United States v. Byrd

¶8PER CURIAM:

¶9On September 7, 1973, the conviction of Richard Glynn Byrd was reversed. 483 F.2d 1196. Because the court based its opinion in part on Almeida-Sanchez,1which was subsequently determined to have prospective application only,2 the court granted the government’s petition for rehearing. The result, however, was unchanged. 494 F.2d 1284. In a per curiam opinion the court abandoned its reliance on Almeidia-Sanchez but sustained its prior reversal on the authority of United States v. Storm3 Marsh v. United States,4 and United States v. Bursey.5The government then petitioned the United States Court of Appeals for the Fifth Circuit for a rehearing en banc.

¶10The Supreme Court recently rendered a decision, United States v. Brignoni-Ponce,6 which directly bears upon the government’s petition for rehearing en banc. The Court stated:

“We are unwilling to let the Border Patrol dispense entirely with the requirement that officers must have a reasonable suspicion to justify roving-patrol stops. In the context of border area stops, the reasonableness requirement of the Fourth Amendment demands something more than the broad and unlimited discretion sought by the Government. . .We are confident that substantially all ’of the traffic in these cities is lawful and that relatively few of their residents have any connection with the illegal entry and transportation of aliens. To approve roving-patrol stops of' all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.”7 (Emphasis added.)

¶11The Court concluded that appellant’s apparent Mexican ancestry was in and of itself an inadequate basis on which to predicate the pre-AImeida-Sanchez intrusion.

¶12In the Byrd case a roving border patrol stopped appellant’s vehicle without a “reasonable suspicion” of criminal activity.8 In fact, Officer Escobedo said he *1103and his partner would have stopped any vehicle traveling on the particular road that evening.

¶13Therefore, the first opinion reversing the conviction of Byrd, although relying on Almeida-Sanchez, reached the proper result. Likewise, the subsequent opinion, abandoning reliance on AlmeidaSanchez while sustaining the prior reversal, was a sound and correct result in light of the Supreme Court’s recent decision in Brignoni-Ponce. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the government’s petition for rehearing en banc is denied.