Opinion
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.
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.
Appeal from the United States District Court for the Western District of Texas.
Before COLEMAN, DYER and RONEY, Circuit Judges.
This marijuana apprehension occurred at a permanent border patrol checkpoint situated on Interstate Highway 10, approximately three miles west of Sierra Blanca, Texas. The apprehension occurred on March 16, 1973. On June 21, 1973, the Supreme Court decided Almeida-Sanchez v. United States, 413 U.S. 266, 93 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.
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.
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.
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.
Affirmed.