U.S. v. Frisbie
| Decision Date | 11 April 1977 |
| Docket Number | No. 76-2176,76-2176 |
| Citation | 550 F.2d 335 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. George Michael FRISBIE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John E. Clark, U.S. Atty., Robert S. Bennett, Asst. U.S. Atty., San Antonio, Tex., William F. Sheehan, III, Richard A. Allen, Attys., Dept. of Justice, Washington, D.C., for plaintiff-appellant.
Joseph Sib Abraham, Jr., Charles Louis Roberts, El Paso, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GODBOLD, SIMPSON and GEE, Circuit Judges.
Defendant-appellee George Michael Frisbie was indicted for violations of Title 21, U.S.Code, Sections 952(a) and 841(a)(1), importing into the United States, and possessing, with intent to distribute, 2,951 pounds of marijuana. Frisbie pled not guilty to both counts, and moved to suppress the marijuana seized on the ground that it had been seized as the result of an unlawful search. Following an evidentiary hearing and submission of briefs, the district court granted defendant's motion to suppress and the United States appeals. We affirm.
On January 14, 1976, from midnight to 8:00 a. m., United States Border Patrolmen Nieto and Bonner were stationed at a cut-off road on State Highway 118, approximately 35 miles south of Alpine, Texas. Sometime between 6:30 a. m. and 7:00 a. m., they were notified by the radio operator at the Marfa, Texas Control Center that the Center had received a sequential pattern of signals from sensor devices located on Ranch Road 170 and State Highway 118 indicating that two vehicles were traveling east on Highway 170 from the area of the Mexican border and that one vehicle was traveling north, toward the officers, on Highway 118. The two highways intersect at Study Butte immediately west of the westerly entrances to Big Ben National Park, 1 about 15 miles from the Mexican Border, and 75 miles from Alpine. Shortly thereafter the sensor signals indicated that all three vehicles were headed north on Highway 118. The location of these vehicles indicated to the officers a substantial possibility that they were coming from an unpatrolled river area to the west on Highway 170. The patrolmen also testified that Highway 118 was frequently used to transport aliens and contraband, and that the late evening and early morning hours were the prime times when these activities were conducted.
Patrolmen Bonner and Nieto stopped the first two northbound vehicles briefly to determine the citizenship of the occupants, and permitted them to proceed. While questioning the driver of the second car, they heard a third vehicle approaching. Nieto stepped onto Highway 118 and, with his flashlight, signaled the vehicle to stop. This proved to be a pickup truck with a box-type camper attached to the truck. While the truck was slowing down, Nieto noticed that it was riding low on its springs, and also that the driver was having difficulty stopping, causing the officer to believe that it was heavily loaded.
Nieto shone the flashlight on the driver's face. The driver's appearance led Nieto to believe that he was of Mexican-American descent. But questioning the driver, Frisbie, revealed that in fact he was an American citizen, though not a resident of the vicinity. Frisbie told Nieto also that he did not have a key to the camper, that it did not belong to him, and that no one was in it. Bonner then began to question Frisbie while Nieto walked to the back of the camper. Bonner testified that Frisbie appeared to be extremely nervous during the questioning.
Patrolman Nieto was not able to see into the camper because curtains were drawn across some of its windows and others were blackened. Nieto lowered the tailgate of the camper to determine, he testified, whether the door was in fact locked. After lowering the tailgate, Nieto noticed a small amount of marijuana on the truck, between the tailgate and the camper. He then raised the tailgate to its original position, returned to the front of the truck, and arrested Frisbie. After the arrest, Bonner saw traces of marijuana on the rear bumper. The agents lowered the tailgate a second time, tried the camper door and found it locked. The camper and Frisbie were taken to the Border Patrol Station at Alpine, Texas. Search there of the camper turned up 2900 pounds of marijuana.
To support the initial stop of defendant's vehicle by the border patrolmen, the government argues that such stop was justified by a reasonable suspicion on the part of the officers, pursuant to United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), that such vehicle was carrying illegal aliens. The officers based this reasonable suspicion on the following: the direction the vehicle was traveling, the likelihood that the vehicle was coming from an unpatrolled river area, the difficulty the driver had in stopping the vehicle, the sparsely populated area where the stop occurred, their knowledge that local traffic did not normally travel the roads in question at such early hours of the morning and that the route in question was frequently traveled by persons transporting illegal aliens and contraband, with such activity taking place primarily in the late evening and early morning hours. The district court upheld the initial stop of the vehicle "for the limited purpose of determining the occupant's citizenship". (Order Granting Defendant's Motion to Suppress, p. 3.)
In Brignoni-Ponce, two Border Patrol officers made a roving-patrol stop of respondent's vehicle solely because the three occupants appeared to be of Mexican descent. Respondent's two passengers were illegal aliens, and respondent was charged with illegally transporting aliens. Respondent sought to have the testimony of and about the two aliens suppressed at trial on the ground that it was the fruit of an illegal seizure. The trial court denied the motion and respondent was convicted. The Court of Appeals for the Ninth Circuit reversed. In affirming the appellate court, the Supreme Court stated:
Id. at 882, 95 S.Ct. at 2580-2581.
At the suppression hearing in the present case it was stipulated that the population of the two counties involved, Presidio and Brewster, totaled only 12,622 persons, that in 1975 the Big Bend National Park had 331,983 visitors, and that during the month of the search, January 1976, 34,178 persons visited the park. The sensor devices revealed the direction in which the traffic was traveling and the sparse amount of that traffic. We discern nothing to indicate that the sensor signals being received established a reasonable suspicion that the vehicles in question were transporting illegal aliens. Our approval of a stop of this nature, founded upon dubious "suspicious" circumstances of such slight import would result in subjecting the thousands of tourists visiting the area to unreasonable detention whenever they travel at hours when certain routes are less frequented. A decision to travel such roads at less busy hours should not be the difference constitutionally speaking determinative of the right of officers to stop vehicles. See Brignoni-Ponce, supra, 422 U.S. 873, 882, 95 S.Ct. 2574, 2580.
The district court attached significance to the Border patrolmen's observation of appellee's difficulty in braking his vehicle in finding grounds for reasonable suspicion. This circumstance was entitled to no weight since the observation occurred after the officer had signaled the vehicle to stop. See United States v. Robinson, 5 Cir. 1976, 535 F.2d 881, 883 fn. 2, where this court stated that a stop under the Fourth Amendment " . . . does not mean a physical stop but rather a restraint of movement." An observation made after and caused by a stop cannot be bootstrapped into grounds for reasonable suspicion warranting the stop. See id. at 884.
The district court ruled incorrectly when it found the presence of grounds for reasonable suspicion justifying the initial stop.
Of course the ensuing search of the camper-truck necessarily goes down with our ruling that the initial stop of the vehicle was unlawful. Hence this opinion might well end at this point with an affirmance, but, even if we have reached an unsound conclusion with respect to the right to stop the vehicle the trial court's suppression of the search should be affirmed. It seems to us prudent to explore that question fully, covering all contingencies raised by the appeal.
The facts surrounding the search of the camper-truck are fully set out above. Nothing in those...
To continue reading
Request your trial
-
U.S. v. Espinoza-Seanez
...he urges that the requirements of an extended border search were not met. As authority, appellant relies upon United States v. Frisbie, 550 F.2d 335 (5th Cir.1977), in which we held that a particular stop was not justified. In Frisbie, however, there was no reasonable belief that criminal a......
-
U.S. v. Garcia
...United States v. Escamilla, 560 F.2d 1229 (5th Cir. 1977); United States v. Barnard, 553 F.2d 389 (5th Cir. 1977); United States v. Frisbie, 550 F.2d 335 (5th Cir. 1977). 25 The rationale for checkpoint stops is similar to that for other suspicionless searches sometimes referred to as "admi......
-
State v. Moore
...v. Garcia-Rodriguez, 558 F.2d 956 (9th Cir. 1977), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 802 (1978); United States v. Frisbie, 550 F.2d 335 (5th Cir. 1977); People v. Minjares, 24 Cal.3d 410, 591 P.2d 514, 153 Cal.Rptr. 224 (1979), cert. denied, 444 U.S. 887, 100 S.Ct. 181, ......
-
U.S. v. Pierre, 90-8273
...Martinez-Fuerte, 96 S.Ct. at 3087 (emphasis added); accord, Ortiz, 95 S.Ct. at 2598; Jackson, 825 F.2d at 861-62; United States v. Frisbie, 550 F.2d 335, 340 (5th Cir.1977). See also United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42......