Gus F. Mienke, Jr. v. United States
452 F.2d 1076
9th Cir.
1972
Check Treatment

*1 1076 employer not does the

ployee that and petitioner’s If such. to remain cease Jr., MIENKE, Appellant, F. Gus improper, post was to a new transfer v. be solution would appropriate the more America, of UNITED STATES Hampshire ROTC say New that the to Appellee. custodian, de his remained Commander No. 71-1240. le act, a spite would be which the latter's Appeals, United States Court of gal nullity. that the substan fact The Ninth Circuit. de that is question also the one is tive Sept. 30, 1971. jurisdiction not does of terminative power to make lacks mean that the court Rehearing 4, En Banc Denied Feb. 1972. 1947, Dollar, U. 330 a decision. Land v. 7, Rehearing Feb. 1972. Denied 1209; 1009, 731, 91 L.Ed. S. 67 S.Ct. FPC, Cir., Sunray v. 10 DX Oil Co. 1965, 395. 351 F.2d argued by

Only consideration, not one give pause. party, is

either us It could ambiguity penulti-

an contained in the Schlanger Seamans,

mate sentence of v. 491-492,

1971, 401 487 at 91 U.S. S.Ct.

995, 998, 251; peti- 28 “Had L.Ed.2d . .

tioner . been under com- the

mand of the Air as- Force officer signed as liaison officer Arizona at supervise to

State and the Education Browning, Judge, Circuit dissented. Commissioning Program, we would have question.” a different While this refer- conceivably

ence could an be to officer petitioner

whom had in fact named aas silentio, defendant, thus, and sub a hold- ing that a custodian could cease to be through

such wrong, his own it we think

unlikely. The Court had earlier re- defendant,

ferred to such not as liaison officer but as of “Commander the AF program

ROTC on the Arizona State

campus.” 488, 401 U.S. at 91 at S.Ct. having 997. Petitioner apparently not named as defendant the custodian the at wrongful

time custody, of of termination

the Court did not have before it is- the sue If, raised however, here. the differ- designations ent did relate to the same

individual, nothing there is to indicate

that the presented instant was issue to Court, the or that the Court to intended

resolve it without discussion. We there-

fore reverse and remand to the district

court for legality a determination of the petitioner’s

of disenrollment, and for proceedings

such further may as be necessary. found

1077 run afoul of the search and seizure clause of the Fourth Amendment the or Due of Process clause the Fifth Amend- 1 ment to the Constitution ? This court in Cal., numerous cases Franklin, Diego, San J. David pass has had to occasion consider and appellant. for upon question, this same and has con Atty., Steward, Harry Robert D. U. S. held, sistently in instances where the Div., Chief, Filsinger, R. Mi- Crim. H. search was made within 100 miles of the Atty., Bruney, Die- U. S. San chael Asst. border,2 that the answer is “no.” Unit go, appellee. Cal., for Avey, (9th v. ed States 428 F.2d 1159 MERRILL, and KOELSCH Before 1970); Miranda, Cir. United States v. Judges. BROWNING, Circuit (9th 1970); 426 F.2d 283 Cir. Fernan States, (9th dez v. United 321 F.2d 283 PER CURIAM: 1963).3 Appellant’s remaining Cir. points discussed, they need not be since question principal tendered in The upon premise the rest unsound that the portion appeal of this is Does that this: search was unreasonable. (3) 1357(a) purports 8 which U.S.C. § Immigra- empower to a United States Affirmed. warrant, Officer, a and without tion any Judge reasonable distance from the “within a BROWNING dissents for States, boundary of the United in external stated his in United reasons dissent any Almeida-Sanchez, for aliens 459 to search 452 F.2d board and States v. ”*** * * * (9th 1971). conveyance or vehicle Cir. 2. 3. 1. The in a immigration Mienke, U. S. of gration the California, approximately The search revealed 287.1(a) external searches inside distance, pointed ascertain [*] “From Kelly Cir. the constitutional government (3), The Immigration Regulation 287.1, the Mexican border. [*] purpose as “within 100 air northerly 1952). bellwether ease facts v. United *» Highway the van. authorities practically out that was boundary of the United States. and seizures as used (2) whether are the courts check of driving (1967), defines a reasonable The Fifth Circuit direction States, 395, making undisputed. it in stopped the station at some 32 such it contained aliens. interdict. is 8 U.S.C. and had reached a in this context 197 that come within only beginning an large There have upon miles from 60 miles the F.2d 162 inspection unreasonable van truck vehicle for Appellant, and § repeatedly Temecula, the immi 8 CFR And 1357(a) persons of our states, north along (5th any the an to is § Fourth from the to of a search warrant.” The court a seizure be foundation. protect ascertaining itations 381 “sovereign right aliens, entry Alexander circumscribed Congress within ment, search search the in lawful Customs Border warrant within a require ordinary (9th of if conducted the if conducted was Amendment its which of aliens,” Id. border, Cir. officers there held that a search has searches v. United pursuit of unlawful meaning that effected under the Fourth own boundaries whether a vehicle As this court reasonable, case, only by 1966), in effect declared would be ‘unreasonable’ of the United States every for the sole such would of the Fourth rest by police has States, by “In reasonable distance Constitutional valid 197 Customs broad Amendment, never been held in view of the upon the same conferring be a reasonable pointed the 362 F.2d at 164. against search and purpose of officers authority, contained authority F.2d imports.” without officials Amend that a out upon 379, lim the the to in in