Petition for Writ of Certiorari — Rubio v. United States

85-1560 ©

)

—--

in the

Supreme Court

ot the

United States

October Term, 1985

ee. |

HERLINDO RUBIO,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAMES C. BLECKE

Counsel of Record

SUSAN S. LERNER

Attorneys for Petitioner

Biscayne Building, Suite 705

19 West Flagler Street

Miami, Florida 33130

(305) 358-5999

QUESTION PRESENTED FOR REVIEW

Petitioner was ~-astbound on Inter-

state 10 between Ei Paso and San Antonio,

Texas, when he was stopped by the Border

Patrol at a fixed checkpoint. After

producing valid resident alien identifica-

tion, he was ordered to aé_e secondary

detention area where a full search of his

trunk and enclosed luggage was conducted.

No contraband was found. $127,700 was

confiscated and subjected to civil

forfeiture.

The district court found that the

search was conducted "without probable

cause," without any suggestion of the

"possibility of the existence of contra-

band," and without a "hint at the possi-

bility of illegal activity." These dis-

trict court findings went undisturbed at

the circuit court level.

The question presented for review is

whether the search offends Fourth Amend-

ment protection from unreasonable search

and seizure. The district court held

that it did. The circuit court reversed,

holding such non-probable cause searches

are within the powers of the Border

Patrol as a “functional equivalent" of a

border search.

Subsumed within the broad question

presented for review are the questions of

the permissible scope of a Border Patrol

search at a fixed checkpoint, the defini-

tion and scope of "functional equiva-

lency" of a border search, and the

breadth of search authority under 8

U.S.C. §1357 and 19 U.S.C. §482.

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIO-

RARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FIFTH CIRCUIT OS ee ee

OPINION BELOW 1 ae a ee ae

err. |. « » es * + « « &

CONSTITUTIONAL AND STATU-

TORY PROVISIONS INVOLVED .... 3

STATEMENT OF THE CASE ig ae ee a

REASONS FOR GRANTING

kg ee ee ee er a ee

I. THE DECISION BELOW

CONFLICTS WITH THE

DECISIONS OF THIS

COURT ON THE PERMIS-—-

SIBLE SCOPE OF WARRANT-

LESS SEARCHES AT PER-

MANENT BORDER PATROL

CHECKPOINTS AND WAR-

RANTLESS SEARCHES UNDER

S 0.8.C. $1357 (ats) .« . it

- 431i =

nas THE DECISION BELOW

CONFLICTS WITH THE

DECISIONS OF OTHER

COURTS OF APPEALS ON

THE PERMISSIBLE SCOPE

OF WARRANTLESS SEARCHES

AT PERMANENT BORDER PA-

TROL CHECKPOINTS AND WAR-

RANTLESS SEARCHES UNDER

6 U.S.C. §1357(a)(3). .

III. THE DECISION BELOW CON-

CONFLICTS WITH THE

DECISIONS OF OTHER

COURTS OF APPEALS ON

fHE DEFINITION OF A

"FUNCTIONAL EQUVALENT"

OF A BORDER CROSSING. .

COMRAAIBIOMN 2 9s 6 6 ss & * & &

CERTIFICATE OF SERVICE... .

i. a

17

22

36

37

TABLE OF AUTHORITIES

Cases

=

Almeida-Sanchez v. United

States,

413 U.S. 266, 93 S.Ct. 2535,

37 L.Ed.2d 596 (1973) .. .

Carroll v. United States,

267 U.8B. 132;5. 45 6.Ce.« 260,

69 L.Ed. 543 (1925) « «

Contreras v. United States,

231 F.20 63. (9th Cir.

1961). se 6 & ae <1 S e,

Fernandez v. United States,

321 P.24 263 (3th Cir.

>. 2} rn es i ake

Fumagalli v. United States,

429 F.2d 1011 (9th Cir.

1970) . . 7 . = . - - . .

Jasinski v. Adams, °

781 2.26 S43 CICA Cle:

1986) oe ae ee a ee

Roa-Rodriquez v. United

States,

410 F.2d 1206 (10th Cir.

1963) «és ee ex ee OO

Torres v. Commonwealth of

Puerto Rico,

442 U.S. 465, 99 S.Ct. 2425,

61 £688.28 17 (1973) «3 a ‘.

> 18,

o Ue

24

19

ee

passim

30

United States v. Alvarez-

Gonzalez,

561 F.2d 620 (5th Cir.

1977) ‘oe ee

United States v. Bilir,

592 F.2d 735 (4th Cir.

1979) « « € 42a eeeeee

United States v. Corral-

Villa Vicencio,

753 F.2d 785 (9th Cir.

1985) s ‘mone

United States v. Gallagher,

557 F.2d 1041 (4th Cir.),

cert. den., 434 U.S. 870,

98 S.Ct. 213, 54 L.Ed.2a

148 (1977) os

United States v. Garcia,

672 F.2d 1349 (11th Cir.

1982) : « e EO

United States v. Hart,

506 F.2d 887 (5th Cir.),;

vacated, 422 U.S. 1053,

95 S.Ct. 2674, 45 L.Ed.2d

706 (1975) ae

United States v. Luddington,

589 F.2d 236 (5th Cir.),

cert. den., 441 U.S. 936,

99 §.Ct. 2061, 60 L.Ed.2d

666 and cert. den., 442

U.S. 910, 99 S.Ct. 2824,

61 L.Ed.2d 276 (1979)

- yi <

29

30

18

30

19,

24

26,

28

33,

23

27

34

United States v. Martinez-

Fuerte,

428 U.S. 543,. 96 S.Ct. 3074,

SS £96.38 Fi46 LISTS? «we wR ORB

25

United States v. McDaniel,

463 F.2d 129 (5th Cir.

1972), cert. den. 413 U.S.

919, 93 S.Ct. 3046, 3/7

whan 1664 €1STa «4 « o 6 3 ete oe

United States v. Ortiz,

422 U.S. 891, 93% &.Ct.

2585, 45 L.Ed.2d 623

[tO7S) ss aw es ae se we Ue Oe

United States v. Oyarzun,

760 F.2d 570 (5th Cir. ;

1965) . « «© © w © © © lhl lt PROBIN

United States v. Perez,

644 F.2d 1299 (Stk “ir.

eae sears ee eee Oe eee

United States v. Ramsey,

431 9.8. 606, 97 S.Ct.

1972, 52 L.Ed.2d 417

CISTTi- a eee 8) 6 A ee Se Oe

United States v. Rengifo-Castro,

620 F.2d 230 (10th Cir.

1SG0) - eo ese See ee ee eee

Others

U.S. Const. amend. IV.

Searches and seizures ....-. 3

S U.8.6. Biss? 2 st se te te «SORE

- vii -

19 U.B.C. $462 « « « » 6 » « « + PRSSiM

19 0.8:C.A, $492 2 4-6 sa wk we SO

21 U.S.C. §881(a)(c) . .- .- - - - 5

28 0.8.C. S$TOS0(1) 2.6 1 1 wen €

26 U.S.C, G2Z1I0Me) . 1s ws we SB

- viii -

CASE NO.

IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term, 1985

EERLINDO RUBIO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

The petitioner, Herlindo Rubio, res-

pectfully requests that a writ of cer-

tiorari issue to review the judgment of

the United States Court of Appeals for

the Fifth Circuit entered December 23,

1985.

OPINION BELOW

The decision of the United States

Court of Appeals for the Fifth Circuit,

not reported, is reproduced in the appen-

dix ("A") at pages 16-23. The memorandum

opinion and judgment of the United States

District Court for the Western District

of Texas, Pecos Division, not reported,

is reproduced in the appendix at pages

1-15.

JURISDICTION

The judgment of the United States

Circuit Court of Appeals for the Fifth

Circuit was entered December 23, 1985,

and this petition for writ of certiorari

is filed within ninety days of that date.

This Court's jurisdiction is invoked un-

der 28 U.S.C. §1254(1) and 28 U.S.C.

§2101(c).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Const. amend. IV. Searches and

seizures

The right of the people to be

secure in their persons,-houses,

papers, and effects, against un-

reasonable searches and sei-

zures, shall not be violated,

and no Warrants shall issue, but

upon probable cause, supported

by Oath or affirmation, and par-

ticularly describing the place

to be searched, and the persons

or things to be seized.

8 U.S.C. §1357. Powers of immigra-

tion officers and employees - Powers

without warrant:

(a) Any officer or employee of

the Service authorized under

regulations prescribed by the

Attorney General shall have pow-

er without warrant -

[o? see

(2) coo

(3) Within a reasonable dis-

tance from any external

boundary of the United

States, to board and search

for aliens any vessel with-

in the territorial waters

of the United States and

any railway car, aircraft,

conveyance, or vehicle, ...

(4) ces

Oe |:

19 U.S.C. §482. Search of vehicles

and persons

Any of the officers or persons

authorized to board or search

vessels may stop, search, and

examine, as well without as with-

in their respective districts,

any vehicle, beast, or person,

on which or whom he or they

shall suspect there is merchan-

dise which is subject to duty,

or shall have been introduced

into the United States in any

manner contrary to law, whether

by the person in possession or

charge, or by, in, or upon such

vechicle or beast, or otherwise,

and to search any trunk or en-

velope, wherever found, in which

he may have a reasonable cause

to suspect there is merchandise

which was imported contrary to

law; ...

STATEMENT OF THE CASE

Herlindo Rubio, a resident alien, was

stopped by United States Border Patrol

agents at the Sierra Blanca Border Patrol

checkpoint, located on Interstate 10,

eighty miles east of El Paso, Texas (A.

18). Rubio was instructed to pull off

the road into a secondary inspection area

where a Border Patrol agent ordered Rubio

to open the trunk of his car (A. 18).

The Border Patrol agent, without probable

cause, searched a suitcase, a tool box,

and a small portable electric refrigera-

tor, all located inside the trunk (A.

18-19). The search uncovered a scale

containing traces of cocaine and $127,700

in United States currency (A. 19).

After seizing the currency, the

Government filed a complaint for civil

forfeiture of the currency discovered in

Rubio's car, pursuant to 21 U.S.C.

§881(a)(6). Rubio asserted that the

search was conducted in violation of the

Fourth Amendment, thus requiring the

Government to return the seized currency

(A. 19).

The district court catered detailed

findings of fact. When questioned about

his citizenship at the primary inspection

point, Rubio stated that he was a Cuban

- 5 -

es

and immediately produced a legal resident

alien card and valid driver's license

establishing his legal status within the

United States (A. 2). Rubio was then

instructed to park his vehicle at the

secondary inspection station where he

again produced his legal resident alien

card and valid driver's license (A. 3).

The Border Patrol agent then ordered

Rubio to open the trunk of his vehicle.

Once inside the trunk, he found a small

Suitcase which he opened and searched.

Inside the suitcase, he found a locked

commercial bank bag which he searched and

found approximately $25,000 in United

States currency (A. 3). Additionally,

the agent found a-‘combination locked

metal tool box, which he ordered Rubio to

open. Upon being informed by Rubio that

he did not know the combination, the

agent broize the lock, searched the box

and found additional United States cur-

- § -

rency (A. 3-4). Continuing his search,

the agent found and opened a small por-

teble refrigerator, finding another com-

mercial bank bag containing more currency

(A. 4). Also produced in the search of

the trunk was a small vinyl case which

was opened and found to contain a scale

with white residue (A. 4). The district

court found:

6. There was no_ contraband

found within the passenger com-

partment of the vehicle, nor was

there found anything therein

which might suggest the possibi-

lity of the existence of contra-

band. Likewise, a visual inspec-

tion of the interior of the

vehicle's trunk suggested noth-

ing which might hint at the

possibility of illegal activity.

(A. 4-5)

The district court found that the

entire search of the interior and trunk

of the vehicle was based "solely" upon

perceived nervousness of Rubio (A. 4).

The Border Patrol agent testified that

the "mission" of the United States Border

- 7 -

Patrol at the Sierra Blanca checkpoint

was to "apprehend illegals" (A. 5). The

district court found that it was immedi-

ately apparent to the Border Patrol that

no illegal aliens were contained within

Rubio's vehicle (A. 5). A Border Patrol

agent testified that perhaps a "small

alien" could have been hiding in some of

the containers. The district court dis-

regarded this testimony as absurd (A.

10).

The district court held that the

initial stop of Rubic's vehicle at the

Sierra Blanca permanent checkpoint was a

valid stop (A. 9). The district court

held further that the visual inspection

of the trunk was valid (A. 9). The

district court also held, however, that

in the absence of probable cause the

search of Rubio's vehicle was limited in

scope to areas in which an illegal alien

could reasonably be believed to be con-

cealed (A. 9).

Because the Border Patrol agent ex-

ceeded the scope of a search necessary to

effectuate his purpose, the district

court found a violation of Rubio's Fourth

Amendment rights and that the exclu-

Sionary rule of the Fourth Amendment

applied in this civil forfeiture pro-

ceeding. Probable cause for the forfei-

ture could not rest upon the tainted

evidence (A. 8).

Based upon these findings and conclu-

sions, the District Court entered judg-

ment in favor of Rubio and ordered the

Government to return the $127,700 in

seized currency to Rubio (A. 14). The

Government appealed to the Fifth Circuit

and the Fifth Circuit reversed, holding

that nonprobable cause searches for con-

traband are permissible at the Sierra

Blanca Border Patrol permanent checkpoint

- 9 -

acini

located on Interstate 10 east of El Paso

as the functional equivalent of a border

search (A. 20-23). Rubio petitions this

Court for certiorari review of this un-

warranted erosion of the Fourth Amendment

freedom from unreasonable search and sei-

zure otherwise afforded domestic travel.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF THIS COURT

ON THE PERMISSIBLE SCOPE OF WAR-

RANTLESS SEARCHES AT PERMANENT

BORDER PATKOL CHECKPOINTS AND

WARRANTLESS SEARCHES UNDER 8

U.8.C. §1357(ay (3) -

In Carroll v. United States, 267 U.S.

132, 45 S.Ct. 280, 69 InnBG. 35423..( 1925),

this Court held that vehicular traffic

crossing international borders is subject

to search for national self protection.

One entering the country must identify

himself as entitled to come in and must

identify his belongings as effects which

may be lawfully brought in.

But those lawfully within the

country, entitled to use the

public highways, have a right to

free passage without interrup-

tion or search unless there is

known to a competent official,

authorized to search, probable

cause for believing that their

vehicles are carrying contraband

or illegal merchandise. (267

U.8. at 154, 45 §&.Ce. Qt seo)

- 11 -

In Almeida-Sanchez v. United States,

413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d

596 (1973), this Court held that a war-

rantless search without probable cause by

Border Patrol agents on a roving patrol

violated the Fourth Amendment prohibition

against unreasonable search and seizure.

The search occurred on a California road

that paralleled the Mexican border.

Although the highway was a common route

for illegal aliens to travel, perfectly

innocent drivers were being stopped on

the road without any probable cause and

subjected to a search of their automo-

biles. 413 U.S. at 273, 93 S.Ct. at 2539

Nede

One who merely travels in re-

gions near the borders of the

country can hardly be thought to

have submitted to inspections in

exchange for a special perqui-

site. (413 U.S. at 281, 93

S.Ct. at 2543, Justice Powell

concurring).

Justice White joined by the Chief

Justice, Justice Blackmun, and Justice

Rehnquist dissented, in the belief that 8

U.S.C. §1357(a)(3) authorized Border Pa-

trol officers without warrant, to search

any vehicle for aliens within a reason-

able distance from any external boundary

of the United States and therefore vali-

dated the search of Aimeida-Sanchez's

vehicle. 413 U.S. at 29t-. 33 &.Ct. at

2548. The dissent notes, however:

No searches of the person or for

contraband are authorized by the

section. The authority extended

by the statute is limited to

that reasonably necessary for

the officer to assure himself

that the vehicle or other convey-

ance is not carrying an alien

who is illegally within this

country and more extensive sear-

ches of automobiles without prob-

able cause are not permitted by

the section. (413 U.S. at 294,

93 §.Ct. at 2550).

In United States v. Ortiz, 422 U.S.

891, 95 §.Ct. 2585, 45 L.Ed.2d 623

(1975), this Court distinguished the per-

- 13 -

a

missible non-probable cause stop of a

vehicle at a fixed Border Patrol check-

point from the impermissible non-probable

cause search of a vehicle at a fixed

Border Patrol checkpoint. This Court

recognized that unfettered discretion to

select cars for search at a fixed Border

Patrol checkpoint “is not consistent with

the Fourth Amendment." 422 U.S. at 896,

95 §.Ct. at 2568. A search of an

automobile remains a substantial invasion

of privacy.

To protect that privacy from of-

ficial arbitrariness, the Court

always has regarded probable

cause as the minimum requirement

for a lawful search. (Id.).

Justice Rehnquist in his concurrence

stressed that the opinion was confined to

"full searches" and did not extend to

fixed checkpoint stops for the purpose of

inguiring about citizenship. 422 U.S. at

898, 95 S.Ct. at 2589.

- 14 -

In United States v. Martinez-Fuerte,

428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d

1116 (1976), this Court again recognized

the three kinds of Border Patrol inland

operations; permanent checkpoints, tem-

porary checkpoints, and roving patrols.

428 U.8: at 352, 36 8.-Ct. et 3060.

Weighing the public interests against

Fourth Amendment interests this Court

determined that routine permanent check-

point stops represent a limited intrusion

on a motorist's right to free passage

without interruption and, as such, are

reasonable by Fourth Amendment standards.

Critical to this determination was the

limited scope of such routine stops.

Neither the vehicle nor its occu-

pants are searched, and visual

inspection of the vehicle is

limited to what can be seen

without a search. (428 U.S. at

558, 96 S.Ct. at 3083).

ean i

This Court also held constitutional

the selected referral of motorists to the

secondary inspection areas at the perma-

nent Border Patrol checkpoints. 428 U.S.

at 563, 96 S.Ct. at 3085.

After reaching these conclusions,

this Court closed its opinion with the

following admonition:

[C]heckpoint searches are consti-

tutional only if justified by

consent or probable cause to

search. United States v. Ortiz,

422 U.S. 891, 95 S.Ct. 2585, 45

L.Ed.2d 623 (1975). And our

holding today is limited to the

type of stops described in this

opinion. ‘[A]Jny further deten-

tion ... must be based on con-

sent or probable cause.’ (428

U.S. at 567, 96 S.Ct. at 3087).

In holding that the Border Patrol is

entitled to make non-probable cause sear-

ches for contraband at the Sierra Blanca

permanent checkpoint on Interstate 10,

the Fifth Circuit has eviscerated the

probable cause requirement consistently

applied by this Court to all fixed check-

- 46 -

point Border Patrol searches. This court

should grant the petition and maintain

this consistency in the interpretation of

Fourth Amendment safeguards.

Il.

THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF OTHER

COURTS OF APPEALS ON THE PERMIS-

SIBLE SCOPE OF WARRANTLESS SEAR-

CHES AT PERMANENT BORDER PATROL

CHECKPOINTS AND WARRANTLESS SEAR-

CHES UNDER 8 U.S.C. §1357(a)(3).

The Court of Appeals for the Ninth

Circuit has held that under 8 U.S.C.

§1357(a)(3) automobiles may be stopped at

fixed checkpoints without warrant or prob-

able cause and a limited search for

aliens may be carried out in those por-

tions of the vehicle capable of con-

cealing any illegal aliens. But further

search for contraband, without probable

cause, violates the Fourth Amendment free-

dom from unreasonable search. Fumagalli

v. United States, 429 F.2d 1011 (9th Cir.

- 17 -

Se eee ne ee

1970). See, also, Fernandez v. United

States, 321 F.2d 283 (9th Cir. 1963);

Contreras v. United States, 291 F.2d 63

(9th Cir. 1961).

In Fumagalli, the Ninth Circuit re-

viewed and approved a non-probable cause

stop of a vehicle at a fixed Border

Patrol checkpoint and the probable cause

search predicated upon the smell of mari-

huana and the appearance of a brick of

marihuana upon the opening of the trunk.

Authorization for the search of the trunk

was predicated upon 8 U.S.C. §1357, a

warrantless search for illegal aliens.

[P]robable cause is not required

for an immigration search within

approved limits but is generally

required to sustain the legality

of a search for contraband in a

person's automobile conducted

away from the international bor-

ders. (429 F.2d at 1011).

See, also, United States v. Corral-

Villa Vicencio, 753 F.2d 785 (9th Cir.

1985) and United States v. Perez, 644

- 18 -

F.2d 1299 (9th Cir. 1981), for Ninth

Circuit analyses of "extended border sear-

ches." Compare, United States v. Garcia,

672 F.2d 1349 (11th Cir. 1982).

The Court of Appeals for the Tenth

Circuit is of similar persuasion. In

Roa-Rodriquez v. United States, 410 F.2d

1206 (10th Cir. 1969), the court inter-

preted 8 U.S.C. §1357(a)(3) as authoriz-

ing an initial stop and search for aliens

without probable cause. The authority of

the Border Patrol officers was, however,

restricted to a search for aliens.

The immigration inspectors were

justified in stopping the car

but not in conducting a general

search for law violations. (410

F.2d at 1209).

In United States v. Rengifo-Castro,

620 F.2d 230 (10th Cir. 1980), the Tenth

Circuit found a Fourth Amendment viola-

tion in the non-probable cause search of

luggage by Border Patrol agents at a

» 49 -

| rr rs

fixed checkpoint located on Interstate 10

west of Las Cruces, New Mexico. The

Tenth Circuit concluded that the §1357

Border Patrol exception to the warrant

requirement applied only to searches of

vehicles of aliens and not to the search

of closed luggage. 620 F.2d at 232.

In order to withstand constitu-

tional scrutiny there must have

existed probable cause to search

plus sufficient exigent circum-

stances to make the obtaining of

a warrant impracticable. (Id.).

The Tenth Circuit concluded that the

reasonable expectaticn of privacy associ-

ated with closed luggage applied and that

the reasons for not requiring a warrant

for the search of an automobile did not

apply te searches of luggage.

Additionally, the reasons for

not requiring a warrant for sear-

ches at border Stops do not

apply to searches of luggage

taken at fixed checkpoints.

(620 F.2d 233).

In deciding whether to accept this

case for review, this Court should con-

sider the disparate constitutional treat-

ment rendered travelers eastbound from

Los Angeles, California to Jacksonville,

Florida via Interstate 10, passing

through the Ninth and Tenth Circuits into

the Fifth Circuit.

As they proceed through the fixed

Border Patrol checkpoint on Interstate 10

west of Las Cruces, New Mexico, they will

be afforded Fourth Amendment protection

from arbitrary, capricious, and non-prob-

able cause searches of their closed lug-

gage and personal belongings. When they

reach the fixed Border Patrol checkpoint

located on Interstate 10 east of El Paso,

however, no such constitutional protec-

tion will be found. Under Fifth Circuit

doctrine, the Border Patrol will have the

unfettered discretion to search closed

luggage and forcibly pry open locked

» 24 =

containers - all without probable cause

Or reasonable suspicion that any illegal

activity has occurred.

As will be discussed in the section

that follows, the constitutional protec-

tion of the Fourth Amendment is restored

when the transcontinental voyager conti-

nues along Interstate 10 and enters the

Eleventh Circuit. The Eleventh Circuit

rejects the Fifth Circuit's mischarac-

terization of a fixed checkpoint as the

"functional equivalent of a border" and

protects the domestic traveler from un-

reasonable search when passing through

fixed Border Patrol checkpoints.

Iii.

THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF OTHER

COURTS OF APPEALS ON THE DEFINI-

TION OF A "FUNCTIONAL EQUI-

VALENT" OF A BORDER CROSSING.

= a

In United States v. Oyarzun, 760 F.2d

570 (5th Cir. 1985), the Fifth Circuit

acknowledged its differences with the

Eleventh Circuit's opinion in United

States v. Garcia, 672 F.2d 1349 (11th

Cis. 7982). There, the Eleventh Circuit

severed its stare decisis ties with the

old Fifth Circuit and declined to follow

the Fifth Circuit's use of "functional

equivalent" for permanent Border Patrol

checkpoint searches. As the Eleventh

Circuit recognized:

The searches do not fit within

the traditional definition of a

border search, which refers to

searches of persons, conveyan-

ces, or objects that have come

into the United States from out-

side. (672 F.2d at 1365).

The Eleventh Circuit refers to check-

point searches as "checkpoint searches"

and not as searches at the "functional

equivalent of the border." Id. In the

Eleventh Circuit the functional equiva-

- 23-

lent of a border search is a search that

takes place after a border crossing at

the first practicable detention point.

"Such searches are truly border searches

because their sole justification is the

fact that the border has been crossed."

Id.

In Jasinski v. Adams, 781 F.2d 843

(11th Cir. 1986), the Eleventh Circuit

applied its Garcia analys-s to a fixed

Border Patrol checkpoint comparable to

the Sierra Blanca checkpoint under con-

Sideration in this case. In Jasinski,

the Border Patrol established a fixed

checkpoint at Florida City to police the

influx of aliens over the actual border,

the Florida keys’ two hundred miles of

shoreline. The checkpoint was estab-

lished in recognition of the hopeless

task of patrolling the entire border.

Despite its distance from the shoreline,

Florida City provided a strategic advan-

- 24 -

tage. At that point, the Border Patrol

could monitor all traffic flowing north

from the keys on U.S. 1, just before that

road divides into several routes into the

interior. Measured against the legal

standards of Martinez-Fuerte and Ortiz,

the Eleventh Circuit concluded no suspi-

cion was necessary for a stop at the

Border Patrcl checkpoint, but probable

cause was required for a search. 781

F.2d at 847.

The phrase "functional equivalent"

finds its genesis in Almeida-Sanchez v.

United States, 413 U.S. 266, 93 S.Ct.

2535, 37 L.Ed.2d 596 (1973). There, this

Court opined:

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

- 25 -

that extend from the _ border,

might be functional equivalents

of border searches. For another

example, a search of the passen-

gers and cargo of an airplane

arriving at a St. Louis airport

after a nonstop flight from

Mexico City would clearly be the

functional equivalent of a bor-

der search. (413 U.S. at 272-3,

93 S.Ct. at 2539}.

These comments were immediately fol-

lowed by the statement that the vehicular

search occurring on a road that paral-

leled the Mexican border "was of a wholly

different sort" and in tne absence of

probable cause violated the Fourth Amend-

ment. 413 U.S. at 273, 93 S.Ct. at

2539-40.

In United States v. Hart, 506 F.2d

887 (5th Cir.), vacated, 422 U.S. 1053,

95 S.Ct. 2674, 45 L.Ed.2d 706 (1975), the

Fifth Circuit was called upon to inter-

pret the scope of 8 U.S.C. §1357(a)(3)

and non-probable cause searches for

aliens at the permanent Border Patrol

- 26 -

checkpoint located at Sierra Blanca. The

Fifth Circuit recognized the "new aphor-

ism" which had arisen from this Court's

opinion in Almeida-Sanchez referable to

searches at the "functional equivalent of

the border." In Hart, the Fifth Circuit

held that functional equivalency was noth-

ing more than the principle of constitu-

tional law embodied in the decisions

upholding the validity of searches con-

ducted pursuant to 8 U.S.C. §1357(a)(3)

at permanent checkpoints. 506 F.2d at

895.

Of particular significance was the

Fifth Circuit's reluctance to consider

what kind of "functional equivalent of

the border" would permit a true border

search, rather than the restricted §1357

search for aliens. The Fifth Circuit

opined that the inland airport example

used in Almeida-Sanchez would seem to

~ SP &

permit a complete search, not just a

search for aliens. 506 F.2d at 895.

The inland crossroads example,

however, might be restricted to

a §1357 search with all of the

judicial gloss that has_ been

superimposed upon the statute.

(Id.).

In Hart, the Fifth Circuit did not

purport to decide any more than the case

at hand, a §1357 search for aliens at the

Sierra Blanca permanent checkpoint. 506

F.2d at 895. Unfortunately, having once

labeled the Sierra Blanca permanent check-

point as a "functional equivalent" for

this limited purpose, a series of Fifth

Circuit decisions have perverted this

limited holding into the broad conclusion

that the Sierra Blanca checkpoint, lo-

cated on Interstate 10 some eighty miles

east of El Paso, is the "functional

equivalent" of a true border crossing

where non-probable cause searches are

virtually unrestrained. This perversion

- 28 -

is chronicled in United States v.

Oyarzun, supra, and is appropriatelv

criticized in the dissent. See, also,

United States v. Alvarez-Gonzalez, 561

F.2d 620, 626-30 (5th Cir. 1977) (Gold-

berg, J., dissenting).

It is not the locale but the purpose

of the search that triggers functional

equivalency. The St. Louis airport is

not the functional equivalent of the

border. If it were, al] passengers would

be subject to search. It is only the

search of the international flight that

is the functional equivalent of a border

search. Here, there was no border cros-

sing, no suspicion of a border crossing,

and no justification for a border search.

Even if the search of Rubio's vehicle

in this case is tested by the more

liberal "reasonable" rather than "prob-

able" cause to search afforded customs

officials at a true border crossing, the

- 29 -

eS ae

search of Rubio's luggage cannot pass

muster. A custom's official must still

have “reasonable cause to suspect” an

importation contrary to law. 19 U.S.C.

§482; United States v. Ramsey, 431 U.S.

606, 97 S.Ct. 1972, 52 L.Ed.2d 617

(1977); United States v. Bilir, 592 F.2d

735 (4th Cir. 1979); United States v.

Gallagher, 557 F.2d 1041 (4th Cir.),

cert. den., 434 U.S. 870, 98 S.Ct. 213,

54 L.Ed.2d 148 (1977). Compare Fernandez

v. United States, 429 F.2d 1011 (9th Cir.

1963) with Contreras v. United States,

291 F.2d 63 (9th Cir. 1961).

Here, the Fifth Circuit jettisons the

statutory “reasonable cause” requirement

by again taking language out of context

from one of its earlier decisions. Here,

the Fifth Circuit affords Rubio no Fourth

Amendment protection because "Border Pa-

trol agents wear two hats, one as an

immigration officer and the other as a

- 30 -

— =

customs officer," relying upon 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).

Here, the Fifth Circuit's McDaniel

analysis overlooks its own limitations.

In McDaniel, the Fifth Circuit held:

[I]f the car can reasonably be

stopped pursuant to an autho-

rized border search, the agents

are empowered to search the car,

including its trunk, for aliens.

[citations omitted]. But even

beyond that, the objective beha-

vior of the car's occupants, as

described by the agent, would

support the proposition that the

agents had ‘reasonable _ suspi-

cion' to search the trunk within

the confines of the immigration

statutes. (463 F.2d at 133).

The court concluded that the Border Pa-

trol agents did not have authority to

search the contents under immigration

laws, but they were empowered "under the

circumstances" to search under authority

of the customs laws. 463 F.2d at 134.

Although planning to wear their immigra-

» 34 «

tion hats that night, they were not

precluded from later donning their cus-

toms hats if justified under the circum-

stances. Operating on an “expanded bor-

der search” theory:

[T]he agents must have adequate

grounds for a ‘reasonable suspi-

cion' that the bags contained a

substance being transported in

violation of the customs laws,

19 0.8 Gee §482. (Id).

The Fifth Circuit concluded in McDaniel

that the circumstances presented "a very

reasonable suspicion that contraband was

in the bags.” Id.

Here it has never been suggested that

the Border Patrol agents had any cause to

suspect a customs violation. Here, the

stop and search was in fulfillment of the

Border Patrol's mission to “apprehend

illegals." The search of Rubio's suit-

case and tool box was, according to the

Border Patrol agent, a search for a

"small alien.” Although demonstrably

- 32 -

absurd, it was nevertheless the patrol's

only justification for the search. They

never donned their customs hats and never

had reasonable cause for a 19 U.S.C. §482

search. Here, the district court found

nothing to suggest the possibility of

contraband and found “nothing which might

hint at the possibility of illegal acti-

vity” (A. 5).

At no point does Interstate 10 ever

cross an international border. There is

no justification for any border patrol or

customs interdiction on Interstate 10

with unfettered international border cros-

Sing search authority. Cf. Torres v.

Commonwealth of Puerto Rico, 442 U.S.

465, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979)

(rejecting a theory of “intermediate bor-

ders" analogous to international bor-

ders).

As recognized by the Fifth Circuit in

United States v. Luddington, 589 F.2d 236

» 33 «

ae en ON SL ee A LA SNE TT RET

(Sth Cir.), cert. den., 441 U.S. 936, 99

S.Ct. 2061, 60 L.Ed.2d 666, and cert.

den., 442 U.S. 910, 99 S.Ct. 2824, 61

L.Ed.2d 276 (1979), there is no dispute

about the significant effect on domestic

traffic created by the Sierra Blanca

Border Patrol checkpoint. 589 F.2d at

241.

Interstate 10 is one of the

major arteries of the interstate

highway system, stretching coast

to coast from Los Angeles to

Jacksonville, Florida. Inter-

state 10 is a route of prefer-

ence for truckers, bus drivers,

and other travelers because it

is snow- and ice-free virtually

the year round. (Id.).

Regardless of the volume of traffic

along Interstate 10 from Los Angeles to

Jacksonville, or more particularly from

El Paso to San Antonio, the Sierra Blanca

checkpoint is no more the _ functional

equivalent of an international border

than is the Interstate 10 checkpoint west

of Las Cruces, New Mexico, or the San

-~ 34 -

Clemente checkpoint located on Interstate

5 between San Dieyo and Los Angeles, or

the Florida City checkpoint on U.S. 1.

As long as the Fifth Circuit treated

Sierra Blanca functional equivalency in

the context of an 8 U.S.C. §1357 warrant-

less search for aliens, the Fourth Amend-

ment sustained no irreparable harm. But

with its opinion in Oyarzun, and this

decision bottomed upon Oyarzun, the Fifth

Circuit has stretched functional equiva-

lency to the breaking point and beyond,

requiring intervention by this Court.

CONCLUSION

Based upon the foregoing, the peti-

tion for writ of certiorari should be

granted.

Respectfully submitted,

James C. Blecke

Counsel of Record

COM EE

ames C. Blecke

and

ae oe

usan S. “Lerner

Attorneys for

Petitioner

705 Biscayne Bldg.

19 W. Flagler St.

Miami, Florida 33130

(305) 358-5999

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of

the foregoing Petition for Writ of Cer-

tiorari and the following appendix were

mailed, postage prepaid, pursuant to

Supreme Court Rules 28.3 and 28.4 to the

Solicitor General, Department of Justice,

Washington, D.C. 20530; WILLIAM J.

LANDERS, Special Counsel, U.S. Department

of Justice, 10th and Constitution Avenue,

Northwest, Washington, D.C. 20530; and

JORGE A. SIBILA, ESQ., 2751 Coral Way,

Miami, Florida 33145, this 21st day of

March, 1986.

James- C. Blecke

705 Biscayne Building

19 West Flagler Street

Miami, Florida 33130

(305) 358-5999

Gpbmrrl BO f.

/jJames C. Blecke

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

PECOS DIVISION

UNITED STATES OF AMERICA

V. No. P-84-CA-48

~ $127,000 IN UNITED

STATES CURRENCY

MEMORANDUM OPINION

The United States of America seeks

the judicial forfeiture of $127,000.00 in

United States currency pursuant to 21

U.S.C. § 881(a)(6). The government con-

tends that such funds are forfeitable as

proceeds either traceable to the illicit

exchange of controlled substances within

the meaning of 21 U.S.C. § § 841, 881, or

that such funds were intended to facili-

tate such an exchange.

In compliance with Rule 52(a), Feder-

al Rules of Civil Procedure, this Court,

after fully considering the pleadings

filed herein, reviewing the evidence pre-

A. 1

sented at a bench trial held on December

17, 1984, and the controlling legal au-

thorities, enters the following Findings

of Fact and Conclusions of Law. In this

cause, any Finding may be construed as if

written as a Conclusion and vice versa.

FINDINGS OF FACT

as On or about September 6, 1984,

Herlindo Rubio attempted to cross through

the Sierra Blanca Permanent Border Patrol

Checkpoint on Interstate 10, approximate-

ly 80 miles east of El Paso, Texas. When

questioned by the border patrol agent

then on duty at the primary inspection

point, Agent Acosta, as to his national

citizenship and status within this coun-

try, Rubio stated that he was a Cuban and

immediately produced a legal resident

alien card and valid driver's license

establishing his legal status within the

United States.

2. Acosta instructed Rubio to park his

vehicle at the secondary inspection sta-

tion where he once again produced his

legal resident alien card and valid dri-

ver's license to Agent Mark Fogt, who was

standing near the trunk of the vehicle.

3. Agent Acosta did not testify. Fogt

testified that although he was approxi-

mately eight feet away, on the side of an

interstate highway, he overheard the con-

versation between Acosta and Rubio. Fogt

testified that Rubio appeared to be some-

what nervous.

4. Fogt ordered Rubio to open the trunk

of the vehicle. Once inside the trunk

Fogt found a small red personal travel

Suitcase which he opened and searched.

Inside the suitcase, Fogt found a locked

commercial bank bag which he searched and

found approximately $25,000.00 in United

States currency. Additionally, Fogt

found a combination-locked metal toolbox,

A. 3

which he ordered Rubio to open. Upon

being informed by Rubio that he did not

know the combination to the lock, Fogt

broke the lock, searched the box and

found additional United States currency.

Continuing his search of the vehicle and

its contents, Fogt found a small electric

portable refrigerator in the trunk.

Inside the refrigerator, Fogt found anoth-

er commercial bank bag containing, not

surprisingly, "cold cash." Also produced

in the search of the trunk was a small

vinyl case which was opened and found to

contain a triple beam (balance) scale

with white residue thereon.

5. The entire search of the interior and

trunk of the vehicle was based solely

upon what Fogt perceied to be nervousness

on the part of Rubio.

6. There was no contraband found within

the passenger compartment of the vehicle,

nor was there found anything therein

A. 4

which might suggest the possibility of

the existence of contraband. Likewise, a

visual inspection of the interior of the

vehicle's trunk suggested nothing which

might hint at the possibility of illegal

activity.

7. Fogt testified that the “mission” of

the United States Border Patrol at the

Sierra Blanca Checkpoint was to "“appre-

hend illegals.” It became immediately

apparent to the Border Patrol that no

illegal aliens were contained within

Rubio's vehicle.

8. After rummaging through Rubio's per-

sonal effects, Fogt arrested Rubio and

escorted him into the Border Patrol trail-

er where Acosta read him his Miranda

rights.

9. Inside the trailer, Rubio was physi-

cally searched and a 3" X 5" notebook

which contained some writing was found on

his person. Upon being questioned in

A. 5

regard to the notebook, Rubio stated that

he had found the notebook on the ground

and did not have knowledge of the content

or meaning of the writing therein. Upon

being questioned as to how he came about

such large amount of currency, Rubio

testified that he claimed the currency to

be proceeds of an auspicious trip to Las

Vegas, Nevada. The Court finds Rubio's

testimony in this regard to be incredible

and it shall be disregarded. But for the

illegal searcn, the Court is convinced

that the currency is forfeitable under

the provisions of 21 U.S.C. § 881(a)(6).

10. The search was not conducted pursu-

ant to consent and Rubio has standing to

challenge its validity.

11. After the arrest, Fogt contacted

Eino Hella, a fifteen year veteran of the

Drug Enforcement Administration ("DEA")

in Alpine, Texas, and requested that he

come to the checkpoint to further investi-

gate and interrogate Rubio.

12. Hella opined that the currency in

question was traceable to an exchange as

contemplated by 21 U.S.C. § 881(a)(6)

because:

(a) a large amount of money was

found predominantly in commer-

cial bank bags and a smaller

portion was found wrapped in alu-

minum foil;

(b) the presence of the notebook

containing figures;

(c) the fact that Rubio was trav-

elling east on U.S. Interstate

Highway 10 and that drugs usual-

ly came from Florida to Califor-

nia and drug money is usually

brought back to Florida;

(d) the fact that Rubio was a

resident of Florida;

(e) the fact that traces of co-

caine were found on the scales

which claimed to have been found

in Rubio's vehicle.

13. Rubio testified that the scales were

found in his son's vehicle. Because of

the Court's disposition of the search and

seizure issue, however, the issue of

as fF

“where” the scales were found need not be

reached. The scale, if in fact found in

Rubio's vehicle, was, like the currency,

the product of an illegal search.

14. Rubio has been released; no criminal

charges are currently pending against

him.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over this

21 U.S.C. § 881 forfeiture proceeding

pursuant to 28 U.S.C. §§ 1345, 1355.

2. The exclusionary rule of the fourth

amendment applies in forfeiture proceed-

ings and probable cause for forfeiture

cannot rest upon tainted evidence. Uni-

ted States v. $64,000 in United States

Currency, 722 F.2a 239, 243 (5th Cir.

1984), citing United States v. One Mer-

cury Cougar XR-7, 666 F.2d 228, 230 (5th

Cie. 1968) -

36 The stop of Rubio's vehicle at the

Sierra Blanca Permanent Checkpoint was a

valid stop. United States v. Dreyfus de

Campos, 698 F.2d 236 (5th Cir. 1979).

4. The visual inspection of the trunk

was valid. In the absence of probable

cause, however, the search of Rubio's

vehicle was limited in scope to large

areas in which an illegal alien could

reasonably be believed to be concealed.

United States v. Alvarez Gonzalez, 561

F.2d 620, 621 (5th Cir. 1977); see also

United States v. Whitmire, 595 F.2d 1303,

1315 n. 32 (5th Cir. 1979); United States

v. Robinson, 567 F.2d 637 (5th Cir.

1978).

5. Fogt testified that he conducted the

full-blown search of Rubio's vehicle and

its contents based solely upon what he

perceived to be nervousness. The Court

is of the opinion that this fact, without

more, was insufficient to establish prob-

A. 9

able cause to search the entire vehicle

and its contents.

6. It is unreasonable to believe that

aliens could have been concealed in the

containers which Fogt' searched. Fogt

testified that perhaps a "small alien"

could be hiding in some of the con-

tainers; the Court disregards such as

absurd.

Fe In the context of 21 U.S.C. § 881,

probable cause means "a reasonable ground

for belief of guilt, supported by less

than prima facie proof but more than a

mere suspicion." United States v. One

1978 Mercedes Benz, 711 F.2d 1297, 1305

(Sth Cir. 1983); United States v. One

1964 Beechcraft Baron Aircraft, 691 F.2d

725, 727 (5th Cir. 1982); Vance v. United

States, 676 F.2d 183, 187 n.7 (5th Cir.

1982); United States v. One 1978 Chev-

rolet Impala, 614 F.2d 983, 984 (5th Cir.

1980); see also United States v. One 1979

A. 10

Porsche Coupe, 709 F.2d 1424 (11th Cir.

1983).

8. From the sheer quantity of currency

seized, a court may permissibly infer a

connection with illegal narcotics traf-

ficking. United States v. $364,960 in

United States Currency, 661 F.2d 431, 437

(2d Cir. 1976), cert. denied, 428 U.S.

1091 (1977); United States v. Tramunti,

513 F.2d 1087, 1105 (2d Cir. 1975), cert.

den., 419 U.S. 1079 (1976).

9. While the government has established

probable cause that a substantial connec-

tion existed between the currency and

criminal activities proscribed by federal

law, the Court considers the search of

the containers found in the vehicle's

trunk to be outside the scope of that

permissible by law.

10. There is fundamental difference in

purpose and function between the United

States Customs Service and the United

A. 11

ER RMN DY Ae ma Aue = OO

eicenintietan iii

Ne POND OS Re

States Border Patrol. Contrary to what

some believe, Border Patrol agents simply

do not possess the same authority to

search as do customs officers. The

function of a customs officer is to

"protect the revenue and to provide for

the admission of foreign merchandise into

customs territoril[ies]." 8 G.8.:¢. ° §

81d. This function justfies the more

expansive nature of the instruction upon

one's liberty while crossing an interna-

tional border. Conversely, the role of

border patrol agent is to "{patrol] the

border to prevent the illegal entry of

aliens into the United States." 8 U.S.C.

§ 1357(a)(3).

CONCLUSION -

The Court is of the opinion that the

government has shown that the Attorney

General of the United States has probable

cause to believe that the currency in

A. 12

question had been furnished or was inten-

ded to be furnished in exchange for

prohibited drugs, or that these funds

were traceable to such an illicit ex-

change.

It cannot be said, however, that

Agent Fogt was furthering his_ stated

mission of “apprehending illegals" while

rummaging through Rubio's personal ef-

fects. Because Fogt exceeded the scope

of a search necessary to effectuate his

purpose, and thereby violating Rubio's

fourth amendment rights, the Court shall

provide in its Judgment that the govern-

ment take nothing.

SIGNED and ENTERED this the 31st day

of December, 1984.

s/

LUCIUS D. BUNTON

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

PECOS DIVISION

UNITED STATES OF AMERICA

V. No P-84-CA-48

$127,000.00 IN UNITED

STATES CURRENCY

JUDGMENT

In accordance with the Memorandum

Opinion entered on this date, the Court

enters its Judgment in the above-cap-

tioned cause as follows:

IT IS, THEREFORE, ORDERED, ADJUDGED

and DECREED that the United States of

America take nothing by its claims.

IT IS FURTHER ORDERED, ADJUDGED and

DECREED that the United States of Amer-

ica release and return. said sum of

$127,000.00 to its rightful owner,

Helindo Rubio.

Costs are hereby assessed against the

United States of America.

SIGNED and ENTERED this 31st day of

December, 1984.

s/

LUCIUS D. BUNTON

United States District Judge

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 85-1146

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff, Appellant,

versus

$127,700.00 in UNITED STATES CURRENCY,

Defendant,

HERLINDO RUBIO,

Claimant-Appellee

Appeal from the United States

District Court for the

Western District of Texas

( December 23, 1985 )

Before RUBIN, JOHNSON, and JONES, Circuit

Judges.

JOHNSON, Circuit Judge*:

* Local Rule 47.5 provides: "The

publication of opinions that have no

precedential value and merely decide par-

ticular cases on the basis of well-

A. 16

The United States Government filed

suit under 21 U.S.C. § 881(a)(6)! to

obtain the forfeiture of $127,700 in

settled principles of law imposes need-

less expense on the public and burdens on

the legal profession." Pursuant to that

Rule, the court has determined that this

opinion should not be published.

a. 21 U.S.C. § 881(a)(6) provides

that:

(a) The following shall be sub-

ject to forfeiture to the United

States and no property right

shall exist in them:

(6) All moneys, negotiable in-

struments, securities, or other

things of value furnished by any

person in exchange for a control-

led substance in violation of

this subchapter, all proceeds

traceable to such an exchange,

and all moneys, negotiable in-

struments, and securities used

or intended to be used to facili-

tate any violation of this sub-

chapter, except that no property

shall be forfeited under this

paragraph, to the extent of the

interest of an owner, by reason

of any act or omission estab-

lished by that owner to have

been committed or omitted with-

out the knowledge or consent of

that owner.

cies agra Cy sere ee

United States currency seized by border

patrol agents during a search for contra-

band. The Government appeals from the

district court's judgment denying forfei-

ture on the ground that the currency was

seized in violation of the Fourth Amend-

ment. Concluding that no Fourth Amend-

ment violation occurred, this Court rever-

ses the judgment of the district court.

I. BACKGROUND

Herlindo Rubio, a resident alien, was

stopped by United States Border Patrol

agents at the Sierra Blanca border patrol

checkpoint, located on Interstate 10,

eighty miles east of El Paso, Texas.

Rv5io was instructed to pull off the road

into a secondary inspection area. After

observing that Rubio appeared to be some-

what nervous, a border patrol agent or-

dered Rubio to open the trunk of Rubio's

car. The agent, without probable cause,

A. 9

searched a red vinyl suitcase, a tool

box, and a small portable electric refri-

gerator, all located inside the trunk.

The search uncovered a triple beam bal-

ance scale containing traces of cocaine

and $127,700 in United States currency.

After seizing the currency, the Gov-

ernment filed a complaint for forfeiture

pursuant ot 21 U.S.C. § 881(a)(6), seek-

ing ownership of the currency discovered

in Rubio's car. Rubio asserted as an

affirmative defense that the search was

conducted in violation of the Fourth

Amendment thus reguiring the Government

to return the seized currency.” The

district court found that the border

2. The exclusionary rule of the

Fourth Amendment applies in forfeiture

proceedings and probable cause for forfei-

ture cannot rest upon tainted evidence.

United States v. $64,000 in United States

Currency, 722 F.2d 239, 243 (5th Cir.

1984) (citing United States v. One 1979

Mercury Cougar XR-7, 666 F.2d 228, 230

(5th Cir. 1982)).

a

patrol agents lacked probable cause to

search Rubio's car for contraband, that

zn illegal alien could not have hidden in

the containers searched, > and that the

search was therefore unlawful. Based on

these conclusions, the district court

entered judgment in favor of Rubio and

ordered the Government to return the

$127,700 in seized currency to Rubio.

The Government appeals from the district

court's judgment.

IJ. DISCUSSION

In United States v. Oyarzun, 760 F.2d

570 (5th Cir. 1985), decided by this

36 The district court reasoned that

the function of a border patrol agent

differs from that of a customs officer.

According to the district court, nonprob-

able cause searches conducted by border

patrol agents at the functional equiva-

lent of a border are limited to searches

for aliens.

Court several months after the judgment

of the district court in the instant

case, we held that "“nonprobable cause

searches for contraband at the Sierra

Blanca checkpoint are valid border sear-

ches because of the checkpoint's legal

status as the functional equivalent of

the border.” Id. at 576 (emphasis ad-

ded). This Court in Oyarzun expressly

rejected the contention that nonprobable

cause searches conducted at Sierra Blanca

are limited to those large areas of a

vehicle in which aliens could be hidden.

Rubio contends that the rule announ-

ced in Oyarzun applies only where the

search is conducted by customs officers

rather than border patrol agents. Rubio

argues that because the function of a

border patrol agent -.s limited to preven-

ting the illegal entry of aliens into the

United States, nonprobable cause searches

conducted by border patrol agents must be

limited to searches for aliens.‘ How-

ever, this Court has observed "that Bor-

der Patrol agents wear two hats, one as

an immigration officer and the other as a

customs officer." United States v. Mc-

Daniel, 463 F.2d 129, 134 (5th Cir.

1972), cert. denied, 413 U.S. 919, 93 S.

Ct. 3046, 37 L. Ed. 2d 1041 (1973).

Border patrol agents, at the border or

its functional equivalent, can don "their

customs hats during a proper border

search.” Id. Furthermore, border patrol

agents, not customs officers, conducted

the search approved by this Court in

Oyarzun. Thus, Rubio's attempt to distin-

guish the authorized scope of a border

search conducted by a customs officer

4. According to Rubio, customs

agents, in contrast, may conduct nonprob-

able cause border searches for contraband

because of the broader function served by

customs agents.

A. 22

from that of a search conducted by a

border patrol agent is without merit.

Rubio also contends that because the

border patrol agents in the instant case

lacked probable cause to search Rubio's

car for contraband, Oyarzun does not

apply. This contention is without merit.

Contrary to Rubio's contention, Oyarzun

expressly held that probable cause was

not required to conduct a search for

contraband at the Sierra Blanca check-

point. Moreover, the agents in Oyarzun

itself did not have probable cause to

search for contraband.

Finding the instant case controlled

by our recent decision in Oyarzun, this

court reverses the judgment of the dis-

trict court.

REVERSED AND REMANDED

A. 23

er