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May 25, 1990


The opinion of the court was delivered by: IRVING


 The motions to suppress evidence and statements filed by defendants Michael Werner Franzenberg and Manuel Mac Bojorquez came on for hearing on April 30, 1990, at 2:00 p.m., before the Honorable J. Lawrence Irving, District Court Judge. Assistant United States Attorney Patrick K. O'Toole appeared on behalf of the government. Merle Schneidewind appeared for defendant Michael Werner Franzenberg, and Kathryn Thickstun appeared on behalf of defendant Manuel Mac Bojorquez.

 Having considered all pleadings, declarations and the written and oral arguments of counsel and law in support thereof, the Court denies the defendants' motions to suppress evidence and statements because the searches comported with the dictates of U.S. v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976). At the urging of counsel, the Court also addresses the issue of whether permanent checkpoints operated by the United States Border Patrol away from the United States/Mexican border may be used to detain and search persons and vehicles in connection with the investigation of narcotics offenses. The Court finds that such checkpoints may not be used for such a purpose absent probable cause or consent.


 These two cases involve criminal prosecutions for the possession of controlled substances with the intent to distribute. Each defendant was arrested at a permanent United States Border Patrol checkpoint ("permanent checkpoint") away from the international border with Mexico, and each seeks to exclude evidence on the ground that the use of permanent checkpoints to detain persons and vehicles for the purpose of investigating narcotics offenses violates the fourth amendment of the United States Constitution.

 A. Criminal Number 90-0113-JLI

 On January 24, 1990, defendant Franzenberg and his passenger Jeremiah Healy were driving north on Interstate 15. At a permanent checkpoint located at Temecula, California, United States Border Patrol agents ("border patrol agents") stopped the defendant's vehicle, a 1988 Nissan Pathfinder, and asked from where he and his passenger had come. Because they nervously gave different answers -- defendant Franzenberg replied "San Diego," while Healy said "Las Vegas" -- the agents referred them to the secondary inspection point.

 After fingerprinting the defendant and reading him his Miranda rights, the agents began to question defendant Franzenberg. Although he denied that he had possessed drugs, he conceded that the jacket in which one bag of methamphetamine had been found belonged to him.

 B. Criminal Number 90-0266-JLI

 The government and counsel for defendant Bojorquez have stipulated to the facts of this case. U.S. v. Bojorquez, Crim. No. 90-0266-JLI, Stipulated Facts and Legal Issues Presented (May 14, 1990). The Court accepts the facts as stipulated.

 On March 7, 1990, Jose Francisco Galdamez was driving his passenger, defendant Bojorquez, north on Interstate 5. Border patrol agents stopped them at a permanent checkpoint located in San Clemente, California. The agents, who noticed that the motorists looked nervous, asked both men about their citizenship. Although both claimed to be entering the United States lawfully, the agents were suspicious, *fn1" especially because their car seemed to be unnaturally loaded down. The agents referred the vehicle to the secondary inspection area.

 At the secondary inspection point, Border Patrol Agents Ochoa and Diego questioned the two men about their citizenship. Galdamez nervously provided the agents with proof of his citizenship, but defendant Bojorquez did not. Agent Diego then asked Galdamez, the owner and driver of the car, if he could search the vehicle's trunk. Galdamez consented, but nothing of legal significance was found. The agents asked if they could search the interior of the car, and again Galdamez gave his permission. Between the seat and the console, the agents found an 8 1/2 inch folding knife. They also found a plastic bag containing a white powder, later identified as methamphetamine. With the consent of Galdamez, the agents looked within the containers in the car. In a small film container, they found some marijuana.

 At this point the agents decided that they should "pat down" the two motorists. While doing so, they found a.38 special revolver in the pocket of defendant Bojorquez' jacket. The defendant was then arrested and read his Miranda rights. Later, 200 grams of ...

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