402 F.2d 8 (2nd Cir. 1968), 319, United States v. Glaziou

Docket Nº:319, 31629.
Citation:402 F.2d 8
Party Name:UNITED STATES of America, Appellee, v. Yves GLAZIOU and Rene L. A. Lemieux, Defendants-Appellants.
Case Date:October 04, 1968
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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402 F.2d 8 (2nd Cir. 1968)

UNITED STATES of America, Appellee,

v.

Yves GLAZIOU and Rene L. A. Lemieux, Defendants-Appellants.

Nos. 319, 31629.

United States Court of Appeals, Second Circuit.

October 4, 1968

Argued Feb. 9, 1968.

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[Copyrighted Material Omitted]

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Donald F. McCaffrey, Asst. U.S. Atty., Joseph P. Hoey, U.S. Atty., for appellee.

Phylis Skloot Bamberger, Anthony F. Marra, New York City, for defendants-appellants.

Before WATERMAN and FEINBERG, Circuit Judges, and BRYAN, District judge. [a1]

WATERMAN, Circuit Judge:

This is an appeal by two defendants, French seamen, from a judgment of the United States District Court for the Eastern District of New York entered upon a jury verdict. They had been convicted of having concealed and facilitated the concealment of a large quantity

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of heroin while knowing that the drug was imported illegally into this country in violation of 21 U.S.C. § 174. Appellant Glaziou was sentenced to fifteen years imprisonment and appellant Lemieux to seven years imprisonment. Both appellants urge that heroin taken from them following an allegedly unconstitutional search of their persons should have been suppressed, that certain evidentiary rulings and the utterance of certain statements in open court by the trial judge were prejudicial errors, and that the trial judge's charge to the jury was prejudicially erroneous in several respects. There is no merit in any of these contentions warranting a determination of prejudicial reversible error, and we affirm the convictions.

The indictment against the appellants charged them with having concealed or facilitated the concealment of 21 pounds, 11.7 ounces of heroin. At a hearing prior to the trial the court suppressed the use as evidence of plastic bags of heroin weighing over 12 pounds, some of which had been discovered in a car rented by Glaziou and some of which had been found on board the ship Le Moyne D'Iberville, upon which Lemieux had been a deckhand. 1 Other plastic bags of heroin weighing more than eight pounds had not been suppressed; these bags had been found on the persons of the appellants. It is the appellants' contention that the bags of heroin found on their persons also ought to be suppressed because they were discovered as the result of an unconstitutional stop and search.

On December 14, 1966, customs officers Ratnofsky and Hogan were on patrol duty along the Brooklyn waterfront. Their assignment was to keep as close a watch over the individual piers as seemed in their judgment to be desirable. At approximately 6:00 P.M. the officers turned onto Atlantic Avenue, a street which deadends at an enclosed dock area between Piers 6 and 7. They parked their car on the Pier 6 side of Atlantic Avenue, facing the piers, a short distance from the dead end of the street. From this point the gate to enclosed Pier 6 could be seen about 100 feet down the street on their right, and the gate to enclosed Pier 7 opposite that of Pier 6 could be observed diagonally across Atlantic Avenue at a slightly greater distance. A few moments later the officers saw two men, later identified as appellants, exit through the gate of enclosed Pier 7 and proceed up the curb on the Pier 7 side of Atlantic Avenue beside the fence enclosing Pier 7. Apparently they were intending to leave the pier area. Although one of the officers knew that the Le Moyne D'Iberville had docked that morning at Pier 7, the officers were not in a position to see whether the appellants had come directly from the ship. The officers drove toward the dead end, made a U-turn, overtook the walking appellants, and parked their car under a lamp post about 40 feet ahead of them. As appellants approached the parked car Officer Ratnofsky got out, displayed his credentials, and told appellants to stop. He then asked Glaziou whether he had a seaman's immigration landing card. Glaziou opened his suit jacket, took out his passport, and with trembling hand give it to Ratnofsky. Ratnofsky then noticed a bulge around Glaziou's waist, reached forward, squeezed it, and felt a lump there. The appellants were ordered into the officers' car. Glaziou's shirt was pulled up and a big white elastic band around his midwaist was disclosed. Ratnofsky pulled up the elastic band and discovered five plastic bags containing a white powder, later identified as heroin. Thereupon Lemieux, who spoke no English, was instructed by sign

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language to disgorge whatever he might be secreting, and Lemieux forthwith produced from a similar apparatus three more bags filled with the white powder. Appellants claim that this search was unlawful and the fruits of it, the heroin seized, ought to have been suppressed by the trial court. We do not agree.

At the outset two important factors must be noted: the officials involved here are officers of the Bureau of Customs and the search, seizure and arrest occurred beside an enclosed pier at a seaport after the officers had observed the appellants proceeding out from the pier's gate. Both Congress and the courts have long appreciated the peculiar problems faced by customs officials in policing our extensive national borders and our numerous, large international port facilities. E.g., Act of July 31, 1789, 1 Stat. 29, 43; Boyd v. United States, 116 U.S. 616, 623-624, 6 S.Ct. 524, 29 L.Ed. 746 (1889); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); King v. United States, 348 F.2d 814 (9 Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 314, 15 L.Ed.2d 339 (1965); Alexander v. United States, 362 F.2d 379 (9 Cir. 1966). Realization of customs officials' special problems has resulted not only in the courts' giving the broadest interpretation compatible with our constitutional principles in construing the statutory powers of customs officers, see, e.g., Witt v. United States, 287 F.2d 389 (9 Cir.), cert. denied, 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242 (1961); Morales v. United States, 378 F.2d 187 (5 Cir. 1967); but also has resulted in the application of special standards when the legality of a stop, search, and seizure made by a customs official at or near our borders or international port facilities has been challenged. See, e.g., United States v. Berard, 281 F.Supp. 328 (D.Mass. 1968).

A customs officer has the unique power to stop a person at an international entry point and to conduct a 'border search' without having a search warrant or even having a probable cause to believe the person has committed a crime. Murgia v. United States, 285 F.2d 14 (9 Cir. 1960), cert. denied, 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265 (1961); Rodriguez-Gonzalez v. United States, 378 F.2d 256 (9 Cir. 1967); Thomas v. United States, 372 F.2d 252 (5 Cir. 1967); see, e.g., Denton v. United States, 310 F.2d 129 (9 Cir. 1962). Typically, mere suspicion of possible illegal activity within their jurisdiction is enough 'cause' to permit a customs officer to stop and search a person. Rodriguez-Gonzalez v. United States, supra; Witt v. United States, supra; United States v. Berard, supra; Thomas v. United States, supra. This is not to say that the restrictions of the Fourth Amendment that searches and seizures may not be unreasonable are inapplicable to border stops and searches conducted by customs officials. On the contrary, border stops and searches, like all stops and searches by public officials, are restricted by the requirement that they be reasonable, see, e.g., Boyd v. United States, supra; Carroll v. United States, supra; Morales v. United States, supra, but what is reasonable, of course, will depend on all the facts of a particular case. E.g., Cooper v. State of California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Boyd v. United States, supra; Carroll v. United States, supra; United States v. McGlone, 394 F.2d 75 (4 Cir. 1968).

A customs officer's unique power to conduct a 'border search' is coextensive with the limits of our international border areas, and a search and seizure within these areas by a customs officer, reasonable enough under these circumstances, could perhaps be challenged as violative of the Fourth Amendment if conducted by different officials elsewhere...

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