Opposition Brief — Bird v. United States

Jn the Supreme Gourt of the United Sintes

OctosErR TERM, 1971

No. 71-1240

Grorce CurTIs BIRD, PETITIONER

v.

UnitTep STaTEs OF AMERICA ;

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW :

The per curiam opinion of the court of appeals

(Pet. App. Al—A2) is not yet reported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

A3) was entered on February 29, 1972. The peti-

io for a writ of certiorari was filed on March 29,

1972. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

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QUESTIONS PRESENTED

1. Whether in the circumstances of this case a bor-

der search and seizure by an immigration and cys.

toms officer violated the Fourth Amendment.

2. Whether petitioner’s conviction is supported by

sufficient evidence.

STATEMENT

After a jury trial in the United States District

Court for the Southern District of Texas, petitioner

was convicted of having facilitated the transportation

of 168 pounds of illegally imported marihuana, in viola-

tion of 21 U.S.C. (1964 ed.) 176a, and was sentenced to

six years’ imprisonment and fined $2,500. The court of

appeals affirmed per curiam (Pet. App. Al-A2),

The evidence showed that on January 29, 1971, at

approximately 11:00 p.m. a pickup truck carrying a

sleeping compartment (“camper”) was stopped at a

Border Patrol checkpoint some eight miles north of

Laredo, Texas, on Interstate Highway 35. Melvin D,

Anderson owned and was driving the truck, which

had New Mexico license plates, and petitioner was a

passenger (Tr. 8, 46-49). Border Patrolman William

Randolph, Jr.—who was authorized both as an immi-

gration officer and as a customs agent (Tr. 29-30, 33)—

asked their citizenship and, because of the camper,

requested that they stop at the side of the’ road for

a secondary inspection (Tr. 8, 47).

While petitioner remained in the truck, Anderson

went to the back of the camper and, at the agent’s

request, opened three compartments which ran on

* Before the trial herein, Anderson was killed in an auto-

mobile accident.

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poth sides and across the width of the truck (Tr. 10,

20, 48-49). The compartments on the sides were ap-

proximately five feet in length, about seventeen inches

in width and about fourteen inches in height (Tr.

10). They were opened with no difficulty and con-

tained tools and other miscellaneous objects (Tr. 10,

20). The compartment next to the cab of the truck

was larger, with dimensions of 6 feet in length, 20

inches in height and 3 feet in width (Tr. 10), and it

would not open. Anderson asked petitioner through

the back window of the truck for a screwdriver. With

this he pried the lid up two or three inches and let

it close; he opened it again a little wider, and asked

if the agent had seen enough. The agent replied no,

and the lid was opened wider. In the process the

agent detected an odor that was ‘‘different than it was

normally in the truck”’ and shined his flashlight into

the compartment. He observed two large burlap sacks

with Spanish writing on them which are commonly

used to keep coffee beans (Tr. 12, 49-50, 54). When

Anderson closed the compartment, the agent stated

that he would like to know what was in the bags.

Anderson replied ‘‘ You know.’’ When the agent asked

if it was marihuana, Anderson nodded his head af-

firmatively (Tr. 12, 49-50). At this point, both peti-

tioner and Anderson were arrested and advised of

their rights (Tr. 15, 52). Two other large sacks con-

taining marihuana were found in the compartment,

one with Spanish writing on it and the other with

the English word “Beans’’ (Tr. 54).

Melvin M. Cox, a special agent with the Bureau

of Customs, later questioned petitioner at the Border

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Patrol Station after advising him of his rights. Cox

testified that petitioner initially indicated that he

would not cooperate. Petitioner then related that a

Negro male approached him in the La Honda Motel

in Albuquerque, New Mexico, and hired him to de-

liver marihuana from Laredo, Texas, to Albuquerque

for a sum of money. Anderson accompanied petitioner

to Laredo, where they stayed at the El Rey Motel and

left the truck outside with the keys in the ignition,

On the evening of January 29, 1971, an unknown

person took the truck for approximately an hour,

When it was returned, petitioner and Anderson found

the marihuana in the truck and completed plans to

return to Albuquerque (Tr. 64-68).

At the close of the government’s case petitioner

made a motion for acquittal, which the trial judge

denied. The defense then rested (Tr. 78-79).

ARGUMENT

1. Petitioner contends that the search of the Ander-

son truck and the seizure of evidence were unlawful

under the Fourth Amendment, apparently on the

ground that there was no probable cause (Pet. 7-11).

However, this was a border search conducted by

immigration and customs officers. As the court below

concluded, the search and seizure here fully comport

with established principles applicable to such searches.

Immigration officers have the power to conduct a

warrantless search of vehicles for aliens within 100

air miles of any external boundary. 8 U.S.C. 1357(a)

(3); 8 C.F.R. 287.1(a)(2). Probable cause is not re-

quired for such a search. E.g., Duprez v. United

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States, 435 F. 2d 1276, 1277 (C.A. 9). The principal

limitation upon the power of border patrol agents to

check for aliens without a warrant is that they may

not search places in which no person could hide. See

Valenzuela-Garcia v. United States, 425 F. 2d 1170,

1172 (C.A. 9). Furthermore, under the customs laws

(19 U.S.C. 482), border officials are authorized to es-

tablish checkpoints within a reasonable distance from

a border crossing and, without a warrant, to conduct

searches for contraband if there is a reasonable sus-

picion that a person is carrying unlawfully imported

merchandise. See Morales v. United States, 378 F. 2d

187 (C.A. 5). As in this case, border officials at es-

tablished checkpoints generally are authorized as both

immigration officers and customs agents.

The search and seizure in the present case were

proper. The initial search of the vehicle was valid

under the immigration laws. The truck was stopped

at 11:00 p.m. at an established checkpoint only eight

miles from (and going north, away from) the border.

Patrolman Randolph was told that petitioner and

Anderson had visited Laredo, Texas, on the border.

He testified that at this checkpoint he had found

smuggled aliens every day and that in many cases he

had found them concealed in campers, such as the one

attached to the truck in which petitioner was riding.

Thus, the agent properly checked to see if aliens were

hidden in the camper, or in the compartments on the

inside which were large enough to conceal a person.

Compare United States v. Saldana, 453 F. 2d 352

(C.A. 10). Although the agent found no aliens, he

noticed a different odor and saw the sacks with Span-

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ish writing, from which he reasonably suspected that

contraband might be involved. He was, therefore, jus.

tified in conducting a further search in his capacity

as a customs agent. He did not do so, however, but

instead only asked what was in the sacks. When An-

derson admitted that the sacks contained marihuana,

the agent had clear authority under the customs lay

to reopen the compartment and seize the sacks, On

these facts, there was no violation of the Fourth

Amendment. See United States v. M aggard, 451 F. 4

503 (C.A. 5), certiorari denied April 3, 1972, No,

71-6006 ; Fumagalli v. United States, 429 F. 2d 1011

(C.A. 9).?

There is no merit to petitioner's contention that the

decision below conflicts with other court of appeals

decisions. On the contrary, the decision here follows

the approach taken by other courts of appeals. The

legality of a border search turns on the particular

facts presented, and the location of the checkpoint

and the purpose and the extent of the search are the

determinative factors. While, as petitioner notes,

there are differences in outcome in various cases, that

*The fact that the immigration and customs statutes permit

search of a vehicle on less than probable cause at locations not

actually at the border does not contravene the Fourth Amend-

ment. It is generally accepted that these statutes represent a

lawful exercise of Congress’ power to protect the boundaries

of this country against illegal entry of aliens and unlawful

importa. See United States v. Miranda, 426 F. 2d 283, 284

(CA. 9); Morales v. United States, 378 F. 2d 187, 189 (C.A.

5); we also United States vy. Almeida-Sanchez, 452 F. 2d 459

(C.A. 9), petition for a writ of certiorari pending, No. 71-6278.

7

is the result of differing facts rather than differences

in the legal principles applied.’

9. Petitioner also suggests (Pet. 12) that there was

insufficient evidence showing importation and knowl-

edge. By his own admission, however, petitioner agreed

to bring marihuana from Laredo, Texas—on the bor-

der—to New Mexico. He also knew that some of the

marihuana was Acapulco Gold, a special strain. He

and Anderson waited until dark to leave Laredo. The

court of appeals correctly heid that ‘‘[t]his evidence

was sufficient to create an issue for the jury as to

whether the marihuana was illegally imported and

the [petitioner] had knowledge thereof’’ (Pet. App.

Al-A2).

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Erwin N. Griswo.p,

Solicitor General.

Henry E. PETERSEN, _

Assistant Attorney General.

Rocer A. PAULEY,

CoLLEEN KOLLaR,

Attorneys.

May 1972.

*For example, the decision in Poa-Rodriquez v. United

States, 410 F. 2d 1206 (C.A. 10)—to which petitioner refers

(Pet. 11)—is consistent with the decision below. In_ that

case, @ car was stopped at a random checkpoint and its trunk

was searched for aliens. Although the trunk contained no

aliens, it did contain a jacket which was searched and found

to contain narcotics. The court held that the search of the

trunk was lawful, but that the jacket could not be searched

either under the immigration or the customs laws since the

search for aliens had ended and there was no reasonable sus-

picion to support a search for contraband.

U.S. GOVERNMENT PRINTING OFFICE: 1972