United States v. Enrique Alvarez-Gonzalez , 561 F.2d 620 ( 1977 )

GEE, Circuit Judge:

The affirmance or reversal of appellant’s conviction depends on whether a limited search conducted at the La Gloria, Texas, Border Patrol Checkpoint in 1974 was valid. Drugs were discovered in the course of the search for illegal aliens, but since the search was concededly carried out without benefit of either warrant or probable cause, this evidence must be suppressed unless the checkpoint is a functional equivalent of the border. If it is, such justifications are not required for routine searches conducted there of automobile trunks and other large spaces in which aliens may be concealed.

In an earlier opinion in this case,¹ we reviewed some of the authority concerning functional equivalency handed down since the Supreme Court noted, in Almeida-San-chez, that “[border] searches 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 that extend from the border, might be functional equivalents of border searches.” 413 U.S. 266, at 272-3, 93 S.Ct. 2535, at 2539, 37 L.Ed.2d 596. And on a consideration of our opinion in United States v. Hart,² we isolated three major considerations in determining functional equivalence of an interior checkpoint to the border: relative permanence of the checkpoint; relatively minimal interdiction by it of domestic traffic; and the checkpoint’s capability to monitor portions of international traffic not otherwise controllable.³ Believing that further findings of fact by the district court, findings which focused on these considerations, were needful to an evaluation by us of its ultimate determination that La Gloria was the border’s functional equivalent, we remanded to the district court for such findings. In so doing, we expressly authorized the experienced trial judge to consider and make findings upon any other matters he deemed appropriate to the inquiry. Having done so, he has again concluded that the La Gloria checkpoint is the functional equivalent of the border for immigration purposes. After examining the evidence and the district court’s findings, we agree.

The first major issue we asked the district court to examine concerned the character of the checkpoint: “that it functions like a permanent border checkpoint and not like the roving patrol condemned in Almeida-Sanchez or on a radically shifting basis approximating the peregrinations of such a patrol.” Alvarez-Gonzalez, supra at 229. As we noted in our first opinion in this case, we have already determined that La Gloria is a permanent checkpoint for the purposes of detaining vehicles for citizenship checks. See United States v. Santibanez, 517 F.2d 922, 923 (5th Cir. 1975). The district court heard testimony confirming this classification. Although prior to 1973 the checkpoint was shifted along Highway 1017, the Border Patrol has established the La Gloria checkpoint at a single location. No permanent houses are located at the checkpoint, but it does have permanent road signs, a light pole, an electric power drop, telephone lines and a paved apron for secondary inspections.⁴ The Border Patrol classifies La Gloria as a permanent checkpoint — a decision entitled to some deference, see United States v. Calvillo, 537 F.2d 158, 161 n.3 (5th Cir. 1976), but manpower shortages prevent the Border Patrol from operating the checkpoint 24 hours a day. Nevertheless, these facts demonstrate that the La Gloria checkpoint has the permanence necessary to alert motorists to its presence and thus reduce the intrusiveness of the stop. See United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116, 1129 (1976). Further, all northbound traffic on Highway 1017 is diverted through the checkpoint during its hours of operation just as all traffic at ports of entry is diverted. See United States v. Hart, 506 F.2d 887, 896 (5th Cir.), vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706 (1975), reaff’d, 525 F.2d 1199 (5th Cir. 1976) (on remand). In short, we agree that the La Gloria checkpoint functions like a permanent border checkpoint.

The second major issue relevant to defining the La Gloria checkpoint as the functional equivalent of the border involves the ratio between international and domestic traffic passing through the checkpoint: “The presence of a continuing and significant percentage of domestic traffic through a given checkpoint cannot but be seen as militating against granting the status of functional equivalency.” Alvarez-Gonzalez, supra at 229. The district court examined evidence presented by the Border Patrol on the nature of the traffic through the La Gloria checkpoint and concluded that “the interdiction of domestic traffic at the La Gloria checkpoint is relatively minimal.” After reviewing the district court’s method and the evidence presented, we agree.

Following our earlier remand, the Border Patrol conducted a survey of the traffic passing through the La Gloria checkpoint from December 26, 1976, through January 13, 1977. During this period the Border Patrol surveyed 2,216 vehicles. One thousand three hundred thirty-nine vehicles, 60.42% of the total, were determined to be international traffic; 483, or 21.80% of the total, were classified as domestic private vehicles; and 394, or 17.78% of the total, were found to be domestic commercial vehicles. A second survey conducted from January 22, 1977, through January 29, 1977, produced a higher percentage of international traffic. This was understandable, since the first survey was partially taken during the deer season in South Texas during which numerous hunters travelling back and forth repetitively added to the domestic traffic count.⁵

Although this ratio of international to domestic traffic is somewhat low, it is not so low as to foreclose functional equivalent status for the La Gloria checkpoint. International traffic clearly predominates at the checkpoint; the surveys indicate that domestic traffic at the checkpoint does not approach the “majority percentage” that concerned us in Alvarez-Gonzalez. 542 F.2d at 229.

One remaining question about this statistical evidence concerns the definition of “international” that lies at its basis. In assessing the checkpoint’s “international” traffic, the Border Patrol measured traffic whose journeys leading to the La Gloria checkpoint began in the “immediate border area.” In the context of this checkpoint, the “immediate border area” was defined as the area south of U.S. Highway 83, a highway running parallel to and within a few miles of the Texas-Mexico border in South Texas. Thus, the definition included not only those trips to the north that actually commenced across the border but also those that began on the Texas shore of this sparsely populated segment of the Rio Grande, including vehicles with registrations from locations in the United States.⁶

The district court adopted this measurement, finding it justified on several grounds. First, it noted our language in the United States v. Hart, supra, rejecting “the idea that every vehicle must be shown to have probably crossed the border to be legally stopped at the . . . checkpoint . .” 506 F.2d at 895. Second, the district court determined that extreme proximity to the border and the frequency with which persons living along the Texas shore of the Rio Grande visit Mexico support an assumption that a very high proportion of persons travelling from the immediate border area, at least in these long vacant stretches of the river, have crossed the border recently. Third, and most important, evidence of the practical operations of alien smuggling — a matter with which the district judge has long trial experience— persuaded the court to adopt this definition. As the court found, amidst all the permutations and variables of this criminal endeav- or as practiced along the Texas-Mexican border, there may be isolated two stable elements almost invariably to be found in every scheme: a rendezvous on the Texas shore of the Rio Grande, with the aliens being responsible for fording the river on foot and presenting themselves there for departure inland, and a resident alien or United States citizen at the rendezvous point who undertakes to smuggle the aliens concealed in an automobile bearing Texas license plates and registration. It is therefore precisely such northward automobile trips as originate on the Texas side of the international boundary, and not those which originate in Mexico, which are most likely to involve alien smuggling. It would make little sense indeed to adopt a definition of “international” for this purpose which ex-eluded those very journeys which evidence and practical experience have demonstrated are most likely to commence with an illegal international border crossing. In such situations, although the vehicle has not crossed the border, its cargo has. For purposes, then, of distinguishing between the sort of “international” traffic which the checkpoint should properly scrutinize and the sort of domestic traffic with which it is desired to interfere no more than can be helped, it seems reasonable to include with the international such trips as originate close to this border, have such a close nexus with Mexico, and are so frequently the means of alien smuggling.

Finally, the district court noted the ability of aliens with 72-hour visas (1-186 cards) who legally enter the United States border area to obtain illegal transportation north in Texas vehicles. On consideration of all the above matters, for the purposes of defining functional equivalency, we agree with the district court’s definition.⁷ And since on this definition the checkpoint monitors predominantly international traffic, it meets the second consideration that we suggested to the district court.

The final consideration we undertake is whether “the checkpoint under consideration actually approximates the effect of one physically located at the border” in that it has “a capability to monitor portions of international traffic not otherwise practically controllable.” Alvarez-Gonzalez, supra at 229. The district court reviewed the evidence in light of this requirement and concluded that the La Gloria checkpoint met this final requirement. We agree with the district court’s conclusion.

On remand the government presented an impressive array of evidence detailing the uncontrolled access to the United States along the Rio Grande River south of La Gloria. That evidence indicated numerous frequently used paths, trails and roads leading away from the international boundary and eventually connecting to Highway 1017. See Hart, supra at 897. Although the La Gloria checkpoint does not rest on an east-west highway paralleling the border, as Interstate 10 does near the Sierra Blanca checkpoint, see Hart, supra at 896, the “tributaries” empty into Highway 1017 in much the same way.

These facts also reflect the tactical justification for the location of the La Gloria checkpoint. Highway 1017 is one of three major routes from South Texas— Highway 1017, U.S. Highway 281 and U.S. Highway 77. It is the only one of those routes due north of a very long stretch of sparsely populated border area providing uncontrolled access to the United States. The La Gloria checkpoint lies at the confluence of a number of established roads leading away from a sparsely populated segment of the border. La Gloria’s location is such that it is the first point at which international traffic from areas of significant uncontrolled access receives scrutiny.⁸

The record of apprehension of illegal aliens at the checkpoint further substantiates this view. The Border Patrol has apprehended a significant number of illegal aliens at this La Gloria checkpoint despite the fact that it operates the checkpoint only about one-third of the time. In fiscal year 1975, the Border Patrol arrested 497 aliens and 36 alien smugglers; in fiscal year 1976, this number increased to 838 aliens and 149 smugglers arrested. During the first survey period of December 26, 1976, to January 13,1977, the Border Patrol apprehended 125 aliens and 12 alien smugglers. These figures indicate that the La Gloria checkpoint examines much international and international-connected traffic not previously scrutinized.

The magnitude of the problem of aliens illegally entering or remaining in the United States is staggering. The peculiar characteristics of the Texas-Mexican border — a river inappropriately named Rio Grande in that aliens can swim, wade, and in some places walk across it easily— present serious problems for those enforcing the immigration laws. The Supreme Court has long recognized that the national interests in the protection of the borders justify relaxation of fourth amendment requirements at the border or its functional equivalent. And though in Almeida-Sanchez it recognized the concept of a “functional equivalent” of the border, it has not thus far had occasion to provide much guidance in defining such a “functional equivalent.” The matter presses upon -Texas, however, a state of our circuit, and in these circumstances we have perforce laid down our own guidelines: “relative permanence, relatively minimal interdiction of domestic traffic, and a capability to monitor portions of international traffic not otherwise practically controllable.” Alvarez-Gonzalez, supra at 229.

In so doing, we recognize that we have struck a balance between the needs of law enforcement and the constitutional rights of residents near the Mexican border to go about their domestic errands without unreasonable searches — a balance that countenances, in a far milder form, some of the measures which moved the Supreme Court to its decision in Almeida-Sanchez. But the opinion in that case itself contemplates the existence of points removed from the border which are yet its functional equivalent, and the Court can scarcely have failed to appreciate that citizens who reside in such a location as to have to pass through such a point on their daily rounds will be subjected to an inconvenience which most of their fellows will be spared. Although in some instances citizens may be subject to a full search for contraband at the functional equivalent of the border, see United States v. Brennan, 538 F.2d 711, 714-15 (5th Cir. 1976), no such intrusion was contemplated at the La Gloria checkpoint. A more serious interference of this sort could well result in the striking of a different balance in determining a checkpoint’s status as the functional equivalent of the border, since the degree of intrusion clearly bears on that status. United States v. Brennan, supra at 715-16. But a cursory inspection ⁹ for alien passengers limited to cavities large enough to contain a human form and conducted at a fixed point is a far cry from the thorough search carried out by the roving commission at a point of its own selection in Almeida-Sanchez.

In light of the evidence adduced at the district court’s hearing on remand, we hold that the La Gloria checkpoint meets our guidelines and is the functional equivalent of the border for purposes of an immigration search. Accordingly, the Border Patrol officers who searched Alvarez-Gonzalez’ trunk did not require probable cause to do so. His conviction is AFFIRMED.

1 . United States v. Alvarez-Gonzalez, 542 F.2d 226 (5th Cir. 1976).

2 . 506 F.2d 887, vacated and remanded, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 706 reaffd 525 F.2d 1199 (5th Cir. 1976) (on remand).

3 . We also noted our refusal to regard the international/domestic traffic ratio as dispositive, standing alone, as dicta in United States v. Bowen, 500 F.2d 960 (9th Cir. 1974) (en banc) appear to do. And though that decision was in part affirmed by the Supreme Court, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 these observations were not.

4 . Counsel for Alvarez-Gonzalez attempted to prove that these fixtures were not present when the search took place in 1974. The district court found that the fixtures were present, and we conclude that his factfinding is not clearly erroneous.

5 . Obviously any bias in these percentages will favor a higher legitimate domestic percentage, since many of those illegals who successfully pass themselves off as legitimate will swell the domestic percentage and shrink the “international” one, while those who evade the point entirely — by hiking around it and rendezvousing with transportation further up the road— will not be counted.

6 . While Brownsville and portions of McAllen fall within this definition of the “immediate border area” domestic north-south traffic from these cities is served by two major highways and presumably does not ordinarily traverse the lesser routes monitored by the La Gloria checkpoint.

7 . As noted, the district court’s definition assumes that vehicles from the “immediate border area” have a “nexus” with the border justifying this classification as “international” traffic. In other contexts we have held that vehicles with an overall nexus with the border may be subjected to an extended border search. See United States v. Brom, 542 F.2d 281 (5th Cir. 1976); United States v. Flores, 531 F.2d 222 (5th Cir. 1976).

8 . The district court also relied on a “second river” theory to justify the tactical need for a La Gloria’s location. The second river theory holds that the La Gloria checkpoint is a second river for aliens who enter the United States with 1-186 cards (limiting travel to within 25 miles of the port of entry) and then attempt to move further into the interior of the United States. This theory explains the Border Patrol’s decision to place the checkpoint greater than 25 miles from the international boundary but does not otherwise further La Gloria’s status as a checkpoint that “actually approximates the effect of one physically located at the border.” Functional equivalents are primarily designed to prevent illegal entry into the United States, not overextended entry. The La Gloria checkpoint’s ability to monitor aliens with I-186 cards standing alone would not qualify it for functional equivalent status; but it is a factor deserving consideration.

9 . Evidence in this record supports the district court’s factual description of the procedures:

Normal procedures of the La Gloria Checkpoint include the stopping of all vehicles, and, depending upon the officers’ observations, brief questioning of the occupants concerning their citizenship. The initial stop is made on the highway; following the questioning, which takes only a few seconds, vehicles are allowed to pass through the checkpoint if the occupants’ citizenship status is in order. However, if any irregularity or deficiency in documents exists, or if suspicious behavior is exhibited (such as hesitancy to approach the checkpoint), the driver is directed to pull over to the extra lane on the side of the road; the extra lane is used to prevent congestion and the creation of a hazardous condition on the highway. When a search for aliens is determined to be justified, only compartments large enough to conceal a body are scrutinized; a search of most such cavities takes less than a minute.

And it is just “searches of this kind” that the Supreme Court in Almeida-Sanchez contemplated might be made at functional equivalents of the border. 413 U.S. at 272, 93 S.Ct. 2535.