United States v. Fred Angelo Patacchia, Juliette v. Coloma

The government appeals an order by the district court granting defendants’ motion to suppress evidence. Defendants were charged with conspiracy to possess marijuana with intent to distribute and with possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841 (a)(1) and 846. This court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294.

We affirm the order of the district court.

I.

FACTS

This is a search at a fixed checkpoint case. The district court held the search was unsupported by either probable cause or consent. It therefore suppressed the evidence discovered in the search as required by United States v. Martinez-Fuerte, 428 U.S. 543, 567 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976). See United States v. Rubalcava-Montoya, 597 F.2d 140 (9th Cir. 1978). The facts, we think, support this conclusion and are as follows.

On the morning of August 29, 1978, Border Patrol Agents Foster, Fullen and Davis were on duty at the San Clemente Border Patrol Checkpoint on Interstate Highway 5. Agent Foster was on “the point,” standing behind a stop sign on the highway. His duties included making a preliminary determination whether a vehicle should be allowed to…