United States of America, Appellee, v. Jerry Delona Evans, Appellant.united States of America, Appellee, v. Margarita Acosta De Evans, Appellant, 507 F.2d 879 (9th Cir. 1974)

These consolidated appeals challenge convictions upon multiple counts of illegal transportation of aliens and related offenses. The only issue is whether the initial discovery of incriminating evidence by government officers 'poisoned' the subsequent stream of evidence and thereby fatally infected the government's case with error. We find no such error, and affirm.

The defendants were proceeding in an automobile which, because of its innocent appearance, was 'waved through' an immigration checkpoint at Oak Grove, California. As the automobile rolled through the checkpoint area without stopping, a border patrolman looked into the space behind the front seat and saw two persons who appeared to be Mexicans lying on the floor. This observation led to a pursuit, a stop, and a fruitful search.

The arrest was made in February 1974 In June 1974, this court construed Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973), to preclude the stopping without a warrant, probable cause, or a founded suspicion of automobiles at a fixed checkpoint away from an international border or its functional equivalent. Had the evidence in the case at bar been discovered by means of a stop which violated Almeida-Sanchez, this case would be subject to reversal. United States v. Bowen, 500 F.2d 960 (9th Cir. 1974).

On the facts here, however, there was no unconstitutional stop and search. The officer saw only that which was observable in plain view to any person situated close to the road. We do not accept the defense theory that the diversion of motor traffic into a zone where it can be observed by officers violates any constitutionally protected expectation of privacy.

Affirmed.