U.S. v. Venzor-Castillo, VENZOR-CASTILL
Decision Date | 14 April 1993 |
Docket Number | No. 92-2190,VENZOR-CASTILL,D,92-2190 |
Citation | 991 F.2d 634 |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. Rodolfoefendant-Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
Kelly H. Burnham, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with her on the brief), Las Cruces, NM, for plaintiff-appellant.
Charles A. Harwood, Silver City, NM, for defendant-appellee.
Before McKAY, Chief Circuit Judge, SETH, Senior Circuit Judge, and MOORE, Circuit Judge.
The United States appeals from an order of the district court granting defendant Rodolfo Venzor-Castillo's motion to suppress evidence the government intended to introduce in defendant's trial for alien smuggling. 816 F.Supp. 683. The evidence was obtained from a Border Patrol stop of his vehicle. The government attacks the district court's holding that the Border Patrol agent lacked reasonable suspicion to make the stop. The district court found that the stop was unreasonable because it occurred approximately 235 miles from the United States-Mexico border on a road that is not a direct route from the border and passes through thirteen New Mexico towns and cities between the nearest border point of entry and the location of the stop. The court held the location was not "a reasonable distance from any external boundary of the United States" within the meaning of 8 U.S.C. § 1357(a)(3). We agree and affirm.
The essential facts found by the district court are not disputed by the government. We shall, therefore, rely upon them.
On June 14, 1992, United States Border Patrol Agent David Smith was patrolling New Mexico State Highway 36, a lightly traveled roadway in a remote area of the northern portion of Catron County, New Mexico. That part of Highway 36 is located in a sparsely populated area of Western New Mexico near the Arizona border, virtually in the center of the North-South axis of the state and approximately 235 miles north of the Mexican border. The district court found the most direct route to this portion of Highway 36 starts at Palomas, Mexico, the nearest border crossing, and passes through thirteen New Mexico towns or cities. 1 In addition, the section of Highway 36 involved here is a segment of the highway route that extends from the Mexican border to I-40, an east-west interstate highway. The route traverses New Mexico Highways 11, 12, 32, and 117 and U.S. Highway 180. It is also noteworthy that Quemado, New Mexico, south of the point where Agent Smith was working, is on U.S. Highway 60, a direct link between Highway 36 and the nearby Arizona border.
Agent Smith's supervisors recently had assigned him, an agent with over ten years of experience, to patrol the north Catron County area for a week because of an increase in cases of alien smuggling in the area. During the month prior to Agent Smith's assignment, local law enforcement authorities had reported nine cases involving the arrest of thirty undocumented aliens in that location.
Border Patrol authorities believed alien smugglers were travelling through Catron County more frequently to avoid the permanent checkpoint located near Truth or Consequences, New Mexico. In their opinion, the Catron County route allowed smugglers to circumvent that known checkpoint and still return to I-25 for a direct route to Albuquerque and points north.
At 4:00 p.m., within half an hour after arriving at this location, Agent Smith and two other agents were standing next to a marked Border Patrol vehicle along the edge of Highway 36. Agent Smith noticed the defendant's car as it headed north around a curve. When he first spotted the car, he observed four or five occupants seated upright. As the car approached Agent Smith, however, he saw the passengers in the back seat slide down. Agent Smith also noted the car appeared to be heavily loaded with its undercarriage close to the road surface causing the tail pipe to drag on the road when the car hit bumps. He stated the vehicle was a large, older model Cadillac, which he often found to be favored by alien smugglers. Agent Smith thought it noteworthy that the three occupants in the front seat stared straight ahead as they passed him instead of looking toward him and his companions or the marked patrol car as most travelers do under similar circumstances.
Agent Smith and his partner followed the defendant's car for a few miles, observing, in the meantime, the car had a temporary license in the rear window instead of a license plate. With binoculars, Agent Smith also distinguished the tops of three heads in the back seat. The agents then stopped the car. After determining the five passengers were undocumented aliens, Agent Smith arrested the driver, defendant Venzor-Castillo.
In ruling upon the defendant's motion to suppress the evidence obtained as a result of the stop, the district court was struck by the distance from the border at which the stop occurred. Interpreting 8 U.S.C. § 1357(a)(3), which authorizes any immigration agent "without warrant ... within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle," the court determined it was bound by "a legislative limitation on the range within which United States border patrol agents ... may patrol in an effort to detect alien smuggling." The regulations interpreting this section define a "reasonable distance" as "within 100 air miles from any external boundary of the United States." 8 C.F.R. § 287.1(a)(2). The district court also found, when the defendant was encountered, he was driving on a highway during a summer afternoon when legitimate tourist traffic is greater than at other times of the year. Finally, the court found the point of the stop is more than 100 direct air miles from the border.
After analyzing the cases and the statute, the district court concluded the stop of the defendant violated the Fourth Amendment, stating:
The distance of the stop from the border, coupled with the fact that the route to the closest border crossing point leads through thirteen different United States towns or cities before reaching the point of the stop, and the absence of specific information the defendant's vehicle recently had crossed the border, suggest that Agent Smith lacked reasonable suspicion to believe that the Cadillac was coming from the border area and that alien smuggling was occurring when he stopped the defendant's vehicle.
Reviewing a ruling on a motion to suppress, we accept the trial court's findings of fact unless clearly erroneous. United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989) (citing United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984)). "The ultimate determination of reasonableness under the fourth amendment is, however, a conclusion of law that we review de novo." Id. (citation omitted).
We start our analysis with a review of the legal and constitutional principles that bring us to the question at hand. The foundation of the review is the proposition that the right of government agents to stop and search travelers at international borders has never implicated Fourth Amendment principles. Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). In particular, probable cause has never been required to justify invasive actions that take place there. Indeed, the Court stated in United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977):
Border searches ... from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause.
(emphasis added). Essential to that rationale is the principal fact that the person or object searched has come from across the border. See Carroll, 267 U.S. at 154, 45 S.Ct. at 285; United States v. Montoya de Hernandez, 473 U.S. 531, 537-38, 105 S.Ct. 3304, 3308-09, 87 L.Ed.2d 381 (1985).
Nonetheless, to broaden the government's search authority, Congress enacted 8 U.S.C. § 1357(a)(3) as part of the Immigration and Nationality Act. Notwithstanding the breadth of power ostensibly conferred by that section, the Supreme Court held the statute cannot allow conduct which violates the Constitution. Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973). Consequently, in recognition of the government's power to exclude aliens and to effect that power "by routine inspections and searches of individuals or conveyances seeking to cross our borders," the Court conceived the government's right to stop and search without probable cause at places that are the "functional equivalent[ ]" of the border. Id. At the same time, however, the Court held a roving patrol 20 miles from the border "was of a wholly different sort." Id. at 273, 93 S.Ct. at 2539. Because that stop was not at the functional equivalent of the border, the Court applied Fourth Amendment considerations and determined it was unreasonable.
Expanding upon the power to stop in view of the important public consideration of protecting our borders, the Court held, subsequently, Border Patrol officers on roving patrol need not have probable cause to conduct investigatory stops. However, they "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." United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975). 2
Although the Court made clear stops...
To continue reading
Request your trial- Nordwall v. PHC-Las Cruces, Inc.
-
U.S. v. Hernandez–lopez
...25 F.3d 1481, 1485 (10th Cir.1994) (finding support from a proximity of sixty miles from the border); United States v. Venzor–Castillo, 991 F.2d 634, 635, 639 (10th Cir.1993) (holding an agent lacked reasonable suspicion to conduct a stop 235 miles from border). The United States Court of A......
-
U.S. v. Juarez-Torres
...borders and their functional equivalents, the protections of the Fourth Amendment are not applicable. United States v. Venzor-Castillo, 991 F.2d 634, 636-37 (10th Cir.1993) (citing Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ); see also, Almeida-Sanch......
-
U.S. v. Barron-Cabrera
...115 S.Ct. 1386, 131 L.Ed.2d 238 (1995); United States v. Peters, 10 F.3d 1517, 1519, 1521-22 (10th Cir.1993); United States v. Venzor-Castillo, 991 F.2d 634, 635-36 (10th Cir.1993); United States v. Guillen-Cazares, 989 F.2d 380, 383 (10th Cir.1993); United States v. Miranda-Enriquez, 941 F......