538 F.2d 711 (5th Cir. 1976), 75-3939, United States v. Brennan

Docket Nº:75-3939.
Citation:538 F.2d 711
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John J. BRENNAN, Defendant-Appellant.
Case Date:September 13, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 711

538 F.2d 711 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

John J. BRENNAN, Defendant-Appellant.

No. 75-3939.

United States Court of Appeals, Fifth Circuit

September 13, 1976

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James M. Russ, I. Paul Mandelkern, Orlando, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., William F. Duane, Harrison T. Slaughter, Jr., Asst. U. S. Attys., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, AINSWORTH and CLARK, Circuit Judges.

CLARK, Circuit Judge:

A warrantless search of defendant's airplane disclosed the marijuana on which his convictions were based. Its validity is the only issue on appeal. Our rejection of the district court's rationale that the airport at which the search occurred was the functional equivalent of the border requires that we examine the authority of the searching Customs agent. Having concluded that, after United States v. Almeida-Sanchez, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), Customs agents possess no authority to search on less than probable cause at points removed from the border or its functional equivalent, we have reviewed the facts and circumstances which led to the search to determine whether probable cause and exigent circumstances existed to justify the officers' actions. This final analysis reveals that the search was good, and the convictions are affirmed.

I.

On April 22, 1976, Drug Enforcement Administration (DEA) agent Dennis Fitzgerald received a telephone call from Douglas Dufresne, a Pan American World Airways pilot. Dufresne told Fitzgerald that he had information leading him to suspect that John J. Brennan "was going to engage in some smuggling activities into the Melbourne Regional Airport." Prior to the call, Fitzgerald had had no dealings with Dufresne and had never heard of Brennan.

On April 25, Fitzgerald and another DEA agent met with Dufresne at his residence. At this meeting, Dufresne described Brennan's plane as a 1969 twin engine Beagle, blue and gold in color, with tail number N569MA, and told the agents that the aircraft was kept in a hangar at the Melbourne Regional Airport. He also recounted a trip to Colombia he had made with Brennan in November 1974, during which the two of them had been arrested by Colombian police and kept in jail for about a month. After investigation and court proceedings, all charges were dropped, and Brennan and Dufresne were allowed to leave Colombia. Dufresne never disclosed the basis, if any, for the arrest and detention. Finally, Dufresne told the agents he suspected that Brennan would install a 55-gallon auxiliary fuel tank in the Beagle to enable him to make a flight to Colombia and back without refueling and that the purpose of the trip would be to smuggle in 1600 or 1700 pounds of marijuana. Dufresne's load estimate was based on his own guess as to the plane's capacity and not on anything Brennan had told him.

On April 28, 1975, Dufresne called Fitzgerald and reported that he had recently talked to Brennan by phone and inferred from the conversation that the smuggling trip would take place within the next two or three weeks. Dufresne stated to Fitzgerald that this inference was based on Brennan's purchase of the plane and insurance for it in the amount of $95,000 at a time when he, Dufresne, had personal knowledge that Brennan was experiencing great difficulty in meeting the day-to-day living expenses of his family. When Dufresne asked Brennan about his expensive purchase, the latter had replied, "I am just doing my thing." Brennan had also requested that Dufresne try to locate a second-hand loran an overwater navigational device suitable for ship or aircraft

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use. Brennan had said the loran was for "his brother's boat."

Fitzgerald confirmed that aircraft N569MA was hangared at the Melbourne Regional Airport. When he contacted the American Embassy in Colombia to investigate the November 1974 arrest of Brennan and Dufresne, he learned that three suspected smugglers, Richard H. Silkie, James King, and Richard Ferrara, had been jailed at the same time, but further investigation failed to establish any relationship between Brennan, Dufresne and the three or what charges had been made against Brennan and Dufresne. The El Paso Intelligence Center was notified to put the tail number of the aircraft into its computer which was used to collect and report possible smuggling-related flight activity.

On May 17, 1975, at approximately 11:00 a. m., Fitzgerald received word that the Beagle aircraft had taken off from Melbourne and was headed in a southwesterly direction. Alleged radar contact with the plane was lost when it entered the air traffic pattern over Miami. 1 Fitzgerald contacted Customs officers headquartered at Tampa, advised them of the Dufresne tips and the flight of N569MA, and requested assistance. An estimated 6 to 7 hours later, two Customs agents, Hays and Miller, were dispatched to the Melbourne airport; they arrived at 5:00 p. m. At approximately 1:30 a. m. on the morning of May 18, the Customs agents sighted a Beagle aircraft moving along the taxiway leading to the hangar normally occupied by the Brennan plane and identified it as N569MA. The plane taxied to the door of the hangar, at which time the agents drove their van to another location near the hangar. During this time, a white male later identified as Brennan exited the hangar and headed toward his nearby automobile. Upon encountering a Melbourne police officer, Brennan headed back toward the hangar, where he was detained by DEA agents. Agent Hays entered the hangar through its partially open door and approached the plane. Observing through the window of the airplane a number of tightly wrapped packages characteristically used to transport marijuana, he decided to conduct a full search of the plane, which disclosed 60 packages of marijuana totaling approximately 1600 pounds and one bundle containing 466 grams of hashish. Following this discovery, Brennan was arrested.

After a hearing at which this testimony was developed, the district court denied the motion to suppress, ruling that the Melbourne airport is the functional equivalent of the border "with regards to those aircraft actually arriving from outside the United States." The district court characterized the test to be applied to the facts in making the determination of functional equivalency was "whether there was reasonable cause to believe that defendant's plane did in fact arrive from outside the United States." Finally, in applying that test, the court found that "(c)onsidering all factors involved, including the information given the government agents by the confidential informant who had been in close contact with the defendant," reasonable cause existed for such a belief.

II.

This court must first determine whether the district court was correct in deciding that the search took place at the functional equivalent of the border. If so, the agents were entitled to conduct a full search for contraband without particularized knowledge of what Brennan or his plane was carrying. Almeida-Sanchez v.

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United States, 413 U.S. 266, 272-273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). No warrant or showing of probable cause is required to support such searches. The national interests in self-protection and protection of tariff revenues authorize a requirement that persons crossing the border identify themselves and their belongings as entitled to enter and be subject to search.

In writing for the court, Justice Stewart did not define the "functional equivalent" phrase; instead he gave illustrative examples:

For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.

United States v. Almeida-Sanchez, supra, 413 U.S. at 272-73, 93 S.Ct. at 2539. In the first example there inheres a high degree of probability that a border crossing took place and an attendant likelihood that nothing about the object of the search has changed since the crossing. The location of the checkpoint according to the criteria customarily employed by ranking Border Patrol officials minimizes the uncertainty, and statistical study of those passing through the checkpoint gives both the officers on the scene and the reviewing courts a benchmark against which to measure it. 2 In the case of the airport search of the nonstop flight, both assumptions become certainties. Thus, as Justice Stewart pointed out, the search of the nonstop flight "would clearly be" a search at the functional equivalent of the border, whereas a search at a checkpoint "might be" if the facts and circumstances with respect to the location provided the necessary degree of certainty that persons and objects passing through that location were entering the country unchecked. At Almeida's "functional equivalent," there neither is nor need be any evidence pointing to specific persons as "suspects" before they pass through the location.

The Melbourne Regional Airport was not the functional equivalent of the border when Brennan's plane landed and taxied into its hangar. Two factors lead us to this conclusion. First, international flights make up only a small percentage of the traffic at the airport, and there was no attempt by airport officials to...

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