# Petition for Writ of Certiorari — Rubio v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1631%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1182 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1631%3A1. Public record. Not legal advice.