United States v. Wright, 72-3137 Summary Calendar.

• Decision Date: 28 March 1973
• Docket Number: No. 72-3137 Summary Calendar.,72-3137 Summary Calendar.
• Citation: 476 F.2d 1027
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Belmer Lewis WRIGHT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

476 F.2d 1027 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Belmer Lewis WRIGHT, Jr., Defendant-Appellant.

No. 72-3137 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 27, 1973.

Rehearing Denied March 28, 1973.

COPYRIGHT MATERIAL OMITTED

Sam Houston Clinton, Jr., Austin, Tex., for defendant-appellant.

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

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

PER CURIAM:

On appeal from a conviction of possession with intent to distribute 319 pounds of marijuana, a violation of 21 U.S.C.A. § 841, Appellant Wright raises only one contention—that the search of his vehicle which produced the voluminous quantities of the forbidden weed was violative of the guarantees of the Fourth Amendment, even under the broad "border search" rubric. We hold that the instant search falls well within the bounds of the border search doctrine and, accordingly, affirm.

Appellant and a female companion were stopped by agents of the Immigration and Naturalization Service at a point approximately 11 miles north of Laredo, Texas, and the Mexican border. According to the testimony of Immigration Officer James W. Knight, the officers' suspicions were somewhat aroused by the presence of a spare time in the back of Appellant's 1971 Ford station wagon. This seemingly harmless factor was suspicious when viewed through the eyes of these officers because of their knowledge and experience that spare tire wells were often used to conceal aliens. Officer Knight requested the Appellant to open the rear door of the station wagon. Looking inside the vehicle, the Officer saw that the floor deck was covered by a white cloth. He pulled back the cloth and opened the rear seat compartment which was under it.¹ Officer Knight observed several large heavily wrapped, plastic covered bundles in this compartment. Detecting an odor of marijuana, he promptly placed the Appellant under arrest. Upon further inspection it was determined that the bundles contained the marijuana.

It is a well-settled principle of law in this Circuit that Immigration Officers may search any vehicle which they have a reasonable suspicion to believe may contain aliens. United States v. McDaniel, 5 Cir., 1972, 463 F.2d 129; United States v. De Leon, 5 Cir., 1972, 462 F.2d 170; United States v. Maggard, 5 Cir., 1971, 451 F.2d 502; United States v. Bird, 5 Cir., 1972, 456 F.2d 1023. The test is not one of probable cause, but "reasonable suspicion". "In substance, the term `border search' is merely a short-hand method of stating that a search is, under the circumstances, a `reasonable' stretch of the usual Fourth Amendment standard of `probable cause' because of the proximity of an international frontier and other attendant factors." McDaniel, supra, 463 F.2d at 132.

In his excellent brief on appeal, Appellant seeks to distinguish McDaniel on several grounds. First, he suggests that because the internal check point therein was merely a temporary one rather than the permanent one in McDaniel there is less of a right to search. We fail to see the logic in this distinction, for, as we have stated, the Immigration Officers are authorized by statute and regulation to search at any point within a "reasonable distance"² from the border line. The effectiveness of the Border Patrol would be greatly diminished if the law required them to become creatures of their own habit.

Appellant also suggests that McDaniel requires "something more than just the stop before approving a search for aliens." Under McDaniel, a border search for aliens may be conducted if, in light of all the apparent facts at the time, government agents have adequate grounds for a reasonable suspicion that illegal aliens may be concealed within the vehicle, United States v. McDaniel, supra, at 133. In this case, Officer Knight's observation of a spare tire in the luggage compartment of the station wagon coupled with his knowledge that spare tire wells were often used to conceal aliens, justified his decision to open the rear compartment.

While the Immigration Officers are powerless to search bound bags too small to conceal aliens under the auspices of their immigration badges, the Court below found, as in McDaniel, supra, that Agent Knight and his partner had two badges—they were not only agents of the Immigration and Naturalization Service, but were also authorized Customs Officers. As such, they are authorized to search any package which they may have a reasonable suspicion to believe contains merchandise which was imported contrary to law.³ Thus, it was perfectly permissible for the Agents to convert what began as a search for aliens into a detailed search for contraband. McDaniel, supra at 134.

...