United States of America, Plaintiff-appellee, v. Camilo Juarez-rodriguez, Defendant-appellant, 498 F.2d 7 (9th Cir. 1974)

On May 6, 1974, this case was ordered submitted for decision on June 3, 1974. That order is vacated, and the case is ordered submitted for decision today.

On September 20, 1973, Border Patrol agents at the San Clemente immigration checkpoint on interstate route 5, approximately 66 miles from the Mexican border, made a routine stop of a station wagon driven by appellant. The agents searched the station wagon and found 244 pounds of marihuana in the luggage well and spare tire well. No claim is made that the agents had a 'founded suspicion' to justify stopping appellant's vehicle, see, e.g., United States v. Jaime-Barrios, 494 F.2d 455 (9th Cir. 1974); United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir. 1973), or probable cause to search the vehicle, see Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925).

Appellant moved to suppress the marihuana. His motion was dinied. He then reserved his right to renew the motion, waived jury trial, and proceeded to trial upon stipulated facts. He was convicted of possessing marihuana with intent to distribute in violation of 21 U.S.C. 841(a) (1) (1970).

In the absence of founded suspicion and probable cause, the stop and search of appellant's vehicle at the San Clemente alien checkpoint violated appellant's Fourth Amendment rights. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973); United States v. Bowen, 500 F.2d 960, 962-967 (9th Cir. May 9, 1974). Evidence concerning the stop, search, and discovery of marihuana should therefore have been suppressed.

Since the stop and search in this case took place after June 21, 1973, the date on which the Supreme Court decided Almeida-Sanchez v. United States, supra, the non-retroactivity of that decision as applied to fixed alien checkpoints, see United States v. Bowen, supra, at 975-982, need not concern us.

The judgment is reversed.