U.S. v. Barbera

• Citation: 514 F.2d 294
• Decision Date: 24 March 1975
• Docket Number: D,No. 566,566
• Parties: UNITED STATES of America, Appellant, v. Guiseppe BARBERA, Appellee. ocket 74-2399.
• Court: U.S. Court of Appeals — Second Circuit

Page 294

514 F.2d 294

UNITED STATES of America, Appellant, v. Guiseppe BARBERA, Appellee.

No. 566, Docket 74-2399.

United States Court of Appeals, Second Circuit.

Argued Jan. 10, 1975.

Decided March 24, 1975.

Thomas P. O'Sullivan, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., N. D. N. Y., of counsel), for appellant.

Dennis B. Schlenker, Albany, N. Y. (Feit, Schlenker & Patack, Albany, N. Y., Fried, Fragomen & Del Rey, New York City, of counsel), for appellee.

Before SMITH, OAKES and TIMBERS, Circuit Judges.

OAKES, Circuit Judge:

This is a so-called "border search" case. On December 31, 1973, the appellee, Barbera, an Italian citizen who had entered the United States through Canada, was detained by a border patrol agent when he failed to respond to questions regarding his citizenship during a "roving patrol" of a bus at the depot in Malone, New York. ¹ He was led from the bus in custody, and at the request of the border patrol agent, he produced his passport for examination. ² It revealed that Barbera did not possess any valid travel documents. He was then formally arrested and charged under 8 U.S.C. § 1325 with entering the United States by eluding inspection.

Relying principally upon Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), appellee moved to suppress the evidence seized from him. ³ Simply stated, his claim was that the search in question took place on a regularly scheduled bus which had traveled nonstop within the United States from Massena, New York, to the bus station in Malone, that the bus station could not be regarded as the "functional equivalent" of a border so as to validate the search as a "border search," and that his search and detention could not be otherwise justified. The United States District Court for the Northern District of New York, Edmund Port, Judge, granted appellee's motion to suppress. The Government appeals under 18 U.S.C. § 3731. We affirm.

The Government's powers to exclude aliens from the country, Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889), and to collect duties, U.S.Const. art. 1, § 8, cl. 1, each carries with it the right to effectuate "border searches," under which individuals crossing international borders may have their persons, their luggage or effects, as well as the conveyances in which they cross, searched without warrant or probable cause. ⁴ The dual purpose of the search is to ascertain whether an illegal alien is seeking to cross the border or whether contraband or dutiable property is being smuggled. Congress has further legitimatized this power to search by giving to an officer of the Immigration and Naturalization Service (INS) "under regulations prescribed by the Attorney General . . . power without warrant" first to arrest any alien who in the officer's presence or view is entering or attempting to enter the country, 8 U.S.C. § 1357(a)(2), ⁵ and, second,

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, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . ..

8 U.S.C. § 1357(a)(3).

While the Attorney General's regulations could have carefully defined or substantially prescribed the border search powers, to date they merely provide for a redelegation of the powers to "(a)ny immigration officer," 8 C.F.R. § 287.1(c), under standards which defined the term "external boundary" to include the coastline up to the "three-mile limit," 8 C.F.R. § 287.1(a)(1), and defined "reasonable distance" to mean "100 air miles from any external boundary . . . or any shorter distance which may be fixed by the district director . . .." 8 C.F.R. § 287.1(a)(2). ⁶ Relying on the 100-mile limit specified in the Attorney General's regulations, and without further standards or refinements spelled out in rules or regulations, the INS through its border patrol ⁷ conducted three types of surveillance along inland roadways permanent checkpoints at certain nodal intersections, temporary checkpoints at various places, and "roving patrols." But Almeida-Sanchez v. United States, supra, held the third type unconstitutional, under the Fourth Amendment, in a case involving the warrantless search of an automobile, without probable cause to believe that the vehicle contained aliens or "even" had crossed the border. Id. 413 U.S. at 268, 93 S.Ct. 2535 (plurality opinion per Stewart, J.). Since Almeida-Sanchez, the Attorney General has not modified his border-search regulations and the INS has still not formally or legally promulgated any of its own. ⁸

The plurality of the Court in Almeida-Sanchez said that searches may take place at not only the border but "at its functional equivalents" examples of which were (1) "at an established station near the border," (2) "at a point marking the confluence of two or more roads that extend from the border," and (3) "clearly," "a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City . . .." 413 U.S. at 272-73, 93 S.Ct. at 2539. It held, however, that a "roving patrol" search of a car "on a California road (State Highway 78) that lies at all points at least 20 miles north of the Mexican border," id., which road at no point reaches the Mexican border and at all points lies north of a major east-west interstate highway entirely within the United States, id. at 267-68, 93 S.Ct. 2535, 2539, was not at the "functional equivalent" of the border. Our case does not fit any of the three examples given by the Court to describe the functional equivalent of the border, and, while the search here was not as far removed from the border as the one in Almeida-Sanchez, that single fact is in no way conclusive.

The search ⁹ here involved an interrogation of the passengers in a bus which had traversed New York State Highway 37 from Massena which is about three miles from the border to the depot in Malone. While the bus made no stops, Highway 37 meanders along the river for 11 miles where an international toll bridge connects it to Canada (Cornwall, Ontario, to Rooseveltown, New York), thence along the border (which runs through the St. Lawrence River) 12 miles to Fort Covington, a border station, thence travels south-southeast 14 miles to Malone. Malone itself, which is at least 10 miles from the Canadian border, is a confluence not only of Highway 37 but of Highway 11 (an east-west highway running essentially parallel to the border) and Highway 30 which runs generally north-south across the middle of the state from Canada to Pennsylvania. The Government argues, therefore, that Malone is the functional equivalent of the border because it is a point "marking the confluence of two or more roads that extend from the border." Routes 11 and 37 connect, however, only at assorted points to roads close to the border. ¹⁰ One searches the post-Almeida-Sanchez decisions in vain for any precedent which would bind us or even materially help us. ¹¹ As Judge Port said below, after Almeida-Sanchez "The meaning of the functional equivalent of a Border search or the extended border still remains clouded." And as the Government brief concedes, or argues, "(i)f no sensible test (of what is the functional equivalent of the border) can be applied then the determination of whether an interior point is the functional equivalent of the border depends on the length of the Judge's foot" (Brief at 19). We hold that the search here was not at the Almeida-Sanchez plurality's "functional equivalent" since the existence of a sizeable city, Massena, and the nonstop travel of the bus therefrom, breaks the path from border to checkpoint. Although Malone does mark a confluence of Routes 30, 37 and 11, the fact that each of these roads either traverses the border or meets with other roads traversing the border before reaching Malone, makes it impossible for us to regard this entire city as the functional equivalent of the border under Almeida-Sanchez.

But in justice to the Government our inquiry cannot stop here for the Government rather elaborately argues that Almeida-Sanchez really applies the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to border searches. After conceding that the type of search cannot be justified, as the plurality said, 413 U.S. at 269, 93 S.Ct. 2535, on the automobile "exception" to the warrant requirement, Chambers v. Moroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), or as an administrative search under Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), ¹² the Government suggests (Brief at 9) that "(t)he test for determining whether a particular point is the functional equivalent of the border is therefore whether the same conditions which justify a detention at the border exist at the interior point." That is, at least in connection with a search for aliens as opposed to contraband, ¹³ the test should be whether there is "a continuing institutionalized reasonable" suspicion that any person or vehicle passing through the point in question may be transporting an alien not entitled to enter, and the need to make the intrusion at that point to prevent illegal border crossings. ¹⁴ But as we view this Terry- type argument, it is essentially the same (although possibly more limited in scope) ¹⁵ as that made by the dissent in Almeida-Sanchez, 413 U.S. at 285, 289, 93 S.Ct. 2535, ¹⁶ viz., that a warrantless search of an automobile for the purpose of...