People v. Luna

• Decision Date: 21 February 1989
• Citation: 538 N.Y.S.2d 765,535 N.E.2d 1305,73 N.Y.2d 173
• Parties: , 535 N.E.2d 1305, 57 USLW 2594 The PEOPLE of the State of New York, Respondent, v. Julio LUNA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 765

538 N.Y.S.2d 765

73 N.Y.2d 173, 535 N.E.2d 1305, 57 USLW 2594

The PEOPLE of the State of New York, Respondent, v. Julio LUNA, Appellant.

Court of Appeals of New York.

Feb. 21, 1989.

Carol A. Zeldin and Philip L. Weinstein, New York City, for appellant.

John J. Santucci, Dist. Atty. (Ernest Burstein, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

This appeal requires us to determine the level of suspicion, if any, necessary under the Federal and State Constitutions to justify singling out an entrant at the national border for a pat-down search. Defendant contends that the same "reasonable suspicion" required for stops and frisks in domestic situations should apply (see, Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889; People v. La Pene, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562). The People argue that pat downs are merely incidental to routine border searches for which no justification is required other than the fact that they occur at the border (see, United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617). We agree with neither position. However, for the reasons which follow, we do hold that the pat-down search in this case was constitutionally reasonable and, consequently, that the evidence seized was admissible.

At 3:15 A.M. on April 14, 1985, Customs Inspector Brian Quinn was processing passengers from an international flight from Ecuador which had just arrived at the American Airlines Terminal at Kennedy Airport in New York City. Defendant, a 48-year-old Ecuadorian apparently traveling alone, approached the inspection station and presented his passport and luggage. Quinn questioned defendant about his trip but, because defendant did not appear to understand English, the two communicated through hand gestures.

Quinn thought defendant appeared "agitated" and "nervous". His hands were shaking and his face seemed contorted; he kept shifting from foot to foot and was glancing around the room as if to avoid eye contact. Defendant did not interfere with the inspection and there seemed nothing unusual about his passport or the particular items in his single suitcase. But defendant's appearance and behavior, as well as the fact that he was traveling alone from a "high-profile" country, led Quinn, a seven-year veteran of the customs service, to suspect that defendant was a drug courier.

Quinn directed defendant to a nearby room where he patted him down. When Quinn discovered a bulge around each of defendant's ankles, he removed two packets of cocaine and placed defendant under arrest. Defendant was subsequently charged with criminal possession of a controlled substance in the first degree.

At trial, defendant moved to suppress the evidence on the ground that Officer Quinn did not have the requisite "reasonable suspicion" to justify a stop and frisk. The hearing court denied the motion finding that defendant's origination from a "drug export" country and his nervous appearance supported a "minimal" level of suspicion sufficient for a pat down at the border. ¹ Subsequently, defendant was convicted on his guilty plea to the lesser charge of criminal possession of a controlled substance in the second degree. On appeal, the Appellate Division affirmed, citing People v. Materon, 107 A.D.2d 408, 487 N.Y.S.2d 334 and concluding that the customs officer possessed "articulable suspicion" justifying the pat down. 136 A.D.2d 571, 523 N.Y.S.2d 565. We now affirm.

It is settled that a routine inspection of luggage and other belongings at the national border, conducted without a warra or even probable cause, does not violate the constitutional proscriptions against unreasonable searches and seizures (see, United States v. Ramsey, supra, 431 U.S., at 616, 97 S.Ct., at 1978; People v. Dworkin, 30 N.Y.2d 706, 332 N.Y.S.2d 645, 283 N.E.2d 620). The paramount interests in national security and preventing contraband from entering the country render such routine inspections "reasonable" solely because they involve persons or items crossing our borders (see, United States v. Ramsey, supra, 431 U.S., at 616, 97 S.Ct., at 1978; United States v. Thirty-Seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 L.Ed.2d 822; Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 285-286, 69 L.Ed. 543). At the border, an entering individual's constitutionally protected privacy is necessarily diminished, and the balancing of rights and interests is struck more favorably to governmental concerns (see, United States v. Montoya de Hernandez, 473 U.S. 531, 539-540, 105 S.Ct. 3304, 3309-3310, 87 L.Ed.2d 381; Carroll v. United States, supra, 267 U.S., at 154, 45 S.Ct., at 286).

Thus, the brief detention of incomers and the inspection of their luggage and other property is constitutionally permissible at border crossings without any suspicion of criminal activity (see, United States v. Montoya de Hernandez, supra, 473 U.S., at 537-538, 105 S.Ct., at 3308-3309; United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408; People v. Dworkin, supra); other privacy intrusions of greater degree require some justification, but less than is required in the interior ( see, United States v. Montoya de Hernandez, supra, 473 U.S., at 538, 105 S.Ct., at 3308; United States v. Ramsey, supra, 431 U.S., at 619, 97 S.Ct., at 1980; United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 125, 93 S.Ct. 2665, 2667, 37 L.Ed.2d 500). Indeed, under the Terry standard of "reasonable suspicion", the Supreme Court in Montoya de Hernandez approved a prolonged and humiliating detention of an incomer who was held by customs agents to determine, through her natural bodily processes, whether or not she was carrying narcotics internally ( see, United States v. Montoya de Hernandez, supra, 473 U.S., at 544, 105 S.Ct., at 3312). Applying the Terry standard, the Supreme Court found the detention justified because the customs officials had a " 'particularized and objective basis for suspecting the particular person' of alimentary canal smuggling" (id., at 541-542, 105 S.Ct., at 3310-3311; quoting United States v. Cortez, 449 U.S. 411, 417, 418, 101 S.Ct. 690, 694, 695, 66 L.Ed.2d 621, citing Terry v. Ohio, 392 U.S., at 21, n. 18, 88 S.Ct., at 1880, n. 18, supra ).

Although the defendant in Montoya de Hernandez was subject to a pat down, strip search, and rectal examination during her detention, the validity of those searches was not in issue. Significantly, the Supreme Court noted that it was taking "no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches" (id., 473 U.S., at 541, n. 4, 105 S.Ct., at 3310, n. 4 [emphasis added] ); the court did not even mention pat downs. Hence, it remains unclear whether the Supreme Court considers pat downs part of the "[r]outine searches of the persons and effects", which "are not subject to any" justification (id., at 538, 105 S.Ct., at 3309), or considers them a form of "limited intrusion" beyond the "routine customs search and inspection", which must rest on some level of suspicion (id., at 541, 105 S.Ct., at 3310). Nor is it clear whether it would make a difference if an individual is singled out from among others for the pat down. ²

While we, too, have yet to address the requirements for border pat downs, other courts, both New York and Federal have done so. Their opinions differ, however, as to the quantum of suspicion, if any, that is required.

The most prevalent view appears to be that "no suspicion" is required--i.e., that the relatively minor intrusion of a pat down needs no more justification than that the person is entering the country (United States v. Braks, 842 F.2d 509, 514 [1st Cir.]; see also, United States v. Sandler, 644 F.2d 1163, 1167 [5th Cir.]; United States v. Oyekan, 786 F.2d 832, 835 [8th Cir.]; United States v. Vega-Barvo, 729 F.2d 1341, 1345 [11th Cir.]; United States v. Mabie, 580 F.Supp. 1382 [E.D.N.Y.] ). The rationale advanced in support of this position is that anything "less intrusive than a strip search" is routine at the border (United States v. Kallevig, 534 F.2d 411, 413, n. 4 [1st Cir.] ), that "a pat-down or frisk fall within this category" (United States v. Vega-Barvo, supra, at 1345; see also, United States v. Nieves, 609 F.2d 642, 645-646 [2d Cir.] ), and that a pat down involves "little indignity or embarrassment * * * it is no worse than having a stranger rummage through one's luggage, a practice which is clearly acceptable" (United States v. Sandler, supra, at 1167). There are other views.

Judging a pat down or frisk to be somewhat more intrusive than being "required to disclose the contents of his or her baggage" (United States v. Des Jardins, 747 F.2d 499, 504 [9th Cir.] ), a number of courts have held that customs officers must have some suspicion of criminal activity before proceeding. Denominating the level of necessary suspicion as simply "some" (United States v. Dorsey, 641 F.2d 1213, 1218 [7th Cir.] ), "mere" (United States v. Grayson, 597 F.2d 1225, 1228 [9th Cir.] ), "minimal" (United States v. Couch, 688 F.2d 599, 604 [9th Cir.] ), or "articulable" (People v. Materon, 107 A.D.2d 408, 413, 487 N.Y.S.2d 334 supra, see also, People v. Rivera, 143 A.D.2d 783, 533 N.Y.S.2d 483), these courts have reasoned that a pat down constitutes a significant interference with personal privacy and dignity. Though certainly not as invasive or degrading as a strip search, cavity search, or prolonged involuntary detention, a pat down is, nonetheless, according to this view, an intrusion on one's privacy sufficiently greater than that involved in a routine inspection of luggage to require some minimal level of particularized suspicion. We agree.

Although the usual restrictions on searches and seizures are relaxed at the border, individuals presenting themselves for entry into this...