packages that the agents found a quantity of cocaine.
Relying on 19 U.S.C. § 1581 and 1582,*fn1 the government argues
that the customs inspectors had authority to conduct the initial
warrantless search of MacKenzie's car under the authority of
United States v. Gaviria, 805 F.2d 1108 (2d Cir. 1986), cert.
denied, 481 U.S. 1031, 107 S.Ct. 1960, 95 L.Ed.2d 531 (1987). The
government's theory is premised on the fact that the inspectors
kept eye contact with the vehicle after it left the
primary-inspection area. Because of this, the government argues
that the inspectors maintained the right to stop the vehicle, to
question MacKenzie, and to search both MacKenzie and the car. The
government characterizes the search that occurred near the North
Grand Island Bridge as a secondary search identical in nature to
those normally conducted at the secondary-inspection station
located at the Lewiston-Queenston Bridge. The defendants argue
that after the vehicle passed through the primary-inspection post
without being sent to the secondary-inspection area, customs
officers did not have the right to stop it unless they had a
reasonable suspicion of criminal activity.
As to the arrest of the defendants and the seizure of cocaine
in the Burger King lot, the government, citing 8 U.S.C. § 1357,*fn2
argues that the border patrol agents were entitled to stop the
car and to question MacKenzie because they had information
indicating that he might be an excludable alien. In support of
its position, the government also notes that the agents also knew
that MacKenzie had told the customs officers that he was going to
the airport or to the Days Inn to pick up his mother, but instead
picked up another unidentified male, left the airport, and went
to the Burger King. The defense asserts that in order to be
excludable from the United States, MacKenzie would have had to
have been convicted of a drug charge in Canada, and, even
assuming the right of the border patrol agents to question him
about his citizenship and his right to be in the United States,
the agents lacked sufficient information to make an arrest, to
search the vehicle, or to seize the bag and packages of cocaine
without a warrant.
Without question, border searches by customs agents are
permissible at ports of entry. United States v. Ramsey,
431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). When searches occur
away from the border, however, different rules may apply.
Generally, courts have considered three types of searches that
occur away from the actual border: 1) "checkpoint" searches, 2)
"functional-equivalent-of-the-border" searches, and 3)
"extended-border" searches. See United States v. Gaviria, 805
F.2d at 1111-14; United States v. Santiago, 837 F.2d 1545, 1548
(11th Cir. 1988); United States v. Carter, 760 F.2d 1568, 1576
(11th Cir. 1985); United States v. Garcia, 672 F.2d 1349, 1353-55
(11th Cir. 1982); United States v. Mayer, 818 F.2d 725 (10th Cir.
1987); United States v. Caminos, 770 F.2d 361, 364 (3d Cir.
1985); United States
v. Niver, 689 F.2d 520, 526 (5th Cir. 1982); United States v.
Richards, 638 F.2d 765 (5th Cir.), cert. denied, 454 U.S. 1097,
102 S.Ct. 669, 70 L.Ed.2d 638 (1981).
The search at the North Grand Island Bridge clearly was not
conducted at a customs checkpoint. Nor was it a
functional-equivalent-of-the-border search, which usually occurs
when an airport serves as the final destination for a non-stop
flight having a foreign origination, as in United States v.
Caminos, supra, or United States v. Gaviria, supra, and which
must take place "after a border crossing at the first practicable
detention point." United States v. Garcia, 672 F.2d at 1365. In
Caminos, a package was sent to the United states on a flight that
had originated in Brazil. The package was placed under a customs
bond after arriving in New York and eventually was shipped to
Pittsburgh, where a customs officer discovered cocaine secreted
in a wood carving that was inside the package. The court found
that reasonable suspicion for the search was not required because
the package was still under customs bond and the airport was
considered to be the port of entry. In Gaviria, a shipment
described as canned fruit was dispatched by airplane from
Columbia to John F. Kennedy International Airport in Queens, New
York. However, the plane landed first at Miami, where customs
officials examined the contents of some of the cartons, noted
that they had been inspected, and then sent them on to JFK by
bonded truck carrier. Another inspection occurred there, and
cocaine was found in several cans within two of the cartons. In
both of these cases, the packages continued to be under the
possession and control of customs agents. It is important also to
note that the searches were made of packages under customs bonds
and not of individuals or an automobile.
An extended-border search is one "that usually is conducted
after a person or some property has `cleared an initial customs
checkpoint and [has] entered the United States.'" United States
v. Gaviria, 805 F.2d at 1112 (quoting United States v. Glaziou,
402 F.2d 8, 13 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89
S.Ct. 999, 22 L.Ed.2d 126 (1969)). See also United States v.
Garcia, 672 F.2d at 1360-1366 (court extensively reviews
checkpoint searches, functional-equivalent searches, and
extended-border searches in the Fifth Circuit). An
extended-border search does not require a warrant, but due to the
greater intrusion on legitimate expectations of privacy, it is
permitted only if supported by reasonable suspicion. United
States v. Garcia, 672 F.2d at 1364.
The aircraft searches described in cases like United States v.
Garcia do not support the government's position. As the court
explained in that case:
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 [37 L.Ed.2d 596 (1973)]. This type of
search is justified under the border-search 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.
Id. at 1363-64.