U.S. v. Rengifo-Castro, RENGIFO-CASTR

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SETH, Chief Judge, and LOGAN and SEYMOUR; PER CURIAM
• Citation: 620 F.2d 230
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorgeefendant-Appellant.
• Docket Number: No. 79-1465,D,RENGIFO-CASTR,79-1465
• Decision Date: 25 April 1980

Page 230

620 F.2d 230 UNITED STATES of America, Plaintiff-Appellee,
v.
Jorge RENGIFO-CASTRO, Defendant-Appellant. No. 79-1465. United States Court of Appeals,
Tenth Circuit. April 25, 1980.

Page 231

R. Raymond Twohig, Jr., Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.

James F. Blackmer, Asst. U. S. Atty. (R. E. Thompson, U. S. Atty., Robert Bruce Collins, Asst. U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

PER CURIAM.

Appellant was charged with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting in violation of 18 U.S.C. § 2. A pretrial motion to suppress evidence found in appellant's suitcase was heard and denied. He was tried by a jury and found guilty.

Appellant was stopped by border patrol agents at a checkpoint on Interstate Highway 10 west of Las Cruces, New Mexico. He was driving a blue van. He stated that he was from Panama and had no passport. A passenger was discovered in the back of the van; he too had no passport.

The appellant and the passenger were escorted to a nearby border patrol office trailer. Agent Busch then entered the vehicle through the passenger side to look for aliens. He found three suitcases and took them to the trailer. They were opened by the appellant and the passenger at the agents' request.

The two men were questioned about their origin. The passenger claimed originally to be from Venezuela but now was a United States citizen. The agent noticed him shuffling with his waist band and he was immediately patted down whereupon a Colombian driver's license was found. Both men stated they were from Colombia and had no United States alien papers. The van had Florida plates, but a license check revealed no Florida registration. Both men were arrested and advised of their constitutional rights. Their suitcases were searched, and the cocaine in question was found in appellant's suitcase in a paper bag. No warrants were obtained for the search.

A motion to suppress the cocaine was denied before trial as above mentioned, and the issue on appeal concerns the search of appellant's suitcase. The question is whether a locked suitcase, after being removed from the control of an arrestee and after

Page 232

being opened by him at the request of border patrol agents, may be searched without a warrant.

This case presents another variation on the line-drawing that has become necessary when dealing with Fourth Amendment rights. As the Supreme Court observed recently, "an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights." Arkansas v. Sanders, 442 U.S. 753, 757, 99 S.Ct. 2586, 2589, 61 L.Ed.2d 235. In this case we cannot say that the warrantless search was "reasonable under all the circumstances." United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538. In Chadwick and Sanders the Supreme Court held invalid the warrantless search of closed luggage in an automobile when the defendants were already in custody and the luggage was in the "exclusive control" of authorities. Although in the case at bar the additional element of border search exceptions to the Fourth Amendment warrant requirement is presented, we cannot find that the facts in this case are sufficiently dissimilar to Chadwick and Sanders to ignore the mandate of those rulings. The border patrol exception to the warrant requirement has dealt thus far only with...