United States v. McDaniel

Decision Date15 June 1972
Docket NumberNo. 71-2810.,71-2810.
Citation463 F.2d 129
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard McDANIEL, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

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Donald R. Scoggins, Dallas, Tex., for defendant-appellant.

Anthony J.P. Farris, U.S. Atty., James R. Gough, Ronald J. Waska, Anthony C. Aguilar, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Before WISDOM, GOLDBERG and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

This is a case allegedly under the aegis of the "border search" doctrine, whose borders have never been geodetically defined and whose legal undulations are manifold. Transits and other paraphernalia, both legal and paralegal, lead to no certain perimeters. Given precedential latitude and constitutional longitude, we conclude that the search under the spotlight in this case came within the legal confines of a border search and within the constitutional confines of the Fourth Amendment.

Appellant, Richard L. McDaniel, and a companion were stopped by Border Patrol agents at 12:30 a. m. at a permanent immigration point some seven miles north of Laredo, Texas, and about eight miles from the Mexican border. The checkpoint was located along an interstate highway that leads from Laredo to San Antonio and points east. The agents had decided to stop every vehicle that night in search of aliens illegally entering. Having determined to his satisfaction that McDaniel and his companion were United States citizens, the agent requested that McDaniel open the trunk of his car. The agents testified that they were opening every trunk that night in search of aliens. The agent who talked with McDaniel also testified that the behavior of the car's occupants had aroused his suspicions; McDaniel was "nervous" and "a little bit too glib, too cooperative," while his rider was "almost frozen." When McDaniel opened the trunk the agent spotted four large burlap bags, partially covered with a Guadalajara newspaper. The contents were not discernible from the exterior of the bags. In response to the agent's question, McDaniel stated that the bags contained alfalfa. That response further aroused the agent's suspicions since, he testified, he had never seen alfalfa carried in that manner. In response to the agent's request, McDaniel opened the bags, and the agent felt and smelled what appeared to him to be marijuana. At that point the agents took McDaniel and his companion to the Border Patrol van and advised them of their Miranda rights. Although he stated that he understood each of his constitutional rights, McDaniel declined to sign the written waiver at the bottom of the Miranda form. Asked whether the substance in the trunk had been declared at the bridge, McDaniel responded that it had not, that "the marijuana had been brought across up river . . . by another party." At about 1:00 a. m. the agents took McDaniel to the Border Patrol headquarters in Laredo, where the suspected contraband in the trunk was removed. A different agent readvised McDaniel of his Miranda rights. McDaniel again stated that he understood those rights, but again he declined to sign the written waiver. The agent asked McDaniel if he would consider "cooperating and delivering this to the ultimate destination, wherever it was," apparently without expressly alluding to the substance as marijuana. McDaniel asked questions about how that would be accomplished, and the agents responded with a plan. McDaniel asked to discuss the proposition with his companion, and the agents left the two alone for a period of about one-half hour. McDaniel emerged and declined to continue his journey with the contents of the trunk.

McDaniel was indicted and convicted by a jury of violations of 21 U.S.C.A. § 176a, knowing introduction of marijuana into the United States. McDaniel brings this appeal by alleging that evidence was improperly and unconstitutionally admitted in two instances: (1) by an illegal search, and (2) by a failure to abide the constitutional guidelines of Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We find both allegations without merit, and we affirm the verdict and judgment below.

The Fourth Amendment protects the American citizenry from "unreasonable searches and seizures," but, of course, reasonableness may vary with circumstance. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. The border search at an international boundary is a familiar rite to many citizens. An immigration officer is authorized to search any vehicle within a "reasonable distance from any external boundary of the United States" if he has "reasonable cause to suspect" illegally-entered aliens. 8 U.S.C.A. §§ 1357, 1225; 8 C.F.R. § 287.1. A customs officer is empowered to search vehicles upon the same standard, "reasonable cause to suspect," although the customs statutes do not prescribe any distance limitations to the search. 19 U.S.C.A. §§ 482, 1581; 19 C.F.R. §§ 23.1(d), 23.11. The standards for what has been termed a "border search" have been judicially restated as "reasonable suspicion" of acts illegal under the customs or immigration statutes. See United States v. Valdez, 5 Cir.1972, 456 F.2d 1140; United States v. Salinas, 5 Cir.1971, 439 F.2d 376; United States v. Maggard, 5 Cir.1971, 451 F.2d 502; see also United States v. Garcia, 5 Cir.1971, 452 F.2d 419.

In substance, the term "border search" is merely a short-hand method of stating that a search is, under the circumstances, a "reasonable" stretch of the usual Fourth Amendment standard of "probable cause" because of the proximity of an international frontier and other attendant factors. The fact that one is in the process of crossing an international boundary provides sufficient reason in itself to permit a search for aliens or contraband, without the presence of any other circumstance that would normally have to attend the requirements of the Fourth Amendment:

"Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in."

Carroll v. United States, 1925, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543, 551-552. It is settled law that the nation's perimeters are expandable for purposes of a border search, whether under the customs or the immigration authority. See King v. United States, 5 Cir.1958, 258 F.2d 754, cert. denied, 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639; Barrera v. United States, 5 Cir.1960, 276 F.2d 654; Marsh v. United States, 5 Cir.1965, 344 F.2d 317; Thomas v. United States, 5 Cir.1967, 372 F.2d 252; United States v. Hill, 5 Cir.1970, 430 F.2d 129. It is simply unreasonable to presume that all illegally entering aliens or contraband can be apprehended along the borders themselves, and the Fourth Amendment has made reasonable accommodation to the necessity for border searches that must take place somewhat within the nation's frontiers. The Government defines a "reasonable distance" from the frontiers in which an immigration search may be effected as any point within 100 air miles of the external boundary, 8 C.F.R. § 287.1. While the customs statutes and regulations prescribe no similar geographic limitation upon the power of customs agents to conduct a "border search," the search provisions of the customs laws are, of course, subject to the constitutional tests of reasonableness. See 19 U.S.C.A. § 482; United States v. Hill, supra; Thomas v. United States, supra; Marsh v. United States, supra; United States v. Tsoi Kwan Sang, 5 Cir.1969, 416 F.2d 306. However, proximity to the frontier does not automatically place a 100-mile strip of citizenry within a deconstitutionalized zone, with its attendant de-escalation of Fourth Amendment requirements. We would find it peculiar, for example, if massive searches were permissible in downtown Cleveland or Buffalo on the basis of a "border search" theory. Therefore, while "border search" is a convenient phrase to describe a reasonableness standard for searches pursuant to the customs and immigration laws, it is not sufficiently internally descriptive to justify automatically the reasonableness of all searches conducted for customs and immigration purposes within a certain proximity to national borders. Once the national frontier has been crossed, the search in question must be reasonable upon all of its facts, only one of which is the proximity of the search to an international border. See United States v. Warner, 5 Cir.1971, 441 F.2d 821; Marsh v. United States, supra. The following factors lead us to conclude that the search of McDaniel's car was reasonable and constitutional.

First, the checkpoint in question is reasonably situated. It is a permanent point, made permanent because the road along which it is located closely parallels the meanderings of the Rio Grande River for some five miles immediately outside Laredo. The proximity of the road to the river, as the Government pointed out in oral argument, has made that stretch of road historically amenable to alien crossings or illegal importation of contraband. The dry and fordable condition of the river at the time of the search in January added to the Border Patrol's concern with this point alongside the border. And the whole stretch of country between Laredo and San Antonio is generally desolate, spotted only by a few large towns. In order for a Border Patrol to be effective, it seems quite reasonable that some permanent points be established along isolated areas that might be or have been most easily employable for violations of the customs and immigration laws.

Second, the time of the day at which the checkpoint was operated adds an increment of reasonableness to the search in question. The agents went on duty at midnight and remained at the point until...

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