U.S. v. Reyna, 76-1898

• Decision Date: 28 November 1977
• Docket Number: No. 76-1898,76-1898
• Citation: 563 F.2d 1169
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonel REYNA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1169

563 F.2d 1169

UNITED STATES of America, Plaintiff-Appellee, v. Leonel REYNA, Defendant-Appellant.

No. 76-1898.

United States Court of Appeals Fifth Circuit.

Nov. 28, 1977.

Ramon Garcia, Edinburg, Tex., for defendant-appellant.

James R. Gough, Jr., U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG and MORGAN, Circuit Judges, and WYZANSKI, District judge. ^*

MORGAN, Circuit Judge:

At issue in this case is whether a search of a vehicle occurring at a permanent checkpoint at Sarita, Texas, resulting in the seizure of marijuana violated appellants' fourth amendment rights under the Constitution. In order to decide this ultimate issue, it is necessary to determine whether the Sarita checkpoint is the functional equivalent of the border for search purposes. Because the record lacks sufficient facts from which a determination can be made, we remand the case to the district court for further factual exploration.

Appellants' car was stopped at the Sarita checkpoint on Highway 77, about five miles south of Sarita. Pursuant to checkpoint authority, the Border Patrol officer inquired of appellant his citizenship status. During the brief questioning, the border officer detected an odor of air freshener. Viewing this absence of marijuana aroma as suspicious, the officer directed appellants' vehicle to a search area. Although the appellant objected to search of the trunk of the vehicle because the trunk was broken, a screwdriver being handy, the trunk yielded its secrets. The search of the trunk revealed 200 pounds of marijuana.

Appellant was convicted in the United States District Court for the Southern District of Texas of knowingly possessing marijuana with intent to distribute pursuant to 21 U.S.C. § 841 and sentenced to two years imprisonment. In arriving at its decision the district court held that, under the circumstances, there was no probable cause for the search. Because of absence of probable cause, the court determined that the search could only be upheld if the Sarita checkpoint is the functional equivalent of the border. If so, the court reasoned, no probable cause was necessary for the search. In order to determine the functional equivalence of the checkpoint, the district court took judicial notice of the physical surroundings and statistical data of the checkpoint. Based on the surrounding geographic area, the necessity for an "inland" search point, and statistical evidence, the district court determined that the Sarita checkpoint was the functional equivalent of the border. This determination frames the issue at bar.

The Sarita checkpoint is located about five miles south of Sarita on Highway 77. The checkpoint is about eighty-five miles from the closest point on the Mexican border. Although subsequent to the time in question the checkpoint has been permanent, in 1972 the physical location alternated between two locales. Even if the Sarita checkpoint would qualify in 1972 as a permanent checkpoint that status would only permit stopping the vehicle and questioning the occupants' citizenship, without probable cause, not a full-fledged search. United States v. Santibanez, 517 F.2d 922, 923 (5th Cir. 1975). At the functional equivalent of a border, however, Border Patrol officers may conduct searches lacking probable cause, Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Thus, the question at bar is whether the Sarita checkpoint is the functional equivalent of a border thereby rendering the search of appellants' vehicle reasonable under the fourth amendment.

The criteria for the determination of functional equivalence were expounded by this court in United States v. Alvarez-Gonzalez, 542 F.2d 226, 229 (5 Cir. 1976) following United States v. Hart, 506 F.2d 887, 896 (5th Cir. 1975), vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706 (1975), reaff'd 525 F.2d 1199 (5th Cir. 1976) (on remand). In Alvarez-Gonzalez the court evaluated three basic factors: (1) the character of the checkpoint, (2) the ratio of international and domestic traffic, and (3) the degree to which, in real effect, the checkpoint functions as one physically located at the border.

The permanence of the checkpoint is the initial consideration. The checkpoint must be permanently located as a border checkpoint would, in order to be functionally equivalent. Therefore, a roving checkpoint approximating a border patrol would not be functionally equivalent to a border checkpoint. Almeida-Sanchez v. United States, 413 U.S. at 273, 93 S.Ct. 2535. As the district court has noticed, the Sarita checkpoint has been permanently located five miles south of Sarita since 1973. In 1972, however, the critical time for determination of functional equivalence, the checkpoint was alternating between two "permanent" locations, five miles south of Sarita and twelve miles south of Sarita. Although such alternation does render the permanence...