672 F.2d 1349 (11th Cir. 1982), 81-5126, United States v. Garcia

Docket Nº:81-5126.
Citation:672 F.2d 1349
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Terrance GARCIA, Phillip G. Jackman, Defendants-Appellants.
Case Date:April 12, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1349

672 F.2d 1349 (11th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Terrance GARCIA, Phillip G. Jackman, Defendants-Appellants.

No. 81-5126.

United States Court of Appeals, Eleventh Circuit

April 12, 1982

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Donald F. Spain, Thomas G. Murray, Miami, Fla., for Jackman.

Ronald A. Dion, Entin, Schwartz, Angert, Dion, & Broudy, Alvin E. Entin, North Miami Beach, Fla., for Garcia.

Linda Collins Hertz, Asst. U. S. Atty., Miami, Fla., Sidney M. Glazer, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before MORGAN, KRAVITCH and HENDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

The major issues raised by this appeal concern the validity of a search by the government of appellants' aircraft. Since we find appellants' challenges to be without merit, we affirm the denial of appellants' suppression motion and appellants' ensuing convictions.

I. Facts

At 3:04 p.m. on January 25, 1980, an unidentified aircraft flying toward southeastern Florida crossed the air defense identification zone (ADIZ). The crossing was registered on radar by Air Force personnel who immediately alerted the Homestead Air Force Base near Miami. Within minutes two Air Force planes departed from Homestead to intercept the unidentified aircraft. The Air Force planes were vectored by ground radar to a light twin-engine aircraft, which they intercepted over the ocean about thirty-six nautical miles from Homestead. Major Calvin Hoge, the pilot of the lead plane, testified at trial that he flew by the right side of appellants' plane and observed that it was American, was white with a red stripe, and that no tail number was visible. He followed the aircraft as it flew toward the United States and eventually landed at Rock Harbor Key, Florida. The Air Force planes remained airborne, with Major Hoge circling at an altitude of 7000 feet over the airport where the intercepted craft had landed. Hoge testified that the aircraft was on the ground for a period of five to ten minutes before it began to taxi for take-off. He testified further that he did not observe any person exit or board the plane while it was on the ground and that only one other plane landed while he was circling, though there were other planes already on the ground at the airport. 1 Before appellants' plane departed, a U. S. Customs plane arrived in the vicinity, and Hoge informed its pilot, Douglas Cockes, that the twin-engine plane about to take off was the one he had intercepted. From that point the Customs plane followed appellants' aircraft, and the Air Force planes returned to Homestead.

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Cockes testified that he followed the aircraft, which he described as a Piper Aztec of light color with red and blue trim, from the airport where it had first landed westward to Sugar Loaf Key where it landed again several minutes later. In the interim, while following the plane and from a point 100-200 yards behind it and 20-30 feet below it in altitude, Cockes observed the emergency exit on the left rear of the plane open and saw someone throw what appeared to be maps and a navigation computer out of the plane. Three dark, wrapped packages were then jettisoned, one of them striking the windshield of the Customs plane. Cockes testified that the packages were about six to eight inches in length and five inches in circumference, and that one of them was "split open" with a "white powdery substance ( ) streaming out of it." Finally, something that appeared to Cockes to be money was ejected from the plane.

Cockes watched the plane land at the end of a road in a mangrove 2 area. He testified that the nearest buildings were about two miles away and that, except for the occupants of one pickup truck driving away from the area when the plane landed, he observed no other people in the vicinity. The Customs plane descended to a point twenty to thirty feet above the ground, and Cockes observed two white males, one without a shirt, exit the aircraft and enter a thicket of mangroves nearby. Meanwhile Cockes had contacted a ground unit of Customs Patrol, which he directed by radio to the area of the landing. He gave the Customs officers a physical description of the two men and advised them that the plane had come from outside the United States. When the officers arrived, Cockes made a "low pass" over the bush area in which he believed the men had gone and then departed from the immediate area to land on a different part of the island. 3 He returned to the mangrove area while the Customs officers were still at the site, and saw the officers emerge from the mangroves with two men who appeared from their clothing to be the same persons he had observed exiting the landed plane.

Testimony by members of the Customs ground patrol crew established that about one and a half hours after the officers began their search they found appellants in the mangrove bushes a quarter of a mile from the aircraft. Appellants were sitting in a hollow area within the bushes that was too low for them to stand in upright. One wore no shirt and had numerous cuts on his chest; the other had cuts on his arms. Both were described as "sweating heavily." According to the officers' testimony and a stipulation entered into by the parties, Customs' search of the plane revealed nine cardboard boxes filled with plastic bags containing methaqualone tablets and weighing a total of 918 pounds.

Appellants were indicted on two counts: conspiracy to possess methaqualone with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, and possession of methaqualone with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Before trial, appellants moved to suppress the evidence uncovered during the search on the ground that Customs' search of the aircraft was not a valid border search. Appellants also argued that the search was not justifiable on grounds of abandonment because the government had not proved appellants intended to abandon the plane. The district court reserved final ruling on the suppression motion until after trial. A jury found appellants guilty on both counts, and the judge denied appellants' subsequent motion for acquittal.

II. Border Search

It is well established that warrantless searches conducted at the international borders of the United States do not violate

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the fourth amendment. United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). "The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." Id. at 620, 97 S.Ct. at 1980. The Supreme Court held in Ramsey that the reasonableness of such searches derives from "the single fact that the person or item in question ha(s) entered into our country from outside" and therefore is not dependent on the existence of probable cause. Id. at 619, 97 S.Ct. at 1980. Although the Ramsey Court did not address whether the fourth amendment imposes some lesser standard of suspicion on border searches 4 its reasoning suggests that border searches can be conducted without any suspicion of criminal activity, and subsequent Fifth Circuit cases have so held. 5 E.g., United States v. Sandler, 644 F.2d 1163 (5th Cir. 1981) (en banc) (reasonable suspicion not required for routine patdown search of international passenger); United States v. Pringle, 576 F.2d 1114 (5th Cir. 1978) (warrantless search by Customs of incoming international mail did not violate fourth amendment despite absence of any ground for suspicion).

  1. Proof of a Border Crossing

    Appellants argue that the search of their aircraft was not a valid border search because the government did not demonstrate with the requisite degree of certainty that the aircraft crossed the United States border. As the Fifth Circuit noted recently in United States v. Stone, 659 F.2d 569 (5th Cir. 1981), our prior border search cases have not articulated a consistent standard governing the degree of proof required to establish a border crossing.

    Some cases have required evidence demonstrating a high degree of probability that the border has been crossed. United States v. Ivey, 546 F.2d 139, 142 (5th Cir.), cert. denied, 431 U.S. 943, 97 S.Ct. 2662, 53 L.Ed.2d 263 (1977); United States v. Brennan, 538 F.2d 711, 715 (5th Cir.), cert. denied, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538 (1977); United States v. Adams, 569 F.2d 924, 925 (5th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (5th Cir. 1978). Others have held that a border crossing must be proved by a preponderance of evidence. United States v. Johnson, 588 F.2d (147) at 154; United States v. Walters, 591 F.2d 1195, 1198, n.1 (5th Cir.), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1979). Still others have ruled that a reasonable suspicion that the border has been crossed suffices. United States v. Fogelman, 586 F.2d 337, 343 (5th Cir. 1978).

    United States v. Stone, supra, 659 F.2d at 573. Comparing the facts in this case to those of the above-cited cases expressing the most stringent standard of proof, we conclude that the evidence here showed with sufficient certainty that the border was crossed.

    Appellants rely heavily on United States v. Brennan, supra, in which the Fifth Circuit held that Customs agents' search of an aircraft after its landing at the Melbourne Regional Airport in Florida was not a valid border search. The facts of Brennan have been summarized as follows:

    In United States v. Brennan, supra, the airplane which was the subject of the search had never been seen...

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