U.S. v. Salinas
| Decision Date | 06 February 1980 |
| Docket Number | No. 79-5123,79-5123 |
| Citation | 611 F.2d 128 |
| Parties | 5 Fed. R. Evid. Serv. 753 UNITED STATES of America, Plaintiff-Appellee, v. Felipe SALINAS, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
L. Aron Pena, Edinburg, Tex., (Court-appointed), for defendant-appellant.
Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GODBOLD, HILL and POLITZ, Circuit Judges.
Salinas was convicted for possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1). The only issue is denial of his motion to suppress marijuana found in a warrantless search of Salinas' suitcases at a Border Patrol checkpoint located seven miles south of Falfurrias, Texas, on U.S. Highway 281. Salinas was a passenger on a commercial bus that stopped at the checkpoint. A Border Patrol agent entered the bus and questioned passengers concerning their citizenship. The agent asked Salinas where he was born, and Salinas responded that he was born in "the (Rio Grande) Valley." The agent was not sure that Salinas understood what the agent was asking, and for this reason the agent had Salinas get off the bus. The agent considered that he was detaining Salinas for further questioning, and he intended that the bus depart and leave Salinas behind in detention for further questioning.
The agent asked Salinas to identify his luggage. Salinas identified two suitcases. The agent removed them from the baggage compartment, and as he did so he detected a strong odor of marijuana emanating from one of the suitcases. The bus departed. The suitcases were taken into the checkpoint trailer and opened and marijuana was found inside.
The district judge orally denied Salinas' motion to suppress without statement of reasons. On the same day he filed a written order stating:
The Court does hereby take judicial notice of the location, justification, and other physical aspects of the Border Patrol checkpoint near Falfurrias, Texas, which is set up to control the entry of illegal aliens into this country and the traffic in illegal aliens on this side of the border, as determined by this Court in two other criminal actions: United States of America v. Jesus Sanchez-Garcia and Antonio Rios-Rodriguez, Cr. No. 73-C-75, and United States of America v. Bobby Franklin McGary and Jerry Wayne Ellison, Cr. No. C-78-17. . . . The Court has the authority to take judicial notice of such facts under Rule 201 of the Federal Rules of Evidence. See United States of America v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975) (Cert. denied, 424 U.S. 911, 96 S.Ct. 1107, 47 L.Ed.2d 315 (1976)).
We must consider the two decisions relied on by the district judge in his order, Sanchez-Garcia and McGary. In Sanchez-Garcia the district court considered the status of a checkpoint located 16 miles south of Falfurrias, Texas, on U.S. Highway 281, and in a lengthy written opinion found that it was the functional equivalent of the border. The court discussed in detail the Border Patrol's maintenance of a checkpoint located south of Falfurrias on Highway 281, sometimes located 2 miles south of Falfurrias other times 16 miles south, and occasionally 31 miles south. It found that all of these locations were north of the last side roads leading from the Mexican border and entering Highway 281. It found there was no way anyone could drive around any of the three checkpoint locations and that there were permanent installations at each point. The court discussed in detail the highway network, the population, and the nature of the countryside between Falfurrias and the Mexican border; the traffic count along Highway 281 south of Falfurrias; the number of apprehensions of aliens at the Falfurrias location(s) in FY 1971, 1972 and 1973 (more than 2,000 each year); and the similarity of the Falfurrias checkpoint locations to other points in Texas that previously had been held to be functional equivalents of the border. In addition, the court detailed the operating methods used at the checkpoint and the percentage of vehicles stopped. Sanchez-Garcia Was appealed and was affirmed by a Rule 21 decision, 517 F.2d 1402 (5th Cir. 1975).
McGary was decided by the same judge in the same district court in July 1978. It concerned the Falfurrias checkpoint after it had been removed, in 1973 and 1974, from the 16-mile location to the 7-mile location. The court found that the move was to a fixed and unvarying location where it had become a permanent facility. It found that there were no roads intersecting Highway 281 between the 31-mile and 16-mile...
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U.S. v. Jackson
...case arising out of the same checkpoint location, so long as such facts remain unchanged.' " Id. at 229 (quoting United States v. Salinas, 611 F.2d 128, 130 (5th Cir.1980)). Finding no evidence to suggest changed circumstances since Luddington, the court upheld the constitutionality of the ......
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U.S. v. Bengivenga
...Fourth Amendment because the Falfurrias checkpoint had been recognized as a functional equivalent of the border. See United States v. Salinas, 611 F.2d 128 (5th Cir.1980). Although this circuit has previously authorized plenary searches at such checkpoints, we recently refused to uphold ple......
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U.S. v. Jackson
...49 L.Ed.2d 1226. Needless to say, we will not reconsider this issue each time a search is made at Sierra Blanca. In United States v. Salinas, 611 F.2d 128, 130 (5th Cir.1980), we It is not required that the underlying facts concerning a particular checkpoint location be proved over and over......
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U.S. v. Oyarzun
...may take judicial notice of the functional equivalent status of a particular checkpoint once it has been established. United States v. Salinas, 611 F.2d 128 (5th Cir.1980). Indeed, "[i]t is not required that the underlying facts concerning a particular checkpoint location be proved over and......