United States v. Speed, 73-2035.

• Decision Date: 28 December 1973
• Docket Number: No. 73-2035.,73-2035.
• Citation: 489 F.2d 478
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Robert SPEED and Henry Ray Rainer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 478 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Steven Robert SPEED and Henry Ray Rainer, Defendants-Appellants.

No. 73-2035.

United States Court of Appeals, Fifth Circuit.

December 28, 1973.

Fisher Alsup, Corpus Christi, Tex. (court-appointed), for Rainer.

Ronald D. Karchmer, Corpus Christi, Tex. (court-appointed), for Speed.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellants Speed and Rainer were convicted in a jury trial in the United States District Court for the Southern District of Texas of possession of marihuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On appeal from these convictions, appellants argue that nine errors were made during their joint trial. Finding that the search which produced the marihuana introduced into evidence at the trial violated appellants' rights under the Fourth Amendment, we need not deal with any of the other assertions of error.

Early in the morning of June 18, 1972, appellants' car was stopped by the Border Patrol at a temporary checkpoint south of Falfurrias, Texas. The checkpoint was located on U. S. Highway 281, approximately 65 to 75 miles north of the Mexican border. The location was frequently used by the Border Patrol because in the past, it had been particularly effective in revealing illegal aliens and contraband. Highway 281 is a north-south artery connecting the border with the interior of the state. The area between the checkpoint and the border is sparsely populated, but between the checkpoint and the border are several small towns—among them, Rachal, Linn, Solino, Faysville and Edinburg. Thus, traffic traveling from these towns toward the interior of the state would pass through the checkpoint.

After the Border Patrol agent had stopped appellants' car, he inquired if they were American citizens. Upon finding that they were, he asked them to open the trunk. They told him they did not have the key. The agent then had the back seat of the car removed so he could search the trunk. The search revealed approximately 40 pounds of marihuana, which was introduced as evidence at appellants' trial. The search was supported by neither probable cause nor a warrant, but the district court denied appellants' motion to suppress the marihuana on the grounds that the search was justified by 8 U.S.C. § 1357¹ and was a border search.

The so-called "border search" exception to the warrant and probable cause requirements of the Fourth Amendment has received considerable attention in this circuit, especially since Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). See, e. g., United States v. Lonabaugh, (5 Cir. 1973) December 17, 1973, No. 73-2241; United States v. Steinkoenig, 487 F.2d 225 (5 Cir. 1973); United States v. McKim, 487 F.2d 305 (5 Cir. 1973); United States v. Bean, 484 F.2d 1275 (5 Cir. 1973); United States v. Byrd, 483 F.2d 1196 (5 Cir. 1973).

The idea that "border searches" are not restricted by the warrant and probable cause requirements of the Fourth Amendment was recognized by the Supreme Court long before Almeida-Sanchez. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925). But the concept was never given any specific content by the Court, and different circuits had given wideranging interpretations to the doctrine. E. g., United States v. McDaniel, 463 F.2d 129 (5 Cir. 1972), United States v. Hill, 430 F.2d 129 (5 Cir. 1970), United States v. Garcia, 415 F.2d 1141 (9 Cir. 1969), United States v. Glaziou, 402 F.2d 8 (2 Cir. 1968), United States v. McGlone, 394 F.2d 75 (4 Cir. 1968). See Anno., 6 A.L.R.Fed. 617 and cases cited therein.

Almeida-Sanchez, if it has not answered all the questions about this area of the law, has at least given new focus to the inquiries. We must now ask if a search occurred either at the border or at the functional equivalent thereof. 93 S.Ct. 2535, 37 L.Ed.2d at 602. If not, then it is not a border search.

With respect to the question of what constitutes a search at the functional equivalent of the border, this court recently observed,

Proximity to the border is not the only standard for determining whether a search is the functional equivalent of a search at the border. There must be some substantial connection with an actual or suspected border crossing by the person or thing to be searched. In other words, the searching officers must know or have a reasonable suspicion that the very individual or thing to be searched has itself just crossed the border. Judicial notice or even proof of many illegal acts in the area in which the search takes place is not enough. United States v. Lonabaugh, supra.

In Almeida-Sanchez, a roving border patrol searched a car on an east-west highway about 25 miles from...