United States v. Victor Grijalva-Carrera

Ninth Circuit

United States v. Victor Grijalva-Carrera

500 F.2d 592, 1974 U.S. App. LEXIS 8136

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 14, 1974

Docket72-2349

StatusPublished

Cited by3 cases

This text of 500 F.2d 592 (United States v. Victor Grijalva-Carrera) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Victor Grijalva-Carrera, 500 F.2d 592, 1974 U.S. App. LEXIS 8136 (9th Cir. 1974).

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OPINION

PER CURIAM:

The only issue in this appeal is whether evidence discovered by a border-patrol agent during the course of a routine immigration search on U. S. Highway 95 north of Yuma, Arizona, must be suppressed.

[593]*593In United States v. Peltier, 500 F.2d 985 (9th Cir., 1974) (en bane), we hold that the rule announced by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), applied retroactively to all cases involving roving-patrol searches which were pending on appeal at the time that Almeida-Sanchez was announced. However, in United States v. Bowen, 500 F.2d 960 (9th Cir., 1974) (en 'banc), we also held that, although searches by border-patrol agents at fixed checkpoints violated the Fourth Amendment, Almeida-Sanchez would not be applied retroactively to fixed-checkpoint searches conducted prior to the date of decision of Almeida-Sanchez.

The search of Grijalva-Carrera’s car was conducted before the decision of Al-meida-Sanchez was announced. The controlling question is whether or not the search here was more like a roving-patrol issue than a fixed-checkpoint search. We hold that it was, and reverse.

At the hearing on the motion to suppress, the arresting officer testified that he had instructions to stop all vehicles traveling north after dark on Highway 95. His car was parked alongside the road where he could turn on its lights and observe the occupants of a vehicle which passed. There was no roadblock of any kind, and the record does not indicate that there were any signs, warning light, or other indications of a border-patrol facility. Flagging a motorist to the side of the road at an unmarked, unlighted location on a desolate highway is more characteristic of a roving-patrol search than of a fixed-checkpoint search. See generally United States v. Bowen, 500 F.2d at 963-964.

Reversed.

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OPINION

PER CURIAM:

The only issue in this appeal is whether evidence discovered by a border-patrol agent during the course of a routine immigration search on U. S. Highway 95 north of Yuma, Arizona, must be suppressed.

[593]*593In United States v. Peltier, 500 F.2d 985 (9th Cir., 1974) (en bane), we hold that the rule announced by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), applied retroactively to all cases involving roving-patrol searches which were pending on appeal at the time that Almeida-Sanchez was announced. However, in United States v. Bowen, 500 F.2d 960 (9th Cir., 1974) (en 'banc), we also held that, although searches by border-patrol agents at fixed checkpoints violated the Fourth Amendment, Almeida-Sanchez would not be applied retroactively to fixed-checkpoint searches conducted prior to the date of decision of Almeida-Sanchez.

The search of Grijalva-Carrera’s car was conducted before the decision of Al-meida-Sanchez was announced. The controlling question is whether or not the search here was more like a roving-patrol issue than a fixed-checkpoint search. We hold that it was, and reverse.

At the hearing on the motion to suppress, the arresting officer testified that he had instructions to stop all vehicles traveling north after dark on Highway 95. His car was parked alongside the road where he could turn on its lights and observe the occupants of a vehicle which passed. There was no roadblock of any kind, and the record does not indicate that there were any signs, warning light, or other indications of a border-patrol facility. Flagging a motorist to the side of the road at an unmarked, unlighted location on a desolate highway is more characteristic of a roving-patrol search than of a fixed-checkpoint search. See generally United States v. Bowen, 500 F.2d at 963-964.

Reversed.

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