People v. LePera

• Decision Date: 15 April 1994
• Citation: 197 A.D.2d 43,611 N.Y.S.2d 394
• Parties: PEOPLE of the State of New York, Respondent, v. Vincent LePERA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 394

611 N.Y.S.2d 394

197 A.D.2d 43

PEOPLE of the State of New York, Respondent, v. Vincent LePERA, Appellant.

Supreme Court, Appellate Division Fourth Department.

April 15, 1994.

John Humann, Buffalo, for appellant.

Matthew J. Murphy, III by Thomas H. Brandt, Lockport, for respondent.

Before DENMAN, P.J., and GREEN, FALLON, CALLAHAN and DOERR, JJ.

GREEN, Justice:

After a jury trial, defendant was convicted of possession of gambling records in the first degree (Penal Law § 225.20[1]. The records had been seized and photocopied by an agent of the United States Customs Service during a border search. Defendant contends that the warrantless seizure was illegal and that his motion to suppress the photocopies of the gambling records should have been granted.

The sole witness at the suppression hearing was the customs inspector who seized the records. On July 8, 1985, the inspector was working at the Rainbow Bridge in Niagara Falls. Defendant was referred to him by the booth inspector for secondary inspection. The inspector recalled that the reason for the referral was that defendant was driving a Mercedes, "which is a high profile for vehicles being smuggled into the United States or entered illegally." In addition, the ownership had recently been transferred and some of the documents were not available for a quick examination at the booth.

The secondary inspection was conducted at the bridge office. The Mercedes was briefly searched for documents concerning ownership and registration. The inspector then asked defendant to empty his pockets and defendant produced a paper from his pants pocket and a wallet containing a similar paper. He examined the documents and set them aside. He "recognized that, from previous experience, that they may indeed have something to do with betting or gambling records." The inspector was not an expert on gambling, but he had some previous experience with gambling cases and one of the documents resembled a gambling record he had seen in another case. The inspector had only "suspicions" about the documents.

Because of his suspicions, he attempted to contact an officer of the Buffalo Police Department's Vice Squad. The customs inspector sought the police officer's advice regarding "what action to pursue at this point from a legal standpoint", as well as assistance in determining whether the documents were gambling records. When he was unable to reach the police officer, the inspector concluded that it

"was not possible for me to hold Mr. LePera any longer for the examination purposes. We had determined that the vehicle was legally transferred and for customs purposes that would be the end of the examination."

A computer check had verified that the vehicle was owned and registered in the name of Barbara LePera, as the certificate of title and registration reflected. The vehicle identification numbers on the vehicle also corresponded with those in the registration documents. Having determined that the vehicle was entering the country legally and that it was not possible to hold defendant any longer, the inspector decided to make photocopies of the documents. He had the copies certified by his supervisor and then returned the originals to defendant. He turned over the photocopies to the Buffalo police officer two or three days later.

The suppression court concluded that the inspector was entitled to "search for proper documentation of evidence of ownership to the vehicle." Because the search was properly conducted, the court declined to suppress the copies of the documents seized from defendant.

On appeal, defendant does not challenge the legality of the initial stop or the search of his vehicle. It is well established that the brief detention of persons entering the country and routine inspection of luggage or other property, conducted without a warrant or probable cause, "does not violate the constitutional proscriptions against unreasonable searches and seizures" (People v. Luna, 73 N.Y.2d 173, 176, 538 N.Y.S.2d 765, 535 N.E.2d 1305; see also, People v. Dworkin, 30 N.Y.2d 706, 332 N.Y.S.2d 645, 283 N.E.2d 620). As the United States Supreme Court pointed out in United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617:

"[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border".

Greater intrusions on a traveler's privacy, such as the search of defendant's pockets, must be justified by some level of suspicion (see, People v. Luna, supra ). Defendant does not question the propriety of the customs inspector's search of his person for documentation establishing that the Mercedes was entering the country legally. Rather, defendant maintains that the inspector exceeded his authority under the customs laws by seizing the records and that the seizure is not justified by the relaxation of the usual constitutional restrictions on searches and seizures at the border.

Defendant relies primarily on People v. Regnet, 111 Misc.2d 105, 443 N.Y.S.2d 642. In Regnet, the defendants moved to suppress a VISA card seized from the automobile in which they were riding by a customs officer at the Peace Bridge. Because the name on the VISA card was not that of either defendant, the customs agent became suspicious and telephoned the bank's credit card authorization department. When he learned that the credit card was stolen, the customs agent continued to hold the defendants and called the Buffalo police, who arrested the defendants. The court held that the credit card was illegally seized because the customs agent possessed neither the necessary authority under the customs laws nor the requisite level of suspicion under the Fourth Amendment to justify the seizure. We agree with defendant that both grounds for suppression are present in this case.

The authority of customs officers to seize property entering the country is expressly granted in 19 U.S.C. § 482. That section provides "Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, 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, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial."

While Congress has granted extensive power to customs officers to conduct searches and to seize property at the border, that power is not without limits. The same concerns justifying the expansion of governmental authority to conduct searches and seizures at the border also serve as a constraint on that authority:

"In conferring upon Customs officers such broad authority, circumscribed only by Constitutional limitations of the Fourth Amendment, the Congress has in effect declared that a search which would be 'unreasonable' within the meaning of the Fourth Amendment, if conducted by police officers in the ordinary case, would be a reasonable search if conducted by Customs officials in lawful pursuit of unlawful imports. Judicial recognition of this distinction has given rise to the term 'border search', in order to distinguish official searches which are reasonable because made solely in the enforcement of Customs laws from other official searches made in connection with general law enforcement.

"Validity for this distinction is found in the fact that the primordial purpose of a search by Customs officers is not to apprehend persons, but to seize contraband property unlawfully imported or brought into the United States"

(Alexander v. United States, 362 F.2d 379, 381-382, cert. denied 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439; accord, United States v. Ader, 520 F.Supp. 313; People v. Siegfried, 116 Misc.2d 784, 785, 456).

Customs officials, therefore, are permitted to conduct searches and seizures that would be unreasonable in other contexts so that they can effectively enforce the customs laws. One of the regulations implementing 19 USC § 482 implicitly recognizes the limits on the authority of the Customs Service to seize property. At the time defendant's records were seized, 19 CFR 162.21(a) provided, in pertinent part:

"Seizures by Customs officers. Property may be seized, if available, by any Customs officer who has reasonable cause to believe that any law or regulation enforced by the Customs Service has been violated, by reason of which the property has become subject to seizure or forfeiture"

(emphasis supplied).

That regulation is in accord with the well-established view that customs officials have special limited powers to enforce the customs laws; they do not have the general investigatory or law enforcement authority of police officers (see, People v. Esposito, 37 N.Y.2d 156, 160, 371 N.Y.S.2d 681, 332 N.E.2d 863). Their purpose in conducting a border search is to ascertain whether merchandise is being unlawfully imported, either because it is brought into the country without the payment of a duty (see, e.g., People v. Devonshire, 148 A.D.2d 965, 966, 539 N.Y.S.2d 597, lv. denied 74 N.Y.2d 663, 543 N.Y.S.2d 406, 541 N.E.2d 435) or...