U.S. v. Soria

• Decision Date: 22 September 1975
• Docket Number: No. 73-2485,73-2485
• Citation: 519 F.2d 1060
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Gonzalez SORIA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1060

519 F.2d 1060

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Gonzalez SORIA, Jr., Defendant-Appellant.

No. 73-2485.

United States Court of Appeals, Fifth Circuit.

Sept. 22, 1975.

Thomas Rocha, Jr., San Antonio, Tex., for defendant-appellant.

Anthony J. P. Farris, 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 THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.

THORNBERRY, Circuit Judge:

A jury convicted Soria of possession of 316 pounds of marijuana with intent to distribute, and unlawful possession of a firearm during commission of a felony, violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(2) respectively. He now challenges those convictions contending that both were obtained with unconstitutionally seized evidence. Finding merit to Soria's position, we reverse.

On the afternoon of January 25, 1973, Customs Agent Leonard Williams received information from a confidential informer that "a group of marijuana traffickers in Nuevo Laredo, who had been known in the past to smuggle marijuana concealed in boats and other vehicles, were going to smuggle a load of marijuana that night." Williams ordered surveillance in the area, Customs Agent Lew positioned himself at the "Three Points" intersection in Laredo, Texas, ¹ and after about two hours, he saw a pickup truck pulling a boat pass through the intersection and proceed south on Highway 83. Acting on instructions from Williams, Agents Lew and Smith followed the vehicle for about fifteen uneventful miles. Again acting on instructions from Agent Williams, the two agents stopped Soria's vehicle at a point about one and a half miles from the Rio Grande River, and directed him to get out of the vehicle. ² They held Soria until Agent Williams arrived and the challenged search occurred.

At the outset, we note that the recent Supreme Court border search decisions do not affect our decision here. The decisions in United States v. Brignoni-Ponce, --- U.S. ---, 95 S.Ct. 2574, 45 L.Ed.2d 607, --- U.S. ---,95 S.Ct. 2590, 45 L.Ed.2d 630 (1975); United States v. Ortiz,--- U.S. ---, 95 S.Ct. 2585, 45 L.Ed.2d 623, --- U.S. ---, 95 S.Ct. 2590, 45 L.Ed.2d 630 (1975); Bowen v. United States, --- U.S. ---, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975), and United States v. Peltier, --- U.S. ---, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), all relate to the operations of Border Patrol agents, not customs officials. Ortiz and Brignoni-Ponce established standards of conduct for Border Patrol agents after the date of decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The search in question here preceded Almeida-Sanchez. In Peltier and Bowen the Court refused to apply the probable cause requirements for roving patrol and checkpoint searches to those searches conducted before June 21, 1973. The Court in both cases noted the absence of a statutory probable cause requirement and the agents' reasonable reliance on numerous circuit court decisions indicating that immigration officials had unfettered discretion to search any vehicle for aliens within the 100 mile radius of the border. The effect of the Court's decisions in Peltier and Bowen is to insulate all pre-June 21, 1973 immigration searches conducted within 100 miles of the border from constitutional challenge. ³

Customs agents however did not have the same unfettered discretion. Prior to Almeida-Sanchez our circuit consistently imposed a reasonable suspicion requirement at points beyond the border itself. See United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973); Morales v. United States, 378 F.2d 187 (5th Cir. 1967); Thomas v. United States, 372 F.2d 252 (5th Cir. 1967). See also Bowen v. United States, --- U.S. ---, 95 S.Ct. 2569, 2572 n. 1, 45 L.Ed.2d 641 (1975). Under these circumstances, the rationale of the Supreme Court in Peltier and Bowen is inapplicable, and we must judge this search under the standards set out in our decisions on customs searches.

Customs agents are charged with preventing the importation of contraband into the United States. Congress has granted the agents broad statutory authority to stop and search for contraband. 19 U.S.C. §§ 482,1581, 1582. But the Fourth Amendment still imposes a reasonableness requirement on customs searches. United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974); United States v. Warner, 441 F.2d 821 (5th Cir. 1971); Morales v. United States, 378 F.2d 187 (5th Cir. 1967). The determination of reasonableness must be made in light of the facts and circumstances of the individual case. United States v Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).

At the border itself, "the agent's statutory authority to search is virtually unfettered except perhaps as to due process concerning the manner, not the cause, of the search." United States v. Storm, 480 F.2d 701, 704 (5th Cir. 1973). In the general border area, their authority is not as broad. The Fourth Amendment allows customs agents to stop and search persons and vehicles without a warrant and on less than probable cause. United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974); United States v. Storm, 480 F.2d 701 (5th Cir. 1973); Thomas v. United States, 372 F.2d 252 (5th Cir. 1967). But the agents must have reasonable cause at the time of the search to suspect a violation of the customs laws. 19 U.S.C. § 482; United States v. Warner, 441 F.2d 821 (5th Cir. 1971); Morales v. United States, 378 F.2d 187 (5th Cir. 1967).

Our cases have uniformly required the Government to establish a nexus between the vehicle or person searched and the border. "(A)t the time of the search, the suspect must have had some reasonably direct connection with the border, considering such factors as the cause for the initiation of the search, the distance from the border and the original point of entry, and the time elapsed since entry. See United States v. Bursey, 5 Cir. 1974, 491 F.2d 531; United States v. Steinkoenig, 5 Cir. 1973, 487 F.2d 225; United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129, cert. denied, 1973, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041; United States v. Warner, 5 Cir. 1971, 441 F.2d 821, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58." United States v. Bowman, 502 F.2d 1215, 1219 (5th Cir. 1974). That essential nexus is not present in this case.

The informer's tip was of the most general nature: "a group of marijuana traffickers in Nuevo Laredo, who had been known in the past to smuggle marijuana in boats and other vehicles, were going to smuggle a load of marijuana that night." The agents had no description of the driver of the vehicle, the vehicle itself, or its destination. They had not seen Soria's vehicle cross the border. Indeed they had no reason to believe it had done so, or had been in contact with persons who had. Soria was heading south toward the border and toward Falcon Lake, a well known fishing spot. The vehicle did not engage in any suspicious activity during the period of time agents followed it. ⁴ There was simply no "reasonably direct connection" between Soria's vehicle and the border that would give the customs agents the authority for this search.

Soria's conviction on the firearms count cannot stand for another reason. On that count, the trial judge charged the jury as follows: "So, the elements of the offense as to count three which the government must prove beyond a reasonable doubt, is (sic) simply that the defendant was guilty of the first count, the possession of the marijuana with the intent, and that he was carrying a firearm at the time he did so." As the Second Circuit convincingly demonstrated in United States v. Ramirez, 482 F.2d 807, 813-15 (2d Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973), Congress in enacting 18 U.S.C. § 924(c)(2) clearly intended to punish persons carrying a firearm, without using it, during the commission of a felony only if possession of the firearm is itself unlawful. See also United States v. Howard, 504 F.2d 1281 (8th Cir. 1974). The Government in the trial below did not prove that Soria's possession of the weapon was unlawful in itself. Indeed, the trial judge specifically instructed the jury that such proof was unnecessary. The due process clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The Government here did not establish the element of unlawfulness essential to a conviction under 18 U.S.C. § 924(c)(2).

For the above reasons, we find that Soria's conviction for possession of marijuana with intent to distribute, and for unlawfully carrying a firearm during the commission of a felony cannot stand.

Reversed and remanded.

INGRAHAM, Circuit Judge (concurring in part and dissenting in part):

I concur in the reversal of Soria's conviction of Count Three, violation Title 18, U.S.C.A., Sec. 924(c)(2), the firearm count, and respectfully dissent from the majority opinion reversing his conviction of Count One, violation Title 21, U.S.C.A., Sec. 841(a)(1), the count covering the possession of approximately 316 pounds of marijuana.

It is clear that under ordinary circumstances the informant's tip lacked the necessary specificity to provide probable cause to stop and search appellant's vehicle and boat. Compare Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), with Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Nevertheless, the instant case is controlled by the border search doctrine which authorizes customs agents to search persons and vehicles without probable cause. United States v. Steinkoenig, 487 F.2d 225 (...