U.S. v. Cardona, 84-5191

• Decision Date: 23 August 1985
• Docket Number: No. 84-5191,84-5191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge Mario CARDONA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 625

769 F.2d 625

UNITED STATES of America, Plaintiff-Appellee, v. Jorge Mario CARDONA, Defendant-Appellant.

No. 84-5191.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 9, 1985.

Decided Aug. 23, 1985.

Fred D. Friedman, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Stanley I. Greenberg, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court For the Central District of California.

Before KENNEDY, HUG, and FERGUSON, Circuit Judges.

HUG, Circuit Judge:

Jorge Mario Cardona appeals following his entry of conditional pleas of guilty to two counts of possession of cocaine with intent to distribute. The district court denied Cardona's motion to suppress the testimony of a customs agent regarding the interception and inspection of a Federal Express package sent from California to Colombia via Miami and Cardona's motion to suppress the fruits of the search of two storage lockers rented by Cardona. We affirm.

FACTS AND PROCEEDINGS BELOW

In June 1983, Leo Becker, an employee at Algert's Appliance Company in Bell, California, informed United States Customs Agent Alan Doody that Sergio Urrutia, a fellow employee, had been sending currency and/or cashier's checks to Florida and Colombia on behalf of Cardona and some other Colombian nationals. In mid-July, Agent Doody learned that the Drug Enforcement Agency ("DEA") was investigating Cardona for suspected involvement in a Colombian drug organization.

On September 20, 1983, Becker called Agent Doody and informed him that Urrutia was preparing a Federal Express package containing approximately 15 cashier's checks to be sent to Colombia on behalf of Cardona. Agent Doody established a surveillance outside of Algert's and observed another Algert's employee, who Becker believed was assisting Urrutia, walk to a nearby bank and purchase cashier's checks. Becker told Agent Doody these cashier's checks were to be included in the Federal Express package being prepared.

Later that day, Agent Doody observed a Federal Express truck pick up two parcels at Algert's, followed the truck to its next stop, and requested to see the two parcels that had been picked up at Algert's. One was destined for Florida; the other was to go to Miami via Federal Express and then to Colombia via Tampa Express. Agent Doody opened the package destined for Colombia and photocopied 12 cashier's checks totalling $20,000. Since the checks were not in bearer form, there was no violation of the currency reporting requirements; therefore, Agent Doody returned the checks to Federal Express for shipment.

In March of 1984, DEA agents obtained search warrants for an apartment and two storage lockers rented by Cardona under aliases. The warrants were based on allegations At a pretrial hearing, the district court ruled that Agent Doody could testify as to his observations of the contents of the Federal Express package because the search was a valid border search, but that the photocopies could not be introduced because the cashier's checks were not subject to seizure. With respect to the searches of the storage lockers, the district court denied Cardona's motion to suppress, stating that the search warrant affidavit disclosed sufficient circumstances to justify the issuance of the warrants for the storage lockers.

contained in an affidavit presented to the magistrate by DEA Agent Granados. Agent Granados' affidavit contained circumstantial evidence indicating that Cardona used the storage lockers to store drugs. Large amounts of cocaine, cocaine paraphernalia, packaging material, and a loaded rifle were found in the lockers when the search warrant was executed.

STANDARD OF REVIEW

We review de novo the district court's determination that the warrantless search of the Federal Express package was a valid border search. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We review the trial court's determination that the affidavit was sufficient to provide probable cause under the clearly erroneous standard. United States v. Estrada, 733 F.2d 683, 684 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 168, 83 L.Ed.2d 103 (1984).

DISCUSSION

I. Validity of Search of Federal Express Package

A. Extended Border Search Doctrine

The district court found that Agent Doody's search of the Federal Express package constituted a valid exit border search. Under the border search exception, a search may be initiated without a warrant, probable cause, or even articulable suspicion. United States v. Ramsey, 431 U.S. 606, 618-19, 97 S.Ct. 1972, 1979-80, 52 L.Ed.2d 617 (1977); United States v. Des Jardins, 747 F.2d 499, 502 (9th Cir.1984). While the border search exception traditionally has been applied only to persons or property entering the country, we have recently confirmed the application of the border search exception to exit searches. Des Jardins, 747 F.2d at 503.

A border search need not take place at the actual border. Because of the nature of international travel and transportation, courts have held that border searches may be conducted at places considered the "functional equivalent" of a border. Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); United States v. Duncan, 693 F.2d 971, 977 (9th Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). In addition, the "extended border search" doctrine has been applied to entry border searches conducted some time after the border was crossed. United States v. Caicedo-Guarnizo, 723 F.2d 1420, 1422 (9th Cir.1984); United States v. Espericueta-Reyes, 631 F.2d 616, 619 (9th Cir.1980).

In the present case, the search of the Federal Express package did not occur at the actual border, but rather 3,000 miles from the border and twenty-four hours before the scheduled border crossing. Consequently, if the search is to be upheld, it must either have been conducted at the functional equivalent of the border or have constituted a valid extended border search. We have recently recognized the difficulty of making sharp distinctions between searches at the functional equivalent of the border and extended border searches. United States v. Alfonso, 759 F.2d 728, 734 (9th Cir.1985). Since an extended border search involves a greater spatial and temporal distance from the border than a search at the functional equivalent of the border, it must be justified by a "reasonable suspicion" of criminal activity. Id. Considering the distance and time factors of the present case, we conclude that the facts of this case should be analyzed under the extended border search doctrine. See id. (where entry search occurred thirty-six hours after border was crossed, court treats search as extended border search).

The leading case in this circuit on extended border searches is Alexander v. United States, 362 F.2d 379 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966). There, the court stated the test for determining the validity of a post-entry border search:

Where ... a search for contraband ... is not made at or in the immediate vicinity of the point of international border crossing, the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of search was aboard the vehicle at the time of entry into the jurisdiction of the United States. Any search by Customs officials which meets this test is properly called a "border search."

Alexander, 362 F.2d at 382.

The search in the present case satisfies the Alexander totality of the circumstances test. When the parcel was placed in the custody of Federal Express agents, it was all but certain that the parcel's condition would remain unchanged until it crossed the United States border. Cf. United States v. King, 517 F.2d 350 (5th Cir.1975) (where court upheld a search at an Alabama post office of mail...