592 F.2d 735 | 4th Cir. | 1979
Lead Opinion
Nedim Bilir, Ziya Sokum, and Nail Akdeniz appeal their respective convictions on single counts of conspiracy to import heroin; possession of heroin with intent to distribute; and conspiracy to distribute heroin.
I
The factual background out of which these convictions grew is somewhat involved, but because many of its elements bear importantly upon the constitutional arguments advanced, it is necessary to recount it in some detail. It is the saga of a chase, remarkable among other things for its length, and for the sheer indomitability displayed throughout by both pursuers and pursued: the pursuers driven by duty, the pursued presumably by avarice, as the former attempted to intercept, the latter to introduce into this country for sale, a substantial quantity of heroin.
The saga began on May 25, 1977 with the receipt by the International Office of the
The night before the CEBESOY was to leave, Bilir attempted to drive the Thunderbird and damaged it in a wreck. He and Karagoz were arrested by the Savannah police, Bilir for driving without a license and while intoxicated, Karagoz for offering one of the policemen a $100 bribe. The federal agents conveniently arranged for their release.
The CEBESOY then sailed to Jacksonville, Florida and the suspects Akdeniz and Karagoz followed in the Thunderbird under the agents’ surveillance. Because their departure was delayed while the car was being repaired and because the CEBESOY left Jacksonville early in an attempt to make up some of the time lost in Savannah, the suspects arrived in Jacksonville just as the ship was sailing from that port. Undaunted, the two headed in the general direction of Texas, CEBESOY’s next destination. Surveillance of the car was maintained for awhile after it left Florida going west, but was discontinued before the CEBESOY next made port in Texas. After failing to find dockage in Houston, the ship put into Galveston, where it anchored offshore, thus preventing surveillance while there. The Thunderbird was spotted by the agents in Galveston, and Akdeniz and Karagoz were seen with it. When the CEBESOY sailed for New Orleans, the Thunderbird was followed from Galveston, through the Houston port area, to New Orleans. From there the suspects, still in the Thunderbird, headed north through Louisiana away from all the Gulf Coast ports.
The federal agents followed, but because of difficulty in keeping up, and because of the possibility that the heroin might have been removed from the CEBESOY in Galveston, decided to stop and arrest the suspects. The subsequent search produced no contraband. The suspects told the authorities that they were on their way to California for vacation. When the local U.S. attorney would not press charges, the suspects were released.
In light of the possibility that the heroin had already been smuggled into the country and the fact that the authorities had now tipped their hands, surveillance of the suspects was temporarily discontinued and efforts were concentrated on Baltimore, the CEBESOY’s last port of call in the United States. Uniformed customs agents were stationed at the gangplanks in each of the CEBESOY’s remaining ports of call other than Baltimore in the hope that this, together with the two arrests that had al
Surveillance was reinitiated in Baltimore on July 6, 1977, where a New York licensed taxicab, registered to Karagoz, was spotted at a Holiday Inn and placed under surveillance. After the CEBESOY docked, Bilir left the ship and met Akdeniz and the defendant Ziya Sokum in downtown Baltimore. From here the suspects left in a taxi, temporarily eluding the agents, who had been away from their own cars and were unable immediately to follow. The agents returned to the CEBESOY where soon the suspects were observed to return and board the ship. About an hour and a half later, at around 11:00 p.m., Akdeniz and Sokum left the ship. Sokum had worn a tight fitting yellow T-shirt when he boarded the ship, but when he left he was wearing a long sleeved, loose fitting blue shirt worn outside his pants. The agents recognized his attire as a style frequently used to “body-carry” drugs so as to hide any bulges. The three suspects were taken in a taxi driven by a DEA agent posing as a cab driver to a bar, which Sokum entered, returning in two or three minutes, and from there they were taken to a hotel. There, Akdeniz and Sokum were observed to enter a room between 11:30 and 11:45 p.m., having apparently checked in earlier. Bilir left the hotel and eventually returned to the CEBESOY. At this point the federal agents were in some doubt that the heroin had been brought from the CEBESOY,
About 5:00 a.m. on July 7, agent Counihan learned from the hotel desk that the suspects had registered under hispanic names and had given a Wilmington, North Carolina address and listed a fake North Carolina license number. He also learned that they had requested a wake up call for 5:00 a.m. About 5:15 a.m. Akdeniz and Sokum, the latter now carrying a suitcase the size of an overnight bag, checked out of the hotel and entered a taxi, again driven by a DEA agent. The bag had not been observed before nor had the jackets the men were wearing; so it was assumed that these had been placed in the room prior to their observed entry on the previous evening. Akdeniz and Sokum told the driver that they were going to New York and he took them to the Pennsylvania Railroad Station in downtown Baltimore. Sokum was overheard purchasing two tickets to New York on a train leaving at 6:30 a.m. The two suspects then met and about that time Akdeniz recognized Counihan as the person who had arrested him in Louisiana. The suspects separated, Akdeniz starting toward an exit and Sokum with the suitcase heading toward the boarding area. Counihan apprehended Akdeniz, and at some distance away, Supervisory Customs Patrol Officer Porter stopped Sokum and questioned him. Sokum said he was in Baltimore to visit a friend known only as Joe, denied knowing Akdeniz and denied having been aboard any ships. After requesting permission to search the suitcase and receiving no response, Porter attempted to open the case but it was locked. Upon request, Sokum produced the key and Porter opened the bag. Eleven bags containing 13.4 pounds of a powder later identified as practically pure heroin were found.
All three suspects were then taken to the DEA field office where, after being given the appropriate Miranda warnings, they were questioned.
II
The decisive issue on this appeal is whether the warrantless search and seizure that produced the heroin in the Pennsylvania Railroad Station was justifiable as an “extended border search.”
Any customs officer of the United States is authorized by 19 U.S.C. § 482 to
search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if [he] shall find any merchandise . . . in any such trunk or envelope, which he shall have reasonable cause to believe . to have been unlawfully introduced into the United States, whether by the person in possession or charge . . . or otherwise, he shall seize and secure the same for trial.
Within constitutional limits not yet fully developed, this statutory authorization expresses the well recognized border search exception to the ordinary warrant and probable cause requirements of the Fourth Amendment. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Border searches by customs officers may be based merely upon “reasonable” rather than “probable” cause. and without the necessity of a judicial warrant because of the “primordial” national interest in protecting the borders against violation by illegal importations. See Alexander v. United States, 362 F.2d 378, 382 (9th Cir. 1966). The national interest here is deemed sufficiently powerful when balanced against the right of the “individual lawfully within the country to be free of unreasonable searches and seizures,” to justify imposition of this much less stringent standard for conducting customs searches and seizures. Carroll v. United States, 267 U.S. at 153-54, 45 S.Ct. at 285. While the justification for the relaxed standard is at its clearest with respect to searches at regular customs stations literally “on the border,”
Examination of the cases in which the doctrine has evolved reveals two general patterns. Sometimes the first contact with a suspect, hence the first opportunity to search, occurs away from the actual border. In this circumstance, the suspicion that he possesses material that has recently crossed a border will ordinarily be wholly circumstantial, and time and distance factors may be quite crucial in assessing reasonableness of suspicion.
Within this doctrine, the delayed search and seizure in this case, made some three to four miles from the actual border, some seven hours after the observed border crossing; delayed primarily by a desire to confirm developing suspicion; and following practically continuous surveillance in the interval, was a constitutionally permissible extended border search. The time and distance factors considered alone lie well within acceptable parameters.
Ill
It remains necessary to address a central contention advanced by defendants on this appeal: that the extended border search doctrine that we apply here has been effectively rejected by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). That case considered the constitutionality of a provision of the Immigration and Nationality Act, 8 U.S.C. § 1357(a)(3), that authorized officers of the Border Patrol to conduct warrantless searches “within a reasonable distance from any external boundary of the United States.” The Supreme Court there held a marijuana-producing search of an automobile by a roving border patrol some 25 miles away from the
AFFIRMED.
. They were indicted on varying combinations of: conspiracy to import heroin, 21 U.S.C. § 963; conspiracy to distribute and possess with intent to distribute heroin, 21 U.S.C. § 846; importation of heroin, 21 U.S.C. § 952; and aiding and abetting importation, 18 U.S.C. § 2; distribution of heroin, 21 U.S.C. § 841(a)(1); possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1); and aiding and abetting the possession with intent to distribute, 18 U.S.C. § 2. An indicted co-conspirator, Raif Kandemier, entered a guilty plea to one count among those charged, and is not involved in this appeal.
. The DEA agent posing as cab driver who drove the three suspects from the dock to the hotel was at that time doubtful that Sokum had effected the body-carry. App. 84.
. Because of language difficulties had by Bilir and Akdeniz, the Government made no attempt to use statements given by these two defend
. The Government also sought to justify the search as one based upon probable cause and exigent circumstances, and challenged the standing of Bilir and Akdeniz to object to the search. Because we decide that the search was justified as an extended border search we do not reach those issues. See Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
. Defendants also challenged the admissibility of all evidence produced by the abortive encounter of the Government agents with defendant Akdeniz in Louisiana, and of the post-search incriminating statement made by Sokum under custodial interrogation. The Louisiana encounter evidence was challenged as having been obtained incident to an unconstitutional arrest, and as having prejudiced defendants both through its use as evidence probative of guilt and as a part of the fabric of information upon which the requisite suspicion to justify the Baltimore search was constructed. We consider that prejudicial error was not shown in either respect. In both, it was merely cumulative of other evidence manifestly sufficient for the purpose, and was thus harmless beyond a reasonable doubt. Sokum’s post-search statement was challenged simply as having been tainted by the allegedly unconstitutional prior search. This challenge of course falls with our determination that the search was a valid one.
. Searches at the very borders are essentially reasonable per se, so that the Fourth Amendment’s protection against unreasonable searches and seizures is not implicated, and the controlling standards are those of the statute alone. See United States v. Ramsey, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 52 L.Ed.2d 612 (1977). The cited statute’s literal assertion of an unlimited geographical and temporal extension of border search authority in the phrase, “wherever found,” is assuredly subject to ultimate constitutional constraints. While these have not yet been definitively addressed by the Supreme Court, see note 13 infra, we assume in this opinion that once away from the approximate borders, constitutional as well as statutory constraints of reasonableness apply.
. That it is indeed dutiable or contraband material.
. See, e. g., United States v. McGlone, 394 F.2d 75 (4th Cir. 1968) (suspects first encountered in parking lot near dock area); United States v. Beck, 483 F.2d 203 (3d Cir. 1973) (suspect observed leaving border area; search after short chase); United States v. Glaziou, 402 F.2d 8 (2d Cir. 1968) (same).
. This delay may be for either or both of two primary purposes. Sometimes the primary purpose is to bolster by further observation of the suspects’ activities a suspicion that is arguably marginal at the time the border crossing was observed. United States v. Brom, 542 F.2d 281 (5th Cir. 1976) (search only after suspicious activities inland of border); United States v. Flores, 531 F.2d 222 (5th Cir. 1976) (same). Much more frequently, the delay is prompted primarily by the hope of apprehending smuggling accomplices inland of the border, notwithstanding a suspicion (or plain knowledge) at the time of the observed border crossing that would clearly have justified the search then and there. See, e. g., United States v. Fogelman, 586 F.2d 337 (5th Cir. 1978) (search 254 miles and 20 hours from observed border crossing); United States v. Martinez, 481 F.2d 214 (5th Cir. 1973) (search 150 miles and 142 hours from observed border crossing); Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966) (purpose articulated and approved).
While the cases considering these different patterns have not typically articulated specifically different constitutional concerns for each, it is clear that each does raise somewhat different problems in assessing the reasonableness of the ultimate search and seizure. See Judge Waterman’s intimations in United States v. Glaziou, 402 F.2d at 13 n.3. With respect to the delayed search where the suspicion is sufficiently strong to justify a search at the actual border but it is nevertheless delayed, some judicial concerns have recently been expressed in the Fifth Circuit about the constitutionality of an ensuing warrantless search. See United States v. Fogelman, 586 F.2d at 350-52 (Godbold, J., dissenting); United States v. Mitchell, 525 F.2d 1275, 1278-79 (5th Cir.), vacated on the extended border search point, 538 F.2d 1230, 1234 n.4 (5th Cir. 1976) (en banc). We express no opinion on the validity of these concerns, considering them in any event not applicable in this case where, as developed in the text of this opinion, the delay was motivated in major part by a felt need to make suspicion more reasonable by further observation.
. See cases cited in note 9 supra.
. The “functional equivalent” sub-category includes searches made at points inland of national borders under circumstances other than continuous surveillance that guarantee preservation of border-crossing conditions at the point of search. See, e. g., United States v. Gallagher, 557 F.2d 1041 (4th Cir. 1977) (per curiam) (search at distant customs station of item put under customs seal at border). The underlying principle that permits them to be treated as border searches is thus the same as that for extended border searches. Courts may in fact be using the terms interchangeably. See note 12 infra.
. Defendants’ argument is in effect that by its failure to include “extended border searches” along with searches “at the border itself” and “at its functional equivalents” in describing permissible warrantless searches the Court was thereby deliberately disapproving the “extended border search” as well as the “roving patrol” search actually before it. This, we think, reads far too much into this illustrative dictum. It is not clear in any event that the Court did not intend to include “extensions of the border” as developed in extended border search doctrine within the “functional equivalent” reference.
. Other circuits, including the Fifth Circuit in a case decided after Brennan, agree with this perception. See United States v. Beck, 483 F.2d 203, 208 (3d Cir. 1973); United States v. Fogelman, 586 F.2d 337, 349 n.4 (5th Cir. 1978) (Brown, C.J., concurring). Furthermore, the Supreme Court has indicated since Almeida-Sanchez that it considers still open the question of the geographical limits to which the border search authority embodied in such statutes as 19 U.S.C. § 482 may constitutionally be taken. See United States v. Ramsey, 431 U.S. 606, 615 n.11, 97 S.Ct. 1972, 52 L.Ed.2d 612 (1977).
Dissenting Opinion
dissenting:
While I agree with much of what the majority says, I disagree as to the precise disposition of these cases. I respectfully dissent.
I.
Unlike the majority, I believe that United States v. Almeida-Sanchez, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), is controlling. Almeida-Sanchez taught that, in the interest of national protection, warrantless searches may be conducted only at the border or at its “functional equivalents.” Id. at 272-73, 93 S.Ct. 2535. Though AlmeidaSanchez dealt specifically with searches by Border Patrol officers, it has since been applied to Customs agents. See United States v. Gallagher, 557 F.2d 1041, 1043 (4 Cir. 1977) (per curiam); United States v. Brennan, 538 F.2d 711, 716-19 (5 Cir. 1976). Because the search here did not take place at the actual border, the validity of the search depends on the characterization of the site as the functional equivalent of the border. I conclude that the site of the search cannot be so characterized.
The location of a search may be considered the functional equivalent of the bor
The search here occurred at a railroad station some miles inland of the border and over seven hours later than the actual border crossing. To ensure the international origin of the goods seized, continuous surveillance from border crossing to search location was required. This is especially so since heroin was not found on the person or among the effects of Bilir, who shipped aboard the CEBESOY, but in the suitcase carried by Akdeniz and Sokum, who had been in the United States for an extended period of time. Where the majority and I differ is whether the surveillance was “practically continuous,” as the majority characterizes it, or whether, as in my view, the gaps in surveillance were so significant that it was not reasonable to assume that Sokum and Akdeniz were carrying goods that had quite recently crossed the border at the Baltimore docks.
The record made at the suppression hearing shows these facts: At about 8:00 p. m. the night of July 6,1977, Bilir was observed coming off the CEBESOY. He took a taxicab to the Hilton Hotel where he met Akdeniz and Sokum. The three got into another taxicab and the agents were unable to follow them. The agents returned to the ship and at approximately 10:00 p. m. they observed Akdeniz and Sokum go aboard. Bilir had boarded earlier, unobserved by the agents. Sometime after 11:00 p. m., all three were seen to leave the ship. Sokum was dressed in a loose-fitting shirt different from that which he wore when he boarded the ship earlier in the evening. But neither Sokum nor Akdeniz displayed any bulges or other suspicious aspects of their appearance indicating a “body-carry” of a substantial quantity of heroin or other substance. The agents who observed them leave the ship did not think that Sokum had effected a body-carry.
The three entered a taxicab driven by a government agent and they were driven ultimately to the Marylander Motel, but in route they stopped at a bar where Sokum entered and remained, unobserved, for two or three minutes. When they arrived at the Marylander Motel, Akdeniz and Sokum went to room 51 in which they had registered previously, and Bilir left and returned to the ship. Akdeniz and Sokum were kept under surveillance until the next morning when they left the motel, entered a taxicab driven by a government agent and were transported to the railroad station, as the majority relates. When they left the motel, Akdeniz and Sokum were carrying a suitcase which had not theretofore been observed by any agent.
From the time that Bilir, Akdeniz and Sokum met at the Hilton Hotel until Akdeniz and Sokum were, apprehended at the railroad station, there were these breaks in the chain of surveillance: (1) as to Akdeniz and Sokum, a break of one or more hours between the time that the agents lost sight of them at the Hilton Hotel until the agents saw them board the ship; (2) as to Bilir, a break of two or more hours between the time that the agents lost sight of him at the Hilton Hotel until he was seen to leave the ship in the company of Akdeniz and Sokum; and (3) as to Sokum, a further break when, in route from the ship to the Marylander Motel, he entered a bar and remained for two or three minutes. Perhaps more importantly, neither room 51 of the Marylander Motel nor Akdeniz and Sokum was under surveillance prior to the time that they checked into the motel.
Since the reasonableness of the belief of the arresting agents that, at the railroad station, Akdeniz and Sokum were transporting material which had been imported
Nor did the search occur under circumstances comparable to a border search where the person who crossed the border has a diminished or non-existent expectation of privacy. Although the agents had no greater reason to believe Akdeniz and Sokum were carrying contraband at the time of the search than when all three defendants disembarked, no search was undertaken immediately after the border crossing. Instead, seven hours later and some distance away from the border, the search was made in a local railway station, and then only when one of the agents had been recognized. Under the majority’s holding, if we assume that Akdeniz and Sokum had not been spotted and that constant surveillance was maintained, a search in New York, or at some future destination, would have been justified under the border search doctrine. I cannot think that the doctrine is without geographical or temporal limit to that extent.
In sum, I can only conclude that the search at the Pennsylvania Railroad was not a search at the border or its functional equivalent within the meaning of AlmeidaSanchez. In the words of the Fifth Circuit,
this search did not possess the characteristics of a border search or other regular inspection procedures. It more resembled the common nonborder search based on individualized suspicion, which must be prefaced by the usual warrant and probable cause standards .
United States v. Brennan, 538 F.2d 711, 716 (5 Cir. 1976). Moreover, even if AlmeidaSanchez is not applied, I cannot concur in the majority’s determination that the searching officers had reasonable cause to believe, under all the circumstances, that Sokum and Akdeniz were carrying heroin which had been illegally introduced into the United States aboard the CEBESOY. Because of the several breaks in surveillance, the agents’ belief that the goods seized had recently come from outside this country was not reasonable.
II.
I see no merit in the other grounds advanced by the government either to sustain the validity of the search or to defeat defendants’ right to test its validity. Having concluded that the agents lacked reasonable cause to believe that Akdeniz and Sokum were carrying heroin that had been illegally imported by Bilir, I do not think that their suspicions met the more stringent standard of probable cause. Nor do I think that there were exigent circumstances to justify an arrest and a warrantless search incident thereto. Since Bilir, Akdeniz and Sokum were all charged with possession of heroin, they had standing to contest the validity of the search. Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).
I would hold the search invalid and reverse the convictions, remanding for a new trial.