# United States v. Nedim Bilir, United States of America v. Ziya Sokum, United States of America v. Nail Akdeniz

> Court of Appeals for the Fourth Circuit · February 8, 1979 · 592 F.2d 735

URL: https://www.frixlaw.com/law-library/cases/9465517

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Nedim BILIR, Appellant; UNITED STATES of America, Appellee, v. Ziya SOKUM, Appellant; UNITED STATES of America, Appellee, v. Nail AKDENIZ, Appellant
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** February 8, 1979
- **Citations:** 592 F.2d 735; 1979 U.S. App. LEXIS 17037
- **Precedential status:** Published
- **Opinion:** Dissent by Winter
- **Judges:** Haynsworth, Winter, Phillips
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9465517

## How later opinions describe it (automated extraction)

- stating “[t]he many difficulties that attend the attempt to intercept contraband and to apprehend increasingly mobile and sophisticated smugglers at the very borders of the country have of course given birth to the doctrine”
- holding that a search less four miles from the border was a border search where the vehicle was searched seven hours after crossing the United States border from Mexico but continuously surveilled during those seven hours

## Opinion text

WINTER, Circuit Judge,
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 *743 der only if the factors which make a border search reasonable are present. See Brennan, supra at 714-16 . Brennan isolated two such factors: the international origin of the object seized and the regularity of the inspection procedure. Thus, one circumstance which makes searches at a border reasonable is the certainty that the objects of those searches have come from outside the country. Another circumstance is the fact that inspections are ordinarily conducted at the border, where an entrant has no reasonable expectation of privacy. Neither of these circumstances was present in the instant cases.
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 *744 depended upon a theory of Bilir passing heroin to Akdeniz and Sokum, the significance of the breaks is obvious. Bilir may well have had access to an unknown person or persons, other than Akdeniz or Sokum, in the time that he was out of sight of the agents. Thus, if he subsequently passed heroin, he may have obtained it from a domestic rather than a foreign source. Before they met Bilir, Akdeniz and Sokum may have had access to many unknown persons and obtained heroin from them. After they were observed meeting Bilir, Akdeniz once, and Sokum twice, may have had access to an unknown person or persons other than Bilir and obtained heroin from them. Thus there were significant opportunities for Akdeniz and Sokum to obtain heroin other than that which may have been imported by Bilir. While the agents may have had strong suspicion that Akdeniz and Sokum were transporting goods that had been imported by Bilir, these were not grounds for a reasonable belief that this was true.
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465517. Public record. Not legal advice.