NELSON EDGAR EMMENS, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-1737

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 15-21) is reported
at 893 F.2d 1292.  The orders of the district court (Pet. App. 3-7,
8-9) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 7,
1990.  The petition for a writ of certiorari was filed on May 7, 1990.
 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the Customs agents' warrantless search of petitioner's
airplane, which had taxied into a private hangar within the curtilage
of petitioner's house after crossing the United States border,
violated the Fourth Amendment.

                               STATEMENT

   After entering a conditional guilty plea in the United States
District Court for the Southern District of Florida, petitioner was
convicted of importing at least five kilograms of cocaine, in
violation of 21 U.S.C. 952(a) and 960(a)(1).  He was sentenced to a
term of 210 months' imprisonment, to be followed by a five-year term
of supervised release.  He was also ordered to pay a $150,000 fine.
The court of appeals affirmed.

   1. Petitioner was the subject of a lengthy criminal investigation
conducted by the United States Customs Service, the Drug Enforcement
Administration, and the Internal Revenue Service.  Petitioner, a pilot
who lived next to a private airstrip in Delray Beach, Florida, was
suspected of smuggling narcotics into this country.  In early May
1988, federal authorities learned from several confidential sources
that petitioner would be flying a load of cocaine from Colombia to
either Florida or the Bahamas.  By May 11, federal agents had received
sufficient additional information to track petitioner's flight and
intercept him.  Pet. App. 3-4;  Tr. 46-47.  /1/

   The agents learned that petitioner, flying a Piper Aztec airplane,
would be landing in southern Florida on the evening of May 11.
According to the agents' informants, petitioner would land either at
the Antiquers Field in Delray Beach near his house, or at a deserted
spot near Lake Wales.  Pet. App. 4;  Tr. 48-51.  In the early
afternoon of May 11, the DEA received word that petitioner was heading
back from Colombia and was flying over the Gulf of Mexico.  The DEA
alerted the Customs Service, which dispatched a radar plane to the
Gulf to track petitioner.  The Customs Service also sent a helicopter
carrying a team of agents to the Delray Beach area in order to
intercept petitioner after he landed.  Pet. App. 4, 17;  Tr. 52-53.
/2/

   In the late afternoon, a Customs Service radar plane detected
petitioner's plane flying over the Gulf of Mexico.  The plane,
traveling north and then due east toward southern Florida, was flying
at a low altitude.  The plane was not sending a transponder signal to
identify itself, and it occasionally deviated from its flight path,
apparently in order to check for any surveillance.  The Customs
Service also tracked another plane in the vicinity, which appeared to
be acting as a look-out for petitioner.  Pet. App. 4, 17;  Tr. 5-6,
62-63.

   Petitioner's plane crossed the United States border at Naples,
Florida.  A second Customs Service radar plane was following
petitioner and was in contact with the intercept helicopter and the
agents on the ground.  At approximately 8 p.m., petitioner approached
the airstrip at Antiquers Field in Delray Beach;  the radar plane
alerted the helicopter and directed it to land immediately after
petitioner in order to intercept him.  The radar plane watched as
petitioner's plane landed and taxied into a private hangar near a
house.  The radar plane relayed that information to the helicopter,
which landed shortly afterward.  Pet. App. 4;  Tr. 7-8, 55-56.

   When the helicopter landed, petitioner's plane was parked inside
the hangar, and the hangar door was closing.  Customs agents, wearing
identifying jackets and carrying weapons, fanned out from the
helicopter and approached the hangar.  Customs Special Agent Gary
Pior, the lead agent, spotted petitioner standing inside the hangar at
the rear of the plane.  When petitioner saw the agents, he immediately
dropped to the ground and lay spread-eagle.  Agent Pior ran up to
petitioner, who was lying across the threshold of the hangar, in order
to stop the hangar door from closing on petitioner's legs.  Pet. App.
4;  Tr. 10-11.

   Pior detained petitioner and, through the partially open hangar
door, noticed that there appeared to be two figures in the back seat
of the airplane.  Pior and other agents then entered the hangar "to
make sure that there was no one else around." Tr. 12.  As Pior
explained, "(i)t was a precautionary sweep of the area, to make sure
that our safety and the safety of (petitioner) was utmost." Tr. 12.
/3/ As Pior approached the plane, he noticed that the plane bore
taped, altered tail numbers.  Pior also realized that the two figures
he had seen were actually mannequins of Prince Charles and Princess
Diana;  the mannequins were propped up on a pile of duffle bags.  The
agents found no other persons inside the hangar.  Pet. App. 4-5;  Tr.
13-15.

   Pior tried to open the plane's door, but it was locked.  Pior then
asked petitioner for the key and took it from him.  Inside the plane,
Pior discovered 12 duffel bags and an extra fuel tank.  He opened one
of the duffel bags and found individually wrapped packages that
appeared to contain narcotics.  Pior had petitioner placed under
arrest;  Pior then conducted a field test of the contents of one of
the packages.  The contents tested positive for cocaine.  The agents
then seized the airplane and its contents and secured the area.  Pet.
App. 4-5, 18;  Tr. 16-19, 34-37.  /4/

   2. Petitioner filed a pretrial motion to suppress the seized
cocaine.  He contended that the agents' warrantless search of his
plane, which was located within his hangar on private property,
violated the Fourth Amendment.  After an evidentiary hearing, the
district court denied that motion in August 1988.  Pet. App. 3-7.  The
court noted that "(b)order searches constitute a well-known exception
to the mandate of the fourth amendment." Id. at 6 (internal quotation
marks omitted).  And the court further recognized that "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." Ibid.  (internal quotation
marks omitted).

   Here, the court "assum(ed) * * * that (petitioner) had a legitimate
expectation of privacy in the airplane hangar." Pet. App. 6.
Nevertheless, the court found that it was

      undisputed that the aircraft entered the United States without
      declaring itself (and that) (t)he aircraft had been constantly
      surveilled since it was located over the Gulf of Mexico until it
      landed in Delray Beach, Florida.

Ibid.  Accordingly, the court held that "(t)he mere fact that a border
entry had been made makes the search reasonable." Ibid.  /5/

   3. The court of appeals affirmed.  Pet. App. 15-21.  In the court
of appeals, petitioner did not dispute that, if the agents had
searched the plane before it reached his private hangar, the border
search doctrine would have rendered the search constitutional.
Instead, petitioner principally contended that that doctrine did not
apply to the search at issue since it took place within the curtilage
of his house.  Pet. C.A. Br. 12-16;  Pet. C.A. Reply Br. 1-3.

   The court of appeals recognized that "neither a warrant nor any
level of suspicion is required to search vehicles, including aircraft,
arriving in the United States." Pet. App. 19.  The court pointed out
that

      "(a) border search may be conducted away from the actual border
      if:  (1) there is a reasonable certainty that the object of the
      search has just crossed the border, (2) the search takes place
      at the first practicable point after the border was crossed, and
      (3) there has been no time or opportunity for the object of the
      search to have changed materially since the time of the
      crossing."

Ibid. (quoting United States v. Carter, 760 F.2d 1568, 1576 (11th Cir.
1985)).  Here, as petitioner conceded, those three requirements were
met.  Accordingly, the court concluded that "the warrantless search of
(petitioner's) plane was justified as a search at the functional
equivalent of the border." Pet. App. 18.

   In so holding, the court rejected petitioner's contention that
"because the airplane * * * reached an area located within the
curtilage of (his) home * * *, Customs was prohibited from searching
the plane without a warrant." Pet. App. 19.  Like the district court,
the court of appeals "(a)ssum(ed) the hangar was actually part of the
curtilage of (petitioner's) home." Ibid.  The court recognized,
however, that "(a) dwelling, together with its surrounding curtilage,
is not always a sanctuary from law enforcement activity, even if the
police act without a warrant." Id. at 21.  The court therefore
"refuse(d) to allow (petitioner) to cross the border in an airplane
and then to thwart Customs' lawful right to search that airplane at
the first practicable point by his parking the plane in a private
place." Ibid.  In the court's view, "(t)o hold otherwise would be to
force Customs agents to play 'tag' with suspected smugglers." Ibid.
The court accordingly held that

      Customs' warrantless search of an airplane inside the curtilage
      of the suspect's home is a lawful search if all other
      requirements for a valid search of that plane at the functional
      equivalent of the border are satisfied, including the
      requirement that there has been no opportunity for the object of
      the search to have changed materially since the time of the
      border crossing.

Ibid.

                               ARGUMENT

   1. Petitioner contends (Pet. 6-11) that the Fourth Amendment
prohibited the Customs agents from conducting a warrantless search of
his airplane after he flew it across the border because, at the time
of the search, the plane was parked in a hangar within the curtilage
of his home.  As this Court recently reiterated, "the Fourth Amendment
bars only unreasonable searches and seizures." Maryland v. Buie, 110
S. Ct. 1093, 1096 (1990).  "What is reasonable," the Court has stated,
"'depends on all the circumstances surrounding the search or seizure
and the nature of the search or seizure itself.'" Skinner v. Railway
Labor Executives' Ass'n, 109 S. Ct. 1402, 1414 (1989) (quoting United
States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)).
Accordingly, "the permissibility of a particular practice 'is judged
by balancing its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental
interests.'" Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. at
1414 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).

   Consistent with "Congress' power to protect the Nation by stopping
and examining persons entering this country," the Court has long
recognized that "the Fourth Amendment's balance of reasonableness is
qualitatively different at the international border than in the
interior." United States v. Montoya de Hernandez, 473 U.S. at 538.
Consequently, the Fourth Amendment does not prohibit routine searches
at the border, even in the absence of a warrant or any particular
level of suspicion.  See, e.g., United States v. Ramsey, 431 U.S. 606,
616-619 (1977);  Carroll v. United States, 267 U.S. 132, 153-154
(1925);  Boyd v. United States, 116 U.S. 616, 623 (1886).  Moreover,
the so-called "border search" doctrine applies to searches conducted
at the "functional equivalent" of the border.  E.g., Almeida-Sanchez
v. United States, 413 U.S. 266, 272-273 (1973).  As the Court has
explained, "searches made at the border, pursuant to the longstanding
right of the sovereign to protect itself by stopping and examining
persons and property crossing into this country, are reasonable simply
by virtue of the fact that they occur at the border." United States v.
Ramsey, 431 U.S. at 616.  /6/

   Here, petitioner "concedes that the facts presented constitute a
search at the functional equivalent of the border." Pet. 6.  The
record showed that "Customs (agents) continuously tracked
(petitioner's) plane as it flew over the ocean and crossed the United
States border" and that "(a)s soon as (petitioner) parked the plane,
Customs (agents) stopped (him) and conducted the search." Pet. App.
20.  As the court of appeals explained, the Customs agents conducted
the search at the first practicable point after the border was
crossed, for they "allowed (petitioner) only enough time to park the
plane in the hangar to prevent (him) from flying away and escaping."
Ibid.

   Contrary to petitioner's submission, the fact that the agents'
search took place within the curtilage of petitioner's house does not
render the warrantless search "unreasonable." As petitioner correctly
points out, the Fourth Amendment generally prohibits warrantless
searches of houses, including the area within the curtilage, in the
absence of exigent circumstances.  See, e.g., United States v. Dunn,
480 U.S. 294, 300-301 (1987);  Oliver v. United States, 466 U.S. 170,
178 (1984);  Payton v. New York, 445 U.S. 573, 585-586 (1980).  Such
searches, the Court has recognized, are "presumptively unreasonable."
Payton v. New York, 445 U.S. at 586;  see also Coolidge v. New
Hampshire, 403 U.S. 443, 474-475 (1971).

   The particular search at issue here -- the search of an airplane at
the first practicable point after it had crossed the border -- is not
the sort of "presumptively unreasonable" search the Fourth Amendment
categorically condemns.  To the contrary, this Court has long held
that such warrantless searches are "considered to be 'reasonable' by
the single fact that the person or item in question had entered into
our country from outside." United States v. Ramsey, 431 U.S. at 619.
The fact that petitioner managed to park his airplane within the
curtilage of his house before the authorities arrived on the scene
should not alter that assessment.  Persons who enter the country at
the border certainly know that they are subject to searches and
inspections conducted by the Customs Service.  Moreover, the
reasonableness of the particular search in this case is buttressed by
the fact that the Customs agents had probable cause to believe that
the plane was carrying cocaine -- a point petitioner does not dispute.
 And even outside the context of a border search, a suspect cannot
defeat the right of police officers to arrest and search him by
retreating from a public place into a private home while the officers
are in hot pursuit.  See United States v. Santana, 427 U.S. 38 (1976).

   On the record presented, the court of appeals therefore correctly
held that the agents' warrantless search of petitioner's plane was
"reasonable" under the Fourth Amendment.  And since this case, as
petitioner points out, appears to present an "issue of first
impression," Pet. 6, and involves an unusual set of circumstances not
likely to recur with any frequency, further review is not warranted.

   2. In any event, this case is not a suitable vehicle for resolving
the issue petitioner presents since the agents' warrantless search may
also be upheld on an alternative ground.  By the time petitioner's
plane landed in Delray Beach, the investigating agents had probable
cause to arrest petitioner on narcotics smuggling charges.
Petitioner's flight pattern over the Gulf of Mexico corroborated the
confidential informants' information about petitioner's smuggling
activities, and the appearance of a second "counter-surveillance"
plane suggested that petitioner was in fact carrying a load of
contraband.  Although Agent Pior, the arresting officer, had no
personal knowledge of these facts, he was under orders, from the
Customs and DEA agents conducting the investigation, to intercept
petitioner on the ground.  Cf.  Whiteley v. Warden, 401 U.S. 560, 568
(1971);  see 2 W. LaFave, Search and Seizure Section 3.5(b) (1987).
In these circumstances, petitioner was subject to lawful arrest when
Agent Pior found him lying across the threshold of the hangar.  See
United States v. Santana, 427 U.S. at 42-43.

   Once petitioner was in custody, the agents on the scene were
entitled to enter the hangar to conduct a cursory, protective sweep --
a point petitioner does not dispute.  See Pet. 9.  Before entering the
hangar, Agent Pior noticed two figures that appeared to be sitting
inside the plane.  That fact alone justified the agents in entering
the hangar to ensure that there were no other potentially dangerous
individuals on the premises.  See Maryland v. Buie, 110 S. Ct. at
1098.  Once legitimately inside the hangar, Agent Pior saw that
petitioner's plane bore altered tail numbers, a tell-tale sign of
smuggling activity, and that it contained two mannequins propped up on
duffel bags.  These facts, taken together with petitioner's behavior
on the scene, provided sufficient probable cause for Agent Pior to
believe that the plane was carrying contraband.  Accordingly, under
the exception to the Warrant Clause applicable to moveable vehicles
such as cars and planes, Pior was entitled to search the plane without
first obtaining a warrant.  See Michigan v. Thomas, 458 U.S. 259,
261-262 (1982);  United States v. Rollins, 699 F.2d 530, 534 (11th
Cir.), cert. denied, 464 U.S. 933 (1983);  United States v. Brennan,
538 F.2d 711, 721-722 (5th Cir. 1976), cert. denied, 429 U.S. 1092
(1977).  Since the cocaine was discovered during a lawful search of
petitioner's plane, it was not subject to suppression.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   JOSEPH C. WYDERKO

      Attorney

   JUNE 1990

   /1/ "Tr." refers to the transcript of the suppression hearing held
on July 21, 1988.

   /2/ By this time, the authorities anticipated that petitioner would
be landing at the airstrip next to his house.  A team of agents
therefore assembled at a nearby shopping center to await further
instructions.  Tr. 54.

   /3/ The hangar was about 60 feet from petitioner's house, which
occupied a 2.2-acre lot in Antiquers Field, a private residential
community.  Residents shared a centrally located grass airstrip.
Petitioner's property "was enclosed on three sides by a hedge;  the
fourth side abutted the grass airstrip." Pet. App. 17.  A walkway and
driveway connected petitioner's hangar to his house.  The hangar
contained "a place for parking (an) airplane, a three-car garage, a
small workshop, and a small office." Ibid.

   The agents made only a cursory, protective sweep search of the
hangar, not a full-scale evidentiary search.  Pet. App. 4-5, 18.

   /4/ The government later determined that petitioner's plane was
carrying approximately 300 kilograms of cocaine.

   /5/ On petitioner's motion for reconsideration, the district court
reopened the record to receive additional evidence regarding the
location and function of the private hangar.  After considering that
evidence, see note 3, supra, the district court again denied
petitioner's motion to suppress.  Pet. App. 8-9.

   /6/ Indeed, the Court has recently acknowledged that the
"longstanding concern for the protection of the integrity of the
border * * * is, if anything, heightened by the veritable national
crisis in law enforcement caused by smuggling of illicit narcotics."
United States v. Montoya de Hernandez, 473 U.S. at 538.