Appellant Douglas Frank Haley was convicted in the United States District Court for the Southern District of Georgia of possession with intent to distribute cocaine in violation of 21 U.S.C.A. Sec. 841(a)(1). Haley appeals, claiming that the district court erred in denying his motion to suppress evidence allegedly obtained in violation of the Fourth Amendment.1 The district court relied on the border search exception to the Fourth Amendment in so ruling. Haley contends that the border search exception does not apply to the facts of this case. We affirm.

On February 17, 1982, at approximately 8:05 a.m., Haley took off from the Ft. Lauderdale, Florida, Executive Airport in a Cessna 310 airplane. Haley chose to fly by Visual Flight Rules (VFR) and was not required to, and did not, file a flight plan.2 Shortly after take-off, Haley contacted the FAA flight service station at Miami, Florida, and requested weather information for the Daytona Beach/Jacksonville, Florida, area. At 10:08 a.m., Haley communicated with the service controller at the FAA flight station in Melbourne, Florida. Haley identified his aircraft, stated his position, and requested the weather en route to Daytona Beach. After being advised that the weather forecast included the possibility of thunderstorms in that area, Haley stated that he would continue to Daytona Beach and, if it looked as though he couldn't make it, would return to Vero Beach or Ft. Lauderdale. Five minutes later, Haley again contacted the controller at Melbourne, identified his aircraft, gave his position, stated he was over the water and added that it "looked good there."

The next official contact with Haley occurred when his airplane was detected by the North American Defense Command (NORAD) 50 nautical miles northeast of Ormond Beach, off the coast of Florida, and outside the territorial limits of the United States.3 NORAD contacted the Customs radar facility at Jacksonville, Florida, and informed it that an unidentified airplane was entering United States airspace. In response to this message, a Customs radar operator located the airplane on his screen; it was 73 nautical miles east of Jacksonville, off the coast of Florida, and was headed in a northwesterly direction. A Customs jet was sent to intercept the unidentified airplane, track its course and follow it to its point of destination. The Customs jet intercepted Haley's airplane approximately five miles southeast of Brunswick, Georgia, and kept surveillance over the airplane until it crossed the United States border and landed at the closed Brantley County, Georgia, airport at approximately 10:30 a.m. Haley's airplane was continuously kept under surveillance both by radar and by the Customs jet from the time it was first sighted until its landing. At no point during this time did Haley identify himself or announce where and when he would land.4

The surveillant Customs jet was too large to land at the Brantley County airport so it circled overhead until a smaller Customs aircraft arrived. When the Customs officers from this plane questioned Haley, he informed them that he had taken off from southern Florida and had flown out over the ocean to avoid a thunderstorm. Haley's airplane was searched and 852 grams of cocaine were discovered.

Based on these facts, the district court held that the warrantless search of Haley's airplane was a valid border search.

Border searches are a well-established exception to the mandate of the Fourth Amendment: "neither a warrant nor any level of suspicion is required to search vehicles, vessels, persons or goods arriving in the United States." United States v. Stone, 659 F.2d 569, 572 (5th Cir. Unit B 1981). This is so because the "border search exception is grounded in the recognized right of the sovereign to control ... who and what may enter the country." United States v. Ramsey, 431 U.S. 606, 620, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977). Stated differently, "the rationale for the [border search] doctrine, which 'has a history as old as the fourth amendment itself,' [id. at 619, 97 S.Ct. at 1980], is the fundamental necessity for national self-protection against unlawful entries from without." Stone, supra, at 572. In furtherance of this crucial policy, and in recognition of the "obvious difficulty of stopping an airplane or vessel for inspection at the precise point it crosses an imaginary boundary in air and water," the border search exception has been held applicable to searches at points beyond the physical boundaries of the United States:

"A border search need not take place at the actual border. It may be conducted at a place considered 'the functional equivalent of the border,' such as the port where a ship docks in this country after entering our territorial waters from abroad, United States v. Prince, 491 F.2d 655 (5th Cir.1974), or the airport where an international flight lands, United States v. Klein, 592 F.2d 909 (5th Cir.1979)."

United States v. Richards, 638 F.2d 765, 771 (5th Cir.1981).

Furthermore,

"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."

United States v. Johnson, 588 F.2d 147, 154 (5th Cir.1979).

Id.

In the present case, it is undisputed that the search of Haley's airplane at the Brantley County airport occurred at the functional equivalent of the border. Likewise, the fact that Haley's airplane actually crossed the border is not in dispute. Instead, Haley claims that because his flight originated from a point within the United States and not from a foreign location the requirements for a valid border search were not met. Two cases binding on this Court have addressed this precise issue and control our disposition of this case.

In United States v. Stone, the former Fifth Circuit rejected the defendant's argument that "in order to establish a valid border search, the government must demonstrate not only that the border has been crossed, but, additionally, that the entering craft has left foreign land." 659 F.2d at 573. Following Stone, this Court in United States v. Garcia, 672 F.2d 1349, 1357 (11th Cir.1982), held a claim that "even if a border crossing was established the government must prove that the flight originated in a foreign country" to be "without merit." We therefore must also reject Haley's claim of error to the extent that he argues that the government was required to prove that his airplane originated from a foreign location in addition to its direct proof that his airplane crossed the border.

Our inquiry does not end here. Although rejecting the requirement that the government prove the flight originated in a foreign location, the Garcia court did require that the government prove facts in addition to that of a border crossing in order to validate an airplane border search. In so holding, the Garcia court authoritatively limited and clarified Stone. Noting that "although the [Stone] panel required no further proof [than the border crossing] 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," the Garcia court rejected a broad reading of the language in Stone to suggest 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." Id. (footnote omitted). Instead, the Garcia court stated that: "We would not be prepared to uphold as a border search ... 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." Id. (emphasis in original). Since "planes that pass through international waters do not present any possibility of foreign contacts other than that presented by their actual stopping in a foreign country," the Garcia court reasoned that "the question of proof of a border crossing in the context of an airplane search, contrary to the dicta in Stone, cannot wholly be divorced from the issue of the plane's point of origin." Id. at 1358 (footnote omitted). In light of this analysis, the Garcia court held that "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." Id. This standard for evaluating the proof necessary to authorize an airplane border search is binding on this Court and must be applied to the facts of this case. United States v. Messersmith, 692 F.2d 1315, 1318 (11th Cir.1982).5 More precisely, we must determine if the information, including the fact of the actual border crossing, possessed by the Customs agents prior to the search of Haley's airplane was sufficient to reasonably support an inference that there was a substantial likelihood that the airplane had come from a foreign location. See id. at 1320.

We again turn to Garcia and Stone for guidance as to the "other evidence" which, in addition to proof of a border crossing, will reasonably support an inference that there is a substantial likelihood that an airplane came from a foreign location.

In Stone, the defendant's airplane was first sighted by Customs officials in the vicinity of a near mid-air collision over the Andros Islands and was constantly kept under surveillance by radar and visual contact from this point until its landing at the Orlando International airport. The surveillant Customs officers noted that defendant's airplane was not operating a transponder, a device which emits a radio signal enabling traffic controllers to locate, identify and monitor the craft for safety reasons, did not have a flight plan, turned off its lights after visual contact began, and was flying at night over the northwest corner of the Andros Islands east of Bimini, traveling towards the United States from a southeasterly direction. The Stone court noted that these factors were central criteria indicative to Customs of smuggling activities. Therefore, as the Garcia court found, in addition to proof of the border crossing there was present in Stone evidence reasonably supporting an inference that there was a substantial likelihood that the plane's origin was other than in the United States.

In Garcia, in addition to proof of an actual border crossing, "the plane in question [was] 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." 672 F.2d at 1358. Based on these facts, the court held that:

The government is entitled to draw the inference that [the airplane's] point of origin was foreign and accordingly to conduct a search of the airplane without a warrant or any suspicion of criminal activity.

....

A plane that crosses the border without complying with these requirements [to identify itself and to inform the government of its origin and intended destination] 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.

Id.

Although no one single factor was held to be determinative by either the Garcia or the Stone court, in Garcia the court summarized the critical factors in addition to proof of a border crossing supporting the inference that the airplane's origin was foreign: "We follow Stone ... to the extent it held no further proof of foreign origin is required where an unidentified aircraft crosses the United States border." 672 F.2d at 1358 n. 12 (emphasis added).

Applying the Garcia standard to the facts of this case, we conclude, as did the district court, that the evidence here presented is virtually indistinguishable from that in Stone and Garcia. First, it is undisputed that Haley's airplane actually crossed the border. Second, prior to the border crossing Haley's airplane was sighted well outside the territorial limits of the United States traveling toward this country in a direction from a source area of illegal drug trafficking. Third, and critically, Haley's airplane was, at the time it crossed the border, unidentified both in the sense that he had failed to file a flight plan and in the sense that he did not announce his entry to the authorities, identify his aircraft, or state his point of origin or destination.6 Fourth, and finally, the fact that Haley informed the Customs agents after his landing that his point of origin was southern Florida and that he had veered over the ocean to avoid a thunderstorm does not, as a matter of law and logic, preclude the Customs agents from reasonably inferring from the evidence in this case that there was a substantial likelihood that his point of origin immediately prior to the border crossing was other than in the United States. Since Haley's plane was unidentified at the time he crossed the border, we hold, as did the Garcia court, that he was "estopped from asserting a domestic point of origin after landing in this country." 672 F.2d at 1358. Stated differently, in light of the fact that Haley's plane was unidentified, the Customs agents were not bound to believe Haley's claim. And, even accepting this claim, both the Customs radar operator and the pilot of the smaller Customs plane that questioned Haley prior to the search testified at the suppression hearing that given an 8:05 a.m. departure time from Ft. Lauderdale Haley's airplane would have had time to fly to an island in the Bahamas, such as Bimini, land, take off and then reach the points at the times at which it was first sighted and it landed.

We therefore hold that the facts of this case as known to the Customs agents prior to the search of Haley's airplane reasonably supported an inference that there was a substantial likelihood that the origin of his flight was other than in the United States and, thus, that the warrantless search of his airplane was a valid border search.

AFFIRMED.