United States v. Larry Neil Maxwell

The issue in this 21 U.S.C. § 841 (a)(1) case is whether the border patrol had the right to stop Maxwell’s automobile at a checkpoint on Highway S-22 in the El Centro Customs District of Southern California. If the stop was unlawful, we do not reach the issue of probable cause for the search.

For 25 years the border patrol had intermittently operated an immigration checkpoint on Highway S-22. The border patrol used two or three locations between three and seven miles west of Saltón City. The officers brought the equipment to the site each time from a Highway 86 checkpoint.

During the few (6-24) hours a month the checkpoint is open, it is marked by a small “stop ahead” sign 100-200 yards in advance with battery-operated blinking yellow lights, half a dozen traffic cones, a stop sign, and a border patrol vehicle facing traffic. When a car approaches, the officer in the patrol car activates the car’s flashing red lights. The stop signs are ordinary road signs. There are no electrical connections, buildings, or other indications of permanence. There may be some poles; the record is not clear. There are no houses for some distance.

The government argues that the 25-year-long use of…