United States v. Jerry M. Soyland, United States of America v. Mary E. Whitaker

dissenting as to Parts 111(A) and (C).

Fifty million vehicles a year pass through the Temecula and San Clemente checkpoints, which straddle the two major arteries connecting San Diego and Los Angeles about 70 miles inside U.S. territory. It’s quite an experience: Every car, van, truck and coach heading north is slowed to a crawl so uniformed law enforcement officers can peer inside for ... you’re not exactly sure what. If the officers think you’re worth investigating, they pull you over, question you and look *1316 inside your car. They alone decide whether a more thorough search will follow.

In United States v. Martinez-Fuerte, 428 U.S. 543 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976), the Supreme Court approved such internal checkpoints as a necessary means of stemming the flow of undocumented aliens. Experience has shown, however, that the checkpoints yield a far richer harvest — a cornucopia of contraband, particularly illegal drugs. 1 Perhaps this is an accident — -just a lot of lucky breaks on the part of the Border Patrol. But it may be much more: There’s reason to suspect the agents working these checkpoints are looking for more than illegal aliens. If this is true, it…

Mary E. Whitaker and Jerry M. Soyland appeal their convictions for conspiracy and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1) and 846. Both defendants appeal their sentences. We have jurisdiction under 28 U.S.C. § 1291 . We affirm Whitaker’s convictions and vacate and remand her sentence. We reverse Soyland’s convictions.

*1314 I

On October 14, 1990, Whitaker and Soy-land were travelling in a hatchback vehicle that had bags and boxes piled in the back. Whitaker was the driver, Soyland the passenger. When the vehicle reached an immigration checkpoint, agent Van Gorder directed Whitaker to drive to the secondary inspection area. As Whitaker exited the vehicle to open the hatchback door, agent Boubel smelled methamphetamine. He did not smell the drug again. Boubel completed the immigration inspection upon assuring himself that no one was hiding in the hatchback area.

Suspecting the presence of methamphetamine, Boubel requested and received permission from Whitaker to search the automobile. Boubel found vitamin B powder, which can be used to dilute narcotics, and about $4000 in cash. In response to Boubel’s questioning about illegal…

3 F.3d 1312 UNITED STATES of America, Plaintiff-Appellee, v. Jerry M. SOYLAND, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mary E. WHITAKER, Defendant-Appellant. Nos. 91-50581, 91-50583. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1992. Decided Sept. 2, 1993. Gerald T. McFadden, San Diego, CA, for defendant-appellant Soyland. Knut S. Johnson, Asst. Federal Public Defender, San Diego, CA, for defendant-appellant Whitaker. Timothy Coughlin, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee U.S. Appeal from the United States District Court for the Southern District of California. Before: BEEZER, KOZINSKI and KLEINFELD, Circuit Judges. BEEZER, Circuit Judge: 1 Mary E. Whitaker and Jerry M. Soyland appeal their convictions for conspiracy and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. Secs. 841 (a)(1) and 846. Both defendants appeal their sentences. We have jurisdiction under 28 U.S.C. Sec. 1291 . We affirm Whitaker's convictions and vacate and remand her sentence. We reverse Soyland's convictions.I 2 On October 14, 1990, Whitaker and Soyland were travelling in a hatchback vehicle that…