496 F2d 1184 United States v. Hufstetler

496 F.2d 1184

UNITED STATES of America, Plaintiff-Appellee,
v.
John Ronald HUFSTETLER, Defendant-Appellant.

No. 73-2927 Summary Calendar.*
*Rule 18, 5 Cir.; Isbell Enterprises, Inc.
v.
Citizens Casualty Company of New York et al., 5 Cir., 1970,

431 F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

July 3, 1974.

Joseph Abraham, Jr., Anthony C. Aguilar, El Paso, Tex., for defendant-appellant.

William S. Sessions, U.S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

Before COLEMAN, DYER and RONEY, Circuit Judges.

PER CURIAM:

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1

This marijuana apprehension occurred at a permanent border patrol checkpoint situated on Interstate Highway 10, approximately three miles west of Sierra Blanca, Texas.1 The apprehension occurred on March 16, 1973. On June 21, 1973, the Supreme Court decided Almeida-Sanchez v. United States, 413 U.S. 266, 73 S.Ct. 2535, 37 L.Ed.2d 596. Almeida-Sanchez is to be given only prospective application, U.S. v. Miller, 5 Cir., 1974,492 F.2d 37.

2

We find the facts and circumstances of this appeal, in which the District Court declined to suppress the evidence, to fall clearly within our decision in U.S. v. Merla, 5 Cir., 1974, 493 F.2d 910. In that case, the denial of a motion to suppress was affirmed. The same result necessarily follows here.2

3

Affirmed.

1

Sierra Blanca is approximately fifteen miles north of the Mexican border and about seventy-five miles southeast of El Paso. There is no road directly connecting Sierra Blanca with the Mexican boundary, but this was a permanent checkpoint

2

Appellant filed a motion to strike certain portions of the government's brief, correctly asserting that it contained statements of fact not presented or heard in the court below when considering the motion to suppress. The objectionable material played no part in our decision of this case