossed the border without inspection.SeeUnited States v. Weil, 432 F.2d 1320(9th Cir.1970).

Turning to searches At the border conducted by customs and immigration officers, it is well-settled that probable cause is not required.SeeWitt v. United States, 287 F.2d 389(9th Cir.1961).'Mere suspicion' is sufficient to justify a border search.Cervantes v. United States, 263 F.2d 800(9th Cir.1959).Nevertheless, the search must still meet the minimum fourth amendment standard of 'reasonableness.'SeeDenton v. United States, 310 F.2d 129(9th Cir.1962).

The absence of a constitutional requirement for probable cause in searches at the border is traceable to the early days of the nation.Since 1789, customs officers have been allowed to search vehicles, persons and baggage brought into the United States on the suspicion that contraband or merchandise subject to duty was being concealed.Act of July 31, 1789, Ch. 5, § 24,1 Stat. 29, 43.The same authority is in effect today.19 U.S.C. § 482.Immigration officials were authorized in 1875 to search at the border for aliens seeking entry into the United States.Act of March 3, 1875, Ch. 141 § 5,18 Stat. 477.They have this authority today also.8 U.S.C. § 1357(a)(3).For a general review of the history of border search legislation, seeBarnett, A Report on Search and Seizure at the Border, 1 Am.Crim.L.Q. 36(1963).In 1971, immigration and customs searches were merged when Border Patrol agents became authorized to act as customs officers.SeeUnited States v. Thompson, 475 F.2d 1359(5th Cir.1973), which outlines the basis of this authority.While the authority of immigration and customs officials to search without probable cause is statutory in origin, it has not been found violative of the fourth amendment when invoked at the border or its functional equivalent.SeeAlmeida-Sanchez v. United States, supra.It is here that the potential infringement upon fourth amendment rights is outweighed by legitimate governmental interest in the detection of aliens and discovery of contraband crossing the international border.

The extent of the causeless search zone at the border, or its functional equivalent, is potentially a difficult issue.We are referred to no decision drawing exact limits.It appears that a search permissible 'at the border' will, in certain circumstances, be permissible at 'the functional equivalent' of the border.SeeAlmeida-Sanchez v. United States, supra;United States v. Tilton, 534 F.2d 1363(9th Cir.1976);United States v. Solmes, 527 F.2d 1370(9th Cir.1976).Whatever the outer limits...