U.S. v. Caminos, 84-3782

• Decision Date: 16 August 1985
• Docket Number: No. 84-3782,84-3782
• Citation: 770 F.2d 361
• Parties: UNITED STATES of America, Appellee, v. Juan Manuel CAMINOS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 361

770 F.2d 361

UNITED STATES of America, Appellee, v. Juan Manuel CAMINOS, Appellant.

No. 84-3782.

United States Court of Appeals Third Circuit.

Argued June 17, 1985.

Decided Aug. 16, 1985.

J. Alan Johnson, U.S. Atty., Constance Bowden (Argued), Paul J. Brysh, Asst. U.S. Attys., T. Brent McCune, Legal Intern, Pittsburgh, Pa., for appellee.

John L. Doherty (argued), Manifesto & Doherty, P.C., Pittsburgh, Pa., for appellant.

Before ADAMS and HUNTER, Circuit Judges, and FISHER, District Judge. ^*

OPINION OF THE COURT

ADAMS, Circuit Judge.

This case presents the rather novel question whether the Greater Pittsburgh International Airport (Pittsburgh Airport) constitutes a national border for purposes of the Fourth Amendment. While at first blush the answer might seem readily apparent to a student of elementary geography, the question, like so many encountered in the law, takes on a certain complexity in context. The context here is a customs search of a package suspected of containing narcotics; if the Pittsburgh Airport is the "functional equivalent" of a border, the search is legal upon a showing that the package arrived from a foreign point of departure. Defendant Juan Manuel Caminos, convicted of knowingly importing cocaine and possession of cocaine with intent to distribute, appeals his conviction on two grounds: 1) that the search of the package at the airport was illegal; and 2) that the judge's charge to the jury was improper. Because we determine that in the setting here the Pittsburgh Airport is the "functional equivalent" of a border, and because we find that the jury charge was not improper, the conviction will be affirmed.

I.

Caminos was convicted of knowingly importing cocaine, in violation of 21 U.S.C. Sec. 952(a) (1982), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846 (1982). He received ten year sentences with a mandatory three year parole term on each count, to be served concurrently.

The conviction arises out of the importation of a wood carving that contained cocaine. The carving was shipped in a package from San Paulo, Brazil to Pittsburgh. Its label identified the sender as "Manola Caminos," and the recipient as "Caminos Art." The package was sent on July 30, 1984 via Varig Airlines. It arrived first at Kennedy Airport in New York on August 2, 1984; was then transferred to United Airlines, which transported it to Chicago; and was then sent to Greater Pittsburgh International Airport, where it arrived on August 3, 1984 at 9:20 a.m. At all times subsequent to its arrival in New York the merchandise was under a customs bond.

On August 13, 1984, two employees of defendant's brother appeared to claim the package. A customs officer was called in to inspect the package. Suspecting the presence of drugs, he opened the package, drove a nail into a warped area of the carving, and discovered cocaine. The claimants were sent away, because their documents lacked a necessary signature. Customs then turned over the package to the Drug Enforcement Administration (DEA), which replaced the cocaine with an inert substance and a tracking device, and resealed the package. When the claimants returned to pick up the package, DEA agents followed them. The claimants dropped off the package at the office of defendant's brother, where defendant picked it up and brought it to the home of Mr. Idilio Marrotte. The DEA agents then obtained a search warrant and entered the Marrotte house. The package and wood carving were in the living room, the carving intact. Caminos was arrested.

During the trial, Caminos testified that he was an importer of artwork, and that while in Brazil he had been approached by two Brazilian individuals, "Ruy" and "Algemar," who sought to have him send Brazilian artwork to the United States in order to decorate a Brazilian restaurant opening in Miami. Caminos agreed to ship 40 pieces for $200 each, making the total amount worth $8,000.

The package in question was a test run for this venture. Ruy was to pick up the package in Pittsburgh, at defendant's brother's address. This particular carving had a street value of $60. As noted, it was shipped on July 30, 1984. Caminos testified that when he told Ruy and Algemar, on August 5, 1984, that his brother had informed him that the package had not yet arrived in Pittsburgh, they became upset, and proposed that he fly to Pittsburgh and check on it. They paid for his airplane ticket, which cost $650. The delivery fee for the test run had been $400--thus the shipment of this one $60 carving cost Ruy and Algemar over $1,000. Caminos said he considered such an expenditure reasonable in light of the importance of the business venture at stake.

Prior to trial, the defendant filed a motion to suppress the evidence obtained in the customs search at the Pittsburgh Airport. He contended that the search was unlawful because it did not take place at a border, and it was conducted without a search warrant. He further argued that the subsequent search at the Marrotte residence was the fruit of the first unlawful search. The trial court denied the motion, holding that the search at the Pittsburgh Airport was conducted at the functional equivalent of a border, and thus no search warrant was required. At trial, Caminos offered as a defense that he did not know the package contained cocaine. The court instructed the jury it could find him guilty, even in the absence of proof of his knowledge, if it found Caminos had deliberately ignored the high probability that the carving contained an illegal substance. Following his trial and conviction, Caminos filed an appeal, challenging the district court's decision not to suppress the evidence obtained in the airport search, and also challenging the jury charge.

II.

The Fourth Amendment to the United States Constitution requires that in general searches must be conducted pursuant to a warrant based on probable cause. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Courts recognize an exception to this rule, however, for border searches, based on the sovereign's historical right to police its borders and to examine persons and property entering the country.

Thus, it is well settled that border searches are valid without a warrant or a showing of probable cause where the searched person or item is shown to have crossed the border, where there has been no opportunity for the object or person to have materially changed since the crossing, and where the search is conducted at the earliest practicable time and place. United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977); United States v. Garcia, 672 F.2d 1349, 1363-64 (11th Cir.1982). Border searches are legitimate not only at the physical boundaries of the nation, but also at the "functional equivalent" of the border. Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539-40, 37 L.Ed.2d 596 (1973). In Almeida-Sanchez the Supreme Court suggested that the St. Louis Airport would be the "functional equivalent" of the border were it the first point of landing of a nonstop flight from abroad. Id.

A related exception to the Fourth Amendment warrant requirement concerns "extended border searches." An extended border search takes place after the first point in time when the person or package might practicably have been stopped and searched. United States v. Niver, 689 F.2d 520, 526 (5th Cir.1982). It requires the same showing as a border search, but because it entails a greater intrusion on legitimate expectations of privacy, it also requires a showing of "reasonable suspicion." 689 F.2d at 526; see also United States v. Richards, 638 F.2d 765, 772 n. 4 (5th Cir.) (additional requirement is imposed because, unlike routine border searches, an extended border search may stigmatize the individual searched, is unexpected, and involves greater invasion of privacy), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981).

The first issue that is presented here, then, is whether the Pittsburgh Airport constitutes the "functional equivalent" of the border. If it does, the airport search was not invalid, since there is no dispute that the package arrived from a foreign point of departure. Defendant concedes, as he must, that had customs officials conducted the search in the New York Airport, when the package first arrived, that would have been a legitimate border search. See United States v. Scheer, 600 F.2d 5 (3d Cir.1979). The question is whether one may still consider Pittsburgh the "functional equivalent" of the border even though the package was transported there by way of New York and Chicago. It appears to be the practice of the customs officials to search many packages at the international airport nearest their final destination, holding them under a customs bond in the meantime. That practice was followed here.

Two courts of appeals have directly addressed the question of a delayed border search. In United States v. Sheikh, 654 F.2d 1057 (5th Cir.), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1981), a package was sent from out of the country to the Dallas-Fort Worth (DFW) Airport, with an intermediate stop in Houston. The package arrived first in Houston, and was then shipped by an American Airlines truck to the DFW terminal. It was under a customs bond from the time it arrived in Houston to the time it was searched, five days later at DFW. Under the circumstances, the court held that where the package's final destination was Dallas, where it had not been tampered with prior to search, and where it was under a customs bond from the time it entered the country in Houston, DFW was the functional equivalent of a border, and the search was valid. Id. at 1069-70...