United States v. Carl Richard Maddox

McWILLIAMS, Circuit Judge.

Carl Richard Maddox was convicted on a charge of possession of marijuana with an intent to distribute in violation of 21 U.S.C. § 841(a)(1). The only point raised on appeal is the legality of the search of Maddox’ automobile and the seizure therefrom of the fifty-two pounds of marijuana which formed the basis for his prosecution.

The marijuana in the instant case was recovered from Maddox’ automobile during a search conducted at the so-called checkpoint located just out of Truth or Consequences, New Mexico, some ninety-eight air miles north of the Mexican border. The testimony was that Maddox’ vehicle was initially stopped at the checkpoint for the purpose of determining whether any aliens were hidden in his vehicle. The border patrol agent who stopped the vehicle testified that he noticed the odor of marijuana as he first conversed with the two occupants of the car. He then directed Maddox to open the trunk of the ear, the agent testifying upon trial that, notwithstanding the fact that he had detected the odor of marijuana, he was at the time only searching for aliens, and not marijuana. The agent then went on to testify that as Maddox opened the trunk he looked therein, and though he saw no human being, he did at once espy “a burlap bag * * * partly pulled apart and I' could see that it contained what I believed to be marijuana.” The agent thereupon arrested Maddox and removed fifty-two pounds of marijuana from the trunk of Maddox’ vehicle.

Again we are faced with a constitutional attack on 8 U.S.C. § 1357(a)(3) and 8 C.F.R. § 287.1, which statute and regulation purport to permit searches of vehicle for aliens without warrant and without probable cause by immigration officers within one hundred miles of an external boundary of the United States. The one hundred mile limitation was set by the Attorney General pursuant to the aforesaid statute as being a “reasonable distance from the external boundary of the United States.”

The attack on the statute and regulation, under which the Government contends the search and seizure in the instant case is lawful, is predicated on two grounds: (1) The statute and regulation violate the Fourth Amendment under the reasoning of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and (2) the statute and regulation when applied to the present factual situation violate the Fourth Amendment under the reasoning of the recent ease of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In the latter regard, we would note that resolution of the instant case was held in abeyance awaiting the decision by the Supreme Court in Almeida-Sanchez. Subsequent to the announcement of that decision on June 2.1, 1973, the parties to the instant proceeding filed supplemental briefs as to the effect of AlmeidaSanchez on the disposition of the present controversy. Accordingly, the matter now awaits our resolution.

Each of the two arguments advanced in the instant case has been considered by us in United States v. King, 485 F.2d 353 (10th Cir., filed August 29, 1973). We shall not repeat here that which has been commented upon in some detail in King. It is sufficient to state here that in our view Coolidge does not dictate that we declare 8 U.S.C. § 1357(a)(3) and 8 C.F.R. 287.1 unconstitutional. Coolidge held that the Fourth Amendment requires that a search warrant be issued by a “neutral and detached magistrate,” and not by, for example, a state’s attorney general. From Coolidge, counsel argues that it is equally improper for the Attorney General to determine what is a “reasonable distance” from an external boundary, and that such determination should be by a neutral body. As indicated in King, we are disinclined to lift the rule of Coolidge out of its factual context and transplant it to a factual setting which is dissimilar in important particulars.

However, as we said in King, in our view the holding of the majority in Almeida-Sanchez dictates that a warrant-less search, without probable cause, of an automobile for illegal aliens at the checkpoint at Truth or Consequences be held violative of the Fourth Amendment unless the checkpoint search be deemed the “functional equivalent” of a border search, as that phrase is used in Almeida-Sanchez. From the record before us, we cannot tell whether the checkpoint at Truth or Consequences is, or is not, the functional equivalent of a border search, and this is a matter which should in the first instance be passed on by the trial court. If the search is not the functional equivalent of a border search, then, under Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the marijuana should not have been received as evidence, and, without the marijuana, the Government’s case falls.

As in King, the Government argues here that the rule of Almeida-Sanchez should not be given retroactive effect to the end that Maddox may benefit by it. This argument in our view does not apply to one in Maddox’ position. Maddox, like Almeida-Sanchez, challenged on constitutional grounds the validity of the statute and regulation throughout the trial court proceedings and has continued to press his challenge on this court as well. And Maddox now asks that he be afforded the same relief as has been afforded in Almeida-Sanchez. We agree.

Accordingly, the judgment is vacated and the matter is remanded to the trial court with direction that it make determination after hearing, and upon notice, as to whether the checkpoint at Truth or Consequences is the functional equivalent of a border search. If the trial court shall find that it is, then the judgment and sentence shall be reinstated. However, if the trial court shall determine that the checkpoint at Truth or Consequences is not. the functional equivalent of a border search, then the trial court shall.dismiss the case.