United States v. Salazar-Gaeta

• Decision Date: 16 August 1971
• Docket Number: No. 71-1428.,71-1428.
• Citation: 447 F.2d 468
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arnulfo SALAZAR-GAETA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

447 F.2d 468 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Arnulfo SALAZAR-GAETA, Defendant-Appellant.

No. 71-1428.

United States Court of Appeals, Ninth Circuit.

August 16, 1971.

S. James Chapman (argued), of Harris & Chapman, San Diego, Cal., for defendant-appellant.

Shelby Goot, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Robert H. Filsinger, Chief, Crim. Div., San Diego, Cal., for plaintiff-appellee.

Before BARNES and MERRILL, Circuit Judges, and BYRNE, District Judge.^*

PER CURIAM:

Appellant raises three issues in this appeal, none of which appears meritorious. He first challenges the validity of the search of his automobile and person, and the admission at trial of the evidence discovered in the search. However, the facts contained in this record bring it within this Court's decision in United States v. Markham, 440 F.2d 1119 (9th Cir. 1971), and United States v. Weil, 432 F.2d 1320 (9th Cir. 1970). In Markham, an automobile traveled south on a road which did not cross the border, but approached very closely to it.

In Weil, this Court stated:

"It is provided in 19 U.S.C. § 482:

`Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, * * * or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or * * * otherwise, * * *\'

"In order to avoid conflict between this statute and the Fourth Amendment, the statutory language has been restricted by the courts to `border searches.\' We must remember, however, that the phrase `border search\' does not appear in either the statute or the Constitution. It is merely the the courts\' shorthand way of defining the limitation that the Fourth Amendment imposes upon the right of customs agents to search without probable cause. The latter right is predicated on the right and obligation of the government, which predate the founding of the Republic, to prevent the importation of contraband or of undeclared, and therefore untaxed, merchandise, and on the universal understanding that persons, parcels and vehicles crossing the border may be searched. See Judge Waterman\'s discussion of the phrase in United States v. Glaziou, 2 Cir., 1968, 402 F.2d 8, 12-14."

The automobile here crossed the border, was searched and no contraband found. The vehicle was then aimlessly driven around Calexico, then 10-12 miles west to Anza Bridge, where a dirt road goes south one or two miles to the border, but does not cross it, although a person may there walk across.

After 10 minutes, the vehicle reappeared on the road parallel to the boundary line, and turned east toward Calexico. The rear end appeared heavy and was lower. The vehicle was then parked in Calexico, on the street, 5 blocks west and 6 blocks north of the Port of Entry....