U.S. v. Reyna, 76-1898

• Citation: 572 F.2d 515
• Decision Date: 05 May 1978
• Docket Number: No. 76-1898,76-1898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonel REYNA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 515

572 F.2d 515

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

No. 76-1898.

United States Court of Appeals Fifth Circuit.

May 5, 1978.

Rehearing and Rehearing En Banc Denied June 6, 1978.

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

J. A. Canales, 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. ^*

LEWIS R. MORGAN, Circuit Judge:

In United States v. Reyna, 563 F.2d 1169 (1977), we retained jurisdiction of the appeal pending determination by the district court of the status of the Sarita checkpoint as a functional equivalent of the border. Because the conviction of appellant was based wholly on evidence obtained during a search at the checkpoint, that determination would be dispositive of appellant's appeal. Because the district court determined that the Sarita checkpoint is the functional equivalent of the border, and we do not disturb that finding, we are now prepared to affirm.

In our first opinion we outlined the factors necessary to a determination of functional equivalence. Following United States v. Alvarez-Gonzalez, 542 F.2d 226 (5th Cir. 1976), we directed the district court to consider three major factors to determine functional equivalence: relative permanence of the checkpoint; minimal interdiction by the checkpoint of the flow of domestic traffic; and the practical necessity of the substitution of the interior checkpoint for the border in order to monitor international traffic. In addition, we required that the determination of functional equivalence relate to the time of arrest. Armed with results of the district court's hearing, we may now determine functional equivalence.

The major factor necessary to an affirmative determination of functional equivalence is the minimal interdiction of domestic traffic. See United States v. Bowen, 500 F.2d 960, 965 (9th Cir. 1974), aff'd 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975). Because minimal is somewhat qualitative, it has been indicated that should the percentage of domestic travel approach the majority, the checkpoint would not be the functional equivalent of the border. United States v. Alvarez-Gonzalez, 542 F.2d at 226. In the second Alvarez-Gonzalez case, 561 F.2d 620, 623 (5th Cir. 1977), the court determined that approximately 60% International traffic satisfied the test. In the instant case, a 1977 survey conducted by the Patrol, reported that approximately 68% Of the vehicles were considered non-domestic travel. Additionally, the chief border patrol agent for the area testified that the conditions were substantially unchanged since 1972 and, therefore, would conclude that the percentage in 1972 would vary by only one or two percent. It is necessary to note that in determining whether traffic was of international origin, the district court adopted the definition formulated in Alvarez-Gonzalez, 561 F.2d at 625. In Alvarez-Gonzalez, the court included in the "international" category, those who had begun their journey in the immediate border area. In the instant case, the "immediate border area" was defined as the area south of U.S. 281 running parallel to the border. Thus, the international traffic measured includes not only those trips begun across the border, but also those whose origin was on the Texas shore of the Rio Grande. We feel ourselves bound by Alvarez-Gonzalez in this definition of the international traffic, despite Judge Goldberg's eloquent and reasoned invitation to limit Alvarez-Gonzalez to the facts. Therefore, we accept the district court's finding that 68% Interdiction rate exists at the Sarita checkpoint and we hold...