United States v. Fuentes, Crim. No. 74-B-69.

• Decision Date: 13 June 1974
• Docket Number: Crim. No. 74-B-69.
• Parties: UNITED STATES of America v. Rodolfo Trinidad FUENTES.
• Court: U.S. District Court — Southern District of Texas

379 F. Supp. 1145

UNITED STATES of America v. Rodolfo Trinidad FUENTES.

Crim. No. 74-B-69.

United States District Court, S. D. Texas, Brownsville Division.

June 13, 1974.

Anthony J. P. Farris, U. S. Atty., Houston, Tex., John Patrick Smith and Charles F. Sandoval, Asst. U. S. Attys., Brownsville, Tex., for the Government.

Knox Jones, McAllen, Tex., for defendant.

MEMORANDUM AND ORDER

GARZA, District Judge.

The Defendant Rodolfo Trinidad Fuentes is charged by Grand Jury indictment of possessing approximately 660 pounds of marihuana, with intent to distribute, in violation of 21 U.S.C. 841(a)(1). To this charge, he has entered a plea of not guilty and has filed a Motion to Suppress.

On May 10, 1974, a hearing was held on Defendant Fuentes' motion. The government called two witnesses, Max W. Ramee, the Assistant Chief of the U. S. Border Patrol Station at McAllen, Texas, and R. D. Kieffe, the U. S. Border Patrolman who made the checkpoint search and arrest. The Defendant did not call any witnesses and rested following the close of the government's evidence.

Apparently there is a feeling by the Border Patrol that their operations of checkpoint searches will soon be significantly effected by the expansion of the landmark holding of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), by the Fifth and Ninth Circuits. This feeling is well founded in light of the recent Fifth Circuit case of United States v. Speed and Rainer, 489 F.2d 478 (5th Cir. 1973), and United States v. Bowen, 500 F.2d 960 (9th Cir. 1974); United States v. Peltier, 500 F.2d 985 (9th Cir., 1974). In anticipation of this oncoming assault, the government elicited extensive testimony from Assistant Chief Ramee, who did not participate in the arrest, on the nature and scope of the La Gloria checkpoint in question. He testified that the Border Patrol operates a border patrol checkpoint on FM 1017, nine miles northwest of La Gloria, Texas. This checkpoint is approximately 32 miles from the United States-Mexican border and is in an area and along a route commonly used for the smuggling of aliens and contraband into the interior of the country. Toward the south, FM 1017 connects with at least three other roads that run directly to the Rio Grande River: FM 755, FM 681 and US 281. A quick reference to a map shows that the other two principal checkpoints in this area, Falfurrias and Sarita, are similarly located in strategic positions, and the reasoning advanced in this Memorandum underpinning the legality of the La Gloria checkpoint can also be applied to the Falfurrias and Sarita checkpoints.

Assistant Chief Ramee testified that the checkpoint is normally manned for one eight-hour shift a day, but that it cannot be manned around the clock because of manpower shortages and weather conditions. He also stated that it is the policy of the Border Patrol Agency to stop everyone travelling out of the Valley who passes by this checkpoint to make an immigration check.

Under a rather extensive cross examination, Assistant Chief Ramee stated that he did not know if anglos passing through this checkpoint to the north were simply "waved on" after a cursory glance by the operating agent and reemphasized that the policy was to stop everyone. It was also brought out on cross examination that the checkpoint is not always in the same location. It is moved up and down the same stretch of highway and, hence, may be found on different locations on different days, but always in the same area.

Border Patrolman R. D. Kieffe testified that on February 13, 1974, at 8:15 in the evening, he was manning the checkpoint when he was approached by a 1970 Chrysler driven by the Defendant Fuentes, who was accompanied by his son, Ramiro Fuentes. As the car rolled to a stop, he noticed that it was riding low in the back; while talking to the occupants of the car and visually inspecting the interior, he detected the scent of marihuana about the car, an odor that he had smelled on many prior occasions. Agent Kieffe then requested the driver to open the trunk of the car, but the driver stated that he did not have the key. Agent Kieffe noticed that the key to the trunk was with the ignition key. On checking in the trunk, Agent Kieffee found, in plain view, 660 pounds of marihuana in brick form.

The Defendant has urged upon this Court the position that this warrantless search does not qualify as a border search under the holding of Almeida-Sanchez, supra, and, therefore, must be judged under the standards of probable cause. He further contends that there was no probable cause for this search and that the search and seizure is, therefore, in violation of his Fourth Amendment rights. In addition to the case of Almeida-Sanchez v. United States, supra, he has cited to the Court the recent Fifth Circuit cases of United States v. Richard Glynn Byrd, 483 F.2d 1196 (CA 5 1973); United States v. Speed and Rainer, supra; and United States v. Lonabaugh, 494 F.2d 1257 (5th Cir. 1973). Finally, he has cited to the Court the recent Ninth Circuit en banc decision of United States v. Bowen, supra.

From the onset, this Court wishes to make clear that it is proceeding on the theory that the initial stop was made for the purpose of visually inspecting the passenger section of the car and ascertaining the citizenship of the occupants, pursuant to 8 U.S.C. § 1357. Thus, this Court must pass on the legality under the Fourth Amendment of not one, but two searches: the initial inspection and the subsequent search of the trunk. It is the opinion of this Court that the first search, the inspection, was legal, as the checkpoint was, in fact, the functional equivalent of the border, and it was reasonable to stop cars passing the checkpoint to inspect the citizenship of all passersby and search for aliens. Consequently, the second search — the opening of the trunk — was also legal, as it was based on probable cause derived from the first search and was attended by exigent circumstances.

As was pointed out in the Almeida-Sanchez decision, border searches may be carried out many miles from the border if they are conducted at a point that would qualify as a functional equivalent of a border. The Court, by way of illustration, specifically mentioned "searches at an established station near the border at a point marking the confluence of two or more roads that extended from the border might be functional equivalents of border searches". Almeida-Sanchez v. United States, supra, at 272, 273. In the wake of Almeida-Sanchez, a significant question has been raised over what is and what is not an "established", "fixed" or "permanent" checkpoint. It is the feeling of this Court that the use of words "established" and "fixed", with reference to checkpoints, was nothing more than a reaction to the capricious and whimsical search that was before that Court. These words do not refer, as it may seem, to the character of the highway location where the search is carried out, but rather to the manner in which it is carried out. This Court simply cannot believe that the Supreme Court of the United States meant to say that the Fourth Amendment rights here involved rise and fall with the presence or absence of "permanent" electrical outlets, large steel signs and concrete buildings. What the Supreme Court found offensive was the arbitrariness of the search that was directed against the Defendant Almeida-Sanchez. This arbitrariness is overcome by a search that is directed at everyone passing a particular point. It is the understanding of this Court that phrases in Almeida-Sanchez, such as "established" and "fixed", are references to checkpoints which are carried out in the same general area of a highway and which are directed at everyone passing that point toward the interior of the country. It is the spirit of this understanding that brings the La Gloria checkpoint within the notion of the type of functional border equivalent suggested by Almeida-Sanchez: an "established station near the border at a point marking the confluence of two or more roads that extend from the border". Since the La Gloria checkpoint was the functional equivalent of the border, Agent Kieffe had the right to make the initial stop and inspection, just as if he were at the border itself.

There is an additional reason why this checkpoint should be considered a functional equivalent. By virtue of handling the Brownsville Division of the Southern District of Texas for over thirteen years and having lived in the Rio Grande Valley all my life, I have become intimately acquainted with immigration methods and problems peculiar to border areas. This Court wishes to explain more fully some of these problems and methods, for this Court is convinced that a more complete comprehension of them is necessary to understand why the La Gloria checkpoint and those similarly situated are border equivalents and why searches carried out at such operations are reasonable.

There are three types of aliens passing through the Rio Grande Valley. The first class consists of legal entrants who have permission to travel throughout the country for extended periods of time. The second class is formed by legal entrants whose length of stay and geographic range are quite restricted. This class is principally made up of Mexican citizens who carry I-186 border crossing cards, which allow the bearer to visit any place lying within an imaginary zone which extends twenty-five miles from the border, for up to seventy-two hours. The third class consists of the legendary mojados, who literally swim the river, often under the cover of night.

At the request of this Court, the Immigration and Naturalization Service has provided this Court with two affidavits concerning the use and misuse of the I-186 cards, copies of which are appended and are herein incorporated for all purposes. They will be referred to by reference to the office from which they were issued,...