United States v. Eustorgio Pena-Garcia

Having been convicted on four counts of transporting illegally admitted aliens [ 8 U.S.C. § 1324 (a)], defendant on this appeal argues two points: (a) the trial court erred in failing to suppress evidence taken in a roving checkpoint search 55 to 60 miles north of the Mexican border, and (b) the defendant was denied a fair trial and the effective assistance of counsel because of conduct of the trial judge. While we conclude that we must reverse and direct a new trial on appellant’s second point, we direct that the mandate be stayed pending decision by the Supreme Court in United States v. Brignoni-Ponce, 499 F.2d 1109 (9th Cir. 1974) (en banc), cert. granted, - U.S. -, 95 S.Ct. 40 , 42 L.Ed.2d 48 , Oct. 15, 1974, or United States v. Guana-Sanchez, 484 F.2d 590 (7th Cir. 1973), cert. granted, 417 U.S. 967 , 94 S.Ct. 3169 , 41 L.Ed.2d 1138 , June 17, 1974.

Two border patrol agents operated a roving checkpoint in July 1973 well north of the international border with Mexico on California highway S22. Pursuant to their practice of stopping every northbound vehicle, they followed and stopped an automobile driven by defendant. One passenger in the front seat and three others…