United States v. Winer, Cr. No. 68-138.

• Decision Date: 21 January 1969
• Docket Number: Cr. No. 68-138.
• Citation: 294 F. Supp. 731
• Parties: UNITED STATES of America v. Ethan G. WINER and Anthony F. Perillo.
• Court: U.S. District Court — Western District of Texas

294 F. Supp. 731

UNITED STATES of America v. Ethan G. WINER and Anthony F. Perillo.

Cr. No. 68-138.

United States District Court W. D. Texas, San Antonio Division.

January 21, 1969.

Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff.

Mitchell S. Rosenheim, San Antonio, Tex., for defendant Winer.

Anthony Nicholas, San Antonio, Tex., for defendant Perillo.

SPEARS, Chief Judge.

On July 19, 1968, Officers Appel and Gerusa of the United States Border Patrol were at a checkpoint located on Interstate Highway 35 about 2 miles south of Moore, Texas, routinely checking the nationality of occupants of automobiles arriving from the direction of the Mexican border. At about dusk the automobile, an Opel Kadett, driven by defendant Winer and carrying defendant Perillo, arrived at the checkpoint and stopped. While the automobile was stopped, and after some preliminary investigation, it was searched and there was found therein a plastic package containing what appeared to be about 11 ounces of marihuana. As a result, defendants were subsequently charged with receiving, concealing, and facilitating the transportation and concealment of illegally imported marihuana in violation of 21 U.S.C. § 176a, and with failing to pay the transfer tax on marihuana in violation of 26 U.S.C. § 4744(a) (2). Defendants moved to suppress any evidence seized, asserting that the search and seizure were unreasonable and thus in violation of the fourth amendment. Believing that the search and seizure were unreasonable, this court holds that the contents of the plastic package are not admissible as evidence in this criminal prosecution.

From the testimony it appears that neither of the officers at the checkpoint had any advance information that the car transporting the defendants in this case was approaching the checkpoint, nor did they have any reason prior to the stopping of the defendants' automobile to suspect that it was carrying contraband. Rather, the suspicion which culminated in the search and seizure was aroused entirely by events occurring after the automobile had been stopped at the checkpoint. The search was conducted without a search warrant.

The events at the checkpoint may be briefly summarized. When the automobile transporting the defendants stopped, Officer Appel asked the defendants the routine question concerning their nationality. Both answered that they were citizens of the United States. Then Officer Appel asked them whether they were bringing anything with them from Mexico. Winer, seated in the driver's seat of the automobile, answered yes, while Perillo, occupying the other front seat, was shaking his head to indicate a negative answer. Officer Appel testified that he interpreted Perillo's action as an attempt to signal his companion that he should be answering in the negative. Upon receiving these suspiciously inconsistent responses to the question, Officer Appel ordered Winer to pull his automobile off the highway and to open the trunk. Then, without communicating to Officer Gerusa the particular reason for his ordering the automobile to be pulled off the highway, Officer Appel returned to the checkpoint and resumed his stopping of approaching automobiles.

As the defendants' automobile was pulled off the highway, Officer Gerusa approached it with the intention of searching for aliens. From the established practice at the checkpoint, Officer Gerusa knew by the fact that the automobile had been pulled off the road that his partner Officer Appel had determined that it should be searched for that purpose. However, he was not aware of any details of the conversation that prompted his partner to make that determination.

Approaching the automobile, Officer Gerusa saw Perillo in the right front seat of the automobile bending forward as if reaching for something on the floorboard. Proceeding to the rear of the automobile with Winer and looking into the trunk, he observed through the rear window of the automobile that Perillo remained in the same position, apparently working with something on the floor. Finding nothing suspicious in the trunk, Officer Gerusa then walked to the right door of the automobile and told Perillo to get out so that he could look under the seat. Upon reaching under the seat, the officer immediately discovered the plastic package that is the object of this motion to suppress.

Both the officers were employed by the Immigration and Naturalization Service. In that capacity they were authorized by statute "without warrant * * * but within a reasonable distance from any external boundary of the United States, to board and search for aliens any * * * vehicle." 8 U.S.C. § 1357(a) (3) (1964) (emphasis added). By regulation, the statutory term "a reasonable distance" has been limited for ordinary circumstances to mean a distance not exceeding 100 air miles. 8 C.F.R. Ch. 1 Pt. 287.1(a) (2) (1968). The regulations also provide guidelines for the district directors of the Immigration and Naturalization Service to follow in establishing checkpoints a reasonable distance from the border and within the 100 air miles limit. See 8 C. F.R. Ch. 1 Pt. 287.1(b) (1968). However, it was never seriously argued in this case that the checkpoint was not established in compliance with the applicable regulations, or that it was not within the statutory "reasonable distance" from the border. See Fernandez v. United States, 321 F.2d 283, 286 (9th Cir. 1963). Consequently, the officers were authorized to stop the automobile transporting the defendants and, without a warrant, to conduct a search for aliens.

The search by Officer Gerusa of the trunk of the automobile was clearly within this authority, since the trunk is a logical place to look for aliens being illegally transported. However, it is neither reasonable nor realistic to say that when he looked under the seat of the small Opel Kadett automobile he was looking for aliens. See Contreras v. United States, 291 F.2d 63, 66 (9th Cir. 1961); United States v. Hortze, 179 F. Supp. 913, 917 (S.D.Cal.1959). Since it was the search under the seat that produced the contraband, the government may not rely on the statutory authority of 8 U.S.C. § 1357(a) (3) (1964) to establish that that portion of the search was reasonable.

In addition to their duties as officers of the Immigration and Naturalization Service, Officers Appel and Gerusa were authorized as customs agents to make investigations and arrests in connection with customs violations such as that...