United States v. Wilson
| Decision Date | 14 January 1976 |
| Docket Number | Crim. No. 75-L-44. |
| Citation | 432 F. Supp. 223 |
| Parties | UNITED STATES of America v. John David WILSON. |
| Court | U.S. District Court — Southern District of Texas |
Joseph G. Garza, Laredo, Tex., for plaintiff.
George W. Shaffer, Corpus Christi, Tex., for defendant.
O'CONOR, District Judge.
The defendant John David Wilson is charged with unlawful possession of a controlled substance (493 pounds of marihuana) with the intent to distribute it, a violation of Title 21, U.S.C. § 841(a)(1) (1970), and with the unlawful carrying of a firearm during the commission of a felony, a violation of Title 18, U.S.C. § 924(c)(2)(1971). The defendant contends that the search of his vehicle was a continuing search originating at a roadside park and culminating at a border patrol checkpoint. He further contends that the search which revealed the presence of marihuana in the defendant's camper truck was unconstitutional under the Fourth Amendment and that the evidence thereby obtained should be suppressed. Defendant contends that this was not a border search reasonable under the Fourth Amendment. The government contends that the search was a functional equivalent to a border search and thus constitutional.
This case was tried with a stipulation as to the chain of custody and as to the substance being marihuana. The defendant filed a motion to suppress the evidence and any written or oral statements made by him at the time of or after his arrest.
On February 5, 1975, two border patrol agents were travelling south on Highway 649. Having gone off duty at 4:00 p. m., they were proceeding toward Rio Grande City with a load of illegal aliens whom they were returning to Mexico. At the intersection of Highway 649 with Highway 2687, they noticed a 1974 Ford pickup truck parked at a small roadside area. This area has a litter barrel but is not furnished with tables or benches. As they approached they noticed that a person was standing beside the truck. The agents stopped at the roadside area. They noticed that there was affixed to the back of the truck a camper attachment. The camper had windows "all the way around" which were not covered with curtains. The vehicle was parked so that a driver would be facing north.
Having stopped, the agents walked to the truck. One of the agents asked the defendant, who was standing beside the truck, if he was an American citizen, to which he replied in the affirmative. The defendant then told the agents that his truck's engine was overheated, and the agents asked him to open the hood. When he had opened it, the agents examined the condition of the engine and found no indications of overheating. There was no fizzling from the area around the radiator, and the removal of the radiator cap revealed no signs of an excessively heated coolant. One of the agents asked the defendant how long he had been parked there, and the defendant stated that he had been there 30 or 40 minutes.
The agents then walked around to the back of the truck and asked the defendant to open the camper. The defendant having complied, one agent climbed into the back of the camper and looked around. This agent testified that there was a strong odor of gasoline in the camper. Inside the camper was a "raised area", described also as a platform, and a bedroll. Having made this cursory examination, the agent stepped down on the pavement. The defendant appeared to be very tense throughout this encounter.
The defendant testified that one of the border patrol agents then told him to move on down the road. Border patrol agent McCord, however, testified that he had not instructed the defendant to leave the park nor had he instructed him to travel through the checkpoint.
Agent Michael McCord testified that this incident occurred at about 4:15 or 4:20, and that it would not have been possible for the defendant to have made a left turn on another highway and to have returned to Highway 649 in order to have arrived at the checkpoint at the time at which he did.
At the border patrol checkpoint, the border patrol agents were in their car near the stop sign. According to the defendant, shortly after his arrival he heard a question transmitted on the radio in the agent's car, "Is he there yet?" One of the officers replied, "Yes, he's here." Through a window in the camper Agent Jerry Harville could see the plywood-covered part of the area within the camper. He asked the driver to open the camper's back door. When it was opened, Agent Jerry Harville immediately observed a box in the back of the camper on the right side. The aroma of marihuana was quite obvious. The box was near the agent as he stood directly behind the truck, and through an opening in this box bricks of marihuana could be seen. One of the bricks had been torn open so that the marihuana inside was visible. Boxes containing marihuana bricks were under the plywood covering, and with the back door of the camper open, they could be seen from outside the camper. But with this back door closed, they could not be seen from the outside. Having probed further into this area, Agent Harville found 493 pounds of marihuana concealed in these boxes. The agents placed the defendant under arrest and read a Miranda warning from a card.
In this search, the agents found a number of items in the truck; some mattresses, and bedrolls, a loaded gun, a cigarette loading machine, a pair of binoculars, and a radio scanner, which could be used to detect transmissions from radios in the vicinity through constant scanning of the radio spectrum. Agent Harville turned these items over to Drug Enforcement Agent Lund, from whom the chain of custody was stipulated.
Agent Harville stated that the checkpoint had operated continuously from the midnight of February the 4th and 5th to the midnight of the 11th and 12th of February. During this period of seven days the checkpoint was operated twenty-four hours a day. This checkpoint has always been established in Randado; however, because of a lack of manpower and inclement weather, the checkpoint is not always operational. The equipment is not stored at the checkpoint. This equipment includes portable signs and lights. When the checkpoint is operational, all traffic is stopped. However, after it is dismantled, there is no way to detect the passage of cars and other vehicles.
The concept of functional equivalency to the border was first discussed in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). There the Court said:
Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches.
Later in United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), the Supreme Court held that searches at traffic checkpoints removed from the border and its functional equivalents may be conducted only where consent or probable cause is shown.
The Court for the Brownsville Division has held that the checkpoint at La Gloria was the functional equivalent of the border because of its geographical location in relationship to the border and the roads leading therefrom as well as because of the variety of evasive techniques used by aliens wishing illegally to penetrate the interior of the country. United States v. Fuentes, D.C. Tex., 379 F.Supp. 1145, aff'd, 517 F.2d 1401 (5th Cir. 1975). In that case the Court pointed out that Mexican nationals may obtain I-186 cards, which evidence the holder's privilege of entering the United States for a period of seventy-two hours, provided that the holder remains within twenty-five miles of the border. It was noted that at the La Gloria checkpoint and other checkpoints similarly situated Mexican nationals, while they may be holders of I-186 cards, must furnish additional documentation in order to proceed further north. Those who have crossed the river illegally, by swimming or other means, and have found means of transportation on this side, are subjected to the scrutiny of Immigration and Naturalization Service for the first time at such checkpoints. For these illegal aliens, the Court said that such checkpoints were a "second river". The Court further stated that the checkpoint was strategically located, that every car coming through the checkpoint had been stopped, and that the checkpoint was a permanent one.
The checkpoint in the instant case is near the intersection of Highway 649 and Highway 16 about one mile east of Randado. These highways are but two of the many intersecting thoroughfares which form a network between Highway 281, from McAllen through Falfurrias on the eastern side, and Interstate 35, from Laredo through Cotulla on the west. The network of arteries between these two major highways comprises lesser highways, farm-to-market roads, and county roads which criss-cross the wide expanse of the area. The southern boundary of this area is formed by Highway 83 into which many of the roads in the area connect. There are but a few cities in the area and only several small towns. Between these settlements, there are few habitations or people. The roads in the area are lightly travelled. There stands no chain-link or barbed-wire fence to block access from the river. There is no wall. There are no guards on sentry duty, nor are there watchtowers along this frontier. There are dozens of intervals of several miles each where there are no dwellings and no people, and where indeed there is hardly a sign of civilization, other than the vacant road. Depending on the season, the previous rainfall, and the exact location, there are many places where the nonswimmer can wade...
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U.S. v. Wilson
...tends to facilitate aliens and smugglers by affording them a wide range of choices in determining where to cross. United States v. Wilson, 432 F.Supp. 223, 226 (S.D.Tex.1977). The area to the south and southwest of Randado is sparsely There are but a few cities in the area and only several ......