(dissenting) :
I respectfully dissent from the refusal to reconsider the panel opinion by the Court en banc. I think the panel opinion makes an unwarranted applica*1029tion of the border search doctrine to this case.
At the outset, the statutory argument by which the appellant was defined as a person “standing at the border” creates difficulties. I question the use of a statute which defines the status of a person for entry purposes under the immigration law being used as sole authority for conducting a border search. Title 19, U.S.C., Section 482, the statutory authority under which border searches are conducted, designates a border crossing rather than the legal status of a person as the event giving rise to the authority to conduct a border search. Alexander v. United States, 9 Cir. 1966, 362 F.2d 379, cert. denied 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439. It is clear however that at some point a person becomes fully admitted to the United States and may no longer be subjected to a border search, cf. Carroll v. United States, 1925, 267 U.S. 132, 134, 45 S.Ct. 280, 69 L.Ed. 543. The border or “extended border” has uniformly heretofore been defined in terms of physical distance or geographical travel time from the actual border, and authority to conduct border searches has been made dependent upon traditional border search or extended border search analysis.
Despite the fact that they may be illegal entrants into the United States, aliens as well as citizens enjoy Fourth Amendment protection, cf. Au Yi Lau v. United States Immigration and Naturalization Service, 1971, 144 U.S.App.D.C. 147, 445 F.2d 217, 223. In my view the panel opinion creates a precedent fraught with dangerous implications that the validity of warrantless searches of aliens may in the future be made to depend upon administrative classifications of status made by the Bureau of Immigration and Naturalization.
Further the panel opinion approves the introduction of evidence which was the fruit of a warrantless search of the appellant’s clothing in the jail property room. Title 8, U.S.C., Section 1182(d) (5), which is relied on to place the appellant in “deferred inspection parole status” applies facially to persons and not to baggage and personal effects. It is unclear to me how this “deferred inspection parole status” can apply to baggage and personal effects that the appellant was incapable of reaching because of his incarceration. Even if Cristancho-Puerto was “standing at the border” he was still entitled to a separate and distinguishable Fourth Amendment right to the security of his clothing in the jail property room. Brett v. United States, 5 Cir. 1969, 412 F.2d 401, so holds for this Court. A warrantless search must fall within one of the narrow “jealously and carefully drawn” exceptions to the Fourth Amendment. Jones v. United States, 1960, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514. An immigration statute which defines status is not in my judgment a valid basis for engrafting an additional exception upon the warrant requirement of the Fourth Amendment.
A search must be reasonable under the Fourth Amendment. Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. Simply classifying this search as a border search is not a ground for obviating inquiry into the surrounding circumstances to determine reasonableness. Even absent the normal requirements of a search warrant for the existence of probable cause, border searches still must be reasonable under Fourth Amendment imperatives. United States v. Hill, 5 Cir. 1970, 430 F.2d 129, 130; Henderson v. United States, 9 Cir. 1967, 390 F.2d 805. The particular search here of course does not comport with the historical origin and justification for an “extended border search”— a border search occurring at some point of time other than an actual border crossing. Cf. United States v. Glaziou, 2 Cir. 1968, 402 F.2d 8, 13-14, Note 3. Ordinarily the justification for an “extended border search” is that individuals who have recently crossed a border or who have been in a border area may elude customs officials because of high mobility. Glaziou, supra. But in this case the appellant was in custody and *1030government agents had ample opportunity to secure a warrant if the informer’s tip was reliable and sufficient to constitute probable cause. Border searches occurring at some point after an initial border crossing usually involve considerations of both distance and time from the initial crossing. Alexander v. United States, supra. No other case which I have found sanctions a border search conducted eight days after entry into the United States.
Neither the panel opinion nor the briefs make clear the actual reason for the appellant’s incarceration at the time of the search when the cocaine was discovered. The opinion (see slip opinion, pages 2 and 3) states that appellant was charged with violating Title 18, U.S.C., Section 1546 (possession of fraudulent entry documents), arraigned before a United States Magistrate on that charge, searched and jailed, being searched both at the time of the arrest and at the time of his return to jail following arraignment. These searches were unproductive. If Cristancho-Puerto was at the time of the search which located the cocaine incarcerated under the Section 1546 charge, his status on “deferred inspection parole” was seriously diluted if not completely destroyed. The petition for rehearing asserts that his remaining in jail was solely by reason of his inability to post a $2500.00 bail bond on the Section 1546 charge. If this contention is true it negates his status as a man “standing at the border” and therefore subject to a border search within the scope of the panel opinion. It also raises a question suggested in the petition for rehearing that he was discriminated against solely by reason of indigency. See Tate v. Short, 1971, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130; Williams v. Illinois, 1970, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586. It deeply disturbs me that this panel opinion says for our Court that the United States can arrest a man and charge him with a crime but still have the benefit of conducting warrantless searches of his person and effects because he is “standing at the border”. The two concepts are contradictory. The panel opinion recognized this dilemma by saying that a man would no longer be “standing at the border” if a criminal trial begins against him. I suggest that the initiation of criminal proceedings by arrest and arraignment is more logically the appropriate time for an alien to cease “standing at the border”.
Granted that the expansion of the border search doctrine approved by the panel opinion is narrowly framed, I think that the problems it raises are of sufficient gravity to warrant en banc re-examination.
For these reasons I dissent.