U.S. v. Espericueta-Reyes

• Citation: 631 F.2d 616
• Decision Date: 29 October 1980
• Docket Number: D,No. 79-1497,ESPERICUETA-REYE,79-1497
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ismael A.efendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 616

631 F.2d 616

UNITED STATES of America, Plaintiff-Appellee, v. Ismael A. ESPERICUETA-REYES, Defendant-Appellant.

No. 79-1497.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 15, 1980.

Decided Oct. 29, 1980.

Susan Wintermute, Phoenix, Ariz., for defendant-appellant.

John D. Lyons, Jr., Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee; Gary Schneider, Daniel R. Drake, Phoenix, Ariz., on brief.

Appeal from the United States District Court for the District of Arizona.

Before SNEED, PREGERSON and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Appellant Ismael Espericueta-Reyes appeals from his conviction for possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. Section 841(a)(1), and illegal importation of a controlled substance in violation of 21 U.S.C. Section 952. For the reasons stated below, we affirm the judgment of conviction.

FACTS

George Cons, a special agent with the Drug Enforcement Administration received information from a reliable source that a certain vehicle containing contraband and displaying a certain Arizona license plate was about to pass through the San Luis, Mexico Arizona Port of Entry (hereinafter "POE"). After some discussion, customs officials decided that they would allow the vehicle through the port but would place it under surveillance in order to determine whether others were involved with the driver-carrier in the smuggling of contraband.

At about 4:30 p. m. that vehicle entered the United States from Mexico. The car was driven by Jose Luis Martinez-Mendez, appellant's co-defendant at trial. The car was routed to secondary inspection ¹ where it was searched, the first of three searches ultimately made by customs officers. No contraband was found, and the car was allowed to proceed; however, it was placed under surveillance and followed by customs officers as it was driven to various locations in San Luis, Arizona.

The car was continuously in the pursuing officer's line of sight except for several minutes during which it was lost from view. The car was eventually driven to a gas station where the driver put gasoline into the car. Appellant, standing by the gas pumps, handed the driver something which appeared to be money. After the driver paid for the gasoline he drove out of the station with appellant as his passenger. Approximately two or three minutes later, the officers stopped the vehicle at a spot about a mile from the POE by using red lights and sirens. A plain clothes officer, after identifying himself as a customs official, asked the defendants to step out of the vehicle.

The defendants were separated and each was patted down for weapons. Neither was handcuffed; they were not advised of their constitutional rights. Appellant and co-defendant were asked questions concerning the ownership of the car, and each stated that appellant was the owner.

A cursory inspection was made of the vehicle, but the dangerous condition presented by the traffic on the narrow highway made a more extensive search there impractical. The officer advised each man that he was not under arrest; however, he asked them to return to the POE "to clarify a few things."

At the POE the car was searched a third time and heroin was found concealed in the right rear wheel well. Appellant and his co-defendant were detained for about 50 minutes during this search. After the heroin was found, appellant and his co-defendant were told they were under arrest, and were advised of their constitutional rights.

1. The Propriety of the Second and Third Vehicle Searches

Appellant first contends that the substance found pursuant to the second and third vehicle searches should be suppressed because those searches were not supported by probable cause. ² According to the appellant, the first search of the vehicle at the POE "severed" the connection of the vehicle with the border; hence, the subsequent searches cannot be considered "extended border searches" and therefore had to be supported by probable cause. For the reasons stated below, we hold that each search made after the initial border crossing was a part of an extended border search which was reasonable and consonant with the Fourth Amendment.

Searches made at the time of an initial border crossing as well as searches which qualify as "extended border searches" need not be supported by probable cause. The right to search persons and containers at the border derives from the nation's right to control who and what may enter the country. United States v. Ramsey, 431 U.S. 606, 620, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 612 (1977); for that reason, the right to search at the border is extremely broad. Indeed, searches made at the border at the time of initial border crossing are reasonable within the meaning of the Fourth Amendment simply because they take place at the border. Ramsey, supra, at 616, 97 S.Ct. at 1978. A similar rule applies to searches made after the border has been crossed where it is reasonably certain that any contraband which might be found on the suspected carrier was also present and concealed from inspection at the time of the initial border crossing. Alexander v. United States, 362 F.2d 379, 382-83 (9th Cir. 1966), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439; King v. United States, 348 F.2d 814, 816 (9th Cir. 1965), cert. denied, 382 U.S. 926, 86 S.Ct. 314, 15 L.Ed.2d 339 (1965).

The first question we must decide is whether the searches which occurred after the border was crossed were in fact extended border searches which did not have to be supported by probable cause. We hold that they were.

The fact that a prior search had been conducted at the time of the initial border crossing is not dispositive of whether later searches are properly considered extended border searches. See United States v. Smith, 629 F.2d 1301 at 1303 (9th Cir., 1980). United States v. Terry, 446 F.2d 579 (9th Cir. 1971), cert. denied, 404 U.S. 946, 92 S.Ct. 301, 30 L.Ed.2d 261 (1971); United States v. Bowman, 502 F.2d 1215, 1219 (5th Cir. 1974). ³ The criteria for determining whether a search may appropriately be demonstrated an "extended border search" are set forth in Alexander v. United States, supra. A search occurring after an initial border crossing any appropriately be denominated an "extended border search" when the totality of circumstances surrounding the search, including the time elapsed after the initial border crossing and the distance from the border, "are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of the search was aboard the vehicle at the time of entry into the jurisdiction of the United States." Alexander v. United States, supra, at 382.

As the Alexander Court noted, the task of policing the border is a difficult one; the work of customs officials is made far more effective by the identification of accomplices of the carrier bringing contraband into the United States. United States v. Martinez, 481 F.2d 214, 218 (5th Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 489 (1974); Alexander, supra, at 382. For that reason, surveillance is often initiated as a person suspected of smuggling contraband crosses the border. A thorough search at the border is often deliberately delayed to avoid forewarning the individuals involved that surveillance is being undertaken. In some cases, as in Alexander no search is done at the time of the border crossing; in others, as in this case, a cursory search is performed. In either case the underlying rationale of "sweeping in" associates of the carriers supports either course of conduct. ⁴ Clearly, the task of policing our borders would be made far more difficult, and the illicit activities of smugglers less risky, if an inspection at the border automatically foreclosed subsequent inspections by customs officials absent probable cause.

This is not to say that limitless border searches of an international traveler's possessions by customs officials at any time or place are constitutionally permissible solely because it would make the task of border officials easier. The demands of effective law enforcement are often in tension with the requirements of the Fourth Amendment. See Almeida Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). Thus, any subsequent searches must at a minimum be reasonably related in both time and distance to the place and time of the initial border crossing. "Certainly there comes a point after a border crossing where an individual's relationship with the border is so attenuated that a search may not be justified as a "border search." United States v. Bowman, 502 F.2d 1215, 1219 (5th Cir. 1974); United States v. Soto-Soto, 598 F.2d 545, 548-49 (9th Cir. 1979); Compare U. S. v. Smith, supra, 629 at 1301.

The challenged searches in the matter before this Court were reasonably related in time and place to the initial border crossing. The vehicle, which was under virtually constant surveillance, was stopped in the general border area, within an hour and a half of the initial border crossing; the final search was conducted at the border itself, less than a mile from the place where the car was stopped.

Each of the requirements of the Alexander test for an extended border search were met under the circumstances of this case. The vehicle was virtually under constant surveillance from the time it was first searched at the border until the time that the car was stopped, with the exception of a few minutes during which it was lost from view. The subsequent searches occurred within an hour and a half of the time the vehicle entered the country, and were conducted at and near the border. These circumstances were sufficient to have convinced the fact finder with reasonable certainty that there had been no material change in the condition of the vehicle from...