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Docket Number

No. 76-1318. Summary Calendar.

Attorney(S)

Daniel V. Alfaro, Albert Huerta, Corpus Christi, Tex., for defendant-appellant. Edward B. McDonough, Jr., U.S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Robert A. Berg, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Judges

John Robert Brown
Walter Pettus Gewin

Acts

Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Prohibited Acts A

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Smart Summary

Summary of Opinion: United States v. Kalie, No. 76-1318 (5th Cir. Sept. 20, 1976)

Factual and Procedural Background

Valentine Kalie, represented by retained counsel, was convicted of one count of possession of marijuana with intent to distribute under 21 U.S.C.A. § 841(a)(1). Kalie appealed, claiming the District Court erred in denying his motion to suppress evidence he asserted was illegally seized because there was no probable cause for the Border Patrol's stop and search of his pickup truck.

The stop occurred at about 11:00 p.m. on September 9, 1974, at a permanent Border Patrol checkpoint on Highway 281, seven miles south of Falfurrias, Texas. An Agent questioned Kalie about his citizenship and, while questioning him, observed marijuana debris scattered in the bed of the pickup and holes in the bed through which aluminum foil was visible. The Agent then directed Kalie to pull off the road, cut the motor, and get out. Kalie attempted to start the car; the Agent removed him from the vehicle, handcuffed him, and advised him of his rights. A search of the pickup revealed marijuana in a compartment underneath the bed. The District Judge took judicial notice of the location, justification, and physical aspects of the Falfurrias checkpoint.

Legal Issues Presented

Whether the District Court erred in denying Kalie's motion to suppress evidence on the ground that there was no probable cause for the stop and subsequent search of his vehicle by the Border Patrol.
Whether stops at permanent Border Patrol checkpoints away from the border may be made for brief questioning without probable cause or reasonable suspicion, under the Supreme Court's decision in Sifuentes v. United States.
Whether a search of a vehicle at a permanent checkpoint must be based on probable cause, and if so, whether probable cause existed here based on items in plain view.

Arguments of the Parties

Defendant-Appellant's Arguments

Kalie contended that the District Court erred in denying his motion to suppress because there was no probable cause for the Border Patrol's stop and search of his vehicle.

Plaintiff-Appellee's Arguments

The Government argued (and the District Judge found) that the Falfurrias checkpoint was the functional equivalent of the border.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sifuentes v. United States, 1976, ___ U.S. ___, 96 S.Ct. 3074, 49 L.Ed.2d ___ (1976)	Holds that Border Patrol agents may make stops at permanent checkpoints away from the border for brief questioning of occupants without probable cause or reasonable suspicion.	The court relied on Sifuentes to affirm Kalie's conviction and to support the validity of the stop at the permanent Falfurrias checkpoint; because of Sifuentes, the court deemed unnecessary any determination whether the checkpoint was a functional equivalent of the border.
United States v. Ortiz, 1975, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623	Holds that a search of a vehicle at a permanent checkpoint must be based on probable cause.	The court applied Ortiz's principle to frame the requirement that searches at permanent checkpoints be supported by probable cause; it then examined whether probable cause existed here.
United States v. Martinez, 5 Cir., 1976, 526 F.2d 954, 955	Holds that the probable cause requirement (as to searches at permanent checkpoints) is retroactive in this Circuit.	The court noted Martinez to confirm that Ortiz's probable cause requirement applied to this case.
United States v. Dixon, 5 Cir., 1976, 525 F.2d 1201	Explains that plain view of marijuana seeds in a stopped vehicle gives the border patrol officer probable cause to conduct a search.	The court relied on Dixon's reasoning to hold that the observed marijuana debris and foil in the truck bed gave probable cause to search the pickup.
United States v. Lara, 5 Cir., 1975, 517 F.2d 209, 211	Applied the plain-view/probable-cause reasoning in a related context (accord to Dixon).	Cited as supporting authority for the proposition that items in plain view in a stopped vehicle can supply probable cause for a search.
United States v. Cantu, 5 Cir., 1974, 504 F.2d 387	Described the Falfurrias checkpoint as "the functional equivalent of a permanent station."	Cited for background description of the Falfurrias checkpoint; the court noted prior characterization but, because of Sifuentes, did not need to decide whether the checkpoint was also the functional equivalent of the border.
United States v. Garza, 5 Cir., 1976, 536 F.2d 1386; United States v. Bryant, 5 Cir., 1976, 537 F.2d 1141; United States v. Dougherty, 5 Cir., 1976, 537 F.2d 1142	Examples of this Court affirming convictions based on evidence discovered after a stop at the Falfurrias checkpoint on the basis of Sifuentes.	Cited to show that this Court recently affirmed, on the basis of Sifuentes, convictions stemming from stops at the Falfurrias checkpoint; used as supporting precedent.
United States v. Alvarado, 5 Cir., 1975, 519 F.2d 1133, 1135	Approved taking judicial notice of the location, justification, and other physical aspects of a checkpoint.	The District Judge's taking of judicial notice regarding the Falfurrias checkpoint was described as an approach approved by this Court in Alvarado.
United States v. Calvillo, 5 Cir., 1976, 537 F.2d 158	Referenced in a footnote regarding determination of whether a checkpoint is a functional equivalent of the border.	The court cited Calvillo to support the statement that, because of Sifuentes, it was unnecessary to decide whether the Falfurrias checkpoint was the functional equivalent of the border.
United States v. Sanchez-Garcia, Cr. No. 73-C-75 (District Judge Owen Cox, July 24, 1974)	Contains a more complete description of the Falfurrias checkpoint in the record (reprinted in the record at pages 70-84).	Used as a source in the record for descriptive details of the checkpoint that the District Judge and the court relied upon.
United States v. Santibanez, 5 Cir., 1975, 517 F.2d 922	Referenced in connection with Sifuentes and related checkpoint jurisprudence.	Cited as a related decision in the Court's treatment of checkpoint stops and the Sifuentes decision.

Court's Reasoning and Analysis

The court's analysis proceeded as follows:

It first reviewed the circumstances of the stop: Kalie was stopped at a permanent Border Patrol checkpoint seven miles south of Falfurrias; the Agent questioned Kalie about citizenship and observed marijuana debris scattered in the bed of the pickup and holes revealing aluminum foil.
The District Judge had taken judicial notice of the Falfurrias checkpoint's location, justification, and physical aspects; the Fifth Circuit noted that taking such judicial notice was an approach approved in United States v. Alvarado.
The court concluded, based on the record concerning the checkpoint, that the Falfurrias site was a fixed and permanent checkpoint within the guidelines of the Supreme Court's decision in Sifuentes.
Relying on Sifuentes, the court acknowledged that Border Patrol agents may make stops at permanent checkpoints away from the border to conduct brief questioning without probable cause or reasonable suspicion; accordingly, the initial stop for questioning was permissible under Sifuentes.
The court then addressed the legality of the search. It recognized Ortiz's rule that a search of a vehicle at a permanent checkpoint must be based on probable cause, and noted that this Circuit has held the probable-cause requirement retroactive (citing Martinez).
Applying the probable-cause standard, the court found that the marijuana debris and portions of foil-wrapped packages were in plain view in the bed of the truck. Citing United States v. Dixon (and United States v. Lara for accord), the court stated that once the vehicle was stopped, the plain view of marijuana seeds in the vehicle supplied probable cause for the Border Patrol officer to conduct the search.
Because the plain-view observations provided probable cause to search the pickup (including the compartment underneath the bed where marijuana was found), the court concluded that the search and subsequent seizure were lawful under the governing precedent.

Holding and Implications

AFFIRMED.

Holding: The Fifth Circuit affirmed Kalie's conviction. The court held that (1) the stop at the Falfurrias permanent checkpoint was permissible under Sifuentes for brief questioning without probable cause or reasonable suspicion, and (2) the subsequent search was supported by probable cause because marijuana debris and foil-wrapped packages were in plain view in the bed of the pickup, supplying probable cause to conduct the search under Ortiz as applied in this Circuit (with support from Martinez and Dixon).

Implications: The direct effect of this decision is the affirmation of the defendant's conviction and the denial of his suppression motion. The opinion applies existing Supreme Court and Fifth Circuit precedent (notably Sifuentes and Ortiz and Fifth Circuit decisions interpreting plain-view probable cause) to the facts presented; the court did not announce a new rule of law or purport to create new precedent beyond applying controlling authorities to the case at hand.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. VALENTINE KALIE, DEFENDANT-APPELLANT.

PER CURIAM:

Kalie, represented by retained counsel, was convicted of one count of possession of marijuana with intent to distribute, 21 U.S.C.A. § 841(a)(1). On appeal Kalie contends that the District Court erred in denying his motion to suppress evidence that he claims was illegally seized as there was no probable cause for the stop and search of his car by the Border Patrol. On the basis of the recent Supreme Court case Sifuentes v. United States, 1976, ___ U.S. ___, 96 S.Ct. 3074, 49 L.Ed.2d ___ (1976), we affirm his conviction.

Kalie was stopped at about 11 o'clock on the night of September 9, 1974, at a permanent checkpoint operated by the United States Border Patrol on Highway 281 seven miles south of Falfurrias, Texas. The Agent questioned Kalie about his citizenship and while questioning him noticed marijuana debris in the back of his pickup truck. The Agent testified that the debris was scattered in the bed of the pickup and that he also noticed holes in the bed through which he could see aluminum foil.

In United States v. Cantu, 5 Cir., 1974, 504 F.2d 387, this Court described the Falfurrias checkpoint as "the functional equivalent of a permanent station . . .." Id. at 389. Recently we have affirmed, on the basis of Sifuentes, convictions based on evidence discovered after a stop at the Falfurrias checkpoint. United States v. Garza, 5 Cir., 1976, 536 F.2d 1386 (1976); United States v. Bryant, 5 Cir., 1976, 537 F.2d 1141; United States v. Dougherty, 5 Cir., 1976, 537 F.2d 1142.
Here the District Judge took judicial notice of the location, justification, and other physical aspects of the Falfurrias checkpoint, an approach approved by this Court in United States v. Alvarado, 5 Cir., 1975, 519 F.2d 1133, 1135. R. at 91. There are three possible stopping points south of Falfurrias used by the Border Patrol, but on the date of Kalie's arrest only the one where he was stopped, seven miles south of Falfurrias, was in operation. Agent Standridge testified that he was working the evening shift when he stopped Kalie, he had worked at the Falfurrias checkpoint for about three and one-half years, and overhead lights were in operation. Tr. at 15-16. A more complete description of the Falfurrias checkpoint may be found in the Record at pages 70-84, a reprint of the order of July 24, 1974 entered by District Judge Owen Cox in United States v. Sanchez-Garcia, Cr. No. 73-C-75.
On the basis of the evidence in the Record concerning the checkpoint, we hold that Falfurrias is a fixed and permanent checkpoint within the guidelines of the Supreme Court in United States v. Sifuentes, supra at ___, 96 S.Ct. 3074.

After he noticed the debris, the Agent asked Kalie to pull to the side of the road, cut off the motor, and get out of the car. Kalie attempted to start the car and at that point the Agent took him out of the car, handcuffed him, and advised him of his rights. The pickup was searched and marijuana was found in a compartment underneath the bed of the truck.

In Sifuentes the Supreme Court affirmed the position of this Court that Border Patrol agents may make stops at permanent checkpoints away from the border for brief questioning of the occupants without probable cause or reasonable suspicion.

___ U.S. at ___, 96 S.Ct. 3074. See United States v. Santibanez, 5 Cir., 1975, 517 F.2d 922.

The District Judge found and the Government argues on appeal that the Falfurrias checkpoint was actually a functional equivalent of the border. [R. at 92. Appellee's Brf. at 7.] Because of the Supreme Court's holding in Sifuentes affirming the validity of stops at a permanent checkpoint, however, it is unnecessary for us to make any determination whether the Falfurrias checkpoint is also a functional equivalent of the border. See United States v. Calvillo, 5 Cir., 1976, 537 F.2d 158 [1976, at 5127 n. 3].

United States v. Ortiz, 1975, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623, holds that a search of a vehicle at a permanent checkpoint must be based on probable cause. The probable cause requirement has been held retroactive by this Circuit in United States v. Martinez, 5 Cir., 1976, 526 F.2d 954, 955. Here the marijuana debris and portions of the foil-wrapped packages were in plain view in the bed of the truck. As we stated in United States v. Dixon, 5 Cir., 1976, 525 F.2d 1201, "Once the vehicle was stopped, the plain view of the marijuana seeds in the car gave the border patrol officer probable cause to then conduct the search." Accord, United States v. Lara, 5 Cir., 1975, 517 F.2d 209, 211.

AFFIRMED.

UNITED STATES v. KALIE