Petition — BRENNAN v. UNITED STATES (No. 76-701)

wr FLL.

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

no €0-70l1l4

JOHN J. BRENNAN,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES M. RUSS

I. PAUL MANDELKERN

Law Offices of James M. Russ

441 First Federal Building

109 East Church Street

Orlando, Florida 32801

Telephone: (305) 849-6050

Attorneys for Petitioner

LS SSS

SS TT

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Waeshington, D. C.~223-1220

—_——E—————

(i)

INDEX

Page

A er ae

el et a ads kes a

QUESTIONS PRESENTED ............. 2

CONSTITUTIONAL PROVISIONS INVOLVED ...... 3

STATEMENT OF THECASE. ........... 3

REASONS FOR GRANTING THE WRIT:

AN UNRELIABLE INFORMANT’S TIP THAT MEETS

NEITHER OF THE TESTS ARTICULATED BY THIS

COURT IN SPINELLI V. UNITED STATES, 393 US.

410, 89 S. Ct. 584, 21 L.Ed. 2d 637 (1969), AND

AGUILAR V. TEXAS, 378 US. 108, 84 S. Ct. 1509,

12 L.Ed. 2d 723 (1964), CANNOT SUPPLY PROBABLE

CAUSE FOR A SEARCH WHEN INNOCUOUS INFOR-

MATION CONTAINED IN THE TIP IS CORROBO-

RATED BY THE ON-THE-SCENE OBSERVATIONS

OF THE SEARCHING AGENTS. ....... 8

A SEARCH WARRANT IS REQUIRED BEFORE FED-

ERAL AGENTS MAY LAWFULLY SEARCH INSIDE

A LOCKED HANGAR IN WHICH AN IMMOBILE

AIRCRAFT IS PARKED AND THE ONLY SUSPECT

IS OUTSIDE IN THEIR CUSTODY... .... 12

Ge 6 kt se be 0 te e ere 2 Ee

(ii)

APPENDIX:

A. Opinion of the United States Court of Appeals for the

Fifth Circuit in United States of America v. John J.

Brennan, No. 75-3939, dated September 13,1976 . . la

B. Judgment of the United States Court of Appeals

for the Fifth Circuit in United States of America v.

John J. Brennan, No. 75-3939, dated September 13,

bs 3 0 © Gilé tarvetereeI a Ail 2.

C. Order of the United States Court of Appeals for the

Fifth Circuit in United States of America v. John J.

Brennan, No. 75-3939, dated October 20, 1976,

denying petition for rehearing . . . . .. ... « Sa

TABLE OF AUTHORITIES

Cases:

Aguilar v. Texas,

378 US. 108, 84 S. Ct. 1509,

yee © © fd Pree . 2 eS

Cardwell v. Lewis,

417 US. 583, 94 S. Ct. 2464,

ey Oe oh i's 1 6) iO ee oes

Carroll v. United States,

267 US. 132, 45 S. Ct. 280,

Ol ere

Chambers v. Maroney,

399 US. 42, 90 S. Ct. 1975,

, ea’ SS FF oD ee Ae y A> ee

Cool lge v. New Hampshire,

03 US. 443, 91 S. Ct. 2022,

WO LBG. B6OSG6 CISTI). 2 we ew ttt el el ew BME

(iii)

Draper v. United States,

358 US. 307, 79 S. Ct. 329,

3 L.Ed. 2d 327 (1959)

Spinelli v. United States,

393 US. 410, 89 S. Ct. 584,

21 L.Ed. 2d 637 (1969) .

Texas v. White,

423 US. 67, 96 S. Ct. 304,

46 L.Ed. 2d 209 (1975) .

' United States v. Bradshaw,

490 F.2d 1097 (4 Cir. 1974)

United States v. Chadwick,

$32 F.2d 773 (1 Cir. 1976)

United States v. Jackson,

533 F.2d 314 (6 Cir. 1976)

United States v. Jordon,

530 F.2d 722 (6 Cir. 1976)

United States v. Larkin,

510 F.2d 13 (9 Cir. 1974) .

United States v. McCormick,

502 F.2d 281 (9 Cir. 1974)

United States v, Robinson,

533 F.2d 578 (D.C. Cir. 1976)

«, Whiteley v. Warden,

401 US. 560, 91 S. Ct. 1031,

28 L.Ed. 2d 306 (1971) .

9, 10

3, 6, 8, 9, 10, 12

7, 12, 13, 14

15

15

10

10

. 10

15

11

(iv)

United States Constitution:

Fourth Amendment

Statutes:

21 U.S.C. $844a) .

21 U.S.C. 8952 and 960

28 U.S.C. § 12541)

Other Authorities:

Note, Warrantless Searches and Seizures of Automobiles,

87 Harv. L. Rev. 835 (1974)

Note, Mobility Reconsidered: Extending the Carroll

Doctrine to Movable Items, 58 lowa L. Rev. 1134

(1973) Pa

Note, Warrantless Searches and Seizures of Automobiles

in the Supreme Court from Carroll to Cardwell:

Inconsistency Through the Seamless Web, 53 N.C.

L. Rev. 722 (1975) i rate

3, 6, 16

15

15

15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

NO.

JOHN J. BRENNAN,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, JOHN J. BRENNAN, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit en-

tered on October 20, 1976, denying a petition for rehear-

ing directed to that Court’s written opinion dated Septem-

ber 13, 1976. The initial Fifth Circuit opinion affirmed

a judgment entered by the United States District Court

for the Middle District of Florida in a criminal prosecu-

tion brought by the United States against the petitioner.

:

The opinion of the United States Court of Appeals for the

Fifth Circuit upheld the District Court’s denial of a motion

to suppress tangible evidence seized by federal agents con-

ducting a warrantless search of petitioner’s hangar and air-

craft. A timely petition for rehearing was denied by the

Court of Appeals and judgment was entered. (App. 14a, 15a).

The petitioner now prays that this Court review the judg-

ment and opinion of the United States Court of Appeals

for the Fifth Circuit.

OPINIONS BELOW

The September 13, 1976, opinion of the United States

Court of Appeals for the Fifth Circuit is reported at 538

F.2d 711. The corrected slip sheet opinion is set out in

the Appendix to this petition.

The order of the United States Court of Appeals for the

Fifth Circuit denying rehearing is not presently reported.

This order is also set out in the Appendix to this petition.

JURISDICTION

The judgment of the Court of Appeals was entered on

September 13, 1976, affirming the trial court’s judgments

of conviction. The Court of Appeals denied a timely pe-

tition for rehearing on October 20, 1976. This petition

for certiorari is filed within thirty (30) days of the order

denying rehearing. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether an unreliable informant’s tip that meets

neither of the tests articulated by this Court in Spinelli

3

v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.

2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84

S. Ct. 1509, 12 L.Ed. 2d 723 (1964), can supply prob-

able cause for a search when innocuous information con-

tained in the tip is corroborated by the on-the-scene ob-

servations of the searching agents.

2. Whether a search warrant is required before federal

agents may lawfully search inside a locked hangar in which

an immobile aircraft is parked and the only suspect is out-

side in their custody.

CONSTITUTIONAL PROVISIONS INVOLVED

The provision of the Fourth Amendment to the United

States Constitution applicable here provides:

The right of the peopie to be secure in their per-

sons, houses, papers and effects, against unrea-

sonable search and seizures shall not be vio-

lated * * *.

STATEMENT OF THE CASE

Petitioner was the defendant in a criminal prosecution

instituted in the United States District Court for the Mid-

dle District of Florida. On September 26, 1975, petitioner

was found guilty by a jury of importation into the United

States of marijuana in violation of 21 U.S.C. 8952 and

960, and of possession of marijuana in violation of 21

U.S.C. § 844(a). Judgments of conviction were entered

by the District Court and sentences were imposed.

Prior to trial, a timely motion seeking the suppression

of this contraband and other tangible evidence seized from

4

petitioner’s hangar and aircraft was filed by the petitioner.

Evidentiary hearings on this motion were held on July 31,

August 21, and September 22, 1975.

Testimony at these evidentiary hearings revealed that

this warrantless search was initiated by a telephone call

to a Drug Enforcement Administration (DEA) agent by

a previously unknown and unreliable informer. This in-

former told the agent that he had information leading him

to suspect that petitioner “was going to engage in some

smuggling activities into the Melbourne [Florida] Regional

Airport.” Several days later the agent met with the in-

former. At this meeting, the informer told the agent that

it was his conclusion that the petitioner owned an aircraft

described as a 1969 Beagle, blue and gold in color, with

tail number NS69MA. This informer also told the agent

that he felt that petitioner would utilize this Beagle air-

craft to fly to Colombia, South America, and bring back

a considerable amount of marijuana. The informer’s tes-

timony at the suppression hearing shows that this informa-

tion was not based upon his direct knowledge, but it was

merely his conclusion and feeling based upon second-hand-*

information and innocuous remarks made by petitioner.

There was no suggestion that anyone other than petitioner

was involved in this alleged smuggling venture.

On April 28, 1975, the informer called the agent and

reported that he had recently talked tc petitioner by

phone and inferred from the conversation that the peti-

tioner’s smuggling trip would take place “sometime in the

next two to three weeks * * *.”” Based upon his own

general knowledge, he told the agent that a round-trip

flight from Melbourne to Colombia, South America, would

take an estimated 16-17 hours.

5

The DEA agent claimed that on May 17, 1975, nine-

teen days after the vague tip, at approximately 11:00 a.m.,

he received hearsay information that aircraft NS69MA had

taken off from the Melbourne airport in a southwesterly

direction (towards the interior of the State of Florida).

This alleged radar contact with the plane was lost as it

approached Miami. There was no direct evidence that

aircraft NS69MA left this country and was actually in

flight that day or that petitioner was the pilot.

Fourteen hours later, at 1:30 a.m. on the morning of

May 17, United States Customs Agents sighted a Beagle

aircraft on the ground, moving along a taxiway at the Mel-

bourne airport and identified it as NS69MA. One agent

testified that NS69MA did not have its exterior navigational

lights on.

As aircraft NS5S69MA taxied along the taxiway, the Cus-

toms agents drove their van toward the hangar located at

the foot of the taxiway. During this time, the aircraft

entered the hangar and was parked inside with its engines

off. The petitioner exited the hangar and locked its doors.

As he was walking away from the hangar toward a nearby

automobile, he was placed in custody by federal agents

standing twenty to twenty-five feet from the locked doors,

These agents seized the keys to the hangar, aircraft, and

the automobile from petitioner. There was no one else

in the vicinity except petitioner and the seven armed law

enforcement officers.

While petitioner was held in custody, a Customs agent,

without a search warrant, entered his hangar and discov-

ered the contraband and other tangible evidence inside the

aircraft. Following this discovery, petitioner was arrested.

6

After these evidentiary hearings, the District Court de-

nied the motion to suppress, ruling that this warrantless

search was within the “border search”’ exception to the

warrant requirement of the Fourth Amendment.

In affirming the petitioner’s convictions, the United

States Court of Appeals for the Fifth Circuit first held that

this search was not at the functional equivalent of the bor-

der and was therefore not a “‘border search.” 538 F.2d at

716. (Slip sheet opinion 5586, App. 6a). However, the

Fifth Circuit went on to make the factual determination

that probable cause for this search existed through a com-

bination of hearsay information from the informer’s tip

and the searching agents’ on-the-scene corroboration. 538

F.2d at 719-20. (Slip sheet opinion 5590, App. 10a).

The Fifth Circuit said, in connection with the informer’s

tip:

Neither [the informer] nor his tip met the

Aguilar standards for informant credibility or in-

formational reliability, even if the modified stand-

ards for first-time informants are employed.

* * * *

Similarly, the advance investigation conducted

by DEA officials failed to corroborate enough of

the significant details of [the informer’s] story to

comply with the Spinelli formula for curing defi-

cient tips. 538 F.2d at 720. (Slip sheet opinion

5591, App. 11a).

However, the Fifth Circuit went on to say:

* * * At the point at which the law enforcement

officials detected the Beagle aircraft proceeding

7

down the taxiway in the dark with its lights off,

at a time almost exactly that predicted by [the

informer] in his estimate for the time required

for a smuggling flight, the quantum-of-knowledge

ring closed around Brennan in the manner approved

by the Supreme Court in Draper v. United States,

* * * Through self-corroboration, equivocal in-

formation ripened into probable cause on the scene.

538 F.2d at 721. (Slip sheet opinion at 5592,

App. 12a) (citation omitted).

The Fifth Circuit also held that the failure of the search-

ing officers to obtain a search warrant was excused because

of “exigent circumstances.” The Court reasoned that since

“exigent circumstances” existed at the time that “probable

cause” was generated, ie., when the aircraft was identified

on the taxiway, these circumstances also existed at the time

of the search when the airplane was parked inside its han-

gar with its engines off. 538 F.2d at 721 (Slip sheet

opinion 5592, App. 12a). In effect, the Fifth Circuit ap-

plied the so-called Carroll doctrine to this case and relied

on the holdings of this Court in Chambers v. Maroney,

399 U.S. 42, 90 S. Ct. 1975, 26 L.Ed. 2d 419 (1970),

and Texas v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L.Ed.

2d 209 (1975). —

8

REASONS FOR GRANTING THE WRIT

I. AN UNRELIABLE INFORMANT’S TIP THAT MEETS

NEITHER OF THE TESTS ARTICULATED BY THIS

COURT IN SPINELLI V. UNITED STATES, 393 US.

410, 89 S. Ct. 584, 21 L.Ed. 2d 637 (1969), AND

AGUILAR V. TEXAS, 378 U.S. 108, 84 S. Ct. 1509,

12 L.Ed. 2d 723 (1964), CANNOT SUPPLY PROBABLE

CAUSE FOR A SEARCH WHEN INNOCUOUS INFOR-

MATION CONTAINED IN THE TIP IS CORROBO-

RATED BY THE ON-THE-SCENE OBSERVATIONS OF

THE SEARCHING AGENTS.

This Court, in Aguilar v. Texas, 378 U.S. 108, 114, 84

S. Ct. 1509, 12 L.Ed. 2d 723 (1964), devised a two-prong

test for assessing whether an informant’s tip has the proba-

tive value necessary to establish probable cause. First, there

must be some indication of the underlying circumstances

from which the informant concluded that the facts are as

he says they are, and second, there must be some state-

ment of the underlying circumstances from which the of-

ficer concluded that the informant was credible or his in-

formation reliable.

The Aguilar test was modified in Spinelli v. United States, -

393 U.S. 410, 89 S. Ct. 584, 21 L.Ed. 2d 637 (1969),

where this Court held that the first prong of the test can

be satisfied if the tip describes the accused’s criminal ac-

tivity in sufficient detail that a neutral magistrate may

know that the informer is relying on something more sub-

stantial than a casual rumor or the individual’s general rep-

utation or if independent observations by the law enforce-

ment officers corroborate the allegation that the accused

has committed the alleged criminal conduct or is in the

process of committing a crime. 393 U.S. at 416-418.

Spinelli also teaches that otherwise innocent conduct is

9

not imbued with an aura of suspicion by virtue of an un-

reliable informer’s tip, and the corroborating evidence must

be of criminal conduct. 393 U.S, at 418.

As an example. the Spinelli Court alluded to the prior

opinion in Draper v. United States, 358 U.S. 307, 79 S.

Ct. 329, 3 L.Ed. 2d 327 (1959). In that case, the in-

former was a “special employee” of the Bureau of Nar-

cotics and had given accurate and reliable information to

federal agents for a period of six months. Ue reported

that Draper had gone to Chicago the day before by train

and that he would return to Denver by train with three

ounces of heroin on one of two specified mornings.

Moreover, he went on to describe with minute particu-

larity the clothes that Draper would be wearing on his

arrival at the Denver station; and he gave a physical de-

scription of the suspect. The Spinelli Court concluded

that such a wealth of detail created a reasonable inference

that the informant had gained his information in a relia-

ble way. 393 U.S. at 417. Furthermore, independent

police work in Draper corroborated much more than small

detail that had been provided by the informant. The fed-

eral agent, upon meeting the inbound Denver train on one

of the specified mornings, saw a man whose dress and phys-

ical appearance corresponded precisely to the informant’s

detailed description. “It was then apparent that the infor-

mant had not been fabricating his report out of the whole

cloth * * *.” 393 U.S, at 417.

The petitioner submits that the opinion of the United

States Court of Appeals for the Fifth Circuit misconceives

and misapprehends the holdings of this Court in Aguilar,

Spinelli, and Draper. The information that was known to

the searching officers in this case falls far short of the stand-

ards established by this Court. The informer’s tip simply

10

did not provide the wealth of detail supplied by the infor-

mant in Draper. Furthermore, all of the allegations con-

tained in the tip were based upon guesswork, conclusions,

and inferences. Of paramount importance, the surveillance

of aircraft N569MA on the night of May 17-18, 1975, by

the searching officers contained no reasonable suggestion

of criminal conduct when the officers’ observations are

taken apart from the tip and judged by an objective stand-

ard. There is absolutely no evidence in the record of this

case to support the objective conclusion that there is any-

thing incriminating about taxiing an aircraft along a taxi-

way during normal airport hours with exterior navigational

lights off. Thus, nothing which the agents observed was

inconsistent with completely innocent behavior.

The on-the-scene observations could not corroborate the

essence of the tip that Beagle aircraft NS€9MA was en-

gaged in smuggling contraband on the night of May 17-18,

1975. The corroborating observations by the searching

agents do not provide the necessary guarantees of the in-

formant’s reliability and the dependability of his informa-

tion. The Fifth Circuit’s holding cannot be squared with

this Court’s Aguilar-Spinelli test because it cannot be said

that ““* * * the tip [as corroborated} * * * is as trust-

worthy as a tip which would pass [both] tests without

independent corroboration.” 393 U.S. at 415.

The federal courts have held that a vague, unreliable in-

former’s tip can only give rise to probable cause where the

on-the-scene observations, viewed apart from the tip, verify

that the suspect is involved in not just suspicious behavior

but criminal activity. See, e.g., United States v. Jackson,

533 F.2d 314 (6 Cir. 1976); United States v. Jordon, 530

F.2d 722 (6 Cir. 1976); United States v. Larkin, 510 F.

2d 13 (9 Cir. 1974). At most, the on-the-scene observa-

tions in this case verified that the informer knew the type

and identification number of the aircraft that petitioner

owned, which, at some point in time during a two-to-three

week period, would taxi along a taxiway at the Melbourne

Regional Airport.

This situation closely parallels the situation confronted

by this Court in Whiteley v. Warden, 401 U.S. 560, 91 S.

Ct. 1031, 28 L.Ed. 2d 306 (1971). In that case, Mr. Justice

Harlan, speaking for this Court, summarized the proper

role of corroborative observations in curing deficiencies in

an informant’s tip:

This Court has held that where the initial im-

petus for an arrest is an informer’s tip, informa-

tion gathered by the arresting officers can be used

to sustain a finding of probable cause for an arrest

that could not adequately be supported by the

tip alone. * * * But the additional information

acquired by the arresting officers must in some

sense be corroborative of the informer’s tip that

the arrestees committed the felony or as in Draper

itself, were in the process of committing the fel-

ony. * * * In the present case, the very most

the additional information tended to establish is

that either Sheriff Ogburn, or his informant, or

both of them, knew Daley and Whiteley and the

kind of car they drove; the record is devoid of

any information at any stage of the proceeding

from the time of the burglary to the event of

the arrest and search that would support either

the reliability of the informant or the informant’s

conclusion that these men were connected with

the crime. 401 U.S. at 567 (emphasis added and

citations omitted).

12

The Fifth Circuit’s opinion is contradictory to the above

federal court decisions, including the decisions of this Court,

and has the effect of watering down the Aguilar-Spinelli

test, making it a nullity.

Consequently, this Court should grant certiorari in order

to announce that probable cause for a warrantless search is

not established when the searching officers corroborate a

vague and unreliable tip merely by the suspect’s fortuitous

arrival on the scene.

Il. A SEARCH WARRANT IS REQUIRED BEFORE FED-

ERAL AGENTS MAY LAWFULLY SEARCH INSIDE A

LOCKED HANGAR IN WHICH AN IMMOBILE AIR-

CRAFT IS PARKED AND THE ONLY SUSPECT IS

OUTSIDE IN THEIR CUSTODY.

The Fifth Circuit opinion holds that it was impracticable

to obtain a search warrant for the petitioner’s hangar and

aircraft because of “exigent circumstances.” Applying the

so-called Carroll doctrine to an airplane and relying on this

Court’s decisions in Chambers v. Maroney, 399 U.S. 42,

90 S. Ct. 1975, 26 L.Ed. 2d 419 (1970), and Texas vy.

White, 423 U.S. 67, 96 S. Ct. 304, 46 L.Ed. 2d 209

(1975), the Fifth Circuit held that because of aircraft

NS69MA’s mobility, “* * * the plane could have been

stopped and searched any time after probable cause was

generated, i.e., as soon as it was identified on the taxi-

way.” 538 F.2d at 721. (Slip sheet opinion 5592, App.

12a). The Court then reasoned that this exigency did not

dissipate once N569MA was parked inside its hangar and

petitioner was taken into custody outside. However, this

holding ignores the parameters of the Carroll doctrine and

the “automobile” exception to the warrant requirement of

the Fourth Amendment as established by this Court.

13

In Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280,

69 L.Ed. 543 (1925), this Court upheld the warrantless

search of an automobile “* * * where it is not practica-

ble to secure a warrant, because the vehicle can be quickly

moved out of the locality or jurisdiction in which the

warrant must be sought.”” 267 U.S. at 153. In Chambers

v. Maroney, supra, and Texas v. White, supra, a divided

Court upheld the warrantless search of an automobile that

was seized while moving on the highway even though the

search was conducted sometime later after the automobile

was impounded.

The seemingly broad doctrine of Chambers was consid-

erably narrowed by a plurality of this Court in Coolidge

v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L.Ed.

2d 564 (1971). Coolidge was arrested inside his house

while his car was parked outside in the driveway. “There

was no way in which he could conceivably have gained

access to the automobile after the police arrived on his

property.”” 403 U.S. at 460. Since their search warrant

was invalid, the search of Coolidge’s automobile was in

effect a warrantless search. Mr. Justice Stewart, writing

for the plurality, rejected the argument that Carroll would

justify the search since the Coolidge car was immobile at

the time of the search and seizure. F

The word “automobile” is not a talisman in

whose presence the Fourth Amendment fades

away and disappears. And surely there is noth-

ing in this case to invoke the meaning and pur-

pose of the rule of Carroll * * * — no alerted

criminal bent on flight, no fleeting opportunity

on an open highway after a hazardous chase,

* * * no confederates waiting to move its evi-

dence, not even the inconvenience of a special

14

police detail to guard the immobilized automo-

bile. In short, by no possible stretch of the

legal imagination can this be made into a case

where “it is not practicable to secure a warrant,”

* * * and the “automobile exception” despite

its label, is simply irrelevant. 403 U.S. at 461-

462.

As in Coolidge, the petitioner here was placed in custody

prior to the time that the searching officers entered his

locked hangar to seize and search his unoccupied, parked

aircraft. Significantly, this hangar was surrounded by seven

armed law enforcement agents, and these agents had ob-

tained from petitioner the keys to the aircraft, the han-

gar, and the automobile parked nearby. There was no

way petitioner could have gained access to the aircraft.

Furthermore, the agents had no objective reason to be-

lieve that other suspects were involved. The Fifth Cir-

cuit’s opinion goes to great lengths to favorably compare

the inherent mobility of an aircraft to that of an automo-

bile, but the Court failed to recognize that at the time

of the search and seizure, the exigency had terminated.

Thus, in the terms of the Carroll Court, aircraft NS69MA,

at the time of the initial search and seizure, more resem-.~

bled a house or a building rather than a mobile vehicle.

267 U.S. at 153.

The Fifth Circuit’s reliance on Chambers and White is

misplaced.

* * * The rationale of Chambers is that given a

justified initial intrusion, there is little difference

between a search on the open highway and a later

search at the station. Here, we deal with the

prior question of whether the initial intrusion is

justified. For this purpose, it seems abundantly

15

clear that there is a significant constitutional dif-

ference between stopping, seizing, and searching

a car on the open highway, and entering private

property to seize and search an unoccupied, parked

vehicle * * *. Coolidge v. New Hampshire, 403

U.S. at 463 n. 20 (emphasis in original).

See also, Cardwell v. Lewis, 417 U.S. 583, 593, 94 S. Ct.

2464, 41 L.Ed. 2d 325 (1974). Here, there is no justifi-

cation for the initial warrantless seizure and search.

The holding of the Fifth Circuit that a non-mobile ve-

hicle may be searched any time after probable cause is

generated also conflicts with recent post-Chambers-

Coolidge decisions. United States v. Chadwick, 532 F.2d

773 (1 Cir. 1976), cert. granted, October 4, 1976, No.

75-1721; United States v. McCormick, 502 F.2d 281 (9

Cir. 1974); United States v. Bradshaw, 490 F.2d 1907 (4

Cir. 1974), cert. denied, 419 U.S. 895 (1974); cf. United

States v. Robinson, 533 F.2d 578 (D.C. Cir. 1976), cert.

denied, __ U.S. __, 96 S. Ct. 1432 (1976). Similarly,

articles on this question in various law review publications

strongly support the argument that the Carroll doctrine

only applies when the vehicle is mobile at the time of the

initial search or seizure. See, e.g., Note, Warrantless Searches

and Seizures of Automobiles, 87 Harv. L. Rev. 835, 842

(1974); Note, Mobility Reconsidered: Extending the Car-

roll Doctrine to Movable Items, 58 lowa L. Rev. 1134,

1137 (1973); Note, Warrantless Searches and Seizures of

Automobiles in the Supreme Court from Carroll to Card-

well: Inconsistency Through the Seamless Web, 53 N.C.

L. Rev. 722, 727-28 (1975).

Thus, the Fifth Circuit’s opinion goes beyond the param-

eters of the so-called automobile exception to the warrant

requirement of the Fourth Amendment. Its rationale means

16

that once exigent circumstances exist they do not dissolve

even if the basis for the exigency no longer exists. This

holding would make the automobile “exception” the rule

and turn the word “automobile” or “aircraft” into a talis-

man ““* * * in whose presence the Fourth Amendment

fades away and disappears.”’ Coolidge v. New Hampshire,

403 U.S. at 461-62. Consequently, this Court should grant

certiorari in order to announce that the test to be applied

in creating exigency premised on mobility is whether the

vehicle is mobile at the time of the initial search or seiz-

ure and not whether the vehicle was mobile sometime earlier

when probable cause was generated.

CONCLUSION

The questions presented above go to the heart of the

Fourth Amendment’s protection against unreasonable and

warrantless searches and seizures. These questions must

be answered if the protections afforded by that Amend-

ment to all citizens, whether innocent or guilty, are to

have continuing viability. Therefore, it is respectfully

submitted that this petition for writ of certiorari be

granted and the judgment of the Fifth Circuit be reviewed.

Respectfully submitted,

/s/ JAMES M. RUSS

I. PAUL MANDELKERN

Law Offices of James M. Russ

441 First Federal Building

109 East Church Street

Orlando, Florida 32801

Telephone: (305) 849-6050

Attorneys for Petitioner

APPENDIX A

CORRECTED

UNITED STATES v. BRENNAN

UNITED STATES of America,

Plaintiff-Appellee,

v.

John J. BRENNAN,

Defendant- Appellant.

No. 75-3939.

United States Court of Appeals,

Fifth Circuit.

Sept. 13, 1976.

Defendant was convicted before the

United States District Court for the Mid-

dle District of Florida, George C. Young,

Chief Judge, and he appealed challeng-

ing validity of warrantless search of his

airplane that disclosed marijuana on

which convictions were based. The

Court of Appeals, Clark, Circuit Judge,

held that search at airport which was

not functional equivalent of border did

not possess characteristics of border

search or other regular inspection proce-

dures; that customs officials involved

did not possess, because of their status,

authority to search plane for contraband

at airport without probable cause or

warrant; but that both probable cause

and exigent circumstances were present-

ed to law enforcement officers at airport

justifying search of plane under tradi-

tional Fourth Amendment standards.

Affirmed.

1. Customs Duties <= 126

No warrant or showing of probable

cause is required to support searches for

contraband at functional equivalent of

border.

2. Searches and Seizures *=3.3(2)

Where, inter alia, international

flights made up only small percentage of

traffic at airport and there was no at-

5581

tempt by airport officials to screen and

separate international flights at takeoff

and landing, and facts did not furnish

any reliable indication that flight by de-

fendant, who filed no flight plan and

whose only known direction of travel led

toward metropolitan center in South

Florida, was international, search of de-

fendant’s airplane at airport, which was

not functional equivalent of border, did

not possess characteristics of border

search or other regular inspection proce-

dures but more resembled common non-

border search based on individualized

suspicion which must be prefaced by

usual warrant and probable cause stan-

dards.

3. Customs Duties ¢=126

Neither agents of border patrol nor

customs service may conduct search on

less than probable cause at point other

than border or its functional equivalent,

and thus customs officials involved did

not, because of their status, possess au-

thority to search defendant’s airplane for

contraband at airport which was not

functionai equivalent of border without

probable cause or warrant. 19 U.S.C.A.

§ 482; Immigration and Nationality Act,

§ 289, 8 U.S.C.A. § 1357.

4. Searches and Seizures @=3.3(1)

Warrantless searches require same

investigative basis in fact or reasonable

conjecture as searches under warrant,

which information may be supplied in

whole or in part by informant.

5. Searches and Seizures ¢=3.3(2)

Where insufficient information

about tip and tipster is available to justi-

fy reliance upon tip alone, investigating

officers may supplement tip by surveil-

lance of subject or corroboration of key

elements of tip from relatively objective

sources so as to provide probable cause

6. Searches and Seizures *=3.3(1)

Basis of informant’s knowledge and

information justifying belief in infor-

mant as a person or in intrinsic reliabili-

ty of his tip must be present in order to

justify search on basis of tip alone.

7. Searches and Seizures *=7(20)

Where law enforcement officials de-

tected aircraft proceeding down taxiway

in dark with its lights off at time almost

exactly that predicted by informant,

whose statement that defendant was go-

ing to smuggle 1,600 or 1,700 pounds of

marijuana into United States was insuf-

ficient in itself as basis for search and

seizure, in his estimate of time required

for smuggling trip, equivocal informa-

tion ripened into probable cause on the

scene and thus, since exigent circum-

stances existed for search of airplane be-

cause of its mobility and because of rea-

sonable inference that confederates

might be present with attendant danger

of destruction or dispersion of evidence

if warrant procedure was followed, war-

rantless search of airplane was justified

under traditional Fourth Amendment

standards. U.S.C.A.Const. Amend. 4.

8. Searches and Seizures *=7(10)

Allowing chances of escape or armed

confrontation with law enforcement offi-

cials to decrease by permitting airplane

to proceed to hangar even though, be-

cause of its mobility, airplane could have

been stopped and searched any time af-

ter probable cause for search was gener-

ated when airplane was identified on

taxiway, did not violate defendant's

Fourth Amendment rights. U.S.C.A.

Const. Amend. 4.

Appeal from the United States Dis-

trict Court for the Middle District of

Florida.

2a

UNITED STATES v. BRENNAN

Before TUTTLE, AINSWORTH and

CLARK, Circuit Judges.

CLARK, Circuit Judge:

A warrantless search of defendant’s

airplane disclosed the marijuana on

which his convictions were based. Its

validity is the only issue on appeal. Our

rejection of the district court’s rationale

that the airport at which the search oc-

curred was the functional equivalent of

the border requires that we examine the

authority of the searching Customs

agent. Having concluded that, after

United States v. Almeida-Sanchez, 413

U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596

(1973), Customs agents possess no au-

thority to search on less than probable

cause at points removed from the border

or its functional equivalent, we have re-

viewed the facts and circumstances

which led to the search to determine

whether probable cause and exigent cir-

cumstances existed to justify the offi-

cers’ actions. This final analysis reveals

that the search was good, and the con-

victions are affirmed.

I.

On April 22, 1976, Drug Enforcement

Administration (DEA) agent Dennis

Fitzgerald received a telephone call from

Douglas Dufresne, a Pan American

World Airways pilot. Dufresne told

Fitzgeraid that he had information lead-

ing him to suspect that John J. Brennan

“was going to engage in some smuggling

activities into the Melbourne Regional

Airport.” Prior to the call, Fitzgerald

had had no dealings with Dufresne and

had never heard of Brennan.

On April 25, Fitzgerald and another

DEA agent met with Dufresne at his

residence. At this meeting, Dufresne

described Brennan’s plane as a 1969 twin

UNITED STATES v. BRENNAN

engine Beagle, blue and gold in color,

with tail number N569MA, and told the

agents that the aircraft was kept in a

hangar at the Melbourne Regional Air-

port. He also recounted a trip to Colom-

bia he had made with Brennan in No-

vember 1974, during which the two of

them had been arrested by Colombian

police and kept in jail for about a month.

After investigation and court proceed-

ings, all charges were dropped, and

Brennan and Dufresne were allowed to

leave Colombia. Dufresne never dis-

closed the basis, if any, for the arrest

and detention. Finally, Dufresne told

the agents he suspected that Brennan

would install a 55-gallon auxiliary fuel

tank in the Beagle to enable him to

make a flight to Colombia and back

without refueling and that the purpose

of the trip would be to smuggle in 1600

or 1700 pounds of marijuana. Du-

fresne’s load estimate was based on his

own guess as to the plane’s capacity and

not on anything Brennan had told him.

On April 28, 1975, Dufresne called

Fitzgerald and reported that he had

recently talked to Brennan by phone and

inferred from the conversation that the

smuggling trip would take place within

the next two or three weeks. Dufresne

stated to Fitzgerald that this inference

was based on Brennan’s purchase of the

plane and insurance for it in the amount

of $95,000 at a time when he, Dufresne,

had personal knowledge that Brennan

was experiencing great difficulty in

meeting the day-to-day living expenses

3a

of his family. When Dufresne asked

Brennan about his expensive purchase,

the latter had replied, “I am just doing

my thing.” Brennan had also requested

that Dufresne try to locate a second-

hand loran—an overwater navigational

device suitable for ship or aircraft use.

Brennan had said the loran was for “his

brother’s boat.”

Fitzgerald confirmed that aircraft

N569MA was hangared at the Melbourne

Regional Airport. When he contacted

the American Embassy in Colombia to

investigate the November 1974 arrest of

Brennan and Dufresne, he learned that

three suspected smugglers, Richard H.

Silkie, James King, and Richard Ferrara,

had been jailed at the same time, but

further investigation failed to establish

any relationship between Brennan, Du-

fresne and the three or what charges

had been made against Brennan and Du-

fresne. The E) Paso Intelligence Center

was notified to put the tail number of

the aircraft into its computer which was

used to collect and report possible smug-

gling-related flight activity.

On May 17, 1975, at approximately

11:00 a. m., Fitzgerald received word

that the Beagle aircraft had taken off

from Melbourne and was headed in a

southwesterly direction. Alleged radar

contact with the plane was lost when it

entered the air traffic pattern over Mi-

ami.' Fitzgerald contacted Customs of-

ficers headquartered at Tampa, advised

them of the Dufresne tips and the flight

of N569MA, and requested assistance.

An estimated 6 to 7 hours later, two

Customs agents, Hays and Miller, were

dispatched to the Melbourne airport;

they arrived at 5:00 p. m. At approxi-

mately 1:30 a. m. on the morning of May

18, the Customs agents sighted a Beagle

aircraft moving along the taxiway lead-

ing to the hangar normally occupied by

the Brennan plane and identified it as

N569MA. The plane taxied to the door

of the hangar, at which time the agents

drove their van to another location near

the hangar. During this time, a white

male later identified as Brennan exited

the hangar and headed toward his near-

by automobile. Upon encountering a

Melbourne police officer, Brennan head-

ed back toward the hangar, where he

was detained by DEA agents. Agent

Hays entered the hangar through its

partially open door and approached the

plane. Observing through the window

of the airplane a number of tightly

wrapped packages characteristically used

to transport marijuana, he decided to

conduct a full search of the plane, which

disclosed 60 packages of marijuana total-

ing approximately 1600 pounds and one

bundle containing 466 grams of hashish.

Following this discovery, Brennan was

arrested.

After a hearing at which this testimo-

ny was developed, the district court de-

nied the motion to suppress, ruling that

the Melbourne airport is the functional

equivalent of the border “with regards

to those aircraft actually arriving from

outside the United States.” The district

court characterized the test to be applied

to the facts in making the determination

of functional equivalency was “whether

there was reasonable cause to believe

that defendant's plane did in fact arrive

from outside the United States.” Final-

ly, in applying that test, the court found

that “[cjonsidering all factors involved,

4a

UNITED STATES v. BRENNAN

including the information given the

government agents by the confidential

informant who had been in close contact

with the defendant,” reasonable cause

existed for such a belief.

II.

{1] This court must first determine

whether the district court was correct in

deciding that the search took place at

the functional equivalent of the border.

If so, the agents were entitled to con-

duct a full search for contraband with-

out particularized knowledge of what

Brennan or his plane was carrying. Al-

meida-Sanchez v. United States, 413 U.S.

266, 272-273, 93 S.Ct. 2535, 2589, 37

L.Ed.2d 596 (1973); Carroll v. United

States, 267 U.S. 132, 154, 45 S.Ct. 220,

285, 69 L.Ed. 543 (1925). No warrant or

showing of probable cause is required to

support such searches. The national in-

terests in self-protection and protection

of tariff revenues authorize a require-

ment that persons crossing the border

identify themselves and their belongings

as entitled to enter and be subject to

search.

In writing for the court, Justice Stew-

art did not define the “functional equiv-

alent” phrase; instead he gave illustra-

tive examples:

For example, searches at an estab-

lished station near the border, at a

point marking the confluence of two

or more roads that extend from the

border, might be functional equiva-

lents of border searches. For another

example, a search of the passengers

and cargo of an airplane arriving at a

St. Louis airport after a nonstop flight

from Mexico City would clearly be the

functional equivalent of a border

search.

United States v. Almeida-Sanchez, supra,

413 U.S. at 272-78, 98 S.Ct. at 2589. In

Sa

UNITED STATES v. BRENNAN

the first example there inheres a high

degree of probability that a border cross-

ing took place and an attendant likeli-

hood that nothing about the object: of

the search has changed since the cross-

ing. The location of the checkpoint ac-

cording to the criteria customarily em-

ployed by ranking Border Patrol officials

minimizes the uncertainty, and statistical

study of those passing through the

checkpoint gives both the officers on the

scene and the reviewing courts a bench-

mark against which to measure it.2 In

the case of the airport search of the

nonstop flight, both assumptions become

certainties. Thus, as Justice Stewart

pointed out, the search of the nonstop

flight “would clearly be” a search at the

functional equivalent of the border,

whereas a search at a checkpoint “might

be”—if the facts and circumstances with

respect to the location provided the nec-

essary degree of certainty that persons

and objects passing through that location

were entering the country unchecked.

At Almeida’s “functional equivalent,”

there neither is nor need be any evidence

pointing to specific persons as “suspects”

before they pass through the location.

[2] The Melbourne Regional Airport

was not the functional equivalent of the

border when Brennan’s plane landed and

taxied into its hangar. Two factors lead

us to this conclusion. First, internation-

al flights make up only a small percent-

age of the traffic at the airport, and

there was no attempt by airport officials

to screen and separate international

2. See United States v. Martinez-Fuerte, —

US. ——, ——, 96 S.Ct. 3074, 3079, 48

L.Ed2d ——, 44 US.L.W. 5336, 5338-39

(1976); United States v. Baca, 368 F.Supp.

398, 406-07 (S.D.Cal.1973).

3. Customs inspector Joseph Birnbaum testified

at the suppression hearing that 23 internation-

flights at takeoff and landing.? While it

is true that a nonstop flight arriving

from outside the country “brings the

border with it,” the facts here do not

furnish any reliable indication that Bren-

nan’s flight was international. He filed

no flight plan and his only known di-

rection of travel led toward a metropoli-

tan center in south Florida. The as-

sumed international origin, which was

crucial in Justice Stewart’s nonstop

flight example, is simply too attenuated

here to support this search as one occur-

ring at a functional equivalent of an in-

ternational border. Second, the regulari-

ty factor emphasized in United States v.

Martinez-Fuerte, ——- U.S. ——, 96 S.Ct.

3074, 48 L.Ed.2d ——- (decided July 6,

1976, 44 U.S.L.W. 5336), is absent here.

At a ground traffic checkpoint, at the

end of a ship’s gangplank, or at an es-

tablished Customs station, each encoun-

ter between private citizen and public

official begins in substantially the same

way. The intrusion is minimal, the ex-

istence and function of the checkpoint is

known to the citizen in advance of his

entry into its lanes, there is little discre-

tionary enforcement activity, and the re-

sults of the checking procedure may be

reviewed by the courts without distor-

tion of the issue of reasonableness by

hindsight knowledge that the search pro-

duced the desired fruits, if any, of the

stop or search. See United States v.

Martinez-Fuerte, supra, —— US. at

——, 96 S.Ct. at 3082, 44 US.LW. at

5340-42. By contrast, the operation here

involved a full search, was not anticipa-

al flights landed at Melbourne Regional Air-

port in May, 1975, and that the total number

of international flights for a period from May

1, 1974 to May 3, 1975 was 303, or slightly

less than one per day. However, the statistics

6a

ted by the subject, involved discretionary

decisions at several levels of authority,

and was so particularized to the suspi-

cions of defendant’s activities that the

success of the search clearly cast an aura

of reasonableness on the encounter itself.

In sum, this search did not possess the

characteristics of a border search or oth-

er 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,

unless the authority of the searching of-

ficials is not controlled by Almeida-San-

chez.

ITI.

[3] Thus, the next question is wheth-

er the Customs officials involved, be-

cause of their status, possessed the au-

thority to search Brennan’s plane for

contraband at the Melbourne airport

without probable cause or a warrant.

This portion of our review must con-

front the question reserved in United

States v. Freund, 525 F.2d 873 (5th Cir.

1976), cert. denied, —— USS. , 6

S.Ct. 2631, 49 L.Ed.2d 377; United

States v. Soria, 519 F.2d 1060 (5th Cir.

1975): to what extent is the law of Cus-

toms searches affected by the Supreme

Court's decisions in Almeida-Sanchez v.

United States, 413 U.S. 266, 93 S.Ct.

2535, 37 L.Ed.2d 596 (1973), and subse-

quent cases involving Border Patrol

agents.‘ After examining the legislative

and judicial history of “border search”

authority (particularly the A/meida-San-

4. Bowen v. United States, 422 U.S. 916, 95

S.Ct. 2569, 45 L.Ed2d 641 (1975); United

States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45

L.Ed.2d 623 (1975); United States v. Brignoni-

Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d

607 (1975); United States v. Peltier, 422 U.S.

531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).

UNITED STATES v. BRENNAN

chez family of decisions) and the policy

basis adopted by these authorities, we

conclude that after Almeida-Sanchez nei-

ther agents of the Border Patrol nor of

the Customs Service may conduct a

search on less than probable cause at a

point other than the border or its func-

tional equivalent.

In Soria this court distinguished Cus-

toms searches from Border Patrol

searches during the period prior to June

21, 1973, the effective date of Almeida-

Sanchez. However, the panel acknowl-

edged that the principal grounds for dis-

tinction were the nonretroactive effect

assigned to Almeida-Sanchez coupled

with the statutory and regulatory roles

assigned to the Customs and Border Pa-

trol agencies. Pre-Almeida-Sanchez

searches by Border Patrol agents were

governed by statutes, regulations and

decisions granting immigration officials

unfettered discretion to search any vehi-

cle for aliens within the 100-mile radius

of the border. United States v. Soria,

supra, 519 F.2d at 1062. However, since

Customs officials were bound to observe

the “reasonable suspicion/border nexus”

test even before Almeida-Sanchez, see id.

at 1062-63, Soria simply does not affect

today’s analysis, which is directed toward

determination of post-Almeida-Sanchez

customs search law.

Customs searches have a longer histo-

ry than Border Patrol activities. The

First Circuit noted in construing the

predecessor of the present Customs

search statute,’ that laws conferring the

right to search persons and vessels at or

5. Search of vehicles and persons

and examine, as well without as within their

7a

UNITED STATES v. BRENNAN 5587

near international boundaries have exist-

ed since the foundation of the govern-

ment. See Lee v. United States, 14 F.2d

400, 404 (Ist Cir. 1926), rev'd, 274 US.

559, 47 S.Ct. 246, 71 L.Ed. 1202 (1927);

Act of July 31, 1789, ch. 5, 1 Stat. 43

ject to duty, or shall have been introduced

into the United States in any manner con-

trary to law, whether by the person in pos-

session or charge, or by, in, or upon such

vehicle or beast, or otherwise, and to search

any trunk or envelope, wherever found, in

which he may have a reasonable cause to

suspect there is merchandise which was im-

ported contrary to law; and if any such offi-

cer or other person so authorized shall find

any merchandise on or about any such vehi-

cle, beast, or person, or in any such trunk or

envelope, which he shall have reasonable

cause to believe is subject to duty, or to

have been unlawfully introduced into the

United States, whether by the person in pos-

session or charge, or by, in, or upon such

vehicle, beast, or otherwise, he shall seize

and secure the same for trial.

19 U.S.C. § 482 (1970). See also 19 U.S.C.

§§ 1481-82 (1970).

6. Powers of immigration officers and

employees—Powers without

warrant

(a) Any officer or employee of the Service

authorized under regulations prescribed by

the Attorney General shall have power with-

out warrant—

(1) to interrogate any alien or person be-

lieved to be an alien as to his right to be or

to remain in the United States;

(2) to arrest any alien who in his presence

or view is entering or attempting to enter

the United States in violation of any law or

regulation made in pursuance of law regulat-

ing the admission, exclusion, or expulsion of

aliens, or to arrest any alien in the United

States, if he has reason to believe that the

_alien so arrested is in the United States in

“Violation of any such law or regulation and

is likely to escape before a warrant can be

obtained for his arrest, but the alien arrested

shall be taken without unnecessary delay for

examination before an officer of the Service

having authority to examine aliens as to

their right to enter or remain in the United

States.

(3) within a reasonable distance from any

external boundary of the United States, to

(1789). Immigration searches are of con-

siderably more recent vintage. There

was no restriction of immigration at all

until 1875, and the authority for Border

Patrolmen to search was not codified un-

til 1925.§

board and search for aliens any vessel with-

in the territorial waters of the United States

and any railway car, aircraft, conveyance, or

vehicle, and within a distance of twenty-five

miles from any such external boundary to

have access to private lands, but not dwell-

ings, for the purpose of patrolling the border

to prevent the illegal entry of aliens into the

United States; and

(4) to make arrests for felonies which

have been committed and which are cogni-

zable under any law of the United States

regulating the admission, exclusion, or ex-

pulsion of aliens, if he has reason to believe

that the person so arrested is guilty of such

felony and if there is likelihood of the person

escaping before a warrant can be obtained

for his arrest, but the person arrested shall

be taken without unnecessary delay before

the nearest available officer empowered to

commit persons charged with offenses

against the laws of the United States. Any

such employee shall also have the power to

execute any warrant or other process issued

by any officer under any law regulating the

admission, exclusion, or expulsion of aliens.

Search without warrant

(c) Any officer or employee of the Service

authorized and designated under regulations

prescribed by the Attorney General, whether

individually or as one of a class, shall have

power to conduct a search, without warrant,

of the person, and of the personal effects in

the possession of amy person seeking admis-

sion to the United States, concerning whom

such officer or employee may have reasona-

ble cause to suspect that grounds exist for

exclusion from the United States under this

chapter which would be disclosed by such

search.

8 U.S.C. § 1357 (1970) formerly 8 U.S.C. § 110

(1946). The Immigration and Nationality Act

of 1924, Act of May 26, 1924, 43 Stat. 153, was

amended three times to provide gradually ex-

panded arrest and search powers to immigra-

As the number of customs and immi-

gration violations increased, single offi-

cers were empowered to investigate both

types of crime. In 1959, this court first

decided a case involving one of thes

two-hatted agents, calling the search a

“border search,” and citing both immi-

gration search and customs search cases.

See United States v. Ramirez, 263 F.2d

385, 387 (5th Cir. 1959), citing King v.

United States, 258 F.2d 754 (5th Cir.

1958), cert. denied, 359 U.S. 939, 79 S.Ct.

652, 3 L.Ed.2d 639 (1959) (customs);

Haerr v. United States, 240 F.2d 533 (5th

Cir. 1957); Flores v. United States, 234

F.2d 604 (5th Cir. 1956) (immigration).

A year later, in Barrera v. United

States, 276 F.2d 654 (5th Cir. 1960), a

search by agents acting under authority

of the customs laws alone was upheld on

the authority of Ramirez and King;

Haerr was cited in a footnote. Other

circuits alternately distinguished Cus-

toms and Border Patrol searches and

lumped them together as “border

searches” governed by similar, if not

identical, considerations.’

Almeida-Sanchez_ required probable

cause for searches by roving patrols in

the vicinity of the border. See 413 U.S.

at 273, 93 S.Ct. at 2539-40, 37 L.Ed.2d at

602. In United States v. Ortiz, 422 U.S.

tion officers. See Act of February 27, 1925,

ch. 364, tit. [V, 43 Stat. 1049 (establishing bor-

der and shore patrol, appropriating funds, and

giving arrest and search power in border

zone); Act of August 7, 1946, ch. 768, 60 Stat.

865 (adding power to arrest for crimes related

to illegal wnmigration where officers have

“reason to believe” such violations are occur-

ring); Act of March 20, 1952, ch. 108, § 2, 66

Stat. 26 (adding power to search private lands,

but not dwellings, within 25 miles of border).

Old § 110 was repealed and replaced by § 1357

in 1952 without comment by the recommend-

ing committee. See 1952—1 U.S.Code Cong.

& Admin. News p. 1653 (1952).

8a

UNITED STATES v. BRENNAN

891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975),

the Court held that searches without

warrant or probable cause at traffic

checkpoints which were not functional

equivalents of the border were constitu-

tionally invalid. In a case decided on

the same day, United States v. Brignoni-

Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45

L.Ed.2d 607 (1975), the Court drew the

line between authority to stop and right

to search more distinctly:

When an officer’s observations lead

him reasonably to suspect that a par-

ticular vehicle may contain aliens who

are illegally in the country, he may

stop the car briefly and investigate the

circumstances that provoke suspicion.

As in [Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 899 (1968)], the

stop and inquiry must be “reasonably

related in scope to the justification for

their initiation.” . . . The officer

may question the driver and passen-

gers about their citizenship and immi-

gration status, and he may ask them

to explain suspicious circumstances,

but any further detention or search

must be based on consent or probable

cause

422 U.S. at 881, 95 S.Ct. at 2580, 45

L.Ed.2d at 617. Up to this point, none

of the Almeida-Sanchez family of cases

7. Compare United States v. Saldana, 453 F.2d

352, 354 (10th Cir. 1972) (“broad and unique

powers given to customs and immigration offi-

cers at international borders and within imme-

diate areas”) (dicta); Jones v. United States,

326 F.2d 124, 131 (9th Cir. 1963), cert. denied,

377 U.S. 956, 84 S.Ct. 1635, 12 LEd2d 499

(1964) (concurring opinion) with Duprez v.

United States, 435 F.2d 1276 (9th Cir. 1970)

(stop of pickup justified under 8 U.S.C. § 1357,

but “noone . ..__ claiming this is a border

search"); United States v. Roa-Rodriquez, 410

F.2d 1206 (10th Cir. 1969) (Border Patrol stop

at Truth or Consequences, N.M., “not a border

search’’).

UNITED STATES v. BRENNAN

departed from. traditional Fourth

Amendment jurisprudence developed in

nonborder situations. Rather, they

merely applied that jurisprudence in a

new context. Searches, wherever con-

ducted, required probable cause. The

stopping of persons in vehicles for inter-

rogations and investigations less intru-

sive than a search could be upheld as

reasonable although the officer knew

less than enough to give him probable

cause to search or arrest.

Then, in United States v. Martinez-

Fuerte, supra, the Court held that a

brief investigatory stop could be con-

ducted at a reasonably located check-

point in the absence of any individual-

ized suspicion. —— U.S. at , %6

S.Ct. at 3084, 44 U.S.L.W. at 5341. The

basis for the official’s breach of the citi-

zen’s privacy was found in the counter-

vailing public interest expressed in a

border control statute, 8 U.S.C. § 1357,

which purported to do away with the

warrant and probable cause require-

ments of the Fourth Amendment. But

the Court made clear that its decision

rested not on the statute but on another

8. Almeida-Sanchez v. United States, 413 U.S.

266, 283-85, 93 S.Ct. 2535, 2544-45, 37

L.Ed.2d 596, 608 (1973) (Powell, J. concur-

ring); id. at 288, 289-91, 93 S.Ct. at 2547-49,

37 L.Ed.2d at 611 (White, J. dissenting); Unit-

ed States v. Biswell, 406 U.S. 311, 92 S.Ct.

1593, 32 L.Ed.2d 87 (1972) (place-of-business

inspection of firearms dealers pursuant to 18

U.S.C. § 923(g)); Colonnade Catering Corp. v.

United States, 397 U.S. 72, 90 S.Ct. 774, 25

L.Ed.2d 60 (1970) (liquor license inspections);

Camara v. Municipal Court, 387 U.S. 523, 87

S.Ct. 1727, 18 L.Ed.2d 930 (1967) (building

code inspections under “area warrants”); Car-

roll v. United States, 267 U.S. 132, 154, 45

S.Ct. 280, 285, 69 L.Ed. 543, 551 (1925).

9. The circumstance of nonreliance is telling,

because the language of the reasonable suspi-

cion/border nexus test draws its quantum-of-

knowledge standard from the language of the

9a

traditional Fourth Amendment excep-

tion—the regulatory inspection—by cit-

ing six cases or opinions acknowledging

or suggesting the existence of such an

exception.* It further limited its holding

by noting that its balance of the inter-

ests of the citizen against those of the

government dealt neither with searches

nor with private dwellings, but to vehi-

cles required only to stop briefly under

largely predefined procedures.

The singular characteristic of the Bor-

der Patrol cases is that the Supreme

Court has chosen in each instance to

strike its own balance of Fourth Amend-

ment “reasonableness,” without regard

to the express terms of 8 U.S.C. § 1357.

The Court has not relied on the statute

or its implementing regulation, despite

its language empowering Border Patrol

agents to make warrantless searches and

arrests within a reasonable distance of

the border and the definition of that dis-

tance as 100 air miles. At most, the

Court has indicated that the statute

identified a potential governmental in-

terest to be balanced against individual

rights and affirmed the government’s in-

tent to act to protect that interest.’

Customs search statute. On its face, the Cus-

toms search statute provides no spatial limita-

tion on the search power. The “border nexus”

portion of the test is a leter judicial gloss de-

signed to save the statute from patent uncon-

stitutionality. See; e. g., United States v. tem-

bert, 284 F. 996, 1004 (S.D.Tex.i922). Cf.

General Motors Acceptance Corp. v. United

States, 62 F.2d 214 (5th Cir. 1932); Thill v.

United States, 66 F.2d 432 (9th Cir. 1932);

United States v. One Hudson Coach, 57 F.2d

539 (W.D.N.Y.1932). However, it antedates

Almeida-Sanchez. In light of the new dichoto-

my between searches at the border and

searches away from the border that case an-

nounces and the court's emphasis on an actual

border crossing, see 413 U.S. at 271-72, 93

S.Ct. at 2589, 39 L.Ed.2d at 601, the gloss is no

longer enough to save the reduced quantum-

of-knowledge standard.

With this historical perspective, then,

three factors persuade us that Almeida-

Sanchez applies equally to Customs and

Border Patrol searches. The first is the

common origin of immigration search

case law and customs search case law in

the Carroll dicta relating to international

boundaries. See Carroll v. United

States, supra, 267 U.S. at 154, 45 S.Ct. at

285, 69 L.Ed. at 551. As _ identified

there, the interest protected by both

statutes is the same: protection of physi-

cal or fiscal interests of the United

States against introduction of items

harmful in themselves or because of

their method of entry. In the Customs

context, things like narcotics fall into

the first category; others, such as tariff

items concealed to avoid payment of

duty, make up the latter. Border Patrol

agents look for “contraband people,”

whether they immigrated legally or

came in lawfully and overstayed or oth-

erwise became deporiable.

The second additional factor, which

should be considered in conjunction with

the first, is the accompanying govern-

mental interest in judicial economy. In

view of the substantial similarities be-

tween the government interests to be

protected and the consequences to inno-

cent members of the public if the proba-

ble cause barrier is lowered, we do not

believe the Supreme Court would have

created today’s intricate analytical struc-

ture for Border Patrol cases only.

Third, we note that other circuits have

assumed, usually without explicit discus-

sion, the applicability of Almeida-San-

chez concepts to searches by Customs of-

ficials.”

10. See, e. g., United States v. Solmes, 527 F.2d

1370 (9th Cir. 1975); United States v. Barbera,

514 F.2d 294 (2d Cir. 1975); United States v.

10a

UNITED STATES v. BRENNAN

In sum, regardless of the officers’ sta-

tus, warrantless searches such as Bren-

nan’s must be made on probable cause.

IV.

Since the search did not take place at

the functional equivalent of the border

and the officers making the search are

entitled to no special status under Almei-

da-Sanchez, we must inquire as to the

existence of probable cause to search.

We conclude that, through a combination

of hearsay information from the tip,

preflight corroboration of some of the

details, and the on-the-scene corrobora-

tion of Brennan’s surreptitious landing

at the predicted time and place, such

probable cause in fact did exist.

[4,5] It is settled law that warrant-

less searches require the same investiga-

tive basis in fact or reasonable conjec-

ture as searches under warrant. See

Carroll v. United States, 267 U.S. 132,

156, 45 S.Ct. 280, 286, 69 L.Ed. 543, 552

(1925). Such information may be sup-

plied in whole or in part by an infor-

mant. United States v. Harris, 408 U.S.

573, 91 S.Ct. 2075, 29 L.Ed.2d 822 (1971);

Spinelli v. United States, 393 U.S. 410,

89 S.Ct. 584, 21 L.Ed.2d 687 (1969);

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.

1509, 12 L.Ed.2d 723 (1964); Jones v.

United States, 362 U.S. 257, 80 S.Ct. 725,

4 L.Ed.2d 697 (1960); Draper v. United

States, 358 U.S. 307, 79 S.Ct. 329, 3

L.Ed.2d 327 (1959). Where insufficient

information about the tip and the tipster

is available to justify reliance upon it

alone, investigating officers may supple-

ment the tip by surveillance of the sub-

ject or corroboration of key elements of

the tip from relatively objective sources.

Beck, 483 F.2d 203 (3d Cir. 1973), cert. denied,

414 U.S. 1132, 94 S.Ct. 873, 38 LEd2d 757

(1974).

lla

UNITED STATES v. BRENNAN

Although there is no consensus on the

type of information required to corrobo-

rate an informant’s tip," it is generally

agreed that the better practice is to ob-

tain corroboration of incriminating de-

tails. See Spinelli v. United States, su-

pra, 393 U.S. at 414, 89 S.Ct. at 588, 21

L.Ed.2d at 642; Moylan, Hearsay and

Probable Cause: An Aguilar and Spinel-

li Primer, 25 Mercer.L.Rev. 741 (1974).

However, an accumulation of innocent

detail conforming to the original tip has

been held to have corroborative value.

See, e. g., United States v. Holliday, 474

F.2d 320 (10th Cir. 1973).

{6} Neither Dufresne nor his tip met

the Aguilar standards for informant

credibility or informational reliability,

even if the modified standards for first-

time informants are employed. See

United States v. P»'l, 457 F.2d 1231 (5th

Cir. 1978); McCreary v. Sigler, 406 F.2d

1264 (8th Cir.), cert. denied, 395 U.S. 984,

89 S.Ct. 2149, 23 L.Ed.2d 773 (1969).

Dufresne stated clearly that his belief

Brennan was going to engage in smug-

gling activity was his own extrapolation

from a number of factual details. Ob-

jectively, the content of the Brennan-

Dufresne telephone conversations is in-

sufficient as a basis for search or seizure.

Likewise, there is no sufficient basis in

the record for crediting Dufresne’s con-

clusions on the basis of Dufresne’s repu-

tation alone. Unlike the informant in a

typical drug case, Dufresne had no

“track record” of prior reliable tips; this

case represented his first contact with

law enforcement officials and the con-

tent of the tip revealed an intimate asso-

ciation with Brennan and his activities.

11. Compare United States v. Larkin, 510 F.2d

13, 15 (9th Cir. 1974) (corroboration of suspi-

cious details required); Thompson v. White,

391 F.2d 724 (Sth Cir. 1968), 406 F.2d 1176,

1178 (1969) (after remand) (corroboration of

5591

Aguilar teaches that (1) the basis of the

informant’s knowledge and (2) the infor-

mation justifying belief in the informant

as a person or in the intrinsic reliability

of his tip must be present in order to

justify a search on the basis of the tip

alone. See 378 U.S. at 114, 84 S.Ct. at

1514, 12 L.Ed.2d at 723. Even though

the nature of Dufresne’s employment

and his direct contact and confidential

relationship with Brennan affords a

more reliable basis for assuming his

trustworthiness and that of his informa-

tion than would be present if Dufresne

were repeating an underworld rumor or

did not know aircraft capabilities, the

information presented by and about Du-

fresne in this record falls short of this

standard.

Similarly, the advance investigation

conducted by DEA officials failed to cor-

roborate enough of the significant de-

tails of Dufresne’s story to comply with

the Spinelli formula for curing deficient

tips. The fact of Brennan’s ownership

of a Beagle aircraft, even with the addi-

tion of information as to a particular

identifying number, is patently insuffi-

cient to justify a search; this is precisely

the type of innocent detail held to be of

insufficient corroborative value in Spi-

nelli itself. See 393 U.S. at 414, 89 S.Ct.

at 588, 21 L.Ed.2d at 642. Dufresne’s

story about his and Brennan’s incarcera-

tion in Colombia could have been more

valuable, but in view of the ultimate dis-

missal of the Colombian charge, we find

it insufficiently probative of Brennan’s

future plans to smuggle drugs into the

United States to hold that it supplied the

informational link missing in the tip.

detail, innocent-appearing in absence of tip,

sufficient) with United States v. Canieso, 470

F.2d 1224 (2d Cir. 1972) (corroboration of

purely innocent detail sufficient).

12a

Further, the agents’ failure or inability

to verify some of the more damaging

details reported by Dufresne—the instal-

lation of auxiliary fuel tanks, Brennan’s

precarious financial condition or his indi-

rect attempt to acquire a loran, for ex-

ample—over a relatively lengthy period

preceding Brennan’s anticipated date of

flight has, if anything, a slightly erosive

effect on the believability of Dufresne’s

account.

~ [7] Of course, the inability to amass

corroborating detail had two effects.

One effect was to render it highly un-

likely that a valid warrant could have

been obtained in advance of May 18. A

second and reciprocal effect was to re-

quire the additional investigation of

Brennan’s activities that led the DEA

and Customs officials to be on the scene

at the Melbourne airport on the morning

of May 18. At the point at which the

law enforcement officials detected the

Beagle aircraft proceeding down the tax-

iway in the dark with its lights off, at a

time almost exactly that predicted by

Dufresne in his estimate for the time

required for a smuggling flight, the

quai tum-of-knowledge ring closed

around Brennan in the manner approved

by the Supreme Court in Draper v. Unit-

ed States, 358 U.S. 307, 79 S.Ct. 329, 3

L.Ed.2d 327 (1959). Through self-corrob-

oration, equivocal information ripened

into probable cause on the scene.

{8} In cases where searches are made

without warrants, the Supreme Court

has decreed that the existence of proba-

ble cause must be accompanied by cir-

cumstances rendering the warrant proce-

dure impracticable. Warden v. Hayden,

388 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d

782 (1967). We believe that those exi-

gent circumstances were present here

UNITED STATES v. BRENNAN

when Brennan landed at the airport in

his Beagle aircraft. Because of its mo-

bility the plane could have been stopped

and searched any time after probable

cause was generated, i. e., as soon as it

was identified on the taxiway. How-

ever, an attempt by the agents on the

scene to have surrounded the plane on

the taxiway might have resulted in

alerting Brennan or in injury to the offi-

cers or others present at the airport.

Accordingly, we do not believe that it

was a violation of Brennan's Fourth

Amendment rights to allow the chances

of escape or armed confrontation with

the officers to decrease by permitting

him to proceed to his hangar. Further,

in a very real sense, this case is analo-

gous to Chambers v. Maroney, 399 U.S.

42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970);

Texas v. White, 423 U.S. 67, 96 S.Ct. 304,

46 L.Ed.2d 209 (1975), and Warden v.

Hayden, supra. Without holding that

an airplane is the legal equivalent of an

automobile for purposes of search and

seizure, we note that the slightly greater

difficulty of getting away from the

scene in an airplane occasioned by the

need to achieve takeoff speed is offset

by the 360-degree range of airborne es-

cape routes. As in Warden v. Hayden,

and in contradistinction to Coolidge v.

New Hampshire, 403 U.S., 443, 91 S.Ct.

2022, 29 L.Ed.2d 554 (1971), the officers

followed Brennan into the place of

search with relatively little elapsed time.

See also United States v. Suntana, ——

U.S. ——., 96 S.Ct. 2406, 49 L.Ed.2d 300,

44 U.S.L.W. 4970 (1976). We note fur-

ther that both the car and the panel

truck outside the hangar were registered

to Brennan. Since one person cannot

drive two cars at once, and since it is

unlikely that one person would conduct

an entire smuggling operation involving

13a

UNITED STATES v. BRENNAN

1600 pounds of marijuana alone, the

record supports the reasonableness of an

inference by the agents that confeder-

ates might be present, with an attendant

danger of destruction or dispersion of

the evidence if the warrant procedure

had been followed. See Guzman v. Es-

telle, 4938 F.2d 532, 536-38 (5th Cir.

1974); United States v. Scott, 520 F.2d

697 (9th Cir. 1975), cert. denied, 423 U.S.

1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976);

United States v. Holland, 511 F.2d 38

(6th Cir.), cert. denied, 421 U.S. 1001, 95

S.Ct. 2401, 44 L.Ed.2d 669 (1975); United

States v. Lewis, 504 F.2d 92, 102 (6th

Cir. 1974), cert. denied, 421 U.S. 975, 95

S.Ct. 1974, 44 L.Ed.2d 466. Accordingly,

we hold that on the facts presented by

this case, both probable cause and exi-

gent circumstances were presented to

the law enforcement officers at the Mel-

bourne Regional Airport and that the

search of Brennan’s plane was justified

under traditional Fourth Amendment

standards. Therefore the motion to sup-

press was properly denied and the con-

victions are

AFFIRMED.

Adm. Office, U.S. Courte—West Publishing Company, Saint Paul, Minn.

l4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-3939

D. C. Docket No. 75-64-Orl-Cr-Y

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JOHN J. BRENNAN,

Defendant-Appellant.

Appeal from the United States District Court for the

Middle District of Florida

Before TUTTLE, AINSWORTH and CLARK, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Middle District of Florida, and was argued by counsel:

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed.

September 13, 1976

Issued as Mandate:

15a

APPENDIX C

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT Ln whe ny and

EDWARD W. WADSWORTH : wun Gna. LA. 70130

Clerk OFFICE OF THE CLERK

October 20, 1976

TO ALL COUNSEL OF RECORD

No. 75-3939 — USA v. John J. Brennan

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition(s) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure; Lo-

cal Fifth Circuit Rule 12) the petition( ) for rehearing en

banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By Susan M. Gravors

Deputy Clerk

/smg

cc: Mr. James M. Russ RECEIVED

Mr. William F. Duane Oct. 22