672 F.

2d 1349
10 Fed. R. Evid. Serv. 359

UNITED STATES of America, Plaintiff-Appellee,

v.
John Terrance GARCIA, Phillip G. Jackman, DefendantsAppellants.
No. 81-5126.

United States Court of Appeals,

Eleventh Circuit.
April 12, 1982.

Donald F. Spain, Thomas G. Murray, Miami, Fla., for Jackman.

Ronald A. Dion, Entin, Schwartz, Angert, Dion, & Broudy, Alvin E.
Entin, North Miami Beach, Fla., for Garcia.
Linda Collins Hertz, Asst. U. S. Atty., Miami, Fla., Sidney M. Glazer,
Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of
Florida.
Before MORGAN, KRAVITCH and HENDERSON, Circuit Judges.
KRAVITCH, Circuit Judge:

The major issues raised by this appeal concern the validity of a search by the
government of appellants' aircraft. Since we find appellants' challenges to be
without merit, we affirm the denial of appellants' suppression motion and
appellants' ensuing convictions.

I. Facts
2

At 3:04 p.m. on January 25, 1980, an unidentified aircraft flying toward

southeastern Florida crossed the air defense identification zone (ADIZ). The
crossing was registered on radar by Air Force personnel who immediately

alerted the Homestead Air Force Base near Miami. Within minutes two Air
Force planes departed from Homestead to intercept the unidentified aircraft.
The Air Force planes were vectored by ground radar to a light twin-engine
aircraft, which they intercepted over the ocean about thirty-six nautical miles
from Homestead. Major Calvin Hoge, the pilot of the lead plane, testified at
trial that he flew by the right side of appellants' plane and observed that it was
American, was white with a red stripe, and that no tail number was visible. He
followed the aircraft as it flew toward the United States and eventually landed
at Rock Harbor Key, Florida. The Air Force planes remained airborne, with
Major Hoge circling at an altitude of 7000 feet over the airport where the
intercepted craft had landed. Hoge testified that the aircraft was on the ground
for a period of five to ten minutes before it began to taxi for take-off. He
testified further that he did not observe any person exit or board the plane while
it was on the ground and that only one other plane landed while he was
circling, though there were other planes already on the ground at the airport.1
Before appellants' plane departed, a U. S. Customs plane arrived in the vicinity,
and Hoge informed its pilot, Douglas Cockes, that the twin-engine plane about
to take off was the one he had intercepted. From that point the Customs plane
followed appellants' aircraft, and the Air Force planes returned to Homestead.
3

Cockes testified that he followed the aircraft, which he described as a Piper

Aztec of light color with red and blue trim, from the airport where it had first
landed westward to Sugar Loaf Key where it landed again several minutes later.
In the interim, while following the plane and from a point 100-200 yards
behind it and 20-30 feet below it in altitude, Cockes observed the emergency
exit on the left rear of the plane open and saw someone throw what appeared to
be maps and a navigation computer out of the plane. Three dark, wrapped
packages were then jettisoned, one of them striking the windshield of the
Customs plane. Cockes testified that the packages were about six to eight
inches in length and five inches in circumference, and that one of them was
"split open" with a "white powdery substance ( ) streaming out of it." Finally,
something that appeared to Cockes to be money was ejected from the plane.

Cockes watched the plane land at the end of a road in a mangrove 2 area. He
testified that the nearest buildings were about two miles away and that, except
for the occupants of one pickup truck driving away from the area when the
plane landed, he observed no other people in the vicinity. The Customs plane
descended to a point twenty to thirty feet above the ground, and Cockes
observed two white males, one without a shirt, exit the aircraft and enter a
thicket of mangroves nearby. Meanwhile Cockes had contacted a ground unit of
Customs Patrol, which he directed by radio to the area of the landing. He gave
the Customs officers a physical description of the two men and advised them

that the plane had come from outside the United States. When the officers
arrived, Cockes made a "low pass" over the bush area in which he believed the
men had gone and then departed from the immediate area to land on a different
part of the island.3 He returned to the mangrove area while the Customs
officers were still at the site, and saw the officers emerge from the mangroves
with two men who appeared from their clothing to be the same persons he had
observed exiting the landed plane.
5

Testimony by members of the Customs ground patrol crew established that

about one and a half hours after the officers began their search they found
appellants in the mangrove bushes a quarter of a mile from the aircraft.
Appellants were sitting in a hollow area within the bushes that was too low for
them to stand in upright. One wore no shirt and had numerous cuts on his chest;
the other had cuts on his arms. Both were described as "sweating heavily."
According to the officers' testimony and a stipulation entered into by the
parties, Customs' search of the plane revealed nine cardboard boxes filled with
plastic bags containing methaqualone tablets and weighing a total of 918
pounds.

Appellants were indicted on two counts: conspiracy to possess methaqualone

with intent to distribute in violation of 21 U.S.C. 841(a)(1), 846, and
possession of methaqualone with intent to distribute in violation of 21 U.S.C.
841(a)(1). Before trial, appellants moved to suppress the evidence uncovered
during the search on the ground that Customs' search of the aircraft was not a
valid border search. Appellants also argued that the search was not justifiable
on grounds of abandonment because the government had not proved appellants
intended to abandon the plane. The district court reserved final ruling on the
suppression motion until after trial. A jury found appellants guilty on both
counts, and the judge denied appellants' subsequent motion for acquittal.

II. Border Search

7

It is well established that warrantless searches conducted at the international

borders of the United States do not violate the fourth amendment. United States
v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). "The bordersearch exception is grounded in the recognized right of the sovereign to control,
subject to substantive limitations imposed by the Constitution, who and what
may enter the country." Id. at 620, 97 S.Ct. at 1980. The Supreme Court held in
Ramsey that the reasonableness of such searches derives from "the single fact
that the person or item in question ha(s) entered into our country from outside"
and therefore is not dependent on the existence of probable cause. Id. at 619, 97
S.Ct. at 1980. Although the Ramsey Court did not address whether the fourth

amendment imposes some lesser standard of suspicion on border searches4 its

reasoning suggests that border searches can be conducted without any suspicion
of criminal activity, and subsequent Fifth Circuit cases have so held.5 E.g.,
United States v. Sandler, 644 F.2d 1163 (5th Cir. 1981) (en banc) (reasonable
suspicion not required for routine patdown search of international passenger);
United States v. Pringle, 576 F.2d 1114 (5th Cir. 1978) (warrantless search by
Customs of incoming international mail did not violate fourth amendment
despite absence of any ground for suspicion).
A. Proof of a Border Crossing
8

Appellants argue that the search of their aircraft was not a valid border search
because the government did not demonstrate with the requisite degree of
certainty that the aircraft crossed the United States border. As the Fifth Circuit
noted recently in United States v. Stone, 659 F.2d 569 (5th Cir. 1981), our prior
border search cases have not articulated a consistent standard governing the
degree of proof required to establish a border crossing.

Some cases have required evidence demonstrating a high degree of probability

that the border has been crossed. United States v. Ivey, 546 F.2d 139, 142 (5th
Cir.), cert. denied, 431 U.S. 943, 97 S.Ct. 2662, 53 L.Ed.2d 263 (1977); United
States v. Brennan, 538 F.2d 711, 715 (5th Cir.), cert. denied, 429 U.S. 1092, 97
S.Ct. 1104, 51 L.Ed.2d 538 (1977); United States v. Adams, 569 F.2d 924, 925
(5th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (5th Cir.
1978). Others have held that a border crossing must be proved by a
preponderance of evidence. United States v. Johnson, 588 F.2d (147) at 154;
United States v. Walters, 591 F.2d 1195, 1198, n.1 (5th Cir.), cert. denied, 442
U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1979). Still others have ruled that a
reasonable suspicion that the border has been crossed suffices. United States v.
Fogelman, 586 F.2d 337, 343 (5th Cir. 1978).

10

United States v. Stone, supra, 659 F.2d at 573. Comparing the facts in this case
to those of the above-cited cases expressing the most stringent standard of
proof, we conclude that the evidence here showed with sufficient certainty that
the border was crossed.

11

Appellants rely heavily on United States v. Brennan, supra, in which the Fifth
Circuit held that Customs agents' search of an aircraft after its landing at the
Melbourne Regional Airport in Florida was not a valid border search. The facts
of Brennan have been summarized as follows:

12

In United States v. Brennan, supra, the airplane which was the subject of the

12

In United States v. Brennan, supra, the airplane which was the subject of the
search had never been seen, or known to be, outside the United States. Though
it had last been seen flying in a direction that could have led it out of the
country, it was not tracked past the Miami, Florida, airport area. It is true that
the aircraft was not seen again until sufficient time had elapsed to permit an
international flight, and that the Customs Service had a tip indicating this
aircraft would be involved in smuggling drugs, but these factors were held to be
insufficient to establish that the plane had been to a foreign country. Before the
border search rationale is applicable, a nexus must be established between a
border and the object searched. This essential ingredient was missing in
Brennan.

13

United States v. Ivey, supra, 546 F.2d at 142 (citations omitted).

14

In United States v. Ivey, supra, the court distinguished Brennan and upheld the
search of an airplane as a valid border search. In Ivey appellants' aircraft, prior
to landing in the United States, had last been seen in South Caicos, a small
island in the British West Indies. It departed that island at 3:00 p.m. one
afternoon with a stated destination of Martinique (another West Indies island)
but without filing a flight plan. Customs officials, who apparently had been on
the lookout for the plane, were informed of its arrival at a small airport in
Florida at 3:00 a.m. the following morning. After the agents checked their
computer information system and discovered no record of the plane having
cleared Customs anywhere else in the United States during the interim, they
proceeded to search the plane. The court held these facts established with
"reasonable certainty" that a border crossing had occurred. United States v.
Ivey, supra, 546 F.2d at 142.

15

In United States v. Potter, 552 F.2d 901 (9th Cir. 1977), also cited by
appellants, the Ninth Circuit addressed the degree of proof necessary to
establish a border crossing in border-search cases. Although the standard
adopted by that court is very stringent6 , it upheld the search at issue as a valid
border search. In Potter, Customs agents followed a plane from the El Paso
International Airport to a point about 150 miles into Mexican air space. They
calculated how long it would take the plane to reach its projected destination in
Mexico and return to the United States, and instructed a ground radar unit to be
on alert for entering aircraft for a two-hour period during which they expected
the aircraft to return. Within the estimated arrival period, the radar unit detected
an airplane about fifty miles south of the U. S. border travelling northward
within Mexico. No flight plan for the plane had been filed. A Customs plane,
guided by the radar unit, followed the aircraft from a point shortly after it
crossed the border until it disappeared from the radar screen about one and a
half hours later. Within half an hour, an aircraft appeared on radar and

identified itself for approach to an airport in Las Vegas. When it landed

Customs officers searched it. The Ninth Circuit upheld the search, reasoning
that
16
(h)ere,
although the agents could not have been absolutely certain, we conclude that
the totality of the facts and circumstances were sufficient to warrant "a firm belief"
in the minds of the customs agents that the aircraft which entered the United States
at 3:35 A.M. on October 24 was N224G; that its first stop inside this country was
McCarran Airport; and that the marijuana and aircharts discovered must have been
aboard when the aircraft crossed the border.
17

United States v. Potter, supra, 552 F.2d at 907.

18

The evidence of a border crossing in this case is somewhat different in nature

than that presented in previous airplane border-search cases. In the above cases,
the evidentiary question centered on whether, in the absence of surveillance of
a border crossing, such crossing could be inferred from the sighting of the
plane at its point of departure within a limited period of time before its arrival
in the United States.7 In this case, no evidence of appellants' point of departure
was introduced. Rather, the evidence of the border crossing was direct. Major
Hoge testified that the alert communicated to him by the Air Force radar
personnel signified that the airplane to which he was directed, namely
appellants' plane, had crossed the air defense identification zone (ADIZ)
without having either identified itself or filed a flight plan.8 More importantly,
he testified that he intercepted appellants' plane at a location thirty-six miles
southeast of Homestead, which point he designated on a map for the court.
Appellants argue that the government did not present evidence that this point
was outside the U. S. border and hence did not sustain its burden of proof on
the border-crossing issue. The trial judge was free to take judicial notice of the
fact9 that the point described by Major Hoge was well beyond the three-mile
territorial limit that has been recognized as the border of the United States for
purposes of ocean border-crossing cases.10 Hence, we hold that the government
established with reasonable certainty that appellants' plane crossed the U. S.
border.

19

Appellants contend that even if a border crossing was established the

government must prove that the flight originated in a foreign country. We find
this argument to be without merit. In United States v. Stone, supra, 659 F.2d
569, a Fifth Circuit panel declined to require proof by the government that an
entering craft has left foreign land in order to justify a search under the bordersearch rationale once a border crossing had been established. Id. at 573. In
Stone, the defendant's plane had been monitored from a point over foreign

airspace until its entry into the United States and landing at the Orlando
International Airport. The plane had first been sighted in the vicinity of a
reported near mid-air collision over the Andros Islands, and its identity as the
plane involved in that incident was corroborated by its damaged condition as
observed by government officials after its arrival. Thus, although the panel
required no further proof that the plane's point of origin was foreign, the
government's evidence in Stone reasonably supported an inference that the
aircraft's origin was other than in the United States.
20

The broad language of Stone suggests that the question of point of origin has no
bearing on the reasonableness of a search so long as a border crossing has been
established.11 We would not be prepared to uphold as a border search, however,
a search of an aircraft whose known points of origin and landing were within
the United States simply by virtue of the fact that the plane had passed over
international waters en route. Many domestic flights necessarily transgress the
boundaries between national and international airspace in travelling the most
direct route between point of origin and destination. A flight from New Orleans
to Miami is an obvious example, as is one from San Francisco to Honolulu. Yet
there is no more justification for searching the aircraft or passengers who make
such flights than there would be for searching those whose domestic flights do
not happen to take them over the ocean on the way. Unlike boats, which may
rendevous with foreign vessels and take on illegal passengers or cargo while in
international waters, planes that pass through international airspace do not
present any possibility of foreign contacts other than that presented by their
actual stopping in a foreign country.12 Hence the question of proof of a border
crossing in the context of an airplane search, contrary to the dicta in Stone,
cannot be wholly divorced from the issue of the plane's point of origin. Rather,
the proof of the crossing must be viewed together with the other evidence to
determine whether there was a substantial likelihood that the plane has come
from a foreign location.

21

If the plane were a domestic commercial carrier whose point of origin could
readily be ascertained by law enforcement officials through airline and air
traffic control records, clearly the sole fact of a crossing through international
airspace would not provide an inference that the plane had a foreign point of
origin. Similarly, a private aircraft whose flight plan, having been filed in
accordance with federal regulations, indicated a domestic point of origin would
not be subject to a border search absent some showing that the plane had
deviated from its stated course. Where, as here, however, the plane in question
is shown to have pierced the air defense identification zone travelling from the
southeast toward this country without having filed a flight plan or notifying U.
S. government officials of its pending arrival as required by federal law, the

government is entitled to draw the inference that its point of origin was foreign
and accordingly to conduct a search of the plane without a warrant or any
suspicion of criminal activity. The border search cases clearly establish that the
government's interest in controlling "who and what may enter the country"
outweighs the privacy interests of those who choose to travel to the United
States. United States v. Ramsey, supra, 431 U.S. at 610, 97 S.Ct. at 1975.
Moreover, federal regulations impose on entering aircraft a duty to identify
themselves and to inform the government of their origin and intended
destination.13 A plane that crosses the border without complying with these
requirements may not create a fourth amendment privacy interest by refusing to
show the government that its point of origin was not foreign. If it came from
outside the United States it has no fourth amendment immunity from a
warrantless search; if its origin was domestic the government has provided a
method by which that fact may be established, and one who fails to comply
with that procedure is estopped from asserting a domestic point of origin after
landing in this country.
B. Location of Search
22

Appellants' second basis for objecting to the search of their plane is that, even if
a border crossing was established, the search was not valid as a border search
because it was not conducted at the border or its functional equivalent. The
Supreme Court gave birth to the "functional equivalent of the border" concept
in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d
596 (1973), in which it made a brief, unexplained statement of the doctrine and
then held it inapplicable in that case. Almeida-Sanchez involved a warrantless
search of an automobile by a roving band of the U. S. Border Patrol on an eastwest highway located "at all points at least 20 miles north of the Mexican
border." Id. at 268, 273, 93 S.Ct. at 2537, 2539. The search had been conducted
with neither suspicion of criminal activity nor any evidence that the subject
vehicle had crossed the border. Id. at 268, 93 S.Ct. at 2537. After holding that
the search did not fall within prior precedents applying relaxed fourth
amendment standards to certain administrative inspections, the Court
considered whether the statute authorizing the search could be upheld under the
border-search rationale because it purported to authorize such searches "within
a reasonable distance from any external boundary of the United States." Id. at
272, 93 S.Ct. at 2539. The Court noted that "(w)hatever the permissible scope
of intrusiveness of a routine border search might be, searches of this kind may
in certain circumstances take place not only at the border itself, but at its
functional equivalents as well." Id. Justice Stewart, writing for the Court, did
not elaborate on what constitutes the "functional equivalent" of the border,
however, beyond giving two examples and holding the doctrine inapplicable in

the case before the Court.

(S)earches at an established station near the border, at a point marking the
23
confluence of two or more roads that extend from the border, might be functional
equivalents 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.
24

But the search of the petitioner's automobile by a roving patrol, on a California

road that lies at all points at least 20 miles north of the Mexican border, was of
a wholly different sort. In the absence of probable cause or consent, that search
violated the petitioner's Fourth Amendment right to be free of "unreasonable
searches and seizures."

25

Id. at 272-73, 93 S.Ct. at 2539 (footnote omitted).

26

In a subsequent line of cases all involving Border Patrol stops but with slight
factual variations, the Court again considered the constitutionality of vehicle
stops conducted within U. S. borders. In United States v. Brignoni-Ponce, 422
U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court held that reasonable
suspicion was required before roving Border Patrol officers could stop vehicles
for questioning at points inside the U. S. border. In United States v. Ortiz, 422
U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), it held that probable cause
was required for full-scale searches conducted at permanent checkpoints within
the border. Finally, in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct.
3074, 49 L.Ed.2d 1116 (1976), the Court upheld brief warrantless stops of
vehicles at permanent checkpoints absent any suspicion that the particular
vehicles contained illegal aliens. The Court did not apply the functionalequivalent theory in these cases; in fact, it avoided the border-search doctrine
altogether.14 Instead, it considered the "formidable law enforcement problems"
of the Border Patrol in attempting to control the flow of illegal aliens into this
country, and balanced this governmental interest against the degree of
interference with individuals' fourth amendment rights caused by the stop or
search procedure at issue in each case. See United States v. Martinez-Fuerte,
supra, 428 U.S. at 552, 557-58, 96 S.Ct. at 3080, 3082-3083; United States v.
Brignoni-Ponce, supra, 422 U.S. at 879-80, 95 S.Ct. at 2579; United States v.
Ortiz, supra, 422 U.S. at 894-97, 95 S.Ct. at 2587-2589.15

27

Expounding on the Supreme Court's analyses in Almeida-Sanchez and

Martinez-Fuerte the Fifth Circuit, in United States v. Brennan, supra, 538 F.2d
711, considered the functional-equivalent-of-the-border theory in a case
involving an airplane search. The court attempted to draw from the Almeida-

Sanchez Court's examples the implicit reasoning underlying the theory and a
test for determining its applicability in particular cases. The court concluded
that the critical factors for establishing that a search took place at the functional
equivalent of the border were (1) "a high degree of probability that a border
crossing took place" and (2) "an attendant likelihood that nothing about the
object of the search has changed since the crossing." 16 The court found those
criteria had not been met in the case before it because neither the facts
concerning appellant's flight nor the character or procedures at the airport
"furnish(ed) any reliable indication that Brennan's flight was international." Id.
at 715. The Brennan panel did not stop with an analysis of the AlmeidaSanchez examples in defining the functional equivalent of the border, however.
In addition, it considered the Supreme Court's decision in United States v.
Martinez-Fuerte, supra, and held that the "regularity factor" emphasized in
Martinez17 would also support a search as one occurring at the functional
equivalent of the border. Such factor would be established where
28

(t)he intrusion is minimal, the existence and function of the checkpoint is

known to the citizen in advance of his entry into its lanes, there is little
discretionary enforcement activity, and the results of the checking procedure
may be reviewed by the courts without distortion of the issue of reasonableness
by hindsight knowledge that the search produced the desired fruits, if any, of
the stop or search.

29

United States v. Brennan, supra, 538 F.2d at 715-16 (citing United States v.
Martinez-Fuerte, supra, 428 U.S. at 558-59, 96 S.Ct. at 3083).18

30

The Brennan panel used the "functional equivalent of the border" language
loosely to refer both to searches of conveyances that have actually crossed the
border and to searches within the administrative-stop rationale employed by the
Supreme Court in the Border-Patrol cases.19 As noted above, however, the
theory developed by the Supreme Court in the Border-Patrol cases is
conceptually distinct from the traditional border-search doctrine and its
extensions. A warrantless search, whether conducted at the actual border or
elsewhere, is justifiable as a border search only where the government shows
with reasonable certainty that the person or object searched has crossed the
border.20 The Border-Patrol cases, by contrast, require no individualized
determination that the object searched has crossed the border.21 Instead, the
special law enforcement problems of patrolling the U. S. border and the
"regularity" of certain Border Patrol detentions, which minimizes their
interference with privacy, were held to justify the Border-Patrol stops in a
context other than the border-search situation, i.e. in cases where the Court did
not find that the requirements for a border search (or its functional equivalent)

had been met. See note 14 and accompanying text supra. Neither the BorderPatrol cases nor the Brennan decision22 should be read as imposing additional
limitations on searches made at the border or its functional equivalents. Rather,
those cases establish an independent rationale and standards applicable only to
searches that do not qualify as border or functional-equivalent searches.
31

Fifth Circuit cases subsequent to Brennan have upheld searches following a

border crossing, whether at the actual border or elsewhere, without regard to
the regularity of conducting searches at the particular site involved. E.g.,
United States v. Pringle, 576 F.2d 1114, 1116-18 (5th Cir. 1978) (search of
international mail at port of entry reasonable under fourth amendment simply
because mail has crossed border); United States v. Ivey, 546 F.2d 139 (5th
Cir.), cert. denied, 431 U.S. 943, 97 S.Ct. 2662, 53 L.Ed.2d 263 (1977)
(Customs search of aircraft at small airport after border crossing upheld). Other
cases have upheld searches removed from the border without proof of a border
crossing where the regularity factors of the Supreme Court's Border Patrol
cases are met. E.g., United States v. Reyna, 572 F.2d 515 (5th Cir.), cert.
denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978); United States v.
Alvarez-Gonzalez, 542 F.2d 226 (5th Cir. 1976), appeal after remand, 561 F.2d
620 (5th Cir. 1977). The holdings of these cases in substance have kept the
border-search and Border-Patrol theories and their respective border-crossing
and regularity requirements distinct. But cf. United States v. Sheikh, 654 F.2d
1057, 1068-70 (5th Cir. 1981) (applying both border-crossing and regularity
requirements to search of international mail). What has remained confused after
Brennan is the language used by the court. Both types of searches repeatedly
have been referred to as "functional equivalent of the border" searches. Rather
than recognizing that two different theories are being employed, the cases have
tended to rely on those prior decisions the facts of which most closely parallel
their own and to distinguish the others on a variety of bases. An additional
source of confusion in our border-search cases is the "extended border search"
terminology, which sometimes is used interchangeably with "functional
equivalent of the border" but other times has been conceived as a variation of
the latter with different fourth amendment requirements.23 Compare United
States v. Johnson, 588 F.2d 147, 154 n.11 (5th Cir. 1979) (difference between
"extended border search" and "functional equivalent of a search at the border"
is merely "semantic") with United States v. Richards, 638 F.2d 765, 771-72 &
n.4 (5th Cir. 1981) (extended border searches, unlike searches at border or
functional equivalent, require reasonable suspicion of criminal activity because
they usually occur after initial, routine search and involve greater invasion of
privacy).

32

Ignoring, for the moment, the vagaries of language in the cases and looking to

the substance of Fifth Circuit precedents, we discern three separate bases for
upholding a warrantless search conducted somewhere in the vicinity of the
border. First, there are the two already described. The limited stop at a
permanent facility relatively near the border is justified under the rule of
Martinez-Fuerte where practically necessary to control the flow of persons and
objects into this country. A detention authorized under this theory requires no
showing that the vehicle or item detained actually crossed the border, so long as
the location of the detention and its scope are such as to ensure that it is
necessary for controlling traffic across the border and that its intrusion on the
privacy of those lawfully in the country is limited. See United States v.
Martinez-Fuerte, supra, 428 U.S. at 556-64, 96 S.Ct. at 3082-3085; United
States v. Ortiz, supra, 422 U.S. at 893-97, 95 S.Ct. at 2587-2589. Fifth Circuit
progeny of the Supreme Court Border-Patrol cases are exemplified by United
States v. Reyna, 572 F.2d 515 (5th Cir.), cert. denied, 439 U.S. 871, 99 S.Ct.
203, 58 L.Ed.2d 183 (1978); United States v. Alvarez-Gonzalez, 542 F.2d 226
(5th Cir. 1976), affirmed after remand, 561 F.2d 620 (5th Cir. 1977); United
States v. Hart, 506 F.2d 887 (5th Cir.), vacated and remanded, 422 U.S. 1053,
95 S.Ct. 2674, 45 L.Ed.2d 706 (1975), reaffirmed, 525 F.2d 1199 (5th Cir.),
cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976).24
33

A search within the border may also be justified as a border search requiring no
warrant nor any suspicion if there is reasonable certainty that the object or
person searched has just crossed the border, there has been no time or
opportunity for the object to have changed materially since the time of crossing,
and the search is conducted at the earliest practicable point after the border was
crossed. Justice Stewart's example of the search of an aircraft at its first point of
landing in the United States after an international flight is the paradigm
example of this type of search. Almeida-Sanchez v. United States, supra, 413
U.S. at 272, 93 S.Ct. at 2539. This type of search is justified under the bordersearch doctrine because it is in essence no different than a search conducted at
the border; the reason for allowing such a search to take place other than at the
actual physical border is the practical impossibility of requiring the subject
searched to stop at the physical border. The government's interest in controlling
the flow of persons and objects across its borders is no less vital with respect to
conveyances that cannot practically be detained at the physical border than with
those that can. Our cases allowing searches of aircraft at their first landing point
following international flights, e.g., United States v. Stone, 659 F.2d 569 (5th
Cir. 1981); United States v. Ivey, supra; United States v. Klein, 592 F.2d 909
(5th Cir. 1979), searches of ships that have entered territorial waters conducted
either within the territorial waters, see United States v. Williams, supra, 617
F.2d at 1096 (Rubin, J., specially concurring), or at the port where the ship first
docks, United States v. Prince, 491 F.2d 655 (5th Cir. 1974), and searches of

international mail at its port of entry, United States v. Pringle, 576 F.2d 1114
(5th Cir. 1978), fall within this category. See also United States v. Adams, 569
F.2d 924 (5th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426
(1978) (search of vehicle in National Park upheld on high probability it had just
come into United States by crossing Rio Grande River). But cf. United States v.
Whitmire, 595 F.2d 1303 (5th Cir. 1979) (search of ship at port not justifiable
as border search where officers observed it only within U. S. waters).
34

Finally, we have allowed searches conducted within the border even after the
first practicable detention point where supported by reasonable suspicion. The
rationale for these cases, which sometimes use the "extended border search"
terminology, is grounded in part on the fact that the border has been crossed
and additionally on the special need of law enforcement officials to defer
apprehension of those suspected of being engaged in illegal smuggling
activities in circumstances where surveillance may lead them to " 'higher ups'
or other cohorts" in the illegal enterprise, United States v. Fogelman, 586 F.2d
337, 348 (5th Cir. 1978), or to further evidence of the criminal activity. Such
searches require reasonable certainty that a border crossing has occurred and
that conditions have remained unchanged from the crossing until the search.
United States v. Richards, supra, 638 F.2d at 772. Because searches so delayed
may involve a greater invasion of privacy than searches at the border or first
practicable detention point, however, they may be conducted without a warrant
only if supported by reasonable suspicion. Id. n.4. Examples of this last
category of search are United States v. Richards, supra (second search of
package sent via international mail after defendant had claimed it from post
office); United States v. Kenney, 601 F.2d 211 (5th Cir. 1979) (search of
defendant's vehicle following observation of his crossing border at unstaffed
point of entry on Rio Grande River and loading of vehicle with sacks
reasonably suspected to contain marijuana); United States v. Walters, 591 F.2d
1195 (5th Cir.), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317
(1979) (strip search of international passenger while still in airport fifty-five
minutes after she passed through Customs enclosure); United States v.
Fogelman, supra (search of truck following continuous surveillance after being
loaded from ship that had crossed border); Government of Canal Zone v.
Eulberg, 581 F.2d 1216 (5th Cir. 1978) (second search of vehicle offloaded
from vessel arriving from Peru after initial inspection revealing contraband and
following surveillance period during which appellant claimed vehicle from
Customs); United States v. Martinez, 577 F.2d 960 (5th Cir.), cert. denied, 439
U.S. 914, 99 S.Ct. 288, 58 L.Ed.2d 262 (1978) (second search of international
passengers' luggage after following passengers to airport parking lot where
initial Customs probe had revealed cocaine in luggage). But cf. United States v.
Johnson, supra, 588 F.2d 147 (search of duffle bag not justifiable as extended

border search after surveillance of defendants following border crossing where

officers had no reason to believe bag or its contents had crossed border).
35

The overlapping and inconsistent usage of the "functional equivalent of the

border" language in our cases has cloaked this area of the law with an
unnecessary complexity. For this reason, we now adopt a terminology for use
in future cases that will eliminate the confusion. First, we decline to follow
prior decisions in using the "functional equivalent" language to refer to Border
Patrol or other checkpoint searches. These searches do not fit within the
traditional definition of a border search, which refers to searches of persons,
conveyances, or objects that have come into the United States from outside. See
United States v. Ramsey, supra, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 19781980, 52 L.Ed.2d 617. As we have already noted, checkpoint searches do not
require that the object of the search have crossed the border. We thus choose to
refer to such searches simply as "checkpoint searches" and not as searches at
the "functional equivalent of the border."25 We view the "functional equivalent
of the border" language as peculiarly appropriate to describe those searches
that, although not conducted at the actual physical border, take place after a
border crossing at the first practicable detention point. Such searches are truly
border searches because their sole justification is the fact that the border has
been crossed. Because the person, conveyance, or object is searched at the first
place where it comes to rest within the country, it can truly be considered as
having "br(ought) the border with it." United States v. Brennan, supra, 538 F.2d
at 715. Whether as a matter of the sovereign's grace or of the practical
impossibility of stopping every entering person or object at the physical border
such person or object is allowed to proceed to a point on the interior, "the
critical fact" that the border has been crossed 26 remains unchanged. Moreover,
the resumed expectation of privacy that generally accompanies one's
assimilation into the mainstream of domestic activities has not yet developed
when the search is conducted at the first practicable stopping point. Cf. United
States v. Walters, supra, 591 F.2d at 1198 (degree of assimilation into domestic
activities relevant in assessing reasonableness of extended border search). For
these reasons, a search at such location can logically be considered as taking
place at a functional equivalent of the border, and we therefore adopt that
phrase to describe such searches. Finally, we believe it inappropriate to refer to
searches conducted within the country at points other than the first practicable
detention point as "border searches" or "functional-equivalent-of-the-border"
searches. Such searches do not take place at the border, nor must they
necessarily be near to it. Of course part of their justification lies in the fact that
a border crossing has occurred. The delay in conducting such a search until the
person has removed herself from the border area or port of entry makes the
eventual unexpected search more intrusive, however, and therefore compels a

requirement that those conducting the search have reasonable suspicion of

criminal activity. Because searches in this category have a combined rationale
and are not reasonable solely because the border has been crossed, compare
United States v. Ramsey, supra, 431 U.S. at 619, 97 S.Ct. at 1980, they are not
border searches in the traditional sense, either. Since the "extended border
search" terminology has been used primarily in the context of this kind of
search, we adopt that phrase to describe such searches.
36

Having attempted to distinguish the functional equivalent, extended border

search, and checkpoint search doctrines, we must now consider their
applicability to this case. Clearly the checkpoint search theory cannot be used
to justify the search of appellants' aircraft since the location of the search was
neither near the border nor a place at which stops or searches are regularly
conducted. Although perhaps less obvious, under the record in this case we
conclude that the search of appellants' plane did not take place at the functional
equivalent of the border. After appellants' border crossing was observed by the
Air Force on its radar network, their whereabouts were tracked until Major
Hoge intercepted their plane. From there Hoge followed the plane until it
landed at the airport on Rock Harbor Key. Had appellants been stopped at that
point, the search would have occurred at the functional equivalent of the border
because Rock Harbor Key was appellants' first landing point within this
country. The government witnesses' testimony indicates, however, that no
attempt was made to detain appellants at Rock Harbor Key. Rather, after being
on the ground for a period of five to ten minutes, the plane was allowed to
depart, at which point Customs took over the air surveillance operation. The
eventual search at Sugar Loaf Key occurred neither at the place of first landing
within the country nor at the first practicable detention point, see text supra at
865, and thus cannot be considered a search at the functional equivalent of the
border.27 Having eliminated both the checkpoint and functional equivalent
theories as potential bases for upholding the search of appellants' aircraft, we
are left with the extended border search doctrine as the sole remaining possible
rationale.

37

The facts of this case fit neatly within the extended border search doctrine,
which applies to searches conducted following a border crossing at points
beyond the first practicable stopping point. As noted above, the extended
border search doctrine has three elements: the government must prove that the
object searched crossed the border, that its condition remained unchanged
between the time of crossing and the time of the search, and that there was
reasonable suspicion at the time of the search that the object was involved in
criminal activities. Here, the government's evidence established with reasonable
certainty that appellants' plane had crossed the border just before Major Hoge

intercepted it.28 Moreover, continuous surveillance of the plane by Air Force

and Customs officials from the time of the crossing until its second landing
indicates that the contraband found on the plane must have been present before
the plane landed in the United States. See United States v. Richards, supra, 638
F.2d at 772. Appellants' plane was on the ground after its first landing for only
five to ten minutes before it took off again. It is inconceivable that 918 pounds
of contraband in large boxes could have been loaded onto the aircraft during
that short period without the notice of Major Hoge.29 Finally, the totality of the
circumstances known to Customs officers at the time of the search at Sugar
Loaf Key constituted reasonable suspicion that appellants were involved in drug
smuggling. See id. Appellants had entered the United States by plane without
filing a flight plan or otherwise notifying the government of their intended
arrival. After landing at Rock Harbor Key they remained on the ground only
briefly, and during the course of their subsequent flight they jettisoned several
objects from the moving plane. A package that was ejected struck the
windshield of the Customs plane, and Officer Cockes observed white powder
streaming out of it. He also saw what he thought were maps, a navigation
computer, and money being ejected from the plane. Although appellants later
testified at the suppression hearing that they were unaware they were being
followed, the Customs officers could reasonably have inferred that appellants
departed from Rock Harbor Key to escape apprehension and that they threw the
materials from the plane in an attempt to destroy evidence of illegal activities.
Appellants' subsequent landing in a remote area and their immediate flight into
the nearby bushes gave Customs further reason to suspect their involvement in
illegal activities. Indeed, in light of all of these facts it would be difficult to
arrive at any other conclusion. For the reasons above stated, we hold Customs'
search of appellants' plane was justified as an extended border search.
38

Since we uphold the government's search of appellants' aircraft as an extended

border search, we need not address whether the search was justified on the
ground that appellants had abandoned the plane. Appellant Garcia argues that
even if the search was otherwise constitutional it was invalid because Customs
lacked statutory authority to conduct such a search.30 The government correctly
points out, however, that such authority is vested in Customs by 49 U.S.C.
1509(b) and 19 C.F.R. 6.10.31 Hence, the search was statutorily authorized.

III. Other Issues

A. Posse Comitatus
39

Appellant Garcia argues that the involvement of Air Force officials in the
surveillance of appellants' aircraft violates the doctrine of posse comitatus32 as

embodied in 18 U.S.C. 1385. That statute proscribes use of the Army or Air
Force "as a posse comitatus or otherwise to execute the laws" except as
expressly provided by Congress. Section 1385 has been interpreted as broadly
prohibiting use of such military personnel to assist civil law enforcement
officials in carrying out their duties. See, e.g., United States v. Red Feather, 392
F.Supp. 916, 922 (D.S.D.1975); United States v. Jaramillo, 380 F.Supp. 1375,
1379-80 (D.Neb.1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975); Wrynn
v. United States, 200 F.Supp. 457, 464-65 (E.D.N.Y.1961). But cf. United
States v. McArthur, 419 F.Supp. 186, 192-95 (D.N.D.1976), affirmed sub. nom.
United States v. Casper, 541 F.2d 1275 (8th Cir. 1976), cert. denied, 430 U.S.
970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977) (only exercise by military of
regulatory, proscriptive, or complusory authority is prohibited by section
1385).33 We need not address whether the government's activities in this case in
connection with appellants' apprehension violated section 1385, however, since
appellants did not raise this issue at trial.34
B. Sufficiency of the Evidence
40

Appellant Garcia claims that the government's evidence was insufficient to

sustain his conspiracy and possession convictions. Specifically, he argues that
his "mere presence" in the vicinity of the landing site was inadequate to
establish his possession of the contraband found on the plane and that
independent evidence connecting him to the contraband should have been
required.

41

A fundamental axiom of our jurisprudence is the rule that in criminal cases the
government must prove each element of the offense beyond a reasonable doubt.
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The
standard of review for determining whether the government has met its burden
is likewise a matter of universal recognition: considering the evidence and all
reasonable inferences in the light most favorable to the government, Glasser v.
United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we
must decide whether a reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt. See United States v. Davis, 666
F.2d 195, 200 (5th Cir. 1982). The Fifth Circuit recently set out the specific
elements of the government's burden in drug conspiracy cases under 21 U.S.C.
846:

42

"The essence of a conspiracy is an unlawful agreement." United States v.

Middlebrooks, 618 F.2d 273, 278 (5th Cir.), modified on other grounds, 624
F.2d 36 (5th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 401, 66 L.Ed.2d 246
(1980). Ordinarily, the fundamental elements of the offense of conspiracy are

an agreement between two or more persons to commit a crime and an overt act
by one of them in furtherance of the agreement. United States v. Malatesta, 590
F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508,
59 L.Ed.2d 777 (1979); United States v. Gordon, 580 F.2d 827, 834 (5th Cir.),
cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). However, in
a conspiracy prosecution under 21 U.S.C. 846, as is involved here, the
government need not prove any overt act in furtherance of the conspiracy.
United States v. Gordon, 580 F.2d at 834; United States v. Littrell, 574 F.2d
828, 832 (5th Cir. 1978). Accordingly, in a prosecution under 21 U.S.C. 846,
the government must establish, beyond a reasonable doubt, that a conspiracy
existed, that the defendant knew of it, and that he voluntarily participated in it.
United States v. Middlebrooks, 618 F.2d at 278; United States v. Littrell, 574
F.2d at 832. The agreement between the coconspirators and the defendant need
not be proved by direct evidence and may be inferred from concert of action.
United States v. Malatesta, 590 F.2d at 1381; United States v. King, 532 F.2d
505, 508 (5th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327
(1976). Further, it is not necessary for all coconspirators to know each other or
to work together on every phase of the criminal venture. United States v. James,
590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61
L.Ed.2d 283 (1979).
43

United States v. Wilson, 657 F.2d 755, 758-59 (5th Cir. 1981).

44

Appellant Garcia contends that the government's evidence did not connect him
with a conspiracy nor establish his possession of the methaqualone. He relies
principally on United States v. Rozen, 600 F.2d 494 (5th Cir. 1979). In that
case, the defendant had been convicted of conspiracy to possess marijuana with
intent to distribute and possession with intent to distribute after being found
asleep in the woods with his brother. The government's evidence established
that defendant's two brothers had driven pickup trucks from Brunswick,
Georgia to Savannah, where they checked into a motel. On the same evening,
officers observed the trucks leave the motel together and followed the trucks to
a wooded area to which there was access to boats and a dock. Thereafter, the
officers lost track of the trucks until 1:30 a. m. the following morning, when
they saw one of them emerge from the woods travelling at a high rate of speed.
They stopped it, found it occupied by one of defendant's brothers, and
discovered 1,460 pounds of baled marijuana in the back. Less than half a mile
away, the officers found the other truck, also loaded with marijuana bales. A
list of numbers in a notebook found in one truck and a similar list found in the
wallet of a coconspirator who had been aboard the surveilled boat were
presented by the government to establish a conspiracy. (The government
apparently argued that the numbers reflected the weights of the marijuana

bales.) After apprehending the defendant's brother and finding the two
truckloads of contraband, the officers summoned state prison officials, who
sent a dog handler with a bloodhound to track the missing participants.
Following a scent picked up around the second truck, the dog and its handler,
followed by several officers, walked (and swam) a distance of three or four
miles over a four-hour period until they came upon defendant and the second
brother asleep in the woods. Both were wet and scratched and the shirt of one
was torn. The court held this evidence was "not enough to submit to the jury as
tending to show that appellant joined in the conspiracy, or that he possessed
marijuana." Id. at 495. the court found there was simply no evidence other than
appellant's presence in the woods with his brother to connect him with the
conspiracy or possession of the marijuana:
45

Appellant's first, last and only appearance in the wide spectrum of activities
was when he was found and arrested. Until that moment no one identified him
as in the company of either of his brothers. No one saw him in either vehicle.
No one saw him at the marina where the suspect boat came and went, or on or
about the boat. None of his belongings were found at any place. The notebook
found in the GMC was not connected to appellant nor the writing in it shown to
be his. No fingerprints connected him to vehicles, boat, or to any location. He
neither rented nor bought any boat, vehicle, or motel room. No marijuana was
found on him, nor any visible evidence of burlap that might have come from
coverings of the bales. He was not shown to have any relationship, familial or
acquaintanceship, with any one in the conspiracy beyond his relationship with
Gerald and David and his presence with David when found in the woods.

46

We do not speculate whether the motion for judgment of acquittal would have
to be granted if there had been sufficient evidence tending to show that
appellant had been in the GMC. The only evidence even tending to show
appellant's presence in the truck was Clyde's pursuit of a scent from near the
truck to the sleeping brothers. The only connecting factor is Clyde's nose, and
no one can do any more than guess whether Clyde was following the scent of
David, the scent of appellant, or the scent of both.

47

(A) jury could not infer that the scent from the vicinity of the truck to the tree
where appellant and his brother were sleeping was the scent of appellant, or the
scent of both men, and that it was not the scent of only David.... (Moreover, a)
scent picked up at some unspecified point near the truck, even if identified as
the scent of appellant, would not permit the inference that appellant had been
inside the truck or in any other position where he could see the bales of
marijuana within the camper body.

48

Id. at 495-97 (footnote omitted).

49

United States v. Reyes, 595 F.2d 275 (5th Cir. 1979) is close in factual setting
to this case. The Rozen panel summarized Reyes as follows:

50

(F)our Spanish-speaking aliens were discovered aboard an airplane, piloted by

another person, that landed at the St. Petersburg-Clearwater, Florida, airport.
Circumstantial evidence tended to establish that the plane had flown in from
Colombia with a load of marijuana, that the load had been ditched in the Gulf
off St. Petersburg shortly before the plane landed, and that the interior of the
plane had been freshly smeared with pineapple to mask the odor of marijuana.
The government contended the aliens could be found to be participants in a
conspiracy, and therefore guilty of possession, because one or more of them
must have pushed the bales of marijuana out of the plane and smeared the plane
with pineapple (while the pilot remained at the controls). We held:

51 if we assume the correctness of the government's premises, however, there was

Even
no direct testimony that any particular defendant either ejected or helped to eject the
bales or did anything to mask the odor of the erstwhile cargo. No other active role in
the alleged conspiracy or in the charged importation was even intimated during the
government's case.
52

United States v. Rozen, supra, 600 F.2d at 496 (quoting from Reyes, supra, 595
F.2d at 280).

53

The case before us is distinguishable from Rozen. In Rozen, the only evidence
connecting the defendant with the conspiracy was his having been found in the
woods with a brother who was obviously involved in the drug smuggling
enterprise. While noting that his presence, under the circumstances, was
"highly suspicious," 600 F.2d at 497, the court held that, in the absence of
evidence sufficient to support an inference that defendant had been in the
marijuana-laden truck and therefore was aware of the contraband, the
reasonable doubt standard had not been met. Id. at 496-97 & n.2. Here the
evidence showed that both Jackman and Garcia were aboard the plane, if not
from the border-crossing forward, at least from the time of its departure from
Rock Harbor until its landing at Sugar Loaf Key. Obviously no one boarded or
deboarded the plane while it was in flight between the two landings. Moreover,
there is little, if any, doubt that the men discovered by the Customs ground
patrol crew in the mangrove bushes were the same two persons observed by
Cockes exiting the plane after its second landing. According to Cockes'
testimony, the second landing occurred in an area that was deserted; there were

no buildings within miles, and no other people were visible with the exception
of someone in a truck who was leaving as the plane arrived. Cockes testified
that he kept the plane under close observation from the time it landed until the
ground crew arrived. He further testified that he made a low pass and was only
twenty to thirty feet above the plane when appellants emerged. He then
observed the men enter "a fairly large, thick area of mangrove that was
surrounded by open area," where they remained until Cockes left. When the
ground patrol crew arrived, Cockes described to them the clothes the men were
wearing and indicated the area of bush in which he had seen them go. His
description was consistent with that of the men who were later found in the
bushes, 35 and he testified that the men apprehended by the ground patrol crew,
whom he saw when he returned later the same day, were the same two men he
had observed earlier leaving the plane. From this evidence, a jury clearly could
have found beyond a reasonable doubt that appellants Jackman and Garcia were
the only persons aboard the plane when it landed at Sugar Loaf Key.
54

The only remaining question is whether their presence on the plane is sufficient
to support an inference of conspiracy to possess, and knowing possession of, the
contraband discovered on board. The evidence of appellants' knowledge and
intent in this case is stronger than the evidence in the Reyes case, and we hold
it was sufficient to permit the case to be submitted to the jury. The plane in
which appellants flew with the contraband was not a large one. The testimony
of Customs officers and the government's photographic exhibits indicate that
the nine large cardboard boxes containing the methaqualone, weighing about
one hundred pounds each, occupied a substantial part of the space in the plane
behind the two seats. Hence, the boxes must have been visible to both
occupants of the aircraft. Although the contents of the boxes were not visible,
the jury could infer appellants were aware of the nature of their cargo from
their furtive acts. Customs Officer Welch, a member of the ground patrol crew
who found appellants' plane at Sugar Loaf Key, testified that when he arrived
the plane was parked off the roadway at the end of a road. A baggage door on
the right side of the plane had been left open. A window had been removed on
the left side, and this corresponds with Officer Cockes' testimony that the
emergency exit on the left side of the plane came open during its flight just
before he observed the various objects being jettisoned from it. The evidence
thus shows that either Jackman or Garcia threw those objects out of the plane,
and the size of the plane makes clear that the other must have been aware of
those acts at the time. Moreover, Cockes testified that before the materials were
thrown from the plane, he observed the occupants turning toward him, from
which he concluded they had seen the Customs plane.36 This is strong evidence
that at least one of them had knowledge of the methaqualone and was
attempting to destroy some evidence of the drug-related activities.37 The

subsequent landing of the plane in a remote area similarly supports an inference

of guilt by at least one, though not necessarily both, of the occupants. The
critical evidence linking both appellants to the illegal cargo was their joint
flight after landing at Sugar Loaf Key. All the evidence indicates that
appellants' acts after their landing were an attempt to evade apprehension by
government authorities. The Customs plane circling above them passed within
twenty to thirty feet of appellants when they were exiting the aircraft; hence,
the agents' presence can hardly have escaped their notice at that point.
Moreover, the jury could infer from Cockes' testimony that appellants first
went to a "little clump of mangroves" but then left that area and went into "a
fairly large, thick area of mangrove" that appellants were attempting to hide
from the officers. Finally, it is clear that appellants' trek into the mangroves
was no mere recreational outing; the bushes were so dense that in many areas
there was not room to walk, appellants were found sitting in a "hollowed out"
area that was too low to stand in, and when found both were sweating heavily
and were covered with cuts and scratches on the exposed parts of their bodies.
These facts were evidence of flight, from which the jury was entitled to infer
that appellants knew the nature of their cargo.38 This evidence of appellants'
attempted evasion of law enforcement officers distinguishes this case from
United States v. Reyes, supra.39 For the reasons stated above, we hold that the
jury reasonably could have found appellants conspired to possess and did
possess methaqualone with intent to distribute. Hence we AFFIRM.

Customs Officer Cockes testified that none of the other planes at the airport had
markings similar to those on appellants' plane

Although the testimony repeatedly refers to the low, dense bushes in which
appellants were apprehended as mangroves, one Customs officer testified that
they were actually buttonwoods

Cockes testified that he did not land the Customs plane at Sugar Loaf Key
because its wings, which were larger than those of the Piper Aztec, would have
been broken by the mangroves along the road

In Ramsey, the statute authorizing the search, 19 U.S.C. 482, imposed a

reasonable suspicion requirement on searches conducted thereunder, and the
Court held that standard had been met. United States v. Ramsey, supra, 431
U.S. at 611-14, 97 S.Ct. at 1976-1977

The Eleventh Circuit adopted as precedent the decisions of the former Fifth
Circuit in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc)

The Ninth Circuit held that there must be "articulable facts to support a
reasonably certain conclusion ... that a vessel has crossed the border and entered
our (territory)." United States v. Potter, supra, 552 F.2d at 907 (quoting from
United States v. Tilton, 534 F.2d 1363, 1366 (9th Cir. 1976)). The Potter court
also stated that "reasonable certainty is a higher standard than that of probable
cause." Id

In Ivey, the government's evidence indicated the plane had been sighted in a
foreign country 13 hours before its arrival at a U. S. airport, and the court
allowed an inference of its having crossed the border. See United States v. Ivey,
supra, 546 F.2d at 142-43. In Brennan, the plane departed from one U. S.
airport and landed at another; the court refused to infer a border crossing from
the lapse of time between the plane's departure and subsequent landing
notwithstanding an informant's tip that the plane was involved in drug
smuggling activities. See United States v. Brennan, supra, 538 F.2d at 713-15

Hoge stated on direct examination that his air defense unit is alerted when
ADIZ is crossed by an unidentified aircraft and that no alert is given if the line
is not crossed. Record, Vol. 1, at 27-28. On cross examination, he was
somewhat more equivocal, stating that this was his understanding of how the
air defense operation functions although he was "not totally knowledgeable."
Id. at 44. We need not decide whether this testimony alone would have been
sufficient to establish a border crossing with "reasonable certainty," since
Hoge's interception of appellants' plane outside the U. S. border and continuous
visual surveillance of it thereafter until it entered this country clearly prove that
it crossed the border. See text infra

Fed.R.Evid. 201(b), (d). Ordinarily, when a judge takes judicial notice of a fact
other than at the request of a party (i.e. "discretionary judicial notice"), he
should notify the parties that he is doing so and afford them an opportunity to
be heard. C. Wright & K. Graham, 21 Federal Practice and Procedure 5107,
at 507 (1977). Indeed, where failure to do so deprives an accused in a criminal
trial of knowledge of the evidence on which he is being convicted and of an
opportunity to challenge the facts relied on, due process requires that the
defendant be informed. Garner v. Louisiana, 368 U.S. 157, 173-74, 82 S.Ct.
248, 256-257, 7 L.Ed.2d 207 (1961). Here, however, appellants clearly had
notice that the border-crossing question was in issue and that the government
was relying on the piercing of ADIZ and the interception of appellants' plane 36
miles from Homestead (coupled with Hoge's visual surveillance of the plane
thereafter) to prove that a border crossing had occurred. The testimony as to
these facts, the map used by the government as demonstrative evidence, and the
arguments presented by the government made clear the nature of the evidence
on which it was relying. See especially Record, Vol. 2, at 159:

PROSECUTING ATTORNEY: ... All we have to show is that he made a

border crossing and that that (sic) has been firmly established by the evidence
of the two pilots. They got to the plane, I believe he said they first made contact
40 miles out to sea.
No way under any international theory of law is 40 miles at sea within the
territorial United States.
Moreover, the trial court made clear it was drawing from the government's
evidence the inference that the plane crossed the territorial border:
COURT: ... the thing I am asking now, you certainly, we are simply dwelling
on whether or not they have to show this thing came from foreign, from
international waters into Customs waters or territorial waters.
Now, we know that the aircraft came from territorial waters into the Customs
waters (sic). We know that. That is obvious.
Record, Vol. 3, at 173. Finally, appellant Jackman's own counsel in essence
requested that the court judicially notice that the point of interception was
outside the U. S. border, though in a rather indirect way:
PROSECUTING ATTORNEY: ... All we have to know is there was a border
crossing and a border crossing is exactly what it says, the border to the United
States was crossed, and it was.
THE COURT: That means from territorial waters into the Customs waters
(sic)?
PROSECUTING ATTORNEY: It means the border.
The phrase, I think, Judge, the way I have seen the cases, doesn't have an exact
definition.
Miami International Airport is considered a border for some things, just means
that at some point the plane came into the United States from outside the
United States.
DEFENSE ATTORNEY: Your Honor, let me just point out to the Court that, I
don't know whether this Judge and his entourage flew down here or not, but I
point out that every aircraft that goes from Key West to Miami flies through
international waters and crosses the border, whether you are going to Miami or
coming back to Key West and is a border crossing, not in the legal sense but
they cross the boundaries of the United States and I ask the Court to take

judicial notice of that fact.

THE COURT: All right, sir.
10

In boat-search cases, we have treated the three-mile limit, which separates what
is commonly referred to as "territorial waters" from what is known as "customs
waters" or the "contiguous zone," as the border of the United States. See United
States v. McPherson, 664 F.2d 69, 72 (5th Cir. 1981); United States v.
Whitmire, 595 F.2d 1303, 1307 (5th Cir. 1979). This boundary is consistent
with the government's exercise of sovereignty, which extends over territorial
but not customs waters. Note, High On the Seas: Drug Smuggling, the Fourth
Amendment, and Warrantless Searches at Sea, 93 Harv.L.Rev. 725 n.2 (1980).
Although we have suggested that customs waters, which extend from the threemile limit seaward to a point twelve miles offshore, may be considered the
"functional equivalent" of the border, see id. (citing United States v. Williams,
617 F.2d 1063, 1095-96 (5th Cir. 1980) (en banc) (Rubin, J., concurring)), thus
enabling Customs to search vessels within that area, this does not mean we
intend to treat the twelve-mile limit as the border for border-crossing purposes;
it simply indicates the degree of proximity to the actual border (i.e. the threemile boundary) within which the conveyance must be at the time it is searched

11

The Stone panel declared:

The appellant, however, would have the court apply a different standard. He
would require that, in order to establish a valid border search, the government
must demonstrate not only that a border has been crossed but, additionally, that
the entering craft has left foreign land. Such an added requirement, however, is
tenable neither in law nor in logic. In no case has a border search been
invalidated because the object's departure from foreign soil was not
demonstrated. Instead, a legion of cases have made clear that the propriety of
an extended border search rests on the "critical fact" of whether or not a border
crossing has occurred.
United States v. Stone, supra, 659 F.2d at 573 (citations omitted).

12

Because the boat search cases are thus distinguishable, the holding in United
States v. McPherson, 664 F.2d 69, 70 (5th Cir. 1981) that proof of foreign
contact is not required for a border search of a vessel is inapplicable in the
airplane search context. Although McPherson relied on United States v. Stone,
supra, which involved an airplane search, we decline to adopt the broad
language of Stone to extend its holding beyond the facts of that case. We follow
Stone, however, to the extent it held no further proof of foreign origin is
required where an unidentified aircraft crosses the United States border

13

19 C.F.R. 6.2, 6.14 (1981). See United States v. Ivey, 546 F.2d 139, 142
(5th Cir.), cert. denied, 431 U.S. 943, 97 S.Ct. 2662, 53 L.Ed.2d 263 (1977)

14

The Court did not rely on the border-search doctrine, despite Justice Stewart's
suggestion in Almeida-Sanchez that searches at "established checkpoints"
would come within the rubric of the functional equivalent of the border. See
text supra. Apparently, it was the distance of the Border Patrol checkpoints
from the Mexican border that dissuaded the Court from applying the bordersearch rationale. In Ortiz and Brignoni-Ponce, the checkpoint search and roving
patrol stop, respectively, occurred about 60 miles north of the Mexican border,
and the Court made it clear that it considered that location "removed from the
border and its functional equivalents." United States v. Ortiz, supra, 422 U.S. at
892, 896, 95 S.Ct. at 2586-2588; United States v. Brignoni-Ponce, supra, 422
U.S. at 874-75, 95 S.Ct. at 2576-2577. The stops in Martinez-Fuerte, supra,
occurred at similar distances, and in that case the Court made no reference to
the functional-equivalent-of-the-border theory. The Court's unwillingness to
apply the functional-equivalent theory in these cases may also have been
influenced in part by the fact that the statute governing the Border Patrol
activities in these cases had been interpreted by the agency in its administrative
regulations to authorize vehicle inspections "anywhere within 100 air miles of
the border." See United States v. Brignoni-Ponce, supra, 422 U.S. at 882-83, 95
S.Ct. at 2580-2581

15

In Martinez-Fuerte, the Court upheld a stop conducted at a permanent internal

checkpoint because the detention was brief and limited in scope (less than a full
search), the interference with legitimate traffic was minimal because motorists
knew in advance of the location of the checkpoints, and the "regularized
manner" in which the checkpoints were operated involved less discretionary
enforcement activity than did roving patrol stops. United States v. MartinezFuerte, supra, 428 U.S. at 558-59, 96 S.Ct. at 3083

16

As the Brennan court pointed out, both these requirements are clearly met in the
nonstop international flight example, whereas their fulfillment in the internal
traffic checkpoint context will depend on the location of the checkpoint and the
screening procedures used to determine which automobiles are searched.
United States v. Brennan, supra, 538 F.2d at 713

17

See note 15 supra

18

With regard to the regularity factor, the Brennan court concluded it was not met
in that case because:
the operation here involved a full search, was not anticipated by the subject,
involved discretionary decisions at several levels of authority, and was so

particularized to the suspicions 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 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, unless the authority of the searching officials is not
controlled by Almeida-Sanchez.
United States v. Brennan, supra, 538 F.2d at 715-16.
19

The confusion in language can be directly traced to Justice Stewart's examples

in Almeida-Sanchez of functional-equivalent-of-the-border situations, which
included a permanent checkpoint within the border. See text supra at 13. As
noted above, however, the Supreme Court in subsequent cases chose not to
apply the functional-equivalent standard, either in language or in theory, to the
subsequent Border-Patrol cases. See note 14 and accompanying text supra

20

This requirement is met both in an ordinary border search and a search at the
functional equivalent. The only difference between the two is that the
"functional equivalent" search takes place at a location beyond the physical
border and is permitted because the subject of the search is known to have
remained unaltered from the time of its crossing through the period before it is
searched

21

The proximity of the detention's location to the physical border is relevant in

such cases because the governmental interest justifying relaxation of the fourth
amendment probable cause and warrant requirements is that of regulating the
flow of aliens into the United States. See, e.g., United States v. MartinezFuerte, supra, 428 U.S. at 552-54, 96 S.Ct. at 3080-3081. Obviously, this
interest would not be sufficiently strong to justify warrantless searches at a
location so far from the border that only a negligible percentage of the vehicles
passing through might reasonably be expected to have come from a foreign
location. The likelihood that vehicles passing through a detention area have
come from across the border may thus bear on the validity of such checkpoint
stops; however, the inquiry in such cases, unlike in the true border-search
context, is one of general probabilities rather than particularized suspicion

22

The Brennan panel did not hold that both proof of a border crossing and the
Martinez-Fuerte regularity factors are required for a search to be considered
one at the functional equivalent of the border. It found neither of these
requirements satisfied in the case before it and for that reason held the search
was not at the functional equivalent of the border. See United States v.
Brennan, supra, 538 F.2d at 715-16. The court did not clearly state whether the

requirements were cumulative or alternative. Its concluding statement that "this

search did not possess the characteristics of a border search or other regular
inspection procedures," id. at 716 (emphasis added), however, suggests that it
viewed them as alternative. Although for the reasons just stated, we interpret
Brennan as describing two separate tests for determining whether a search is
one at the "functional equivalent of the border," some later cases have
suggested a contrary interpretation. In United States v. Whitmire, 595 F.2d
1303 (5th Cir. 1979), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d
1136 (1980), the court described Brennan as holding that the functional
equivalent of the border requires "(1) a 'high degree of probability that a border
crossing took place' and (2) a regularity to the intrusion." Id. at 1307 n.2
(emphasis added). The Whitmire court noted that cases subsequent to Brennan
have not required both these elements and concluded that Brennan's "full
implications" had not been followed. Id. See also United States v. Sheikh, 654
F.2d 1057, 1068-70 (5th Cir. 1981). The Whitmire panel itself treated the
Border-Patrol stop cases as a separate potential basis for upholding a
warrantless search. See United States v. Whitmire, supra, 595 F.2d at 1308.
However one interprets the Brennan decision, it is clear that the current state of
the law in the Fifth Circuit views the border-crossing and regularity
requirements as alternative and not cumulative. See text infra
23

United States v. Johnson, 588 F.2d 147 (5th Cir. 1979) attempted to clarify the
precedents by recognizing that the functional equivalent of the border has "two
meanings":
A particular place removed from the border may be the functional equivalent of
the border because of its physical characteristics and the nature of the traffic
flowing through it. E.g., United States v. Reyna, 572 F.2d 515 (5th Cir. 1978);
United States v. Alvarez-Gonzalez, 542 F.2d 226 (5th Cir. 1976). Also, a
particular search may be the functional equivalent of a search at the border if
the object of the search has been kept under constant surveillance from the
border to the point of search. See, e.g., United States v. Fogelman, 586 F.2d
337, 342-345 (5th Cir. 1978).
Id. at 154. The first meaning clearly refers to the Border-Patrol type search
upheld in Martinez-Fuerte. The latter describes searches that, although
following a border crossing, are conducted at a point within the country.
Despite the Johnson panel's laudable effort to categorize the various analyses
employed by panels of the Fifth Circuit under the "functional equivalent of the
border" rubric, the area has remained confused largely because one phrasefunctional equivalent of the border-has continued to be applied to three very
different legal theories, without full recognition of that fact.

24

The Fifth Circuit panels in Hart and Alvarez-Gonzalez upheld full-scale

searches at permanent checkpoints despite the Supreme Court's holding in Ortiz
that a search required probable cause and Court's reliance in Martinez-Fuerte
on the limited scope of the stop in upholding a checkpoint detention. (See text
supra at 859-860.) The panels distinguished Ortiz and Martinez-Fuerte by
holding that those cases did not affect checkpoints that are "functionally
equivalent to the border." United States v. Alvarez-Gonzalez, supra, 542 F.2d
at 227-28; United States v. Hart, supra, 525 F.2d at 1200. The locations of the
checkpoint facilities in Hart and Alvarez-Gonzalez were respectively about 20
and 42 miles from the Mexican border, United States v. Hart, supra, 506 F.2d
at 896; United States v. Alvarez-Gonzalez, supra, 542 F.2d at 227, whereas
those in Ortiz and Martinez-Fuerte were about 60 miles from the border, see
note 14 supra. The basis for the Hart and Alvarez-Gonzalez holdings that the
particular checkpoints were functional equivalents of the border was not the
closer proximity between the checkpoint and the border, however, but rather a
group of factors including the permanence of the facilities, the ratio of
international to domestic traffic passing through them, the uncontrolled access
from the border to the area that the facility controls, and the apprehension at
the facility of significant numbers of illegal aliens. See United States v.
Alvarez-Gonzalez, supra, 542 F.2d at 228-29. Hart and Alvarez-Gonzalez thus
purport to distinguish the Supreme Court's Border-Patrol cases by applying the
functional equivalent rationale in order to avoid the limits imposed by the
Supreme Court on the scope of checkpoint searches. Nonetheless, it is clear that
the basic reason for allowing warrantless, suspicionless searches in these cases
is the same; both the Fifth Circuit and the Supreme Court holdings were
grounded in the need for internal checkpoints to police the flow of traffic across
the border and the limited interference with the domestic traffic in conducting
stops or searches at such facilities. Despite the "functional equivalent"
terminology in which the Hart and Alvarez-Gonzalez decisions were couched,
these cases do not involve border searches in the traditional sense of that term
because they require no showing that the vehicle searched actually crossed the
border. Since Hart and Alvarez-Gonzalez there has been a flood of litigation in
this area of fourth amendment law. Recent Fifth Circuit checkpoint cases
include United States v. Abrams, 598 F.2d 969 (5th Cir. 1979); United States v.
Smith, 598 F.2d 936 (5th Cir. 1979) (warrantless search conducted two and one
half hours after arrest made on basis of informants' tips required probable cause
despite its occurrence at border checkpoint facility); United States v. Richards,
598 F.2d 463 (5th Cir. 1979); United States v. Luddington, 589 F.2d 236 (5th
Cir. 1979); United States v. Bender, 588 F.2d 200 (5th Cir. 1979); United
States v. Clay, 581 F.2d 1190 (5th Cir. 1978); United States v. Moreno, 579
F.2d 371 (5th Cir. 1978); United States v. Fontecha, 576 F.2d 601 (5th Cir.
1978); United States v. Arrendondo-Hernandez, 574 F.2d 1312 (5th Cir. 1978);
United States v. Woody, 567 F.2d 1353 (5th Cir. 1978); United States v.

Robinson, 567 F.2d 637 (5th Cir. 1978); United States v. Blanford, 566 F.2d
470 (5th Cir. 1978); United States v. Morris, 565 F.2d 951 (5th Cir. 1978);
United States v. Legeza, 559 F.2d 441 (5th Cir. 1977); United States v.
Canales, 558 F.2d 1201 (5th Cir. 1977); United States v. Rodriquez, 556 F.2d
277 (5th Cir. 1977); United States v. Wilson, 553 F.2d 896 (5th Cir. 1977);
United States v. Faulkner, 547 F.2d 870 (5th Cir. 1977); United States v.
Macias, 546 F.2d 58 (5th Cir. 1977). See also United States v. Saenz, 578 F.2d
643 (5th Cir. 1978), cert. denied, 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42
(1979) (roving Border Patrol officers must have reasonable suspicion to search
vehicle); United States v. DeWitt, 569 F.2d 1338 (5th Cir. 1978) (same);
United States v. George, 567 F.2d 643 (5th Cir. 1978); United States v.
Villarreal, 565 F.2d 932 (5th Cir. 1978); United States v. Lopez, 564 F.2d 710
(5th Cir. 1977); United States v. Escamilla, 560 F.2d 1229 (5th Cir. 1977);
United States v. Barnard, 553 F.2d 389 (5th Cir. 1977); United States v.
Frisbie, 550 F.2d 335 (5th Cir. 1977)
25

The rationale for checkpoint stops is similar to that for other suspicionless
searches sometimes referred to as "administrative" or "regulatory" searches.
The Supreme Court has upheld such inspections in situations where requiring a
warrant or probable cause would prevent effective enforcement of a regulatory
scheme and where the nature or scope of the inspection ensures minimal
invasion of legitimate privacy interests. See, e.g., United States v. Biswell, 406
U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (unannounced inspection of
business premises for compliance with federal firearms storage requirements);
Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971)
(scheduled home visit by caseworker under State Aid to Families with
Dependent Children Program); United States v. Davis, 482 F.2d 893 (9th Cir.
1973) (airport screening searches of passengers and carry-on luggage for
weapons and explosives). But cf. Marshall v. Barlow's Inc., 436 U.S. 307, 98
S.Ct. 1816, 56 L.Ed.2d 305 (1978) (search of employment facility for
compliance with Occupational Safety and Health Act requires warrant);
Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (entry
to fight fire and remaining for reasonable investigation of cause requires no
warrant, but subsequent reentries to investigate suspected arson governed by
usual warrant standard of probable cause); Camara v. Municipal Court, 387
U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (municipal ordinance
authorizing health department inspections of residences and imposing criminal
liability for occupant's refusal to allow inspection violates fourth amendment).
See generally The Supreme Court, 1977 Term, 92 Harv.L.Rev. 57, 210-22
(1978)

26

United States v. Ramsey, supra, 431 U.S. at 620, 97 S.Ct. at 1980

27

We do not mean to imply that the functional equivalent rationale could never
be applied in a situation similar to this one. For example, if government officials
attempt to stop a traveller at the first practicable point but the traveller resists
detention by flight from the inspection area, a search conducted following
immediate pursuit and apprehension would be justifiable as a functionalequivalent-of-the-border search because it would have been conducted at the
first practicable detention point, the initial detention having been frustrated by
the traveller's flight. Cf. United States v. Woody, 567 F.2d 1353 (5th Cir.), cert.
denied, 436 U.S. 908, 98 S.Ct. 2241, 56 L.Ed.2d 406 (1978) (search upheld as
checkpoint search with probable cause despite its occurrence a few miles from
the checkpoint facility where, after Border Patrol agent detected odor of
marijuana and instructed defendant to open trunk, defendant speeded away and
was apprehended following high speed chase). Other conceivable situations
may arise in which it is impracticable for government officials to detain a
conveyance at its first domestic landing point. We hold only that the
government introduced no evidence here that demonstrates such
impracticability

28

See Part II.A supra

29

Hoge testified that he circled at about 7000 feet above the airport after
appellants landed. He further testified that at that distance he would have been
able to discern a person deboard the plane. Although his observation of the
plane was not completely uninterrupted and he was not certain that no one had
left from or boarded the plane while it was on the ground, he did indicate that
he observed the plane moving around for awhile and then become stationary.
He also stated that there were other small planes at the airport, that only one
other plane landed during the period appellants' plane was at the airport, that he
observed appellants' plane prepare for takeoff, and that he was certain that the
one taking off was the one he had followed prior to its landing. This testimony
indicates that Major Hoge's observation of the plane while it was at Rock
Harbor Key was sufficiently careful that the major degree of activity that would
have been required to load a substantial quantity of contraband onto it at that
point would not have escaped his notice

30

The Fifth Circuit has interpreted the Supreme Court's decision in United States
v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) to mean that
warrantless searches conducted by government officials in the absence of
statutory authority are per se unconstitutional. United States v. Williams, 617
F.2d 1063, 1074 (5th Cir. 1980) (en banc)

31

49 U.S.C. 1509(b) authorizes the Secretary of the Treasury to designate ports

of entry in the United States for civil aircraft and merchandise carried on them

arriving in this country from "any place outside thereof"; to assign Customs
officers and employees to such stations and confer on them "any of the powers,
privileges, or duties conferred or imposed upon officers or employees of the
customs service"; and to promulgate regulations applying "to civil air
navigation ( ) the laws and regulations relating to the administration of the
customs laws." Under the authority of this and other statutory provisions, the
Treasury Department has promulgated at 19 C.F.R., pt. 6 (1981) the Air
Commerce Regulations, which set forth requirements, including prior clearance
and documentation, for civil aircraft landing in and departing from the United
States. Section 6.10 of the regulations provides:
Except as otherwise provided for in this part, and insofar as such laws and
regulations are applicable, aircraft arriving or having arrived from any foreign
port or place and the persons and merchandise, including baggage, carried
thereon, shall be subject to the laws and regulations applicable to vessels
arriving or having arrived from any foreign port or place, to the extent that such
laws and regulations are administered by the Customs Service.
Title 19 U.S.C. 1581 empowers Customs officers to board vessels "at any
place in the United States ... and examine, inspect, and search the vessel ( ) ( )
and every part thereof and any person, trunk, package, or cargo on board."
Since 6.10 of the Air Commerce Regulations incorporates this provision by
reference, it authorizes the search of aircraft to the same extent as searches of
vessels are authorized under 1581. See also 19 C.F.R. 162.5 (1981)
(regulation embodying language substantially identical to 1581 but explicitly
referring to aircraft).
While the authority conferred on Customs under 1581 to search is on the face
of the statute unlimited, we have construed the provision to be limited by the
reasonableness requirement of the fourth amendment. United States v.
Caraballo, 571 F.2d 975 (5th Cir. 1978). Conversely, if a search conducted
pursuant to 1581 is otherwise constitutionally valid-whether because it is
based on probable cause, consent, or an exception such as the border-search
doctrine-no further limitations will be read into 1581, and thus such a search
is statutorily as well as constitutionally permissible. See id. Since we have held
that the search here was constitutionally authorized as an extended border
search, and since it is covered by the statutory language of 49 U.S.C. 1509,
19 U.S.C. 1581, and the above-cited regulations, we now hold that Customs'
search of appellants' aircraft was statutorily authorized.
32

Black's Law Dictionary defines posse comitatus as "The power or force of the
county. The entire population of a county above the age of fifteen, which a
sheriff may summon to his assistance in certain cases, as to aid him in keeping

the peace, in pursuing and arresting felons, etc."

33

Although for the reason stated we do not decide the issue, we note that United
States v. Wolffs, 594 F.2d 77 (5th Cir. 1979) would have posed a substantial
impediment to appellant Garcia's claim that the evidence discovered as a result
of the Air Force surveillance of appellants' plane should have been suppressed.
Wolffs held that application of the exclusionary rule to a violation of the posse
comitatus statute was unwarranted in the absence of widespread violations of
the act. Id. at 85

34

Under Fed.R.Crim.P. 12(b), motions to suppress evidence are required to be

raised by motion prior to trial. Fed.R.Crim.P. 12(f) provides that failure to raise
a defense or objection that must be made before trial "shall constitute waiver
thereof."

35

Cockes testified that the men found in the bushes by the ground patrol crew
were those he had seen exit the plane. Record, Vol. 2, at 80. Moreover, contrary
to appellant Garcia's assertion, Cockes' description of appellants that he gave to
the crew was consistent with the description related by one of the Customs
officers present when appellants were found. Cockes had described the men as
"(t)wo white males, one of which had a blue jean type long pants and with no
shirt. The other had a, what appeared to be a casual pair of slacks, long slacks,
green in color, light green with a light colored shirt, possibly white or cream."
Record, Vol. 2, at 79. Customs Officer Welch testified that "(a)s I recall, Mr.
Garcia didn't have a shirt on and had dark trousers on, and Mr. Jackman had on
a light colored tan shirt and about, about the same colored pants, as I recall." Id.
at 124. Government Exhibits 6-13, which are photographs of appellant Jackman
taken on the day of the arrest, depict him in a pair of slacks of a neutral khaki
shade that could be described as either green or tan and a shirt of a lighter color.
Whatever discrepancy there is in the two Customs officers' descriptions is
attributable to slight differences in their perception of color or in their
expression of their perceptions. In any event the differences are insignificant

36

Although appellants testified on the suppression motion that they were unaware
they were being followed, this evidence was not before the jury

37

As noted above, Cockes testified that some packages, one containing white
powder, were thrown out, along with what appeared to him to be maps, money,
and a navigation computer. Whichever of the appellants decided to discard
these objects may have believed that at least by eliminating the evidence of
their point of origin they could avoid conviction on an importation charge.
Alternatively, they may originally have intended to remove all the evidence but
found themselves unable to eject the large boxes of methaqualone from the

moving airplane. In any event, the act of ejecting such objects was clearly
evidence of a type the jury could consider in assessing whether appellants had
the intent to commit the crimes with which they were charged. See 2 Wigmore,
Evidence 278, at 141 & n.6 (3d ed. 1979). See generally C. Wright & K.
Graham, 22 Federal Practice and Procedure 5178, at 153-59 & Supp. 46-47
(1978 & Supp. 1982); id. 5240, at 476
38

39

Although flight alone is insufficient evidence to sustain a conviction, United

States v. Flores, 564 F.2d 717 (5th Cir. 1977), "evidence of flight may be
relevant and a legitimate ground for the inference of guilt." United States v.
Alonzo, 571 F.2d 1384, 1386 (5th Cir.), cert. denied, 439 U.S. 847, 99 S.Ct.
147, 58 L.Ed.2d 149 (1978). See also United States v. Myers, 550 F.2d 1036
(5th Cir. 1977), appeal after remand, 572 F.2d 506 (5th Cir.), cert. denied, 439
U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978)
In Reyes the four defendants, all illegal aliens from Colombia who spoke only
Spanish, were found on board a plane with the pilot. United States v. Reyes,
supra, 595 F.2d at 277. There was no contraband on board the plane when it
landed, though the government attempted to prove it had been unloaded from
the plane while flying over the Gulf of Mexico. Id. at 277-78. The evidence of
the illegal cargo and of an alleged attempt by someone on the plane to get rid of
it and mask its odor, was entirely circumstantial. See id. When the plane
landed, Customs agents immediately approached it, ordered its occupants to get
out, and searched the interior of the plane. Id. at 277