text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Edward HART, Defendant-Appellant.
    No. 73-3949.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.

      Johnny Searls (Court-appointed), Larry Victorson, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   RONEY, Circuit Judge:

This case involves the effect of the Supreme Court’s decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) on a search and seizure at a permanent United States Border Patrol checkpoint near Sierra Blanca, Texas. Holding that the principle announced in Almeida-Sanchez does not militate against the legality of this search under our prior decisions, we affirm these convictions for possession of 397 pounds of marijuana with intent to distribute, 21 U.S.C.A. § 841(a)(1), and for escape from custody pursuant to lawful' arrest, 18 U.S.C.A. § 751(a).

On October 9, 1973, at approximately 6:30 a. m., Lawrence Edward Hart was stopped at a permanent United States Border Patrol checkpoint on Interstate Highway 10, 85 miles east of El Paso, Texas, and 4 miles west of Sierra Blanca, Texas. Border Patrol agent Charles Elmore inquired as to Hart’s citizenship and requested that Hart open the trunk of his automobile. When Hart complied, Border Patrol agent Tom Moore detected an odor of marijuana and observed a white sheet covering the contents of the trunk. Agent Elmore pulled back a corner of the sheet and observed “kilo-shaped” bricks of marijuana. A count of the bricks disclosed 185 kilo packages, or approximately 397 pounds of marijuana.

The agents advised Hart that he was under arrest, placed him in handcuffs, and confined him in the rear of the trailer-office at the checkpoint. Hart, however, managed to escape. The following day, Border Patrol agents apprehended Hart in Lordsburg, New Mexico, where they found Hart hiding in a freight car, still handcuffed. Hart attempted to escape from the agents a second time, however, they successfully returned him to El Paso.

On November 7, 1973, Hart was indicted on one count of possession of a Schedule I Controlled Substance with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1), and one count of escape from the custody of an officer of the United States pursuant to a lawful arrest in violation of 18 U.S.C.A. § 751(a). On November 9, Hart filed a motion to suppress evidence which alleged that the Border Patrol agents at Sierra Blanca checkpoint had conducted the search of Hart’s car in violation of the Fourth Amendment. On November 28, a jury having been waived, the United States District Court for the Western District of Texas proceeded to hear the merits of Hart’s case. At the conclusion of the evidence, the court overruled Hart’s motion to suppress and found Hart guilty on both counts. On December 4, the court sentenced Hart to five years imprisonment on each count, such sentences to run concurrently, and five years special parole on count one.

On appeal, Hart asserts two grounds for the reversal of his conviction. First, Hart argues that his conviction for possession of marijuana with intent to distribute should be reversed because the evidence against him was obtained as a result of an unconstitutional search and seizure. Second, Hart contends that his conviction for escape should be set aside because there was no lawful arrest, the stop and search which led to the arrest being illegal. At oral argument before this Court, Hart’s attorney properly conceded that the question of the constitutionality of the search at the Sierra Blanca checkpoint controls the disposition of both convictions.

On every occasion that the question has previously been presented to us, we have upheld, as constitutional, searches conducted pursuant to 8 U.S.C.A. § 1357(a) at permanent checkpoints. See United States v. Phillips, 496 F.2d 1395 (5th Cir. 1974); United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974), cert. applied for December 4, 1974; United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974); United States v. Merla, 493 F.2d 910 (5th Cir. 1974); United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972); United States v. DeLeon, 462 F.2d 170 (5th Cir. 1972), cert. denied, 414 U.S. 853, 94 S.Ct. 148, 38 L.Ed.2d 102 (1973). In two recent decisions covering pre-Almeida-Sanchez searches, we have specifically held that border agents may stop vehicles at the Sierra Blanca checkpoint and search the trunks of those vehicles for aliens illegally in the United States. United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974); United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974).

As an aid in deciding this case, we have compiled in two ways the so-called Texas border search cases decided by this Court in the past ten years and set forth both lists in the margin: first, we have listed the cases according to the location of the search, and second, we

have listed them according to the kind of checkpoint or stop involved. From this compilation, it can be seen that we have never held unconstitutional a search with the characteristics of a border search when made at a permanent checkpoint. Nor have we even held invalid a search at what we have called a permanent/temporary checkpoint, that is, a permanent checkpoint area where the physical location of the checkpoint may be changed from time to time, as in Laredo.

The searches which have been held invalid occurred at clearly temporary checkpoints, United States v. Diemler, 498 F.2d 1070 (5th Cir. 1974) and United States v. Speed, 497 F.2d 546 (5th Cir. 1974), but see United States v. Cantu, 504 F.2d 387 (5th Cir. 1974) (now pending on petition for rehearing); were by roving patrols, United States v. Byrd, 483 F.2d 1196 (5th Cir. 1973), modified 494 F.2d 1284 (5th Cir. 1974); United States v. McKim, 487 F.2d 305 (5th Cir. 1973) ; United States v. Storm, 480 F.2d 701 (5th Cir. 1973); or were otherwise nonpermanent checkpoint cases, United States v. Olivares, 496 F.2d 657 (5th Cir. 1974); United States v. Bursey, 491 F.2d 531 (5th Cir. 1974).

The law of this Circuit thus seems to be clear that permanent checkpoint searches of motor vehicles conducted as “border searches” for aliens have been held to meet the reasonableness standards of the Fourth Amendment.

Because the congressional authority for permanent checkpoints, temporary checkpoints, and roving patrols is contained in the same Act, the recent decision of the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), concerning roving patrols, requires us to reconsider the constitutionality of all warrantless searches conducted pursuant to 8 U.S.C.A. § 1357(a). Under section 287(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1357(a), Congress extended the warrantless border search to empower any officer or employee of the Service without a warrant,

(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or .vehicle, . for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.

8 U.S.C.A. § 1357(a)(3).

In Almeida-Sanchez, a roving patrol of the United States Border Patrol stopped a Mexican citizen holding a valid United States work permit, searched his vehicle, and discovered a large quantity of marijuana. The search was conducted some 25 miles north of the Mexican border, on an east-west state highway in California which is at all points at least 20 miles north of the border. Between the state highway and the border lies a major east-west federal highway. After conviction of having knowingly received, concealed and facilitated the transportation of illegally imported marijuana in violation of 21 U.S.C.A. § 176(a), defendant appealed on the ground that the search of his automobile by the roving patrol was unconstitutional under the Fourth Amendment and that, under the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1913), the marijuana should not have been admitted as evidence against him. The Ninth Circuit upheld the validity of the search, United States v. Almeida-Sanchez, 452 F.2d 459 (9th Cir. 1971), pursuant to 8 U.S.C.A. § 1357(a).

Reversing the decision of the Ninth Circuit, the Supreme Court held that a warrantless search for aliens by a roving border patrol without probable cause or consent violates the Fourth Amendment guarantee against unreasonable searches and seizures. Finding no support for such a breach in either its automobile search decisions or its administrative decisions, the Court rejected the Government’s argument that the search was justified under 8 U.S.C.A. § 1357(a). “It is clear, of course, that no Act of Congress can authorize a violation of the Constitution.” 413 U.S. at 272, 93 S.Ct. at 2539. Mr. Justice Stewart delivered the opinion of the Court in which Justices Douglas, Brennan, Marshall and Powell joined. Mr. Justice Powell filed a concurring' opinion and Mr. Justice White filed a dissenting opinion in which the Chief Justice and Justices Blackmun and Rehnquist joined.

Simplistically speaking, the holding in Almeida-Sanchez could not control the constitutional disposition of a permanent checkpoint case because there was no case and controversy before that Court about permanent checkpoints. The Court specifically refused to take the case on the facial constitutionality of the authorizing Act, and approached the case on the constitutionality of the search under the facts of that case.

The argument then is that we should make an informed guess in the light of the opinions in Almeida-Sanchez as to what a majority of the Justices of the Court will do when faced with a permanent checkpoint attack. The Ninth Circuit en banc has recently engaged in this exercise in a seven to six multiple opinion case. United States v. Bowen, 500 F.2d 960 (9th Cir. 1974), cert. granted, - U.S. -, 95 S.Ct. 40, 41 L.Ed.2d 47 (1974).

Considering both the language of the Almeida-Sanchez opinion and the fact that the statutory authorization for warrantless searches at fixed checkpoints is the same as that for roving patrols, 8 U.S.C.A. § 1357(a), the court in the Bowen case concluded that the Supreme Court did not mean “. . to leave intact the Government’s asserted right to establish fixed checkpoints anywhere within 100 miles of the border.” 500 F.2d at 963. The court continued,

Surely, searches at these checkpoints, like searches by roving patrols have the effect of violating the “right to free passage without interruption or search” of “those lawfully within the country ..” Such searches, therefore, must meet constitutional standards regardless of their utility in carrying forward the difficult mission of the Border Patrol.

500 F.2d at 963.

In significant part, the decision of the Bowen court hinges upon a prediction of how a majority of the Supreme Court would hold. The seven-judge majority of the en banc court in Bowen is convinced that Mr. Justice Powell would join with Justices Stewart, Douglas, Brennan and Marshall in the application of Almeida-Sanchez to fixed checkpoints. The six-judge minority in Bowen is convinced that he would not. Stating that the majority ignored the significance of Justice Powell’s limited concurrence, Judge Wallace, speaking for the Bowen minority, disputes the majority’s holding that Almeida-Sanchez outlaws searches at fixed checkpoints. By the minority’s count, Mr. Justice Powell would vote with Justices White, Blackmun and Rehnquist in holding that “. warrantless searches for aliens without probable cause may be made at fixed checkpoints away from the border.” 413 U.S. at 288, 93 S.Ct. at 2547.

The winners of this judicial conflict may be resolved in this term of the Supreme Court because certiorari has now been granted in Bowen, along with two other relevant cases from the Ninth Circuit, United States v. Peltier, 500 F.2d 985 (9th Cir. 1974), where the court decided 7-6 to apply Almeida-Sanchez retroactively to roving patrol cases, and United States v. Brignoni-Ponce, 499 F.2d 1109 (9th Cir. 1974), where a unanimous en banc court differed with the Tenth Circuit in holding that AlmeidaSanchez applies where a roving patrol stopped a vehicle under § 1357(a)(1) to interrogate persons believed to be aliens, as well as where border agents conduct searches under § 1357(a)(3). See United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973).

It might be the better part of judicial discretion to delay our review of this case until the Supreme Court has ruled in the Ninth Circuit cases, but we believe that the parties are entitled to a decision. Although the Supreme Court has granted certiorari in the Bowen case, the decision of the Ninth Circuit in Bowen has two parts: first, the court held that the decision of the Supreme Court in Almeida-Sanchez applies to searches at permanent checkpoints conducted pursuant to § 1357(a) and second, the court held that Almeida-Sanchez would not apply retroactively in a permanent checkpoint case. On review, the Supreme Court may only decide the retroactivity issue which could determine the outcome of the case without the necessity of reaching the fixed checkpoint problem. Such a disposition would not control our decision here. In light of this possibility, our postponing decision in this case would merely delay the parties’ efforts to resolve the instant case finally.

We hold that the decision of the Supreme Court in Almeida-Sanchez leaves unaltered the precedential effect of the case law of this Circuit concerning searches at permanent checkpoints.

While 8 U.S.C.A. § 1357(a) is the statutory authority for both roving patrols and permanent checkpoints, the operational differences of a roving border patrol and a permanent checkpoint are substantial. Prior to Almeida-Sanchez, a roving patrol could stop any vehicle within 100 miles of the border on a reasonable suspicion of a violation of the immigration laws and search for illegal aliens. Roving patrols leave unfettered discretion in one or two men as to who will be stopped and who will not be stopped. Unquestionably, the opportunity for abuse of discretion on the part of the border agents conducting roving patrols is great. The decision of the Supreme Court in Almeida-Sanchez served to check the violations of the Fourth Amendment rights which those searches caused.

At permanent checkpoints, the commitment of time, money, personnel, and the administrative decision for location of the search are all presumably such as to remove to a large extent the individual arbitrariness that might be available to roving agents. All vehicles pass through a permanent checkpoint and the occupants may be questioned concerning their citizenship. See 8 U.S.C.A. § 1357(a)(1). Once the border agents have stopped the vehicle to question its occupants, the agents then may search for aliens illegally in the United States, under the auspices of 8 U.S.C.A. § 1357(a)(3). A permanent checkpoint does not have the constitutionally frightening aspect of a roving patrol, halting vehicles at random and searching their interiors for illegal aliens. By definition and operation, a permanent checkpoint is permanently situated so that all travelers may have knowledge of its location and, thus, may avoid the checkpoint if they choose to travel by another route.

The new aphorism which has arisen from the opinion Almeida-Sanchez is that routine border searches may be conducted at the border or its “functional equivalent.” While the term “functional equivalent of the border” may be novel, the principle of constitutional law which it embodies is the one which this Circuit has consistently applied in its decisions upholding the validity of searches conducted pursuant to 8 U.S.C.A. § 1357(a) at permanent checkpoints. Long before the Supreme Court coined the phrase in Almeida-Sanchez, this Court implicitly treated permanent checkpoints as “functional equivalents” of the border by upholding the validity of warrantless searches for illegal aliens at such locations. The factors which made the search “reasonable” in United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973), the proximity of the checkpoint to the border, the permanent nature of the checkpoint, and the hours of operation, are characteristics which transform the checkpoint into the border’s functional equivalent. The terminology may vary from decision to decision but the law abides unchanged.

Of course, at an international boundary, the search is not restricted to a § 1357 search for aliens but may be a complete, thorough search of the vehicle and its contents for contraband and anything else for which illegal entry may be sought. We need not consider here what kind of a “functional equivalent of the border” would permit such a search. Certainly the inland airport receiving international flights, an example used in Justice Stewart’s opinion in AlmeidaSanchez, would seem to permit a complete search, not just a search for aliens. The inland crossroads example, however, might be restricted to a § 1357 search with all of the judicial gloss that has been superimposed upon the statute. Presumably these questions with all be legally tested on a case-by-case basis. We do not purport to decide here any more than the case at hand involving a § 1357 search for aliens at the Sierra Blanca permanent checkpoint. In so limiting our decision, we reject the idea that every vehicle must be shown to have probably crossed the border to be legally stopped at the Sierra Blanca checkpoint, however important that element might be to the kind of thorough search that can be made at an international boundary.

A description of the Sierra Blanca checkpoint may be helpful. The Sierra Blanca checkpoint is located approximately 75-85 miles southeast of El Paso, Texas, and 4 miles west of Sierra Blanca, Texas, on Interstate Highway 10. Leaving El Paso Interstate 10 parallels the United States-Mexico border in a southeasterly direction for approximately 50 miles, coming within two miles of the border itself at many places. Before reaching the checkpoint, Interstate Highway 10 turns in a northeasterly direction away from the border with the result that, at the checkpoint itself, the highway runs in an east-west direction.

Along the 85 mile stretch of road between El Paso and the Sierra Blanca checkpoint, there are three ports of entry. The first is located at Ysleta, Texas, a suburb of El Paso. The second port of entry is located at Fabens, Texas, approximately 30 miles southeast of Ysleta, and the third is situated at Fort Hancock, Texas, roughly 18 miles southeast of Fabens. Paralleling the border, the distance from the Fort Hancock port of entry to the Sierra Blanca checkpoint is about 30 miles.

The ports of entry at Fabens and Fort Hancock are opened at 6:00 a.m. and closed at 9:00 p.m. on a daily basis. When a port of entry is closed, a gate is positioned across the road to prevent traffic from proceeding. The fact that these ports are closed, however, does not mean vehicles or individuals cannot cross the border, inasmuch as there are numerous roads, both paved and dirt, which lead from the banks of the Rio Grande River, which marks the border, to Interstate Highway 10 and do not pass through a port of entry.

The Sierra Blanca checkpoint itself is situated 20 land miles and 14 air miles from the United States-Mexico border. Since July 8, 1973, the checkpoint has been manned 16 hours a day on weekdays and 24 hours a day on weekends, weather and manpower permitting. The hours of operation of the Sierra Blanca checkpoint are approximately 4:00 p.m. to 8:00 a.m.

The purpose of the instant checkpoint is to detect and apprehend aliens who have entered the United States illegally. Between November 1, 1972, and November 30, 1973, officials at the Sierra Blanca checkpoint apprehended 1,291 such aliens. Although the Quitman Mountains are immediately south of the checkpoint, there are various paths and trails leading from the border, through the mountains, into the United States and to Interstate Highway 10.

The Sierra Blanca checkpoint is permanent in nature. Approximately one mile west of the checkpoint on Interstate Highway 10, there is a sign which reads, “Inspection station, all vehicles exit one mile.” Somewhat closer to the checkpoint, between one-half and three-fourths of a mile west, a second sign reads, “Form one lane right.” One thousand yards west of the checkpoint, a third sign states, “Inspection station, all vehicles right lane.”

During the hours that the Sierra Blanca checkpoint is open, there are cones positioned in the highway which direct all traffic onto a paved access road to the checkpoint. At the checkpoint itself, there are three stop signs, two with flashing red lights, and a trailer mounted on blocks which the checkpoint officials use as an office. Although all vehicles traveling east on Interstate Highway 10 pass through the checkpoint when it is in operation, the officials do not stop every vehicle and search for aliens. In practice the officials wave some cars and trucks through the checkpoint and stop others to question their occupants.

Certain of these many characteristics may be more important than others in establishing the Sierra Blanca checkpoint as a functional equivalent of the border. One, the checkpoint is permanent in nature. Two, all traffic is diverted through the checkpoint during its hours of operation just as all traffic would be channeled through a port of entry at the border itself. Three, the Sierra Blanca checkpoint operates during the hours when the ports of entry at Fabens and Fort Hancock are closed. Four, Interstate Highway 10 parallels the border for some 50 miles before turning northeast to the checkpoint and the highway comes within two miles of the border itself in many points. Five, there are numerous roads, paths, trails which lead from the border to Interstate Highway 10 which do not pass through any port of entry. And, six, during one thirteen-month period officials at the Sierra Blanca checkpoint apprehended 1,291 aliens who had entered the United States illegally. Cf. United States v. Byrd, 483 F.2d 1196, 1199, n. 7 (5th Cir. 1973), modified, 494 F.2d 1284 (5th Cir. 1974). We need not decide which of these factors are absolutely necessary in order to hold that the synergistic effect of these physical and operational characteristics elevates the Sierra Blanca checkpoint to the status of the border’s functional equivalent for a § 1357 search.

It must be kept in mind that along much of the Mexican-United States border runs the Rio Grande River, which, in spite of a name indicating contrary magnificence, can be driven across, waded across, and easily swum across at all times, and much of the time can be walked across without wetting a foot. With so much access to a highway parallel to the border by aliens who could easily have walked across the border, we think the Fourth Amendment rule of reason would permit a search for those aliens of vehicles that may have taken them aboard after their arrival by other means within our boundaries. With almost 2000 miles of Mexican border from Brownsville, Texas, to San Diego, California, contiguous to four of the states of the Union, the impracticality of guarding every part where human crossing could be made should be so apparent as to make inexorably reasonable some method of curtailing illegal entry such as established at the Sierra Blanca checkpoint.

We hold, therefore, that the search of Hart’s vehicle by border agents at the Sierra Blanca checkpoint was a valid border search which met the Fourth Amendment requirement of reasonableness. Accordingly, the judgment of the district court is

Affirmed.

      .
      A. Laredo, Texas

      United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974). Laredo. Valid.
      United States v. Phillips, 496 F.2d 1395 (5th Cir. 1974), cert. applied for December 4, 1974. Temporary/permanent checkpoint 11 mi. N. of Laredo. Valid. United States v. Wright, 476 F.2d 1027 (5th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 (1973). Temporary/permanent checkpoint 11 mi. N. of Laredo. Valid.
      United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973). Temporary/permanent checkpoint 7 mi. N. of Laredo. Valid.
      United States v. DeLeon, 462 F.2d 170 (5th Cir. 1972), cert. denied, 414 U.S. 853, 94 S.Ct. 76, 38 L.Ed.2d 102 (1973). Temporary/permanent checkpoint 10 mi. N. of Laredo. Valid.

        United States v. Bird, 456 F.2d 1023 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3039, 37 L.Ed.2d 1040 (1973). Temporary/permanent checkpoint 8 mi. N. of Laredo. Valid.
      United States v. Maggard, 451 F.2d 502 (5th Cir. 1971), cert. denied, 405 U.S. 1045, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972). Temporary/permanent checkpoint 8 mi. N. of Laredo. Valid.
      United States v. Salinas, 439 F.2d 376 (5th Cir. 1971). 4 blocks from border in Laredo. Valid.
      Morales v. United States, 378 F.2d 187 (5th Cir. 1967). Laredo. Valid.
      B. Falfurrias, Texas

      United States v. Cantu, 504 F.2d 387 (5th Cir. 1974). Temporary/permanent checkpoint 2 mi. S. of Falfurrias. Valid. United States v. Diemler, 498 F.2d 1070 (5th Cir. 1974). Temporary checkpoint 16 mi. S. of Falfurrias. Invalid.
      United States v. Wilson, 492 F.2d 1160 (5th Cir. 1974). Temporary checkpoint 16 mi. S. of Falfurrias. No search & seizure.

      Ramirez v. United States, 263 F.2d 385 (5th Cir. 1959). Temporary (?) checkpoint 4 mi. S. of Falfurrias on U.S. Highway 281. Valid.
      C. Freer, Texas

      United States v. Daly, 493 F.2d 395 (5th Cir. 1974). Roving patrol 50 mi. from Laredo, 12 mi. from Freer. Valid.
      United States v. Byrd, 483 F.2d 1196 (5th Cir. 1973), modified 494 F.2d 1284 (5th Cir. 1974). Roving patrol near Freer. Invalid.
      Marsh v. United States, 344 F.2d 317 (5th Cir. 1965). Traffic check at intersection in Freer on basis of call from customs agent at Laredo. Invalid.
      D. Hebbronville, Texas

      United States v. Miller, 492 F.2d 37 (5th Cir. 1974). Roving patrol. Valid.
      United States v. Storm, 480 F.2d 701 (5th Cir. 1973). Roving patrol. Invalid. United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973). Roving patrol. Valid.
      E. Brownsville, Texas

      United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973). Surveillance. Valid. United States v. Valdez, 456 F.2d 1140 (5th Cir. 1972). Eyewitness tip. Valid.
      F. El Paso, Texas

      United States v. Warner, 441 F.2d 821 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). Surveillance. Valid.
      Thomas v. United States, 372 F.2d 252 (5th Cir. 1967). Surveillance. Valid.
      Barrera v. United States, 276 F.2d 654 (5th Cir. 1960). At Juarez International Bridge. Valid.
      G. Sierra Blanca, Texas

      United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974). Permanent checkpoint 4 mi. W. of Sierra Blanca. Valid.
      United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974). Permanent checkpoint 4 mi. W. of Sierra Blanca. Valid.
      H. Marfa, Texas

      United States v. Reagor, 441 F.2d 252 (5th Cir. 1971). Surveillance. Valid.
      United States v. Acosta, 411 F.2d 627 (5th Cir. 1969). Tip, no checkpoint. Valid.
      I. Harlingen, Texas

      United States v. Solis, 469 F.2d 1113 (5th Cir. 1972), cert. denied, 410 U.S. 932, 93 S.Ct. 1375, 35 L.Ed.2d 594 (1973). Surveillance. Court says not a border search, but valid on probable cause.
      United States v. Garcia, 452 F.2d 419 (5th Cir. 1971). Surveillance. Valid.
      J. Refugio, Texas

      United States v. Bursey, 491 F.2d 531 (5th Cir. 1974). Surveillance. Invalid.
      K. San Antonio, Texas

      United States v. Martinez, 481 F.2d 214 (5th Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 489 (1974). Surveillance. Valid.
      L. McAllen, Texas

      Stassi v. United States, 410 F.2d 946 (5th Cir. 1969). Bus depot. Valid.
      M. Carrizo Springs, Texas

      Walker v. United States, 404 F.2d 900 (5th Cir. 1968). Roadblock. Valid.
      N. Eagle Pass, Texas

      Valadez v. United States, 358 F.2d 721 (5th Cir. 1966). 5 blocks from border. Valid.
      O. Faben, Texas

      United States v. Olivares, 496 F.2d 657 (5th Cir. 1974). Surveillance. Invalid.
      P. Sarita, Texas

      United States v. Merla, 493 F.2d 910 (5th Cir. 1974). Permanent/temporary checkpoint 5 mi. S. of Sarita. Valid.
      Q. Kingsville, Texas

      Moreno-Vallejo v. United States, 414 F.2d 901 (5th Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 76 (1970). Checkpoint (unable to determine whether permanent or temporary). Valid.
      R. Three Rivers, Texas

      Smith v. United States, 385 F.2d 34 (5th Cir. 1967). Court says probable cause here. Valid.
      S. Commanche, Texas

      Maltos-Roque v. United States, 381 F.2d 130 (5th Cir. 1967). Tip, no checkpoint. Valid.
      T. At or Near the Border

      United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974). At Gateway International Bridge. Valid.

        United States v. Johnson, 456 F.2d 295 (5th Cir. 1972). International Bridge, Laredo. Valid.
      United States v. Johnson, 439 F.2d 885 (5th Cir.), cert. denied, 404 U.S. 880, 92 S.Ct. 213, 30 L.Ed.2d 161 (1971). 5 mi. N. of Gateway International Bridge. Valid.
      United States v. Poindexter, 429 F.2d 510 (5th Cir. 1970). Surveillance a few miles from border. Valid.
      United States v. Briones, 423 F.2d 742 (5th Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970). Apparently at the border in Laredo. Valid. Willis v. United States, 370 F.2d 604 (5th Cir. 1966). 6 miles from border. Valid. King v. United States, 258 F.2d 754 (5th Cir. 1958), cert. denied, 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639 (1959). Apparently at the border. Valid.
      U. Other Points in Texas

      United States v. Speed, 497 F.2d 546 (5th Cir. 1974). Temporary checkpoint; U. S. Highway 281, 65 to 75 mi. N. of border. Invalid.
      United States v. McKim, 487 F.2d 305 (5th Cir. 1973). Roving patrol; 55 mi. N. of border on Highway 1017. Invalid. United States v. Warren, 451 F.2d 582 (5th Cir. 1971). Somewhere in Texas. Valid.
      United States v. Rodriguez Reinosa, 427 F.2d 150 (5th Cir. 1970). Somewhere in Texas. Valid.
      Bailey v. United States, 386 F.2d 1 (5th Cir. 1967), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (1968). Surveillance; 70 mi. N. of Falcon, Texas. (Ct. does not speak in terms of border search, but rather probable cause). Valid.
      Brett v. United States, 377 F.2d 520 (5th Cir. 1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2289, 20 L.Ed.2d 1407 (1968). Court says probable cause here. Valid.

      . A. Permanent

      United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974). Valid. Sierra Blanca. United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974). Valid. Sierra Blanca.
      B. Permanent/Temporary

      United States v. Phillips, 496 F.2d 1395 (5th Cir. 1974), cert. applied for December 4, 1974. Valid. 11 mi. N. of Laredo. United States v. Merla, 493 F.2d 910 (5th Cir. 1974). Valid. 5 mi. S. of Sarita. United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973). Valid. 7 mi. N. of Laredo.
      United States v. DeLeon, 462 F.2d 170 (5th Cir. 1972), cert. denied, 414 U.S. 853, 94 S.Ct. 76, 38 L.Ed.2d 102 (1973). Valid. 10 mi. N. of Laredo.
      United States v. Bird, 456 F.2d 1023 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3039, 37 L.Ed.2d 1040 (1973). Valid. 8 mi. N. of Laredo.
      United States v. Maggard, 451 F.2d 502 (5th Cir. 1971), cert. denied, 405 U.S. 1045, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972). Valid. 8 mi. N. of Laredo. Moreno-Vallejo v. United States, 414 F.2d 901 (5th Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 76 (1970). Valid. Near Kingsville.
      C. Temporary

      United States v. Cantu, 504 F.2d 387 (5th Cir. 1974). Valid. 2 mi. S. of Falfurrias. United States v. Diemler, 498 F.2d 1070 (5th Cir. 1974). Invalid. 16 mi. S. of Falfurrias.
      United States v. Speed, 497 F.2d 546 (5th Cir. 1973). Invalid. U. S. Highway 281, 65 to 75 mi. N. of Mex. border.
      United States v. Wilson, 492 F.2d 1160 (5th Cir. 1974). No search or seizure at all. 16 mi. S. of Falfurrias.
      United States v. Wright, 476 F.2d 1027 (5th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 (1973). Valid. 11 mi. N. of Laredo.
      Ramirez v. United States, 263 F.2d 385 (5th Cir. 1959). Valid. 4 mi. S. of Falfurrias.
      D. Roving

      United States v. Daly, 493 F.2d 395 (5th Cir. 1974). Valid. 50 mi. from Laredo, 12 mi. from Freer.
      United States v. Miller, 492 F.2d 37 (5th Cir. 1974). Valid. Hebbronville.
      United States v. McKim, 487 F.2d 305 (5th Cir. 1973). Invalid. 55 mi. N. of border on Texas Highway 1017.
      United States v. Byrd, 483 F.2d 1196 (5th Cir. 1973); modified 494 F.2d 1284 (5th Cir. 1974). Invalid. Near Freer.
      United States v. Storm, 480 F.2d 701 (5th Cir. 1973). Invalid. Hebbronville.
      United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973). Valid. Hebbronville.
      E. At or Near the Border Itself

      United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974). Valid. At border. Gateway Bridge.
      United States v. Johnson, 456 F.2d 295 (5th Cir. 1972). Valid. International Bridge, Laredo.

        United States v. Salinas, 439 F.2d 376 (5th Cir. 1971). Valid. 4 blocks from border. Laredo.
      United States v. Johnson, 439 F.2d 885 (5th Cir.), cert. denied, 404 U.S. 880, 92 S.Ct. 213, 30 L.Ed.2d 161 (1971). Valid. 5 mi. N. of Gateway International Bridge. United States v. Poindexter, 429 F.2d 510 (5th Cir. 1970). Valid. A few mi. from the border.
      United States v. Briones, 423 F.2d 742 (5th Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970). Valid. Apparently at the border near Laredo. Willis v. United States, 370 F.2d 604 (5th Cir. 1966). Valid. 6 mi. from border. Valadez v. United States, 358 F.2d 721 (5th Cir. 1966). Valid. 5 blocks from Mex. border. Eagle Pass, Texas.
      Barrera v. United States, 276 F.2d 654 (5th Cir. 1960). Valid. At border. Juarez International Bridge.
      King v. United States, 258 F.2d 754 (5th Cir. 1958), cert. denied, 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639 (1959). Valid. Apparently at the border.
      F. Surveillance

      United States v. Olivares, 496 F.2d 657 (5th Cir. 1974). Invalid. Near Fabens. United States v. Bursey, 491 F.2d 531 (5th Cir. 1974). Invalid. Refugio.
      United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973). Valid. Brownsville. United States v. Martinez, 481 F.2d 214 (5th Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 489 (1974). Valid. San Antonio.
      United States v. Garcia, 452 F.2d 419 (5th Cir. 1971). Valid. Harlingen. United States v. Reagor, 441 F.2d 252 (5th Cir. 1971). Valid. Marfa.
      United States v. Warner, 441 F.2d 821 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). Valid. El Paso.
      Morales v. United States, 378 F.2d 187 (5th Cir. 1967). Valid. Laredo.
      Thomas v. United States, 372 F.2d 252 (5th Cir. 1967). Valid. El Paso.
      G. Border Searches on Basis of Tip

      United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974). Valid. Laredo.
      United States v. Valdez, 456 F.2d 1140 (5th Cir. 1972). Valid. Brownsville.
      Stassi v. United States, 410 F.2d 946 (5th Cir. 1969). Valid. Bus depot in McAllen.
      Walker v. United States, 404 F.2d 900 (5th Cir. 1968). Valid. Roadblock at Carrizo Springs.
      Marsh v. United States, 344 F.2d 317 (5th Cir. 1965). Valid. Freer.
      H. Probable Cause

      United States v. Solis, 469 F.2d 1113 (5th Cir. 1972), cert. denied, 410 U.S. 932, 93 S.Ct. 1375, 35 L.Ed.2d 594 (1973). Valid. Harlingen.
      United States v. Acosta, 411 F.2d 627 (5th Cir. 1969). Valid. 8 mi. S. of Marfa.
      Bailey v. United States, 386 F.2d 1 (5th Cir. 1967), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (1968). Valid. 70 mi. N. of Falcon (border port). Smith v. United States, 385 F.2d 34 (5th Cir. 1967). Valid. Three Rivers.
      Maltos-Roque v. United States, 381 F.2d 130 (5th Cir. 1967). Valid. Commanche. Brett v. United States, 377 F.2d 520 (5th Cir. 1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2289, 20 L.Ed.2d 1407 (1968). Valid. Unspecified location.
      I. Other

      United States v. Warren, 451 F.2d 582 (5th Cir. 1971). Valid. Unspecified location.
      United States v. Rodriguez Reinosa, 427 F.2d 150 (5th Cir. 1970). Valid. Unspecified location.

      . See generally United States v. Daly, 493 F.2d 395 (5th Cir. 1974); United States v. Miller, 492 F.2d 37 (5th Cir. 1974); United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973). See also United States v. Byrd, 483 F.2d 1196 (5th Cir. 1973), modified, 494 F.2d 1284 (5th Cir. 1974); United States v. McKim, 487 F.2d 305 (5th Cir. 1973); United States v. Storm, 480 F.2d 701 (5th Cir. 1973).

      . Not only below Ft. Quitman, but in many stretches of the river from the New Mexico-Colorado border to below Brownsville there has been no surface flow at various times. In some places the depth has varied from nearly 60 feet to a bare trickle or nothing. 19 Encyclopedia Britannica 346 (1971).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marc Alan JANNEY, Defendant-Appellant.
    No. 74-1762.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.

      Ramon (Ray) Ramos, Jr., El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ron Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   PER CURIAM:

The single issue on this appeal is the constitutionality of the 8 U.S.C.A. § 1357 search of a vehicle conducted by border agents at the permanent border checkpoint at Sierra Blanca, Texas. On the basis of our decision today in United States v. Hart, 506 F.2d 887 (5th Cir. 1975), we hold this search to be constitutional. We affirm the conviction of Marc Alan Janney of one count of possession with intent to distribute approximately 97 pounds of marijuana, a Schedule I Controlled Substance, in violation of 21 U.S.C.A. § 841(a)(1).

On December 27, 1973, at approximately 7:30 p.m., Marc Alan Janney drove into the permanent border checkpoint which is located four miles west of Sierra Blanca, Texas, on Interstate Highway 10. When Border Patrol Agent Alfonso Saenz leaned over to ask Janney his citizenship, Saenz detected a strong odor of marijuana coming from inside Janney’s car. Saenz asked Janney to open the trunk of his car but Janney replied that he did not have the key. At this point, Border Patrol Agent Candy Gutierrez joined Saenz. Gutierrez instructed Janney to pull his car to the right hand side of the checkpoint area and to open his trunk, either by using a key or by removing the back seat. Janney removed the back seat of his vehicle and the border patrol agents seized approximately 97 pounds of marijuana.

In United States v. Hart, supra, we held that the decision of the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), did not alter the precedential effect of prior opinions of this Circuit upholding the validity of searches conducted pursuant to 8 U.S.C.A. § 1357 at the Sierra Blanca checkpoint. In Hart, border patrol agents at the Sierra Blanca checkpoint stopped defendant’s vehicle, requested that defendant give his citizenship, and, as a routine matter, asked defendant to open his trunk so that the agents could search for aliens illegally in the United States. When the trunk was opened, the agents detected an odor of marijuana and discovered a quantity of the substance. We upheld the search in Hart as constitutional on the authority of United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974); United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974); United States v. Merla, 493 F.2d 910 (5th Cir. 1974), and other decisions of this Court.

There is no substantial difference beeen the stop and search of Janney’s vehicle and that approved in Hart.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jack M. DIXON, John Thur Bylund, and Howard C. Arnold, Defendants-Appellants.
    No. 73-3910.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.
    Larry Victorson, El Paso, Tex. (Court-appointed), for Bylund and Dixon.
    Johnny Searls, El Paso, Tex. (Court-appointed), for Dixon.
    Victor Sizemore, El Paso, Tex. (Court-appointed), for Arnold.
    William Session, U. S. Atty., San Antonio, Tex., Ron Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before TUTTLE, .RONEY and GEE, Circuit Judges.
   PER CURIAM:

The single issue on this appeal is the constitutionality of the 8 U.S.C.A. § 1357 search of a vehicle conducted by border agents at the permanent border checkpoint at Sierra Blanca, Texas. On the basis of our decision today in United States v. Hart, 506 F.2d 887 (5th Cir. 1975), we hold this search to be constitutional. We affirm the convictions of Jack M. Dixon, John Bylund and Howard C. Arnold for possession with intent to distribute approximately 60 pounds of marijuana, a Schedule I Controlled Substance, in violation of 21 U.S.C.A. § 841(a)(1).

On September 4, 1973, at approximately 4:30 a.m., Dixon, Bylund and Arnold approached the permanent border checkpoint which is located four miles west of Sierra Blanca, Texas, on Interstate Highway 10. Border Patrol Agent Walter Mann, Jr. saw the vehicle in which they were riding stop short of the checkpoint. As Agent Mann approached the vehicle, a pickup truck with an attached camper proceeded toward the checkpoint area. Mann radioed his partner to stop the pickup.

Having checked .the area in which the truck stopped for physical evidence and having found none, Mann asked Dixon, Bylund and Arnold for their names and took the license plate number of their vehicle. A telephone call for a record check produced a “kickback” on one of the men in the truck. The record does not reveal the nature of the information thus obtained.

Mann looked through the window of the camper with his flashlight and noticed what appeared to be marijuana seed. At this point, one of the three men asked Mann if he would let them go if they gave him the marijuana that they had for their personal use. A search of the vehicle produced approximately 60 pounds of marijuana.

In United States v. Hart, supra, we held that the decision of the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), did not alter the precedential effect of prior opinions of this Circuit upholding the validity of searches conducted pursuant to 8 U.S.C.A. § 1357 at the Sierra Blanca checkpoint. In Hart, border patrol agents at the Sierra Blanca checkpoint stopped defendant’s vehicle, requested that defendant give his citizenship, and, as a routine matter, asked defendant to open his trunk so that the agents could search for aliens illegally in the United States. When the trunk was opened, the agents detected an oder of marijuana and discovered a quantity of the substance. We upheld the search in Hart as constitutional on the authority of United States v. McGlynn, 496 F.2d 1316 (5th Cir. 1974); United States v. Hufstetler, 496 F.2d 1184 (5th Cir. 1974); United States v. Merla, 493 F.2d 910 (5th Cir. 1974), and other decisions of this Court.

Since the facts of this case may have furnished more cause for search than in the Hart case, a fortiori the instant search is constitutional under our Hart decision.

Affirmed.


author: RONEY, Circuit Judge:

text:
    J. D. WRIGHT et al., Plaintiffs-Appellants, v. The CITY OF JACKSON, MISSISSIPPI, et al., Defendants-Appellees.
    No. 74-1668.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.
    Russell X. Thompson, Memphis, Tenn., Danny E. Cupit, Jackson, Miss., Charles C. Burch, Memphis, Tenn., for plaintiffs-appellants.
    John E. Stone, City Atty., Jackson, Miss., for defendants-appellees.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

In March 1973 the Mayor and Board of Commissioners of the City of Jackson, Mississippi, passed an ordinance requiring all municipal employees qualified under the rules and regulations of the Civil Service Commission to maintain their domicile and principal place of residence within the corporate limits of the City during the period of their employment. This suit was brought as a class, action by a group of nonresident firemen. They challenge the constitutionality of the ordinance under the Fourteenth Amendment and under 42 U.S.C.A. § 1983. The firemen seek both declaratory and injunctive relief, alleging that the ordinance denies them their right to travel, their right to choose a residence, or, in the alternative, their right to employment, and is unconstitutional in the absence of any compelling governmental need. Without benefit of any hearing on the merits of the claim, the district court dismissed the case for failure to state a claim upon which relief could be granted and the firemen appeal. Since we can find no fundamental constitutional right to intrastate travel infringed by this ordinance, the City was not required to justify the ordinance under the compelling interest standard which must be met upon interference with a right to travel interstate. We, therefore, affirm the dismissal for failure to state a claim.

The firemen assert that the district court erred in dismissing the case without first requiring the City to show justification for the ordinance and to demonstrate that the ordinance was necessary to meet a compelling governmental interest. They argue that under the reasoning of Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the City must show a substantial and compelling reason for imposing residency requirements which interfere with the fundamental constitutional right to travel. At oral argument counsel for appellants conceded that these cases dealt with durational residency requirements and the right to interstate travel whereas the case sub judice involves a continual residency requirement and the right to intra state travel. He argued, however, that there is no logical distinction between interstate and intrastate travel and that the Shapiro-Dunn right to freedom of travel should also extend to intrastate travel and continuing residency requirements. We think that such application would substantially distort the principles of Shapiro and Dunn, and the reasons for those decisions.

Shapiro involved a requirement for the receipt of welfare payments that the applicant be a resident of the state for a year. The Court was very careful to make clear that the “residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites for assistance.” 394 U.S. at 636, 89 S.Ct. at 1332. Although it held the durational prerequisite unconstitutional, the Court emphasized that its holding did not invalidate bona fide continuing residence requirements. 394 U.S. at 638, n. 21, 89 S.Ct. at 1322. Later, the Court in Dunn invalidated a durational residency requirement for voter registration but noted that “[njothing said today is meant to cast doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements.” 405 U.S. at 342, n. 13, 92 S.Ct. at 1003. See also Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). We agree with the Supreme Court of California’s analysis in Ector v. City of Torrance, 10 Cal.3d 129, 109 Cal.Rptr. 849, 514 P.2d 433 (1973), cert. denied, 415 U.S. 935, 94 S.Ct. 1451, 39 L.Ed.2d 493 (1974), that nothing in Shapiro or any of its progeny stands for the proposition that there is a fundamental constitutional “right to commute” which would cause the compelling governmental purpose test enunciated in Shapiro to apply. Accord, Abrahams v. Civil Service Commission, 65 N.J. 61, 319 A.2d 483 (1974). Contra, Krzewinski v. Kugler, 338 F.Supp. 492 (D.N.J.1972) (3-Judge court); Donnelly v. City of Manchester, 111 N.H. 274 A.2d 789 (1971).

Any doubt that the “right, to travel” rationale of Shapiro and Dunn was meant to apply to intrastate travel and municipal employment residency requirements was put to rest by the Supreme Court’s treatment of litigation challenging a Detroit ordinance similar to the Jackson residency requirement. Detroit Police Officers Association v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971). The Detroit ordinance was sustained by the Michigan Supreme Court on the traditional equal protection test that the classification bore a reasonable relationship to the object of the legislation. An appeal was taken to the United States Supreme Court which ordered that the case be “dismissed for want of a substantial federal question.” 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972).

The Seventh Circuit recently considered thé effect of this disposition in a case involving a challenge to a Chicago ordinance requiring policemen to reside within the city. Ahern v. Murphy, 457 F.2d 363 (7th Cir. 1972). They observed that such a dismissal for want of a substantial federal question

is a decision on the merits of the case appealed. Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 79 S.Ct. 978, 3 L.Ed.2d 1200 (1959); Stern & Grossman, Supreme Court Practice (4th ed. 1969) 197. In fact, dismissal for want of a substantial federal question in a state court appeal is fully equivalent to affirmance on the merits in an appeal from a federal court insofar as the federal questions under 28 U.S.C. § 1257(1) and (2) are concerned.

457 F.2d at 364. They then held that the dismissal amounted to a decision on the merits by the Supreme Court that such a municipal employee residence requirement does not violate any provision of the federal Constitution and, with that precedent, affirmed the district court’s dismissal of the Chicago complaint. The fact that both Detroit Police Officers Association and Ahern concerned residency requirements applicable to policemen does not distinguish them from this case dealing with firemen. The occupation of the individual challenging the regulation is not relevant in considering which equal protection test to apply, although it may be important in meeting the test on the facts of the case.

Plaintiffs place great reliance on Krzewinski v. Kugler, 338 F.Supp. 492 (D.N.J.1972) (3-Judge court), as authority for the view that municipal residence requirements should be tested by the strict compelling governmental purpose standard. In Krzewinski the court did just what plaintiffs say we should do in this case: it imposed upon the municipality the burden of demonstrating a compelling interest to justify the ordinance. The court there, after an evidentiary hearing, found such a compelling interest to exist where the residence requirement was applicable to police officers. In Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789 (1971), however, the New Hampshire court, imposing the compelling interest test, weighed the “reasonableness of a restriction upon private rights” against the “importance of the public benefit” and found a residency requirement applicable to school teachers invalid. These are the only two published cases to come to our attention which apply the compelling interest test in this situation. Both of these cases were decided before the Supreme Court’s dismissal of Detroit Police Officers Association and the decision in Ahern, and we reject them as persuasive precedents.

Since we hold that a bona fide continual residency requirement challenged on equal protection grounds is not to be tested by the strict compelling governmental purpose standard, there was no need for the district court to hold an evidentiary hearing before approving the ordinance under the traditional rational basis test. See Ahern v. Murphy, 457 F.2d 363 (7th Cir. 1972). As plaintiffs have relied solely on the compelling interest test, no argument has been made here or in the trial court that the complaint states sufficient facts to invalidate the ordinance under the rationality test.

In addition to the Detroit Police Officers Association case, supra, numerous other decisions since Shapiro have held that a municipal employee residence requirement bears a rational relationship to one or more legitimate state purposes, and hence is constitutional under the traditional equal protection test. See, e.g., Ector v. City of Torrance, 10 Cal.3d 129, 109 Cal.Rptr. 849, 514 P.2d 433 (1973), cert. denied, 415 U.S. 935, 94 S.Ct. 1451, 39 L.Ed.2d 493 (1974) (librarian); Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 263 So.2d 767 (Miss.1972); Abrahams v. Civil Service Commission, 65 N.J. 61, 319 A.2d 483 (1974) (secretary); Salt Lake City Firefighters Local 1645 v. Salt Lake City, 22 Utah 2d 115, 449 P.2d 239, cert. denied, 395 U.S. 906, 89 S.Ct. 1748, 23 L.Ed.2d 220 (1969). Contra, Hanson v. Unified School District No. 500, 364 F.Supp. 330 (D.Kan. 1973) (school teachers). There are a number of rational interests in municipal public policy to justify such a requirement. In Ector the California Supreme Court listed those rational purposes advanced in various adjudicated cases:

Among the governmental purposes cited in these decisions or now urged by amici curiae are the promotion of ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee performance by greater personal knowledge of the city’s conditions and by a feeling of greater personal stake in the city’s progress; diminution of absenteeism and tardiness among municipal personnel; ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees’ salaries.

Ector v. City of Torrance, supra, 109 Cal.Rptr. at 852, 514 P.2d at 436. Like the court in Ector “[w]e cannot say that one or more of these goals is not a legitimate state purpose rationally promoted by the municipal employee residence requirement here in issue.” Id.

In affirming the district court’s dismissal, we, of course, take no position on the policy decisions involved in adopting a municipal residency requirement. We hold only that the City of Jackson may validly enact such a policy free of any federal constitutional restraint.

Affirmed.

      . The ordinance as passed on March 20, 1973, is recorded in Minute Book “3D” at page 494 and reads in pertinent part as follows:
      AN ORDINANCE REQUIRING ALL CITY EMPLOYEES UNDER CIVIL SERVICE REGULATIONS TO MAINTAIN THEIR RESIDENCE WITHIN THE CITY OF JACKSON.
      BE IT ORDAINED BY THE MAYOR AND COMMISSIONERS OF THE CITY OF JACKSON, MISSISSIPPI:
      SECTION 1. All employees of the City of Jackson, Mississippi, qualified under the rules and regulations of the Civil Service Commission, shall maintain their domicile and principal place of residence within the corporate limits of said City during the period of their employment with the City.
      SECTION 2. Any person affected by the terms of this Ordinance who does not now maintain his domicile and principal residence within the corporate limits of the City of Jackson, Mississippi, shall move his domicile and principal place of residence within the corporate limits of said City within a period of twelve (12) months from the date of this Ordinance; and in the absence of such compliance, said employee shall be immediately discharged and terminated in his employment with the City of Jackson, Mississippi.
      SECTION 3. New employees of the City, employed under Civil Service, who do not maintain their domicile and principal place of residence within the City at the time of their employment, shall move their domicile and principal place of residence into the corporate limits of the City of Jackson before the expiration of the first six months of the probationary period of the Civil Service rules and regulations or be dismissed from City employment.
      SECTION 4. It is the purpose of this Ordinance to require all City employees qualified under Civil Service to, at all times during such employment, live and maintain their domicile and principal place of residence in the City of Jackson.
      SECTION 5. Any City employee coming under the terms of this Ordinance and presently residing in an area in which the City is now involved by petition, resolution or legal action bearing on annexation or the opposition to incorporation is exempt from the provisions of this Ordinance until such time as the Court has finally determined whether or not the aforesaid area is or is not to be included in the boundaries of the City of Jackson, Mississippi. If the final determination shall be that the area in question is not to be a part of the City of Jackson, Mississippi, then the twelve (12) months grace designated in Section 2 shall commence on the date of final determination.

      . At the time of the passing of the ordinance there were seventy-two firemen employed by the City of Jackson coming within the rules and regulations of the Civil Service Commission who had already purchased homes outside of the corporate limits of the City. One-half of these men resided in areas proposed to be annexed by the City of Jackson and thus were subject to the exemption from the ordinance provided in section 5 thereof.


author: CLARK, Circuit Judge:

text:
    Charline HAMILTON, Administratrix of the Estate of Carey Clayton Yates, Plaintiff-Appellant, v. Jess CHAFFIN et al., Defendants-Appellees.
    No. 73-3928.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.

      John B. Farese, Peggy A. Jones, Ash-land, Miss., Robert W. Elliott, Ripley, Miss., for plaintiff-appellant.
    Floyd W. Cunningham, Booneville, Miss., Ralph E. Pogue, Aberdeen, Miss., for defendant-appellee.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   CLARK, Circuit Judge:

Plaintiff-appellant, the administratrix of the Estate of Carey Clayton Yates, brought this action to recover damages against the City of Booneville; W. W. Stacy, Chief of Police for the City; City Police Officers Jess Chaffin and Travis McGaughy; Richard Moffitt, radio dispatcher for the City Police Department; and J. D. Burns and Clyde Edge, Jr., for injuries to and the wrongful death of Carey Clayton Yates, allegedly caused by defendants’ negligence and violations of various rights guaranteed an arrestee under federal and state law. The District Court granted the motions of defendants W. W. Stacy and Clyde Edge, Jr. for directed verdicts. A judgment of dismissal with prejudice was entered upon a jury verdict for the remaining defendants. We affirm the trial court’s action.

I. FACTS

Although considerable uncertainty surrounding the factual details of this shocking case remains even after trial, sufficient uncontroverted evidence was adduced during the course of the proceedings to permit a reconstruction of the general chain of events culminating in young Yates’ self-inflicted death, on December 24, 1971, while incarcerated in the Booneville city jail. On this tragic Christmas Eve, defendants Chaffin and McGaughy, members of the Booneville police force, received a dispatch directing them to a trailer to investigate a disturbance. As they neared the trailer, the officers noticed a youth, later identified as Carey Yates, age 15, walking along the sidewalk. As the officers watched him, Yates lit and threw what they later determined to be a cherry bomb. They immediately drove toward Yates, but did not use the patrol car’s siren or blue light to identify themselves. One of the officers called to Yates to halt. Despite this command, Yates dashed behind the front hedge of a nearby residence. The officers leaped from their car and pursued Yates on foot. As Officer Chaffin neared his hiding place, Yates darted from the bush and ran directly into Officer McGaughy, causing both to tumble to the ground. When the officers lifted Yates from the ground, they noticed he was bleeding from the area around his nose and mouth. Yates was immediately taken to the Booneville city jail. After being searched for any remaining firecrackers, Yates was booked and taken to the “drunk” cell, admittedly without being advised of his constitutional rights, afforded an opportunity to call his mother, or given any medical treatment. Minutes later, young Carey Yates was found dead in his cell, having used his belt to hang himself.

The alleged deprivation of decedent’s rights during his apprehension and detention is the basis for administratrix’s claim for damages. Plaintiff asserts that the defendants, acting independently and in concert, applied excessive force during the apprehension and search of Yates, failed to provide the necessary medical treatment and supervision that was required because of the youth’s obviously irrational state of mind, and deprived him of other federal constitutional and state statutory rights; and that these wrongful and negligent acts preyed upon Yates’ immature mind, destroying his ability to reason, and thus precipitating his suicide. Defendants reply by stating that they used only that amount of force necessary to apprehend and incarcerate Yates because of his inebriated condition and violent reactions and that either his intoxication or some other emotional instability, or a combination of the two, completely unrelated in origin to the defendants’ actions, solely caused him to take his own life.

II. JURISDICTION

A. Diversity

The original plaintiff was decedent’s mother. After the plaintiff had rested her case in the trial court, the complaint was amended to substitute the administratrix, Charline Hamilton, decedent’s aunt and a resident of Tennessee, as party-plaintiff. Although this substitution was not requested until the district judge raised a question concerning the court’s Section 1983 jurisdiction over the City of Booneville, the court concluded that because of other extenuating circumstances the substitution of this administratrix who had been appointed only one week earlier for the admitted purpose of shoring up the jurisdictional problems which developed, did not constitute a “collusive” appointment, and, therefore, that diversity jurisdiction was established by the substitution. Since we have concluded that the City of Booneville is immune from suit, part V infra, it is unnecessary to review the issue of whether the appointment was improper.

B. 1983

Plaintiff asserted a claim cognizable under 42 U.S.C. § 1983 by alleging that the defendants, while acting under color of state law, used excessive force in apprehending and detaining young Yates. The use of excessive force constitutes a violation of the Fourteenth Amendment right to due process, and, as such, is actionable under Section 1983. E. g., Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974); Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1974); cf. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Compare Jackson v. Wenzel, 282 F.Supp. 357 (E.D.Wis. 1968); Daly v. Pedersen, 278 F.Supp. 88 (D.Minn.1967). As stated by the Second Circuit in Johnson, supra: “[i]n determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id. 481 F.2d at 1033. See Tolbert v. Bragan, 451 F.2d 1020 (5th Cir. 1971). Clearly, all of these issues were present in the alleged cause of action here.

In view of our conclusion that the plaintiff stated a claim actionable under Section 1983 based upon the claim of excessive force, we pretermit a review of plaintiff’s additional contention that defendants’ failure to provide medical treatment was also sufficient to state a cause of action under the statute. The trial court’s submission of the issue of medical treatment to the jury on the basis of a Section 1983 claim, if error, was harmless. If not presented as a Section 1983 cause of action, the issue would have been properly before the court upon- the common law theories of tort and negligence pursuant to its power to exercise pendent jurisdiction over state claims which arise from the same nucleus of operative facts as are involved in the federal claim. E. g., United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974) [No. 72-2311, 1974]; Anderson v. Nosser, 438 F.2d 183, 188-189 (5th Cir.), modified on rehearing on other grounds, 456 F.2d 835 (5th Cir. 1972) (en banc).

Appellant further asserts that defendants’ violation of Section 7185-06 of the Mississippi Code, as amended in 1966 [presently Miss.Code Ann. § 43-21-13 (1972)], which requires that the police obtain prior authorization from the County Youth Court before incarcerating a juvenile, also constituted a denial of decedent’s civil rights as guaranteed under Section 1983. Although it is uncontradicted that the officers failed to comply with the Section 7185-06 procedure, we conclude that this violation of a state-created right does not reach constitutional proportions. It is therefore insufficient to constitute a violation of a right cognizable under Section 1983. Anderson v. Nosser, supra; Campbell v. Anderson, 355 F.Supp. 483 (D.Del., 1971). See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943); Taylor v. City of Jackson, 487 F.2d 213 (5th Cir. 1973); Johnson v. Hood, 430 F.2d 610 (5th Cir. 1970); Dorsey v. N.A.A.C.P., 408 F.2d 1022 (5th Cir.), cert. denied, 396 U.S. 847, 90 S.Ct. 58, 24 L.Ed.2d 97 (1969). Nevertheless, the district court’s adjudication upon this issue similarly could be sustained under its discretionary right to take pendent jurisdiction of this closely related state claim.

III. EVIDENTIARY ERROR

Plaintiff asserts that the district court erred in admitting, over her objection, the testimony of Ernest E. Bailey, chemist from the Mississippi State Chemical Laboratory. Bailey’s testimony revealed that tests performed on a sample of blood taken during an autopsy performed on the body of Carey Yates indicated an alcohol concentration of 0.15 percent. Under Mississippi law this concentration of alcohol in a person’s blood raises the presumption that the person is intoxicated. See note 8 supra. The plaintiff objected to the introduction of this testimony. Since no permission had been given to perform the autopsy by Yates’ survivors, plaintiff took the position that the blood sample had to have been obtained pursuant to Section 7158-04 of the Mississippi Code, as amended in 1960, and that this statute demanded the evidence be excluded. The latter portion of Section 7158-04 provides: “[N]o evidence obtained through any autopsy performed under the provisions of this section shall be admitted over the objection of any party in the trial of any civil cause before a court or commission of this state.” (Emphasis added). Without specifying any lawful source of authority for the autopsy, appellees retort that this statute was never invoked and is inapplicable. They point out that the county attorney did not petition the appropriate court for proper authorization or otherwise attempt to act under this statutory scheme.

The admission of Bailey’s testimony raises a crucial issue. It is the only concrete evidence showing that the decedent had consumed a substantial quantity of alcohol prior to his Christmas Eve arrest and death. See note 8 supra. Unquestionably it could have been accorded substantial weight by the jury in reaching the conclusion that none of the acts or omissions of any of the defendants proximately caused Carey Yates to commit suicide.

Because no attempt was made to invoke its protective authority, we agree that Section 7158 04 is inapplicable. Additionally, since it is not alternatively contended that the county attorney complied with either of the other two autopsy authorization statutes, we conclude that both the attorney and the physician performing the autopsy acted entirely outside of and beyond any legal authority-

This determination does not, however, under the facts before us, render inadmissible the chemist’s testimony based upon the autopsy results for several reasons. First, neither the county attorney nor the performing physician is a party to this litigation. Second, no evidence was adduced which tended to show malice or intentional wrongful actions by either. Third, no evidence was presented which even .intimated that the defendants now before this court were in any way involved in procuring or performing the autopsy. Fourth, the analysis of the blood sample taken is the best evidence of the state of Yates’ intoxication. In this situation, there would be no deterrent value in refusing to admit such crucial, probative, trustworthy proof. Thus, the corrective principle which undergirds the exclusion of illegally obtained evidence in criminal cases is inapplicable here. Mr. Bailey’s scientifically authenticated testimony clearly meets the tests of probativeness, relevancy, and trustworthiness and was therefore admissible both under state and federal law. See Rule 43(a), Fed.R.Civ.P. See also Butler v. Southern Pacific Co., 431 F.2d 77 (5th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971); Dallas Cty. v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961); Monarch Insurance Co. v. Spach, 281 F.2d 401 (5th Cir. 1960).

Today’s holding will not undermine the effectiveness of Section 7158-04 or its exclusionary provision or otherwise encourage the bypassing of legal procedures in general since, upon proper suit, the county attorney and the performing physician may be mulcted in damages for their illegal actions. See Annot., 83 A.L.R.2d 955 (1962).

IV. WEIGHT OF LAW AND EVIDENCE

Plaintiff contends that the verdict of the jury was based upon an erroneous view of the law and was contrary to the overwhelming weight of the evidence.

A. The Law

The trial judge’s refusal to grant plaintiff’s requested Instruction No. 16 is asserted as the crux of the trial court’s legal error. The refusal of this instruction is said to have erroneously caused the jury to believe that they initially had to find that the defendants knew or should have known that Yates was likely to commit suicide before they could cast the defendants in damages. The instruction which the court did give, adequately and more clearly placed this concept before the jury. Any error in refusing requested Instruction No. 16 did not affect appellant’s substantial rights and thus was harmless. E. g., Almendarez v. Atchison, Topeka & Sante Fe Ry. Co., 426 F.2d 1095 (5th Cir. 1960); Martinez v. Rodriques, 394 F.2d 156 (5th Cir. 1968); Atlantic Coast Line R. Co. v. Burkett, 192 F.2d 941 (5th Cir. 1951); see Fed.R.Civ.P. 61.

B. The Evidence

The administratrix contends that the verdict was contrary to the weight of the evidence. She asserts that the proof required a finding of the use of excessive force and failure to take decedent before a magistrate in violation of federal and state laws. In order for appellant to recover, however, she had to prove not only a violation of decedent’s rights but also that such violation proximately caused Yates to commit suicide.

Under the circumstances established by the testimony in this case, the issue of whether the defendant officers used excessive force or only that amount of force necessary to subdue and search an uncooperative arrestee was properly submitted for jury determination under instructions which met the applicable legal standard. As stated in 6 C.J.S. Arrest § 13a, at p. 613: “The reasonableness of the force used in making an arrest under all the circumstances is a question for the jury, and the standard is the conduct of ordinary, prudent men under the existing circumstances.” See Morgan v. Labiak, 368 F.2d 338, 340 (10th Cir. 1966); Conklin v. Barfield, 334 F.Supp. 475 (W.D.Mo.1971). The jury was also correctly instructed that the defendants’ duty to provide medical attention must be predicated upon the exercise of reasonable care in deciding whether a person under their control needs medical attention. Mississippi ex rel. Derrow v. Durham, 444 F.2d 152 (5th Cir. 1971). Similarly, concerning defendants’ incarceration of decedent without first taking him before a magistrate, the jury was correctly instructed that the test of liability for his subsequent demise involved a determination of whether the ultimate injury was probably foreseeable at the time of wrongful detention. Johnson v. Greer, 477 F.2d 101 (5th Cir. 1973).

The plaintiff further raises the issue of defendants’ failure to comply with the Mississippi Youth Court Act which requires a Youth Court directive before a person of Yates’ age may be placed in jail. Defendants’ failure to act in accordance with the strictures of the Youth Court Act was not submitted to the jury, and the issue is raised for the first time on appeal. Nevertheless, the effect of a violation of the Act was at least implicitly contained in the jury’s determination of the consequence of defendants’ failure to take Yates before a magistrate. The contradictory evidence adduced at trial conclusively shows that the causal relationship between the omissions of the defendants and Yates’ death was clearly a jury issue.

Whether Carey Yates committed suicide because of an uncontrollable impulse created by defendants’ negligent or intentional acts in depriving him of one or all of the rights secured to an arrestee by federal and state law, or whether the youth’s death was proximately caused by an unknown phobia or his inebriated condition which superseded any effect that the defendants’ wrongful acts may have had upon the decedent was resolved by the jury’s verdict on accurate instructions and will not be disturbed on appeal.

V. MUNICIPAL IMMUNITY

The trial court correctly concluded that the City of Booneville was immune from suit brought under Section 1983, e. g., City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974) [1974] , The court’s further finding that there was diversity between appellant and the city and, therefore, that the city was subject to suit under the common law theory of respondeat superior was erroneous. In the absence of express statutory authority the city may not be sued for the torts of its police officers committed while engaged solely in matters pertaining to the police powers of the city, e. g., Twiner v. Jenkins, 257 So.2d 488 (Miss.1972); Simpson v. Poindexter, 241 Miss. 854, 133 So.2d 286 (1961); Anderson v. Vanderslice, 240 Miss. 55, 126 So.2d 522 (1961). The fact that the City of Booneville secured comprehensive general liability insurance does not, in the absence of express statutory authorization, constitute a waiver of the municipality’s immunity from ty for torts committed by its employees in performance of those functions, such as police duties, which are governmental"^ in character. See Tucker v. City of Okolona, 227 So.2d 475 (Miss.1969); Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221, suggestion of error overruled, 223 Miss. 703, 79 So.2d 815 (1955).

VI. SECTION 1985 AND SECTION 1986 CLAIMS

Plaintiff failed to introduce any evidence to support her claim that defendants conspired to deprive Yates of equal protection of the laws or of equal privileges and immunities under the laws as required to recover under Section 1985(3). Because of this failure to state a claim cognizable under Section 1985(3), appellant may not recover under the interrelated, dependent cause of action under Section 1986, action for neglecting to prevent a known conspiracy under Section 1985. Dowsey v. Wilkins, 467 F.2d 1022 (5th Cir. 1972).

Affirmed.

      . Defendants Burns and Edge were local citizens who, although having no official authority, participated in the search and incarceration of Carey Yates.

      . The authority of the administratrix to bring this suit is founded upon the Mississippi Wrongful Death Statute. Miss.Code Ann. § 1453 (1958), presently, Miss.Code Ann. § 11-7-13 (1972).

      . Plaintiff contends that decedent’s rights to due process and freedom from cruel and unusual punishment were denied by the defendants’ actions under color of state law in violation of 42 U.S.C. §§ 1983, 1985, 1986 and 1988.

      . Plaintiff asserts that decedent was deprived of his right under state law to be informed of the nature of the charge against him [Miss. Code Ann. § 2470 (1968), presently Miss.Code Ann. § 99-3-7 (1972), under this statute, however, it is not necessary to inform the arrestee of the charge when he is arrested during the commission of the offense or on pursuit]; his right to be taken before a magistrate without delay [Miss.Code Ann. § 2473 (1942), presently Miss.Code Ann. § 99-3-17 (1972)]; and the right to reasonable bail [Miss.Const. art. III, § 29], Appellant also contends Yates was denied the right to make a telephone call after his arrest, alleging such right to be a derivative of the right to be taken before a magistrate and to have reasonable bail imposed.

      . A municipal ordinance makes it a misdemeanor to discharge fireworks within the corporate limits of the City of Booneville.

      . In a receiving room of the jailhouse, defendants Burns and Chaffin held Yates while McGaughy frisked him. The trial judge found the proof to be uncontradicted that Yates resisted the search, and that this resistence caused the officers to apply force against him. Upon completion of the search, which revealed additional fireworks, several defendants escorted Yates to the cell.

      . Under Mississippi law, where the suicide is committed in response to an irresistible impulse, the plaintiff in a wrongful death action may recover if the mental state of the decedent was substantially caused by defendant’s intentional wrongful acts. State ex rel. Richardson v. Edgeworth, 214 So.2d 579 (Miss. 1968).

      . None of the defendants could testify that they smelled alcohol on the decedent’s breath, but another young man who had been with decedent earlier on the fatal evening testified that Yates was one of a party of four that drank over a quart of whiskey. Several other witnesses also testified that decedent acted like he was intoxicated. Additionally, a chemist testified that a blood sample taken from decedent’s body revealed an alcoholic content level of 0.15%. Under the Mississippi Motor Vehicle Laws, Miss.Code Ann. § 8175 15 (1972) [presently § 63-11-39 (1972)], this concentration of alcohol in a person’s blood raises the presumption that the person is intoxicated. (See Part III, infra).

      . Specifically, the court determined that substitution of the administratrix was legitimate since the decedent’s father had an interest in the outcome of the litigation which his estranged wife, decedent’s mother, openly admitted that she would ignore, if possible.

      . In Bass v. Texas Power & Light Co., 432 F.2d 763 (5th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324 (1971), this court held that an out-of-state administrator appointed solely for the purpose of “manufacturing” diversity jurisdiction is collusively joined m violation of 28 U.S.C. § 1359 and, therefore, the residence of such administrator will not be considered. Other decisions in accord with Bass are: Kenebrew v. Columbia Land and Timber Co., 454 F.2d 1146 (5th Cir. 1972); White v. Lee Marine Corp., 434 F.2d 1096 (5th Cir. 1970); Green v. Hale, 433 F.2d 324 (5th Cir. 1970). See also Carribbean Mills, Inc. v. Kramer, 392 F.2d 387 (5th Cir. 1968), aff’d, 394 U.S. 823, 89 S.Ct. 1487, 23 L.Ed.2d 9 (1969) (collusive assignment); McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969) (collusive appointment of a guardian).

      . Section 7185-06, provides that a juvenile may only be confined in jail if the judge of the youth court determines that the youth’s habits or conduct constitutes a menace to others, or that jailing is necessary to insure attendance at court.

      . Section 7158-04, [presently § 41-37-9 (1972)], provides, in pertinent part: “A circuit judge, chancellor or county judge may . order an autopsy to be performed upon the body of such deceased person (1) upon the petition of a county prosecuting attorney

      . This exclusionary proviso from § 7158-04 is presently found in § 41-37-19 (1972).

      . The jury also could have drawn an inference that decedent’s intoxicated condition increased the duty of the defendants to supervise such a debilitated youngster while he was in their custody. However, regardless of which inference they may have drawn, this proof of the fact of decedent’s blood alcohol content was crucial to a determination of the state of his intoxication. We decline to classify it as harmless.

      . The other legal methods of obtaining authorization for an autopsy under Mississippi law are:
      (1) by consent of the decedent during lifetime, or by consent of next of kin. Miss. Code Ann. § 7158-08 (1942) [presently § 41—37-25 (1972)]; and (2) by petition of certain health officials. Miss.Code Ann. § 7158-09 (1942) [present/y § 41-37-23 (1972)].

      . Rule 43(a) provides:
      In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined m like manner.

      . In Arnold v. Spears, 217 Miss. 209, 63 So.2d 850, suggestion of error dismissed, 65 So.2d 296 (1953), the Mississippi Supreme Court announced that state’s recognition of a legal right to possession of a dead body for burial and the propriety of a suit for damages based on unlawful interference with such right.

      . Plaintiff’s requested Instruction No. 16:
      You are instructed that if negligent or wrongful conduct on the part of the defendants herein, or any one of them, so caused any bodily harm to Car[e]y Clayton Yátes as to make them or any one of them liable for that harm, then such ones or all of the defendants as you find to be guilty of such conduct are also subject to liability for:
      (a) fright, shock or other emotional disturbance of Car[e]y Clayton Yates resulting from the bodily harm or from the conduct which causefd] it, and
      (b) further bodily harm to Yates resulting from such emotional disturbance.
      You are further instructed that if you find that negligent or wrongful conduct on the part of the defendants or any one of them so brought about the delirium or insanity of Car[e]y Clayton Yates as to make them or any one of them liable for it, then such ones or all of the defendants as you find to be guilty of such conduct are also liable for harm, including suicide, done by Car[e]y Clayton Yates to himself while delirious or insane, if his delirium or insanity
      (a) prevented him from realizing the nature of his act and the certainty of risk of harm involved therein, or
      (b) made it impossible for him to resist an impulse caused by his insanity which deprived him of his capacity to govern his conduct in accordance with reason.

      . The court instructed the' jury, in part, as follows:
      But must first determine whether the defendants have violated or invaded any of the rights held by the decedent that were protected by federal or state law. And if so, did the violation of those right's have a causal connection with his death? If it did, then you are under a duty to bring in a verdict for plaintiff. * * *
      . And if you further believe from a preponderance of the evidence that the mental state of Car[e]y Clayton Yates was substantially caused by intentional wrongful acts and that such acts were substantial factors in bringing about the death of Carfejy by suicide, then the defendants would be liable to the plaintiff.
      And if you believe that the decedent in this case, having been confined to jail, was allowed to commit suicide without proper preventive measures being available, when the defendants knew or in the exercise of ordinary care should have known that the decedent might take his life, then this failure on the part of the defendants would be proximate cause which the law would recognize as a contributing cause to the death of the decedent. In that event, you would bring in a verdict for the plaintiff.
      Now, the issues of fact for you to decide in this case, simply put, are whether, taking into account all that happened on this Christmas Eve, these two officers who made the arrest and took the boy to jail, later joined by others, were negligent or failed to exercise the ordinary care that, reasonably prudent people would exercise in what happened and whether they should have anticipated a hazard or danger befalling the boy by being left alone in the cell. It was not necessary that they anticipate the exact thing that befeli him but that some harm would befall him and act accordingly.

      . Miss.Code Ann. § 7185-06 (1972), presently § 43 -21 -13 (1972).

      . The plaintiff’s claim that a juvenile has a right to greater protection during the interrogation process than is accorded an adult is inapposite here since the decedent was not interrogated.

      . For a thorough analysis of the effect of liability insurance on municipal immunity see Annot., 68 A.L.R.2d 1437 (1959).

      . “The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (footnotes omitted). See also Dowsey v. Wilkins, 467 F.2d 1022 (5th Cir. 1972).


author: DYER, Circuit Judge:

text:
    PILOT FREIGHT CARRIERS, INC., Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS et al., Defendants-Appellants.
    No. 74-1031.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.
    Robert J. Higgins, Washington, D. C., Frank E. Hamilton, Jr., Tampa, Fla., for Int’l Brotherhood, etc.
    Thomas J. Dorsey, Miami, Fla., Thomas A. Larkin, Jacksonville, Fla., L. N. D. Wells, Jr., Dallas, Tex., for Local Unions.
    Granville Alley, Jr., V. James Facciolo, Cody Fowler, Ronald D. McCall, Thomas T. Steele, Tampa, Fla., for plaintiff-appellee.

      Robert H. Cowan, Nashville, Tenn., for R. V. Pulliam.
    Before DYER, SIMPSON and CLARK, Circuit Judges.
   DYER, Circuit Judge:

Subject to certain restrictions not here relevant, Federal Rule of Civil Procedure 41(a)(1) on its face grants a plaintiff an unconditional right to dismiss his complaint by notice and without order of the court at any time prior to the defendant’s service of an answer or motion for summary judgment. On this appeal, we are invited to narrow the express parameters of this right by holding that such a dismissal is unavailable to a plaintiff who has argued, and lost, a motion for preliminary injunctive relief. We decline the invitation, and affirm the district court’s refusal to vacate a notice of dismissal filed by a plaintiff who had been served with neither an answer nor a motion for summary judgment.

Pilot Freight Carriers, Inc. [Pilot] is a common carrier of general commodity freight operating primarily in the eastern United States with lines as far west as Ohio. Its labor relations with non-supervisory personnel are in the main controlled by the National Master Freight Agreement [NMFA], a nationwide collective bargaining agreement periodically negotiated between the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [IBT] on behalf of its locals and a multiemployer association of which Pilot is a member. In August, 1970, Pilot received authorization from the Interstate Commerce Commission to extend its lines south into Florida, and shortly thereafter established terminals in Jacksonville, Orlando, Tampa and Miami which were linked up to existing lines terminating in the Carolinas. Florida IBT locals at these points took the position that, because of this extension, the non-supervisory personnel automatically became subject to the terms of the NMFA by virtue of an accretion clause in the contract, while Pilot countered that its Florida operation, which utilized drivers and dockworkers employed by independent labor contractors rather than by Pilot directly, was sufficiently distinct to be outside the scope of the national agreement.

In an attempt to enforce their respective positions, the Florida locals in April, 1972, filed grievances pursuant to the NMFA, which under the' contract were taken to arbitration before the Southern Multi-States Grievance Committee [Southern Committee], claiming that they were entitled to represent the Florida employees; on May 24, Pilot in turn filed a unit clarification petition with the NLRB asking that the Board construe its bargaining unit to exclude the Florida terminals. On June 12, Pilot also filed suit in the Middle District of Florida seeking, inter alia, to enjoin the Southern Committee from hearing the Unions’ grievances until the NLRB had acted on its unit clarification petition. When the Southern Committee ruled adversely to Pilot on the Unions’ grievances on June 22, Pilot amended its action to ask that the Unions be enjoined from enforcing their award through a strike or other concerted activity. A hearing on this amended motion was held on July 7, and the request for injunction denied on the following day.

On July 16, the Florida locals struck to enforce the Southern Committee award, and picketing was extended to Pilot’s operations in other states. The strike continued until July 28, when it was temporarily enjoined by a federal district court in North Carolina on the ground that contractual grievance procedures had not been exhausted. This injunction was subsequently dissolved on September 8, 1972, following a decision in the Unions’ favor by the National Grievance Committee, the final arbiter of disputes under the NMFA.

With minor exceptions, both the Florida and North Carolina actions were then allowed to languish for almost a year, until in August, 1973, IBT filed a set of interrogatories in Florida and the following month moved to stay proceedings in North Carolina pending resolution of the Florida suit. Pilot’s response was to file a notice of voluntary dismissal of its Florida action under F.R.C.P. 41(a)(1). The Unions then moved to vacate the notice of dismissal on essentially the same grounds urged before this Court, which motion was denied. This appeal ensued.

The Unions’ most obvious hurdle on this appeal is of course the language of F.R.C.P. 41(a)(1), which provides in relevant part:

Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service of the adverse party of an answer or of a motion for summary judgment, whichever first occurs

While this Court has not previously confronted the exact question presented by this appeal, we have in the past expressed the view that Rule 41(a)(1) means precisely what it says. American Cyanamid Co. v. McGhee, 5 Cir. 1963, 317 F.2d 295, 297; cf. Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 5 Cir. 1973, 474 F.2d 250 (motion to dismiss for lack of personal jurisdiction, motion to challenge service of process, and filing of written interrogatories not the equivalent of an answer for the purposes of the Rule); Nix v. Fulton Lodge No. 2, Int. Ass’n of Machinists and Aerospace Workers, 5 Cir. 1972, 452 F.2d 794, cert. denied, 406 U.S. 946, 92 S.Ct. 2044, 32 L.Ed.2d 332 (motions to dismiss based on insufficiency of service of process, lack of subject matter jurisdiction, failure to state a claim, and res judicata not the equivalent of a motion for summary judgment for the purposes of the Rule).

Although conceding that Pilot was entitled to dismiss its complaint under a literal reading of Rule 41(a)(1), the Unions contend that we should nonetheless vacate the notice of dismissal by applying the principles enunciated by the Second Circuit in Harvey Aluminum, Inc. v. American Cyanamid Co., 2 Cir. 1953, 203 F.2d 105, cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383, in which the court refused to permit a plaintiff to dismiss by notice following an extensive hearing on a motion for preliminary injunction. We decline to do so.

First, the exceptional equitable considerations which apparently motivated the Harvey decision are not present in this case. One of the factors stressed in Harvey was the district court’s extensive consideration of the merits at the preliminary injunction hearing, culminating in its conclusion that the plaintiff’s ultimate chances of success on the merits were “remote, if not completely nil.” Id. at 107. No such claim of patent insubstantiality is made here. In reaching its conclusion that a sufficiently “advanced stage” of the litigation had been reached to preclude Rule 41(a)(1) dismissal, the Second Circuit also relied heavily on the amount of preparation and expense incurred in defending at a hearing lasting several days and producing a 420 page record, while the hearing on Pilot’s motion in this case consumed approximately two hours and substantially less paper. But more importantly in our view, the necessity of deciding in every case “How much preparation is too much?” in itself demonstrates the relative undesirability of the subjective approach endorsed in Harvey as opposed to the objective standards embodied in the Rule.

If however, as the appellants contend, Harvey is to be read more broadly as proscribing dismissal under F.R.C.P. 41(a)(1) whenever the merits of the controversy have been presented to the court in any manner, we must disagree with the decision and respectfully refuse to follow it. Since the substantial likelihood of plaintiff’s success on the merits is one of the factors which must always be weighed by the district court in exercising its discretion to grant or withhold preliminary injunctive relief, see, e. g., Allison v. Froehlke, 5 Cir. 1972, 470 F.2d 1123, 1126, such a view would amount to no less than a flat amendment of Rule 41(a)(1) to preclude dismissal by notice in any case where preliminary injunctive relief is sought. If such a comprehensive modification-of the Rule is desirable, the request must be addressed to the Supreme Court and to Congress, not to this Court.

Finally, we find without merit the Unions’ argument that the construction we place on the Rule permits forum shopping in the sense that a litigant may be able to choose a “friendly judge.”

Pilot was entitled to dismiss its complaint under F.R.C.P. 41(a)(1). Accordingly, the district court’s denial of the motion to vacate its notice of dismissal is

Affirmed.