United States v. Marti

• Citation: 321 F. Supp. 59
• Decision Date: 16 April 1970
• Docket Number: No. 68 Cr. 149.,68 Cr. 149.
• Parties: UNITED STATES of America v. Luis MARTI, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

321 F. Supp. 59

UNITED STATES of America v. Luis MARTI, Defendant.

No. 68 Cr. 149.

United States District Court, E. D. New York.

April 16, 1970.

COPYRIGHT MATERIAL OMITTED

Williams & Connolly, Washington, D. C., for defendant; Raymond W. Bergan, Washington, D. C., Patrick M. Wall, New York City, of counsel.

Edward R. Neaher, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., for plaintiff; David Steinman, Andrew B. Baker, Jr., of counsel.

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

I.

The defendant, charged with the transportation of a stolen necklace in interstate commerce (18 U.S.C. § 2314) and with violation of the Export Control Act (50 U.S.C. App. § 2021 et seq.), has moved to suppress jewelry seized by Customs Agents at John F. Kennedy International Airport after a warrantless search of his suitcase. For the reasons discussed below his motion is denied.

II.

Customs Agent George Brosan learned from a confidential informant sometime during the late evening of October 25 or early morning of October 26, 1967 that the defendant, Luis Marti, would be carrying stolen jewelry when leaving on a Lufthansa Airlines flight from New York City to Guayquil, Ecuador on Saturday, October 28. While Agent Brosan had never had prior dealings with this informant he had previously been told by another Customs Agent that his information had led to seizures of contraband and arrests on at least two occasions.

Attempting to verify this intelligence, Agent Brosan contacted Lufthansa Airlines on Thursday and Friday. On both occasions he was told that no reservations had been made in the name of the defendant. On Saturday morning inquiry revealed that the defendant had a reservation on the flight to Guayquil leaving John F. Kennedy International Airport that afternoon at 3:10. Agent Brosan, several other Customs Agents and a New York City Police Officer proceeded to the airport and established a surveillance of the Lufthansa check-in counters. Agent Brosan testified that the New York authorities were notified because of a general suspicion held by federal and local police officials that the defendant was a prominent dealer in pornographic materials.

Less than ten minutes before scheduled takeoff, the defendant appeared and was observed depositing a large suitcase at a Lufthansa counter and then, while carrying an attache case, checking in at the ticket counter. Identifying himself as a Customs Agent, both orally and by showing his badge, Agent Brosan asked the defendant if he would accompany him to the baggage area in the rear of the terminal. The defendant consented and upon approaching the baggage area asked, "What is this all about?" He was told that this was a "customs search."

At the request of Agent Brosan the defendant pointed out his suitcase which was removed from the conveyor belt by another agent. The defendant was then asked by Agent Brosan if he had anything that he should declare or that he should not have in his possession. In response the defendant held up his attache case and stated that there was a gun in it. Another agent took the case from him, opened it, and discovered a pistol.

The defendant was then taken to a Lufthansa office where his large suitcase was opened and found to contain several hundred pieces of jewelry. Agent Brosan inquired if he had an export license for the jewelry. Receiving no answer, the defendant was arrested for failure to comply with the Export Control Act. He was later indicted for both that offense and for the knowing transfer of stolen goods in interstate commerce. For the purposes of this motion it is conceded that the jewelry was stolen.

At no time between the receipt of the informant's tip by Agent Brosan and the eventual arrest of the defendant on Saturday afternoon did Agent Brosan or any other law enforcement official attempt to secure either an arrest or a search warrant. The defendant contends that probable cause for an arrest without a warrant did not exist, or if it did, that the absence of an arrest or of a search warrant, when there was time to obtain one, made the search illegal. The government justifies its actions on the ground that applicable "border" or "customs" search rules apply, obviating the need for warrants or an arrest on probable cause prior to the search.

III.

The variable nature of the "unreasonable search and seizure" concept is evidenced by the rules covering "border" or "customs" searches. Once within the scope of these rules traditional warrant and probable cause requirements are substantially relaxed. Judicially sanctioned statutes give customs agents and officials broad authority to search without a warrant. See, e. g., United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969) (importation of heroin); Landau v. United States Attorney, 82 F.2d 285, 286 (2d Cir.), cert. denied, 298 U.S. 665, 56 S.Ct. 747, 80 L.Ed. 1389 (1936) (importation of watches). "Mere suspicion of possible illegal activity within their jurisdiction is enough `cause' to permit a customs officer to stop and search a person." United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969). See also, e. g., Rodriguez-Gonzalez v. United States, 378 F.2d 256, 258 (9th Cir. 1967) (importation of marijuana); Alexander v. United States, 362 F.2d 379, 382 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L. Ed.2d 439 (1966) (importation of heroin); Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967) (same).

This "border" or "customs" search exception was developed to assist in excluding contraband coming into the country. See 19 U.S.C. § 482 ("stop, search, and examine * * * any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law * * *."); 19 U.S.C. § 1496 (examination "of the baggage of any person arriving in the United States * * *."); 19 U.S.C. § 1499 (inspection, examination and appraisal of "imported merchandise"); 19 U.S.C. § 1582 ("search by authorized officers or agents * * *" of "all persons coming into the United States from foreign countries * * *."); 19 U.S.C. § 1581 (boarding of "any vessel or vehicle at any place * * * and search * * * any cargo on board * * *."). (Emphasis supplied.) See also, e. g., United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969); Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967); King v. United States, 348 F.2d 814, 818 (9th Cir.), cert. denied, 382 U. S. 926, 86 S.Ct. 314, 15 L.Ed.2d 339 (1965).

Justification under the Fourth Amendment is based on practical and historical considerations involving experience with difficulties in controlling smuggling into the country that antedated adoption of the Constitution. Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925); United States v. Sohnen, 298 F.Supp. 51, 54 (E.D.N.Y.1969). Cf. Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886). Whether these import border search rules apply to the search of a person and his baggage as he is about to depart from the country is an issue we need not decide. since the relevant statutes authorize such searches only where probable cause is found to exist. But cf. United States v. Grandi, 424 F.2d 399 (2d Cir. 1970) (indicating that in international travel the difference between departing and arriving is one of relativity, depending upon which country is examining the traveller; the police of the two countries often cooperate).

Concern over limiting and controlling exports is a relatively recent phenomenon associated with the use of trade as a direct instrument of diplomacy and war. 50 U.S.C. App. §§ 2021-2032, popularly known as the Export Control Act of 1949; cf. 22 U.S.C. § 401, adopted in 1917 and subsequently amended. Congress has not dealt explicitly with export searches. Nevertheless, the language of the export control statutes and regulations, as well as the practical difficulties in enforcement lead to the conclusion that Congress has authorized, and the Constitution permits, a search to control goods leaving the country without the need for either a lawful arrest or warrant.

Section 401(a) of title 22 permits seizure of articles sought to be exported in violation of law. In relevant part it reads:

Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions or other articles in violation of law, or whenever it is known or there shall be probable cause to believe that any arms or munitions of war or other articles are intended to be or are being or have been exported or removed from the United States in violation of law, the Secretary of the Treasury, or any person duly authorized for the purpose by the President, may seize and detain such arms or munitions of war or other articles * * *. (Emphasis supplied.)

Under subdivision (b) of section 401 provision is made for forfeiture proceedings.

While section 401 was primarily directed to limiting the export of war materials in protection of American neutrality and foreign policy, it has been consistently applied to other classes of goods. See Waisbord v. United States, 183 F.2d 34 (5th Cir. 1950) (jewelry); United States v. Chabot, 193 F.2d 287, 290-291 (2d Cir. 1951) (gold); United States v. 251 Ladies Dresses, 53 F.Supp. 772, 774 (S.D.Texas 1943). The House Report relating to the 1953 Amendment of section 401 makes it clear that the export seizure provisions of section 401 were designed to apply to violations of the Export Control Act. H.Rep. No. 114, 1953 U.S. Code Cong. & Admin. News, p. 2386; see also letter of Acting Secretary of Treasury, Id. at 2387.

Subdivision (a) of section 401 explicitly mentions the power to seize; it does...