629 F.2d 830 (2nd Cir. 1980), 1075, United States v. Ajlouny

Docket Nº:1075, Docket 80-1047.
Citation:629 F.2d 830
Party Name:UNITED STATES of America, Appellee, v. Paul AJLOUNY, Appellant.
Case Date:August 29, 1980
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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629 F.2d 830 (2nd Cir. 1980)

UNITED STATES of America, Appellee,

v.

Paul AJLOUNY, Appellant.

No. 1075, Docket 80-1047.

United States Court of Appeals, Second Circuit

August 29, 1980

Argued April 21, 1980.

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John R. Wing, New York City, (Edward Burke, Julia Tobey, and Weil, Gotshal & Manges, New York City, on brief), for appellant.

Steven G. Nelson, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., on brief), for appellee.

Before WATERMAN, TIMBERS and NEWMAN, Circuit Judges.

NEWMAN, Circuit Judge:

Paul Ajlouny appeals from a conviction after a 17-day trial in the United States District Court for the Eastern District of New York (Mark A. Costantino, Judge) upon a jury verdict finding him guilty of transportation of stolen property in foreign commerce in violation of 18 U.S.C. § 2314 (1976). The jury was unable to reach a verdict and a mistrial was declared on the other 136 counts of the indictment, which charged Ajlouny with having used a "blue box" 1 to defraud the New York Telephone Company in violation of 18 U.S.C. § 1343 (1976). We affirm the conviction on the § 2314 count.

In March, 1978, the telephone company investigator in charge of the investigation of blue box use on Ajlouny's phone, advised customs agent Stephen Rogers that Ajlouny had made blue box calls to various locations in the Middle East. The telephone company investigator also permitted Rogers to

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listen to a taped conversation with the investigator in which Ajlouny requested that the blue box investigation be halted and warned that it was "stirring up a hornet's nest," "blowing his cover," and endangering the lives of certain people in Israel and the United States. Through their own investigation, customs officials determined that some of the blue box calls placed from Ajlouny's residence had been made to the headquarters of the Palestine Liberation Organization in Beirut.

In early April, Rogers and other customs agents began surveillance of Ajlouny to determine whether he was the individual who had been placing blue box calls from phone booths in the vicinity of his residence. One morning, Rogers and another customs agent followed Ajlouny to a small shopping center where, according to Rogers, they observed him "apparently supervising the loading" of a cargo container. Through independent investigation, the customs agents learned that the container was under lease to Ajlouny and was scheduled to depart for Doha, Qatar, on April 17, 1978.

In mid-April when they discovered that the container was no longer in the shopping center, Rogers and other agents proceeded to a Brooklyn pier where they located the container in a customs control area. On the day the container was scheduled to be shipped, the customs agents obtained the dock receipt, which described the contents of the container as air conditioning equipment. The agents then proceeded to unseal and search the container, 2 which had not yet been loaded on board ship. Inside the container, the agents found considerable quantities of teletype and telecommunications equipment; no air conditioning equipment was found. The same day, telephone company investigators identified some of the equipment found in the container as stolen property.

Ajlouny was arrested the day after the search and ultimately indicted for transporting stolen telecommunications equipment in foreign commerce in violation of 18 U.S.C. § 2314. After receiving his Miranda warnings, he admitted that he had arranged for shipment of the telecommunications equipment, but denied that the property was stolen. Prior to trial, he moved on Fourth Amendment grounds to suppress all evidence resulting from the search of the cargo container. Judge Costantino denied his suppression motion, United States v. Ajlouny, 476 F.Supp. 995, 1001-04 (E.D.N.Y.1979), and permitted the contents of the container to be introduced into evidence at trial.

I.

On appeal, Ajlouny first contends that the search of the container was conducted without a search warrant and in the absence of "probable cause" or even "reasonable suspicion." On this basis, he urges that the search was unlawful under both Fourth Amendment and federal statutory standards, and that the admission of evidence obtained from the search requires reversal of his conviction.

The Government concedes that the search was warrantless and does not dispute the defendant's contention that it was not based on probable cause. But the Government contends, and Judge Costantino ruled, 476 F.Supp. at 1002-03, that the search was nevertheless lawful under the so-called "border search exception." We agree.

The border search exception, at least as it applies to searches of persons and property entering the country, has enjoyed a long judicial history. As the Supreme Court observed in United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977):

Border searches . . . from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country

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from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself. (Emphasis added).

See United States v. Thirty-seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 L.Ed.2d 822 (1971); Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925); United States v. Asbury, 586 F.2d 973, 975 (2d Cir. 1978).

Until recently, the applicability of the border search exceptions to export searches, such as the one conducted by customs officials in this case, was an open question. However, in California Bankers Ass'n v. Shultz, 416 U.S. 21, 63, 94 S.Ct. 1494, 1518, 39 L.Ed.2d 812 (1974), the Supreme Court noted that "those entering and leaving the country may be examined as to their belongings and effects, all without violating the Fourth Amendment . . . ." (Emphasis added). Admittedly, this statement is dictum, since the issue before the Court did not concern the lawfulness of customs searches. Subsequently, this Circuit relied on the Supreme Court's statement to hold squarely that the border search exception applies to items leaving as well as entering the country. United States v. Swarovski, 592 F.2d 131, 133 (2d Cir. 1979); 3 accord United States v. Stanley, 545 F.2d 661, 665-67 (9th Cir. 1976), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978); see, United States v. Asbury, supra, 586 F.2d at 975. Contra, People v. Esposito, 37 N.Y.2d 156, 160, 371 N.Y.S.2d 681, 332 N.E.2d 863 (1975). Though the item searched in Swarovski was the luggage of a person about to leave the country, the ruling applies to items imminently to be exported, whether or not accompanying a traveler. Application of the border search exception depends upon the nexus between the goods and a border crossing, regardless of the circumstances under which the property subjected to search moved or will move across the border. See United States v. Ramsey, supra, 431 U.S. at 620, 97 S.Ct. at 1980; United States v. Doe, 472 F.2d 982, 984 (2d Cir.), cert. denied, 411 U.S. 969, 91 S.Ct. 2160, 36 L.Ed.2d 691 (1973).

The circumstances of this case establish that the border search exception applies and permits a routine search without probable cause or even reasonable suspicion. We have observed that "the precise limits of the border area depend on the particular factual situation presented by the case raising the issue." 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). The container searched in this case was located on a pier, within a customs area, and marked for shipment abroad. It was therefore amenable to a routine border search. And the imminent crossing of the border alone makes the search of the container

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reasonable, see United States v. Ramsey, supra, 431 U.S. at 619, 97 S.Ct. at 1980; United States v. Nieves, 609 F.2d 642, 645 (2d Cir. 1979), cert. denied, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d 771 (1980), though reasonable suspicion would be required for more intrusive invasions of personal privacy. United States v. Asbury, supra, 586 F.2d at 975; see United States v. Klein, 592 F.2d 909, 911 (5th Cir. 1979). Though the facts known to the agents may well have established reasonable suspicion, as found by the District Judge, 476 F.Supp. at 1003, we hold that even if such reasonable suspicion was lacking, the search did not violate the Fourth Amendment.

Appellant further contends that even if constitutional standards were not exceeded, the search of the container and the subsequent seizure of its contents violated the statutory limitations of 22 U.S.C. § 401(a) (1976). 4 This statute authorizes seizure of articles exported in violation of law. It conditions this seizure authority on the existence of probable cause to believe that the articles "are intended to be or are being or have been exported . . . in violation of law." 5 The statute applies in terms to arms and munitions, but includes "other articles" and has been consistently applied to any items destined for unlawful export. 6

Though § 401(a) has been held implicitly to authorize searches as well as seizures of goods for export, Samora v. United States, 406 F.2d 1095, 1098 (5th Cir. 1969); United States v. Marti, 321 F.Supp. 59, 63-64 (E.D.N.Y.1970), 7 we find no basis for

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