United States v. John J. Brennan (1976)

Alternatively, it held the airport search justifiable under the automobile search exception, See Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), which it considered applicable to airplanes, Cf. United States v. Brennan, 538 F.2d 711, 721 (5th Cir. 1976) (noting analogy but declining to hold automobiles and airplanes legally equivalent for fourth amendment purposes), Cert. d…

The majority, recognizing that the tip was insufficient to generate probable cause in support of the warrantless search, turn to corroboration, through surveillance, of “an accumulation of innocent detail conforming to the original tip,” citing United States v. Brennan, 538 F.2d 711, 720 (CA5), cert. denied,-U.S. --, 97 S.Ct. 1104 , 50 L.Ed.2d - (1977) (No. 76-701).

Although in some instances citizens may be subject to a full search for contraband at the functional equivalent of the border, see United States v. Brennan, 538 F.2d 711, 714-15 (5th Cir. 1976), no such intrusion was contemplated at the La Gloria checkpoint.

See United States v. Gallagher, 557 F.2d 1041, 1043 (4 Cir. 1977) (per curiam); United States v. Brennan, 538 F.2d 711, 716-19 (5 Cir. 1976).

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).

See United States v. Rollins, 699 F.2d 530, 534 (11th Cir.) (holding that search of aircraft fell within automobile exception to warrant requirement), cert. denied, 464 U.S. 933 (1983); Brennan, 538 F.2d at 721-22 (same); cf. Zurosky, 614 F.2d at 789-90 (same regarding boat).

See United States v. Rollins, 699 F.2d 530, 534 (11th Cir.) ___ _____________ _______ (holding that search of aircraft fell within automobile exception to warrant requirement), cert. denied, 464 U.S. 933 ____________ (1983); Brennan, 538 F.2d at 721-22 (same); cf. Zurosky, 614 _______ ___ _______ F.2d at 789-90 (same regarding boat). -6- CONCLUSION __________ Given the fact that the cocaine most likely would have been admissible at trial, combined with the almost certain adm…

Dreyfus-de Campos relied primarily upon Luddington , which in turn relied heavily upon Alvarez-Gonzalez II, supra, a case in which this Court stated, “in some instances citizens may be subject to a full search for contraband at the functional equivalent of the border____” 561 F.2d at 625 (citing United States v. Brennan, 538 F.2d 711, 714-15 (5th Cir.1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977)). 2 Brennan thus is *578 the sole support for the l…

As this Court has stated: “[t]he national interests in self-protection and protection of tariff revenue authorize a requirement that persons crossing the border identify themselves and their belongings as entitled to enter and be subject to search.” United States v. Himmelwright, 551 F.2d 991, 994 (5th Cir.), cert. denied, 434 U.S. 902 , 98 S.Ct. 298 , 54 L.Ed.2d 189 (1977) (quoting United States v. Brennan, 538 F.2d 711, 715 (5th Cir.1976), cert. denied, 429 U.S. 1092 , 97 …

Similar conclusions were reached in United States v. Flickinger, 573 F.2d 1349, 1357 (9th Cir.), cert. denied, 439 U.S. 836 , 99 S.Ct. 119 , 58 L.Ed.2d 132 (1978); United States v. Coplen, 541 F.2d 211, 215 (9th Cir.1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810 , 50 L.Ed.2d 791 (1977); and United States v. Brennan, 538 F.2d 711, 721-22 (5th Cir.1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977).

IV. 8 See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting the case law of the former Fifth Circuit developed before October 1, 1981, as precedent for this circuit) 9 Thus, the broad holding of United States v. Brennan, 538 F.2d 711, 716 (5th Cir.1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977), involving the search of an airplane not at the border, that "neither agents of the Border Patrol nor of the Customs Servi…

Its justification derives from the single fact that the boundary of the United States has been crossed, since “the object under such surveillance ‘brings the border with it’ to the point of search.” United States v. Johnson, 588 F.2d 147, 154 (5th Cir. 1979) (citing 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)).

But see id. at 940-42 (Hill, J., dissenting); United States v. Tuley, 546 F.2d 1264, 1268 (5th Cir.), cert. denied, 434 U.S. 837 , 98 S.Ct. 128 , 54 L.Ed.2d 99 (1977) (accumulation of innocent detail conforming to original tip coupled with exigent circumstances gave rise to probable cause); United States v. Brennan, 538 F.2d 711, 720-21 (5th Cir. 1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977) (though "the better practice is to obtain corroboration…

United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976).

As this court stated in Brennan, “[t]he national interests in self-protection and protection of tariff revenue authorize a requirement that persons crossing the border identify themselves and their belongings as entitled to enter and be subject to search.” United States v. Brennan, 538 F.2d 711, 715 (5th Cir. 1976).

Cf. United States v. Brennan, 538 F.2d 711, 721 (5th Cir. 1976) (finding an airplane’s mobility created exigent circumstances that justified a warrantless search “[w]ithout holding that an airplane is the legal equivalent of an automobile”).

In United States v. Brennan, 538 F.2d 711, 715-716 (5th Cir.), reh’g denied, 542 F.2d 575 (5th Cir.), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 , the Fifth Circuit held that where a plane took off and returned to an airport in the United States, where the defendant pilot filed no flight plan and where the defendant’s known direction of travel was to a city in the United States, there was no reliable indication that the defendant’s flight was international …

Regardless of the type of search involved, the fact that a border crossing occurred must be demonstrated. *484 As we stated in United States v. Niver, 689 F.2d 520 (5th Cir.1982): We have generally required a showing beyond a “reasonable certainty” that the entity searched has crossed the international border, United States v. Ivey, 546 F.2d 139 (5th Cir.1977), or “a high degree of probability that a border crossing took place.” United States v. Brennan, 538 F.2d 711, 715 (5…

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).

This court has held that “[wjhere insufficient information about the tip and the tipster is available to justify reliance on it alone, investigating officers may supplement the tip by surveillance of the subject or corroboration of key elements of the tip from relatively objective sources.” United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977).

We have generally required a showing beyond a “reasonable certainty” that the entity searched has crossed the international border, United States v. Ivey, 546 F.2d 139 (5th Cir. 1977), or “a high degree of probability that a border crossing took place.” United States v. Brennan, 538 F.2d 711, 715 (5th Cir. 1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977).

Under the authority of the Fifth Circuit’s recent ruling in United States v. Stone, 659 F.2d 569 (5th Cir. 1981), the search of an individual or object which has been continuously tracked from outside the United States to its first domestic landing point is proper as a border search: *900 “the object under such surveillance ‘brings the border with it’ to the point of search.” United States v. Johnson, 588 F.2d 147, 154 (5th Cir. 1979) (citing United States v. Brennan, 538 F.…

See, e.g., McCray v. Illinois, 386 U.S. 300, 304 , 87 S.Ct. 1056, 1058 , 18 L.Ed.2d 62 (1967); United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976), cert. denied, 429, U.S. 1092, 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977); United States v. Carter, 498 F.2d 83, 85 (D.C.Cir.1974) (per curiam).

Safety Bd., 638 F.2d 144, 146 (10th Cir. 1980); United States v. Dorr, 636 F.2d 117, 121 (5th Cir. 1981); United States v. Gooch, 603 F.2d 122, 123-25 (10th Cir. 1979); United States v. Groomer, 596 F.2d 356, 357-58 (9th Cir. 1979); United States v. Coplen, 541 F.2d 211, 214-15 (9th Cir. 1976); United States v. Brennan, 538 F.2d 711, 720-21 (5th Cir. 1976); United States v. Sigal, 500 F.2d 1118, 1121-23 (10th Cir. 1974).

United States v. Brennan, 538 F.2d 711, 715-16 (5th Cir. 1976).

There is some contrariety in the decisions on whether the corroborating facts may be “innocent facts” conforming to the information in the tip or must be facts which “relate directly to the criminal activity.” See United States v. Brennan (5th Cir. 1976) 538 F.2d 711, 720, n. 11 , cert. denied 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 .

We may consider the underlying circumstances, including those portions of the information verified by the police, and other factors supporting the informant's reliability and the probable truthfulness of the information given. * * *" 10 There is some contrariety in the decisions on whether the corroborating facts may be "innocent facts" conforming to the information in the tip or must be facts which "relate directly to the criminal activity." See United States v. Brennan (5t…

We think the objective facts in this case enabled the Customs officers to conclude that there was a “high degree of probability that a border crossing took place” United States v. Brennan, 538 F.2d 711, 715 (5th Cir. 1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977), and that a border search was in order.

The balance we have sought to strike in border search cases between the level of official intrusion into individual privacy and the public interest to be served by such intrusions, Himmel-wright, supra, 551 F.2d at 994 , a balance which permits searches and seizures to be based upon less than probable cause, fully reflects “[t]he national interests in self-protection and protection of tariff revenue,” United States v. Brennan, 538 F.2d 711, 715 (5th Cir. 1976), cert. denied,…

United States v. Brennan, 538 F.2d 711, 721 (5th Cir. 1976).

United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976).

Before Customs agents may legitimately conduct a border-type search of an aircraft, there must be a “high degree of probability that a border crossing took place.” United States v. Brennan, 538 F.2d 711, 715 (5th Cir. 1976); but see United States v. Lonabaugh, 494 F.2d 1257 (5th Cir. 1973).

Ed. 2d 596 (1973); United States v. Brennan, 538 F.2d 711, 716 (11th Cir. 1976).

It more resembled the common nonborder search based on individualized suspicion, which must be prefaced by the usual warrant and probable cause standards.... ” United States v. Brennan, 538 F.2d 711, 716 (5th Cir.1976). 17 ' That point is driven home by a review of the warrant application that was filed after the so-called border search was completed.

“It is settled law that warrantless searches [and seizures] require the same investigative basis in fact or reasonable conjecture as searches [and seizures] under warrant.” United States v. Brennan, 538 F.2d 711, 720 (5th Cir.1976). 11 An officer may arrest “any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [immigration] law or regulation.” 8 U.S.C. § 1357 (a)(2); see also 8 U.S.C. § 1226 (a) (“…

United States v. Brennan, supra at 720 (citation omitted).

Nevertheless, “ . . . it is generally agreed that the better practice is to obtain corroboration of incriminating details.” United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976), cert, denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977), reh. denied, 430 U.S. 960 , 97 S.Ct. 1611 , 51 L.Ed.2d 812 (1977).

United States v. Brennan, 538 F.2d 711, 719 (5th Cir.1976) (footnotes omitted).

Compare, e. g., United States v. Mendoza, 547 F.2d 952 (5th Cir. 1977); United States v. Brennan, 538 F.2d 711, 719-21 (5th Cir. 1976).

United States v. Anderson, supra; see also, Spinelli v. United States, 393 U.S. at 415 , 89 S.Ct. 584 ; United States v. Brennan, 538 F.2d 711 at 720 (5th Cir. 1976), cert. den., 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 ; United States v. Larkin, 510 F.2d 13 at 15 (9th Cir. 1974).

In United States v. Brennan, 538 F.2d 711, 720 (C.A. 5 1976) it was noted that "an accumulation of innocent detail conforming to the original tip" may have significant corroborative value.

Amuny, 767 F.2d at 1124 ; see United States v. Brennan, 538 F.2d 711, 715 (5th Cir.1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977).

See United States v. Brennan, 538 F.2d 711, 715 (5th Cir.1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977).

See United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976).

See United States v. Brennan, 538 F.2d 711, 721 (5th Cir.1976). 2 A dwelling, together with its surrounding curtilage, is not always a sanctuary from law enforcement activity, even if the police act without a warrant.

See United States v. Brennan, 5 Cir., 1976, 538 F.2d 711 .

See United States v. Brennan, 538 F.2d 711, 719-22 (5th Cir. 1976), cert. denied, 429 U.S. 1092 , 97 S.Ct. 1104 , 51 L.Ed.2d 538 (1977).

See United States v. Brennan, 538 F.2d 711, 721 (5th Cir.1976). [8] Inherent mobility was espoused by the Supreme Court as a basis for the exception in United States v. Chadwick, 433 U.S. 1, 12 , 97 S.Ct. 2476, 2484 , 53 L.Ed.2d 538 (1977).

See United States v. Brennan, 538 F.2d 711 (5th Cir. 1976) (no probable cause until airplane seen taxiing without lights, corroborating informant’s information); United States v. Kulp, 365 F.Supp. 747 (E.D.Pa.1973) (no probable cause until informant’s information corroborated in part by surveillance).