U.S. v. Shields, 75-3193

• Decision Date: 01 July 1976
• Docket Number: No. 75-3193,75-3193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Dale SHIELDS, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 605

534 F.2d 605

UNITED STATES of America, Plaintiff-Appellee, v. Robert Dale SHIELDS, Defendant-Appellant.

No. 75-3193

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

July 1, 1976.

Daniel V. Alfaro, Corpus Christi, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before BROWN, Chief Judge, GODBOLD and GEE, Circuit Judges.

PER CURIAM:

This case arose outside of Hebbronville, Texas, in the early morning hours of January 30, 1975, when an imbedded "Chekar" device was tripped and at a highway intersection some 20 minutes later, the defendant, Robert Dale Shields, was stopped by monitoring Agents of the U.S. Border Patrol. It is the reasonableness of this stop and probable cause for the subsequent search and use of the fruits of that search after Shields' automobile had allegedly tripped the "Chekar", that are the primary questions on appeal. On the basis of the Trial Judge's denial of the Motion To Suppress and in light of the recent opinion by this Court in United States v. Del Bosque, 5 Cir., 1975, 523 F.2d 1251, which is also out of the Hebbronville area and squarely in point, we reverse.

Shields was charged with a violation of Title 21 U.S.C. § 841(a)(1), of possessing with intent to distribute a controlled substance, over 330 pounds of marijuana and later convicted upon trial by the Court and sentenced to a term of four years, a Special Parole Term and a $1,000 fine.

The Defendant did not testify in his trial below nor did he produce any witnesses to his defense but the Motion To Suppress, denied by the Trial Judge, was carried with the case.

The facts in this case begin to unfold when Border Patrol Agent, Stephen A. Peregoy, and his partner were manning the midnight shift on January 30, 1975. It was close to 2:00 a. m. when the Agents received the alerting signal as Defendant's car touched off the Chekar device, imbedded underneath highway FM 1017 on the righthand lane as the road heads North. ¹ This Chekar device, located under the highway to Hebbronville, a city about 70 miles from the Mexican border via the most direct route, monitored all traffic traveling over it and moving in a Northerly direction on Farm Road 1017. The Border Agents were monitoring the Chekar and conducting a mobile traffic check at the intersection of Farm Road 1017 and Highway 285, the intersection being some 12 miles from the actual point of the imbedded Chekar. ² As Defendant's 1973 Pontiac Catalina approached the intersection it being the car suspected of tripping the Chekar the Border Agents followed Defendant Shields to within a mile of the city of Hebbronville and pulled him over for a "citizenship check."

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After the Agents stopped him, Defendant Shields got out of his car and walked to the back of the car. As Agent Peregoy questioned him as to his citizenship, he detected the odor of marijuana coming from Shields himself. The Agent walked over to the driver's door and with the window partially down, smelled a strong odor of marijuana coming from the vehicle and requested Shields to open the trunk where he discovered the kilo bricks of marijuana partially covered with a blanket. Shields and the contraband were turned over to an Agent for the Drug Enforcement Administration and Shields was arrested and given his Miranda warnings. He then told the D.E.A. agents that he had been furnished the car and was paid $500 to deliver the marijuana to Houston.

The question narrows here as it did in the almost factually and geographically identical United States v. Del Bosque, 5 Cir., 1975, 523 F.2d 1251 case to whether there was reasonable suspicion to stop Defendant's car by "roving" Border Patrol Agents. In Del Bosque the Court stated in quoting United States v. Brignoni-Ponce, 1975, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, that the officers had no reasonable suspicion to stop appellant's car. The Court in Brignoni-Ponce discussing Fourth Amendment rights stated that it forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the Country.

It also forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens. Except at the border and its functional equivalent, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the Country. See ...