United States v. Cristancho-Puerto

• Decision Date: 18 April 1973
• Docket Number: No. 72-2511 Summary Calendar.,72-2511 Summary Calendar.
• Citation: 475 F.2d 1025
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro Miguel CRISTANCHO-PUERTO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

475 F.2d 1025 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Pedro Miguel CRISTANCHO-PUERTO, Defendant-Appellant.

No. 72-2511 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 10, 1973.

Rehearing Denied April 18, 1973.

J. V. Eskenazi, Federal Public Defender, Miami, Fla. (Court appointed but not under ACT, Charlene H. Sorrentino, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., William R. Northcutt, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

Appellant, Pedro Miguel Cristancho-Puerto, who is a citizen of Colombia, brings this appeal from a judgment convicting him of having violated 21 U.S.C. §§ 841(a)(1) and 952(a) by illegally importing cocaine and by possessing cocaine with intent to distribute. The sole issue before us is whether the trial court erred in denying appellant's motion to suppress evidence of the cocaine and statements made in connection with its seizure. We hold that the evidence was properly admitted.

On May 18, 1972, appellant arrived at Miami International Airport aboard a flight from Bogota, Colombia. When appellant reported for immigration inspection, the immigration officials became suspicious of the authenticity of his travel documents. Appellant was taken before a secondary immigration inspector, who advised him that because of the questions regarding his papers, he would have to choose either (1) to withdraw his application for admission and voluntarily return to Colombia, or (2) to continue seeking admission to the United States with the knowledge that immigration officials were suspicious about his compliance with the entry laws. Appellant chose the latter course of action. He was then taken into custody, warned of his rights, and searched —but no contraband was discovered.

Appellant was held overnight at an office of the I.B.I. Security Agency and his luggage was placed with I.B.I. for storage. The next day, Friday, May 19, 1972, after further investigations and interviews had been completed, appellant was arrested, charged with violating 18 U.S.C. § 1546 (fraudulent entry documents), searched, and placed in the Dade County Jail. On Monday, May 22, 1972, appellant was taken before a United States Magistrate, who advised him of his rights and set bond. Appellant was returned to the Dade County Jail, where he was again searched.

On May 25, 1972, a Special Agent with the Bureau of Narcotic and Dangerous Drugs allegedly received a confidential informant's tip that appellant was boasting to his jail-mates that he had cocaine in his possession that had not been discovered despite the many searches. The Special Agent notified the Immigration and Naturalization Service, then went to the jail with agents from the INS and from the United States Customs Bureau. Appellant was taken to an interrogation room where all three federal agents interviewed him.

After appellant had been warned of his rights, the Customs Bureau Agent asked him, "Will you take off your shoes?" Appellant replied, "Of course," and did so. The agents immediately examined the shoes and found a substance later identified as cocaine concealed in the soles. A subsequent search of the luggage stored at I.B.I. led to the discovery of additional cocaine hidden in the soles of shoes in appellant's suitcase. It is stipulated that no warrants were sought or obtained for either search.

Appellant was indicted on June 15, 1972, for the cocaine violations. His motion to suppress was denied following an evidentiary hearing, and a jury subsequently found him guilty on both counts. Appellant was sentenced to serve eight years imprisonment on each count, the sentences to be served concurrently.

Appellant appeals solely on the ground that the motion to suppress evidence should have been granted. Appellant correctly premises his argument on the settled principle of law that where a search is conducted without a warrant, "the burden is upon the government to show that the search fell within one of the exceptions to the Fourth Amendment requirement of a warrant." Brett v. United States, 5 Cir. 1969, 412 F.2d 401, 405; Barnett v. United States, 5 Cir. 1967, 384 F.2d 848. Although in denying the motion to suppress the evidence the trial judge failed to state which exception he thought was applicable,¹ we find that this search was justified under a particularly narrow category of border searches.

We think it clear that appellant had not been fully "admitted" into the United States and that his legal status at the time of the search was that of a man "standing at the border." Appellant was indeed taken past the physical border, but he was brought across that visible boundary only by virtue of his being placed in "deferred inspection parole status."

8 U.S.C. § 1182(d)(5) states as follows:

"The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." (emphasis added)

On the precise facts of this case, we find this statute to be dispositive. We are not dealing here with an alien who has been placed in deferred inspection parole status and then allowed to remain either at liberty or at large. Rather, we hold only that an alien who is brought into the country under the provisions of this law and who is being held in physical custody by entry officials, having never for a moment been allowed to move about free of custody, continues to stand at the border for customs and border search purposes. Nor do we suggest that his special legal status could be continued indefinitely. If the entry officials allow the alien to remain at large pending investigation under the statute, the alien would not remain at the door. Similarly, if a criminal trial begins against the alien, he would not be "at the door" because the government at that point would no longer be holding the alien pending some future action. Finally, we do not mean to imply that there could never be a period of time for which an alien is held under the statute that would be too long to be reasonable. Here, appellant was searched one week after his physical entry into the country. Because the search occurred only one week later, at a time when the alien had been held in continuous physical custody by entry officials, pending prosecution and pursuant to section 1182(d)(5), we hold that the search was a border search. As such, the search was proper, 19 U.S.C. § 482, and the evidence obtained thereby was introducible against appellant.

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

SIMPSON, Circuit Judge, with whom GODBOLD, Circuit Judge, joins (dissenting):

I respectfully dissent from the refusal to reconsider the panel opinion by the Court en banc. I think the panel opinion makes an unwarranted application of the border search doctrine to this case.

At the outset, the statutory argument by which the appellant was defined as a person "standing at the border" creates difficulties. I question the use of a statute which defines the status of a person for entry purposes under the immigration law being used as sole authority for conducting a border search. Title 19, U.S.C., Section 482, the statutory authority under which border searches are conducted, designates a border crossing rather than the legal status of a person as the event giving rise to the authority to conduct a border search. Alexander v. United States, 9 Cir. 1966, 362 F.2d 379, cert. denied 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439. It is clear however that at some point a person becomes fully admitted to the United States and may no longer be subjected to a border search, cf. Carroll v. United States, 1925, 267 U.S. 132, 134, 45 S.Ct. 280, 69 L.Ed. 543. The border or "extended border" has uniformly heretofore been defined in terms of physical distance or geographical travel time from the actual border, and authority to conduct border searches has been made dependent upon traditional border search or extended border search analysis.

Despite the fact that they may be illegal entrants into the United States, aliens as well as citizens enjoy Fourth Amendment protection, cf. Au Yi Lau v. United States...