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

United States Court of Appeals for the Fifth Circuit1974-07-18No. No. 73-2035

497 F.2d 546

Summary · law.co

Holding. The judgment of the district court is reversed because the government failed to demonstrate either reasonable suspicion of a Customs or Immigration violation or a valid nexus with the border, making the search unlawful even under pre-existing constitutional standards.

Border Patrol agents stopped a vehicle at a checkpoint on a highway between 65 and 75 miles from the Mexican border. Without any indication of illegal activity and after confirming the occupants were U.S. citizens, an agent requested to search the trunk. When told there was no key, the agent had the back seat removed and discovered marijuana. The defendants were charged with possession with intent to distribute. Although border searches are recognized as an exception to the warrant and probable cause requirements of the Fourth Amendment, they remain subject to a reasonableness standard.

The appellate court determined that even under pre-existing law, the search was unlawful. While officers conducting border searches need not meet the full probable cause standard, they must have at least reasonable suspicion of a Customs or Immigration violation. The government bore the burden of establishing this reasonable suspicion but failed entirely—the record contained no facts suggesting illegal activity. Additionally, the government did not demonstrate a sufficient connection between the search and the border itself; mere proximity to the border and the fact that violations occur in the area are insufficient to satisfy Fourth Amendment protections.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Validity of warrantless vehicle searches at border checkpoints
Whether reasonable suspicion of a Customs or Immigration violation is required at border checkpoints
Whether proximity to the border alone justifies expanded search authority

Procedural posture

The appellate court granted the government's petition for rehearing, withdrew its prior opinion, and reconsidered the case on the merits.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

rehearing opinion

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before RIVES, WISDOM and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Appellee’s petition for rehearing is granted. The opinion in this cause of December 28, 1973, 489 F.2d 478 (5th Cir. 1973), is withdrawn. The facts in this case are adequately described in the first three paragraphs of the previous opinion. 489 F.2d at 478-479. In essence, appellants’ car was stopped at a temporary checkpoint on U. S. Highway 281, between 65 and 75 miles north of the Mexican border. There was no indication that appellants were involved in any illegal activity. After inquiring whether appellants were American citizens and being told that they were, the Border Patrol agent asked to look inside the trunk. He was told that appellants did not have the key, whereupon he had the backseat of the car removed. His search of the trunk revealed approximately 40 pounds of marihuana, which was introduced as evidence at appellants’ trial for possession of marihuana with intent to distribute.

In the previous opinion, we relied on the reasoning of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Subsequently, in United States v. Miller, 492 F.2d 37 (5th Cir. 1974), a panel of this court held that Almeida-Sanchez is not to be applied retroactively to searches which occurred before the date of that opinion, June 21, 1973. In light of Miller, we abjure any reliance on AlmeidaSanchez. However, the search in question was illegal even under pre-AZmeida-Sanchez law, and we therefore sustain our prior reversal of the judgment of the district court.

The so-called border search has long been recognized as an exception to both the warrant and probable cause requirements of the Fourth Amendment to the Constitution. United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Anno., 6 A.L.R.Fed. 317 (1971). However, it has also been consistently held that border searches are not entirely exempt from the Fourth Amendment, but rather are subject to the requirement that they be reasonable. United States v. Rodriguez-Hernandez, 493 F.2d 168 (5th Cir. 1974); United States v. Warner, 441 F.2d 821 (5th Cir.) cert. den. 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971); Morales v. United States, 378 F.2d 187 (5th Cir. 1967); Marsh v. United States, 344 F.2d 317 (5th Cir. 1965).

Although the probable cause standard of the Fourth Amendment need not be met, the officer conducting the search must have at least a reasonable suspicion of illegal activity. United States v. Daly, 493 F.2d 395 (5th Cir. 1974); United States v. Storm, 480 F.2d 701 (5th Cir. 1973); United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. den. 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973); Morales v. United States, supra; Thomas v. United States, 372 F.2d 252 (5th Cir. 1967); Marsh v. United States, supra. In addition, the reasonable suspicion must be not merely of any violation, but of a Customs or Immigration violation. United States v. Storm, supra; United States v. McDaniel, supra. See, United States v. Solis, 469 F.2d 1113, 1114-1115, n. 2 (5th Cir. 1972), cert. den. 410 U.S. 932, 93 S.Ct. 1375, 35 L.Ed.2d 594 (1973).

It is the government’s burden to show the existence of reasonable suspicion of a Customs or Immigration violation. Marsh v. United States, supra,. In this case, the record clearly demonstrates that the government has failed to bear its burden of showing any reasonable suspicion of criminal activity. Totally lacking from the record is any fact which might have given rise to a suspicion on the part of the officers of illegal activity. In United States v. Wilson, 492 F.2d 1160 (5th Cir. 1974), the government met this burden in a case involving a checkpoint very near the one involved here by showing that the defendants attempted to elude the Border Patrol. See also, Haerr v. United States, 240 F.2d 533 (5th Cir. 1957). This case contains no such evidence.

Finally, the government has totally failed to demonstrate any nexus with the border. In Almeida-Sanchez v. United States, supra, it was held that a border search could be conducted only at the border or the functional equivalent thereof. 413 U.S. at 272-273. This requirement is not applicable here, but some connection or contact with the border must be shown, even though the vehicle itself need not have crossed the border. United States v. Byrd, 494 F.2d 1284 (5th Cir. 1974); United States v. Bursey, 491 F.2d 531 (5th Cir. 1974); United States v. McKim, 487 F.2d 305 (5th Cir. 1973); United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973); United States v. Storm, supra; Marsh v. United States, supra.

The government cannot fulfill its burden of demonstrating a nexus with the border merely by showing that many violations occur in the vicinity of the search. As this court held more than a year before Almeida-Sanchez, “proximity to the frontier does not automatically place a 100-mile strip of citizenry within a deconstitutionalized zone, with its attendant de-escalation of Fourth Amendment requirements.” United States v. McDaniel, supra, at 132-133.

Therefore, because the government has failed to meet its burden of showing a valid border search even under pre-Aimeida-Sanchez standards, we conclude that the judgment of the district court must be

Reversed.