People v. Esposito

• Citation: 332 N.E.2d 863,371 N.Y.S.2d 681,37 N.Y.2d 156
• Parties: , 332 N.E.2d 863 The PEOPLE of the State of New York, Respondent, v. Anthony ESPOSITO, Appellant.
• Decision Date: 11 June 1975
• Court: New York Court of Appeals

Page 681

371 N.Y.S.2d 681

37 N.Y.2d 156, 332 N.E.2d 863

The PEOPLE of the State of New York, Respondent, v. Anthony ESPOSITO, Appellant.

Court of Appeals of New York.

June 11, 1975.

Allan Sturim, Kew Gardens, for appellant.

Nicholas Ferraro, Dist. Atty. (Martin L. Bracken, Kew Gardens, of counsel), for respondent.

FUCHSBERG, Judge.

Defendant Esposito, a 40-year-old family man with no prior criminal record, was found guilty of stealing four men's neckties out of luggage he loaded aboard an outgoing international flight at Kennedy Airport and given a conditional discharge. Three other defendants, also baggage handlers, were found innocent at trial. Appellate Term upheld the conviction, without opinion. Esposito appeals on the grounds that he was searched without probable cause.

The incident arose out of an on-going concern on the part of airlines officials and police over thefts from the baggage of outgoing and incoming passengers on international flights at Kennedy. Apparently the officials suspected that baggage handlers who load and unload such luggage may have been involved in these thefts. Proof was hard to obtain, however, since baggage loaders, when working, are hidden from view inside the planes. The police, unable to search loaders without some grounds for probable cause, enlisted the aid of customs officials in the mistaken belief that the latter possess special powers to search which could be of use here.

On the day of his arrest, Esposito and a team of loaders in his charge put baggage aboard an outgoing airliner. The police, in the person of one Detective Elenko, accompanied by a customs official, watched from an observation window, but were unable to see the loaders inside the plane well enough to describe their activities. Another team of customs officials watched from a nearby gate, also without success. There is no evidence that either the police or customs men had any particular reason to suspect Esposito or his loaders especially; the observations were directed generally.

Nevertheless, when the loaders left the plane and headed for the terminal building, the team of observers at the window radioed the team at the gate to stop them. Esposito testified that he and his men left the plane by different exits (there may be as many as four different loading bays in one plane) and approached the building in a loosely strung out group. When the customs men approached and said 'Stop, United States Customs', the other loaders stopped, but Esposito kept on walking into the building, past his supervisor's office, and on toward the locker room and cafeteria. A customs man stopped him there and asked him to come outside. He did so, and joined the officers and other defendants. The customs men then searched all four loaders.

The proof as to the search of Esposito is conflicting. He testified that, when asked if he had anything on his person, he told the customs man he had four ties and that they were stuffed in the front of his half-unbuttoned shirt. The customs man testified to finding the ties in the back of Esposito's shirt. Esposito said he was searched before he could answer the customs man's question, the answer and the finding of the ties occurring simultaneously.

Esposito further testified: that two Samsonite bags had broken open while being thrown into the plane; that he had locked them by kneeling on them and pressing in a particular way necessary for closing that brand of luggage; that after he had loaded about forty bags, he discovered the ties lying on the floor of the plane and had stuffed them in his shirt, it being his job, as 'lead man', to return such property to his supervisor; that he had not heard the customs men say 'stop'; that he had started toward the supervisor's office to turn in the ties; that he then observed that the supervisor was not in his office and, therefore, had been heading toward the cafeteria and locker area, when one of the officers stopped him.

There was testimony at the trial by two passengers on the flight Esposito had loaded to the following effect: that the ties were their property; that they had identified the ties upon request while inside the plane; that they had supervised the retrieval of their luggage which was found to be locked; and that nothing else in the luggage had been disturbed.

Trial in the Criminal Court of the City of New York was held before a Judge sitting without a jury. At the conclusion of the prosecution's case, after the customs officials had testified, and before Esposito had taken the stand, upon the defense moving to dismiss, the Judge stated that Esposito's story, as recited to him by the customs official, was 'pathetic' and 'incredible'. Esposito also challenges this as error, together with his illegal search contention.

The initial prosecution in this case rested on the notion that customs officials do not need probable cause in order to search. The utilization of the customs officials by the police in this case was apparently based on that premise, which we hold to be an incorrect one. Indeed, the People themselves no longer urge it on this appeal.

That is because the 'border search' exception to the requirement of probable cause accorded to customs officials by statute (U.S.Code, tit. 19, §§ 482, 1496, 1582) is a limited power. Its purpose is to permit such officials to search for contraband coming Into the country without payment of duty or in contravention of statutory prohibitions. It does not extend to searches of baggage going Out of the country upon which no duty is payable and on which no prohibitions are placed. (See United States v. Markham, 9 Cir., 440 F.2d 1119; Stassi v. United States, 5 Cir., 410 F.2d 946; People v. Sortino, 68 Misc.2d 151, 325 N.Y.S.2d 472; United States v. McGlone, 4...