U.S. v. Sperow, s. 76-1167

• Decision Date: 23 May 1977
• Docket Number: Nos. 76-1167,76-1168,s. 76-1167
• Citation: 551 F.2d 808
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Frank SPEROW and Tommy Fine, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 808

551 F.2d 808

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Frank SPEROW and Tommy Fine, Defendants-Appellants.

Nos. 76-1167, 76-1168.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 28, 1977.

Decided March 23, 1977.

Certiorari Denied May 23, 1977

See 97 S.Ct. 2634.

Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.

Terrence A. Roden, of Ronald J. Le Mieux & Associates, Los Angeles, Cal., for defendant-appellant Gregory Frank Sperow.

Vince D. Angelo (Robert T. Knott, of Knott & Associates, Albuquerque, N. M., on the brief), for defendant-appellant Tommy Fine.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Defendants-appellants seek reversal of convictions for possession and importation of marijuana. This is an arrest and search which took place very near to the Republic of Mexico-New Mexico border, on August 20, 1975, at about 2:00 a. m. The validity of the border patrol's stopping and searching the vehicle is challenged.

The agents testified to having received, by radio sensor, data identifying the appellants' truck as it was traveling in a westerly direction parallel to the border. The road on which the appellants were traveling at the time that Sensor No. 212 picked them up (Highway 9) was an east-west road, and the place where they were located was one and one-half miles from the Mexican border. The Sensors to the east of Sensor 212, however, had not been tripped. On the east-west highway on which they were first identified, they were traveling in a westerly direction. Suddenly they turned north on another road and were stopped while traveling in this direction at a point some 18 miles from the border.

When questioned, one of the defendants said that they had come from El Paso. This aroused suspicion because it was inconsistent with the data which the agents had. During the questioning, and upon one of the agents smelling marijuana in the vehicle, a search was conducted and a large quantity of marijuana was uncovered in the back of the truck.

It is the contention of defendants-appellants that the agents lacked the requisite knowledge to arouse a reasonable suspicion necessary to justify the stopping of the vehicle for a preliminary investigation. Defendants also contend that the search itself was thereby invalid.

The Supreme Court in a recent decision, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), has given recognition to the proposition urged by the government, namely, that it is permissible to stop automobiles at locations in close proximity to, but removed from the border itself or valid checkpoints, for the purpose of questioning occupants about their citizenship and immigration status. In so recognizing the right to make such preliminary investigations, Brignoni-Ponce differs from United States v. Almeida-Sanchez 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), wherein the right to stop and search by a roving patrol, acting with neither a warrant nor probable cause at points removed from the border, was condemned. About the only factor which justified the preliminary stopping and questioning in Brignoni-Ponce was that the occupants appeared to be of Mexican ancestry. The Supreme Court held that this was an insufficient predicate for this kind of investigative activity. The real significance of Brignoni-Ponce, however, was its recognition of the legality of officers briefly stopping automobiles based on the ground that they suspected that they were illegal aliens. The Court noted that it was a limited intrusion which in proper circumstances could give way to the public interest served by the preliminary investigation.

The analogy which is used by the Court is Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which limited search of a person for weapons was approved based upon reasonable suspicion that the individual searched had a concealed weapon. The Court also relied on Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 530 (1972), which held that a policeman acted legally in approaching a suspect for the purpose of investigating whether he was carrying narcotics and a gun, a tip having been furnished to the officer.

The Supreme Court in Brignoni-Ponce emphasized that articulable factors must be present in order to justify an...