U.S. v. Walker
| Decision Date | 29 October 1975 |
| Docket Number | 74-4029,Nos. 74-3866,s. 74-3866 |
| Citation | 522 F.2d 194 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee WALKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gonzalo HERNANDEZ, Jr., Defendant-Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Southern District of Texas.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
In these appeals the Government, relying on United States v. Brignoni-Ponce, 422 U.S. ---, 95 S.Ct. 2574, 45 L.Ed.2d 607, has filed a consolidated petition for rehearing of our reversals of the convictions of Walker and Hernandez, for possessing marijuana with intent to distribute it in violation of 21 U.S.C.A. § 841(a)(1). For the reasons hereafter appearing we grant the petition, withdraw our opinions, 1 and affirm the respective judgments of conviction.
In a bench trial it was stipulated that on June 5, 1974, about 1:30 in the morning, two Border Patrol officers in a marked car located at the junction of Highways 16 and 285, received an electronic signal from a Chekar device indicating that three vehicles travelling close together were approaching Hebbronville on Highway 16, which originates at the border town of Zapata, about 52 miles distance. When the vehicles reached the junction of Highway 285 the officers observed that the three vehicles were travelling together at a high rate of speed, and each vehicle was riding low in the rear as if heavily loaded. The vehicles failed to stop at the intersection and turned east on Highway 285. The officers gave pursuit during which speeds in excess of 85 miles per hour were reached. The officers were finally able to stop the last vehicle, which was being driven by Hernandez, about two miles east of Hebbronville. While questioning Hernandez about his citizenship the officers smelled the odor of marijuana coming from the vehicle. Upon opening the trunk 288 pounds of marijuana was found. While one officer stayed with Hernandez and his vehicle the other officer took up the pursuit of the other two vehicles and finally succeeded in stopping the vehicle driven by Walker about ten miles east on Highway 285. When Walker opened the trunk upon request, 198 pounds of marijuana was found. The third vehicle escaped. Motions to suppress the evidence were made and denied and the convictions of Walker and Hernandez ensued.
The related facts bring these cases within the parameters set by the Supreme Court in Brignoni-Ponce. There the Court said:
. . . (B)ecause of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. . . . The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but...
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