*2
BROWN,
Before JOHN R.
Chief
Judge,
MORGAN,
and GOLDBERG and
Judges.
Circuit
GOLDBERG,
Judge:
Circuit
Appellant,
Miguel
Pedro
Cristancho-
Puerto,
Colombia,
who is a citizen brings
appeal
judgment
from a
victing
him violated 21 U.S.C.
841(a)(1)
952(a)
illegally
§§
im-
porting
by possessing
cocaine and
co-
caine with intent to
The sole
distribute.
issue before us is whether
the trial
many
despite the
discovered
denying
mo-
court erred
Agent
Special
notified
searches. The
suppress
of the cocaine
tion to
evidence
Immigration
Naturalization
connection
made in
statements
agents
Service,
then
evidence
went
its
hold that
seizure. We
from the
INS
properly
admitted.
Appellant was
Customs Bureau.
May 18,
appellant arrived
*3
interrogation
all
taken
room where
to an
Airport
a
aboard
Miami International
agents
him.
federal
interviewed
three
flight
Bogota,
When
Colombia.
appellant
warned
immigration
After
had
appellant reported for
rights,
Bureau
of his
Customs
immigration
spection,
be-
officials
the
the
Agent
him,
you
off
authenticity
take
asked
“Will
suspicious
of
of
came
replied,
your
Appellant
“Of
Appellant
shoes?"
was
his travel documents.
agents
course,”
imme-
and
The
immigration
so.
secondary
did
taken before a
diately
shoes and found
examined the
inspector,
that
who advised him
because
identified
substance later
as cocaine
regarding
papers,
questions
his
subsequent
in the
A
search
(1)
cealed
soles.
to
he
either
have to choose
would
luggage
to
stored at I.B.I. led
application for
withdraw
admission
his
discovery
in
of additional cocaine hidden
voluntarily
Colombia, or
and
to
return
suitcase.
soles of shoes
(2)
seeking
to
to continue
admission
stipulated
is
knowledge
It
that no warrants were
that
United
immigration
States with
sought or obtained for either search.
suspicious
officials were
entry
compliance
about his
with the
15,
Appellant
on June
was indicted
Appellant
latter course
chose the
laws.
of
His
for the cocaine violations.
cus-
He was then taken into
following
action.
suppress
motion to
denied
was
rights,
tody,
his
and searched
warned of
evidentiary hearing,
jury
an
sub-
and
—but no
discovered.
contraband was
sequently
guilty
both
him
on
found
Appellant
to
sentenced
overnight
counts.
was
Appellant
of-
held
at an
was
eight years imprisonment
each
serve
on
Agency
Security
fice
of the I.B.I.
count, the sentences to
served concur-
be
luggage
placed
I.B.I.
his
was
rently.
storage.
Friday, May
day,
next
investigations
after
further
Appellant appeals solely on the
appellant
completed,
interviews had been
ground
suppress evi
motion to
that the
violating
arrested, charged
was
18
granted. Appel
dence should have been
(fraudulent entry docu-
U.S.C.
1546
§
argument
correctly premises
lant
his
ments), searched,
placed
Dade
principle
law that where
settled
May 22, 1972,
County
Monday,
Jail. On
warrant,
search
without
is conducted
appellant
taken
was
before a United
government
upon the
“[t]he burden is
Magistrate,
States
him
who advised
one
fell within
show
rights
Appellant
his
and set
was
bond.
exceptions
Fourth Amend
County Jail,
returned to
Dade
where
requirement
Brett
ment
of a warrant.”
again
he was
searched.
F.2d
v. United
Cir.
412
5
Agent
May
Special
25, 1972,
405;
Barnett v. United
Although
the Bureau
Narcotic and Dan- 5
F.2d
Cir.
384
gerous Drugs allegedly
denying
suppress
confi-
evi
received a
the motion
appellant
tip
judge
dential
informant’s
that
state
failed to
the trial
dence
boasting
jail-mates
applic
exception
thought
to his
that he
he
possession
able,1
had cocaine in his
that
had
we find that
this search
ap
(5) prison
1. Theories
mentioned in the briefs on
search. We should
peal
way
any
(1)
search;
(2)
are:
border
“alien-
not be understood as
exception
search;
(3)
search,
status”
see
considered
customs
1595(a) ; (4)
requirement
§
U.S.C.
con
Amendment warrant
sent, compare
body
Henderson,
than that discussed in the
Perkins
opinion.
F.2d
with United
Resnick,
States v.
justified
particularly
Similarly,
begins
narrow
under a
if a criminal
trial
category
alien,
border searches.
he would not
“at
government
the door” because the
at
We think it clear that
had
longer
holding
that
would no
fully
not been
“admitted”
into the Unit-
pending
the alien
action.
future
ed
his
that
status
Finally,
imply
do not mean
we
time of
of a man
the search
period
could never
there
be a
of time
Appellant
the border.”
which an alien
held under the statute
past
was indeed taken
bor-
long
that would be too
to be reasonable.
brought
der, but he
across that visi-
Here, appellant was searched one week
being
boundary only by»
ble
of his
virtue
physical entry
country.
after his
into the
placed
parole
inspection
in “deferred
Because the search occurred
status.”
later,
week
time when
the alien had
*4
1182(d)(5)
states
U.S.C.
§
been held in continuous
custo-
dy by entry
follows:
officials, pending prosecu-
pursuant
1182(d)(5),
tion and
to section
Attorney
may in
“The
General
his
we hold that
the search was a border
parole
discretion
into
United
the
such,
search.
proper,
As
the search was
temporarily
under such condi-
19 U.S.C.
and the evidence ob-
§
may prescribe
tions as he
for emer-
thereby
tained
was introducible
gent
or for
reasons
reasons deemed
appellant.
public
strictly
any
in the
interest
alien
applying
admission to
for
the United
Affirmed.
parole
but such
such alien
of
regarded
shall not be
as an admission
ON PETITION
FOR REHEARING
purposes
the alien and
of
when
AND PETITION FOR REHEAR-
parole shall,
opinion
such
EN BANC
ING
Attorney General have
been served
PER CURIAM:
alien shall forthwith
re-
return or be
Rehearing
The Petition for
is denied
custody
turned to the
he
from which
having
polled
and the Court
paroled
and thereafter
his case
request of one of
members
shall continue to
in the
dealt with
majority
Court and a
the Circuit
ap-
same manner as that of
Judges
regular
who
are
active service
plicant
for admission to the United
having
(Rule
not
it,
voted
favor of
(emphasis added)
States.”
Appellate
35 Federal Rules of
Proce-
precise
On the
case,
facts of
we
this
dure;
12)
Fifth
Local
Circuit
Rule
dispositive.
find this statute to be
We
Rehearing
Petition for
En Banc is also
dealing
are not
here with an alien who
denied.
placed
has been
inspection
in deferred
BROWN,
Before
JOHN R.
parole
Chief
status and then allowed to remain
Judge,
BELL,
WISDOM, GEWIN,
and
liberty
large.
either
Rather,
at
or at
we
THORNBERRY,
COLEMAN, GOLD-
hold
an
brought
alien who is
BERG,
AINSWORTH,
GODBOLD,
country
into the
provisions
under the
DYER, SIMPSON,
CLARK,
MORGAN,
being
this law and
physi-
who is
held in
RONEY,
INGRAHAM and
Circuit
custody by entry
cal
officials,
Judges.
never
for a moment been allowed to
custody,
move about free of
continues to
SIMPSON,
Judge,
Circuit
with whom
stand at the border for
customs
bor-
GODBOLD,
joins
(dis-
Judge,
Circuit
der
purposes.
suggest
Nor do we
senting)
:
special legal
that his
status could
indefinitely.
tinued
entry
respectfully
If the
I
offi-
dissent
the re-
large
cials
allow the alien
panel
opinion
remain
fusal
to reconsider
pending investigation
statute,
panel
under the
en
Court
banc.
I think the
the alien
opinion
would
applica-
not remain at the door.
makes an unwarranted
inspection parole
pellant
in “deferred
doctrine to this
tion of the border
persons
facially
applies
status”
case.
personal
It
baggage
effects.
argument
statutory
outset, the
theAt
me
“deferred
how this
unclear to
is
spection parole
was defined as
bag-
apply
status” can
“standing
person
creates
border”
appel-
gage
personal
effects
question
use of
I
difficulties.
incapable
reaching
because
lant was
of a
the status
statute which defines
if
incarceration. Even Cristancho-
his
entry purposes
im
person
under
for
he
Puerto was
at the border”
being
migration
used as sole au
law
separate
and dis-
entitled to
was still
tinguishable
conducting
thority
a border search.
right
Fourth Amendment
U.S.C.,
the statu
Section
Title
clothing
security
of his
to the
authority
tory
which border
under
property room. Brett v. United
conducted, designates a bor
searches are
holds
so
5 Cir.
crossing
status
der
rather than
A
must
warrantless search
Court.
giving
person
as the event
rise
“jealously
fall
narrow
within
authority
search.
to conduct border
exceptions
carefully
to the
drawn”
States, 9 Cir.
Alexander v. United
Amendment.
Jones v.
362 F.2d
cert. denied 385 U.S.
States, 1960,
493, 78
S.Ct.
519, L.Ed.2d
It
clear
S.Ct.
immigration
An
stat-
L.Ed.2d 1514.
person
be
however that at
*5
my
is not
ute which defines status
fully
comes
admitted to
United States
engrafting
judgment
for
a valid basis
longer
may
subjected
no
be
upon
exception
the warrant
an additional
search,
border
cf.
v. United
Carroll
requirement of the Fourth Amendment.
132, 134,
States, 1925,
45
S.Ct.
280,
be reasonable under
or “ex
A search must
69 L.Ed.
border
543. The
uniformly
Ker v.
Amendment.
Cali
heretofore
the Fourth
tended border” has
1623,
23,
83
fornia,
dis
374
been defined in terms of
U.S.
S.Ct.
classifying
Simply
geographical
or
travel time
ty recog- contradictory. panel opinion a warrant if the informer’s secure The tip by saying reliable and sufficient to con- nized that a this dilemma probable longer cause. Border stitute searches man would no at the occurring begins at some after an initial border” if a criminal trial crossing usually suggest border involve consid- him. I initiation proceedings and time erations of both distance from criminal arrest and ar- crossing. raignment logically appro- the initial Alexander v. Unit- is more States, supra. priate ed No other case which time “stand- for an alien to cease ing I have found sanctions a border at the border”. eight days entry into conducted after expansion Granted that the of the bor-
the United States. panel approved der search doctrine opinion narrowly framed, think panel opinion I Neither nor the problems it sufficient are of briefs raises make clear the actual reason gravity to warrant en banc re-examina- incarceration time tion. of the search when the cocaine dis- (see opinion slip opinion, covered. For these reasons I dissent. pages 3) 2 and states that charged violating U.S.C., Title (possession of Section 1546 fraudulent entry documents), arraigned before Magistrate charge,
United States on that jailed, being
searched and searched both
at the time of the arrest and at the time arraign- jail following his return unproduc- ment. These searches were COURSON, Richard Appellee, M. If tive. Cristancho-Puerto was at *6 v. time of the search which located the co- COMPANY, MARYLAND CASUALTY caine incarcerated under the Section Appellant. charge, his status on “deferred in- 72-1480, Nos. 72-1481. spection parole” seriously if diluted completely destroyed. petition Appeals, United States Court of rehearing remaining asserts that his Eighth Circuit. solely by his in- reason of Submitted Feb. 1973. ability post bail bond $2500.00 Decided March charge. the Section If this con- negates it tention is true his status as “standing man at the border” there- subject fore to a border search within scope panel opinion. It also suggested question peti- raises a rehearing tion for that he was discrim- against solely by
inated reason of digency. Tate Short, See
U.S. 91 S.Ct. 28 L.Ed.2d Illinois, 1970,
Williams v.
deep-
90 S.Ct.
ly panel opinion me disturbs
says for our Court that the United charge
can arrest a man and him with
a crime but still have the benefit of con-
ducting per- warrantless searches of his
son and effects because he is