People v. Materon

• Decision Date: 25 March 1985
• Citation: 487 N.Y.S.2d 334,107 A.D.2d 408
• Parties: The PEOPLE, etc., Respondent, v. Esther MATERON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 334

487 N.Y.S.2d 334

107 A.D.2d 408

The PEOPLE, etc., Respondent, v. Esther MATERON, Appellant.

Supreme Court, Appellate Division Second Department.

March 25, 1985.

Alexander A. Alarid and Sidney H. Zuckerman, New York City (Morgan Kennedy, New York City, on brief), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Andrew Zwerling, Kew Gardens, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, LAZER and THOMPSON, JJ.

LAZER, Justice.

The primary issue is the constitutional propriety of defendant's detention and search in the customs area at Kennedy Airport after her arrival on an international flight. Also contested is New York's right to prosecute the defendant following her arrest by Federal authorities before she had cleared customs. We conclude the judgment of conviction should stand.

I

On February 14, 1981, at approximately 6:00 P.M., defendant disembarked at John F. Kennedy Airport from a direct flight that had its origin in Colombia. Having retrieved her suitcase, she proceeded to the customs inspection station where she was observed by a customs patrol officer assigned to scrutinize and evaluate passengers arriving on that flight. Defendant's nervous behavior attracted this officer's attention as she watched defendant change lines at the inspection station several times. After defendant selected a line and ultimately had her luggage inspected at the inspection station, the officer noted that she had an unusual amount of trouble closing her suitcase. Defendant was unable to flex her knees and had to extend one leg out in order to reach down toward her luggage. Wearing tight-fitting jeans and high-heeled shoes, she moved so awkwardly with each step that, in the words of the customs officer, she was "unable to move as normal persons move".

The agent approached defendant, exhibited her badge, and requested to see defendant's passport and declaration form. Since defendant's airline ticket was inside her passport, the officer noticed that the ticket had an "open" return date and had been purchased with cash and that defendant had remained in Colombia for about two weeks. The passport also indicated that defendant had made two prior trips to Colombia within a relatively short period of time.

The combination of these factors and her observations of the defendant prompted the officer to request that the customs inspection be continued, and she asked the defendant to accompany her a short distance to a private search area. Defendant complied, and during the patdown search that followed, the officer felt a bulge in defendant's crotch area. Upon request, defendant removed four condoms which she had hidden inside her pants. The condoms contained a white powder which was immediately field tested and proved positive for cocaine. Defendant was then arrested.

Following the discovery of cocaine, a second female officer was requested to witness a strip search. Defendant removed her clothing, which was inspected for contraband, but none was found. The officers then asked defendant to bend down from the waist, but she refused and was permitted to dress.

An agent from the Federal Drug Enforcement Administration (DEA) read theMiranda warnings to defendant and asked if she had any more cocaine hidden on her body. The reply was "No". A short time later, both defendant and the drugs were turned over to Port Authority officers who once again read the Miranda warnings to defendant. She was then taken to a private room where a second strip search was performed. Defendant was asked to squat down, and two more condoms, both filled with cocaine, fell from her vagina.

After defendant dressed again, a Port Authority officer inquired as to whether she had hidden still more drugs and warned her that it was dangerous to secrete drugs inside her body. Defendant then declared that she had two more condoms in her anal cavity. She was taken to the medical facility at the airport, where she was given a laxative and excreted the cocaine-filled condoms. In all, the eight condoms recovered from defendant contained an aggregate amount of over 10 ounces of cocaine.

Following her indictment by a Queens County Grand Jury for criminal possession of a controlled substance in the first degree, defendant moved to suppress the physical evidence, claiming that the government agents lacked any justification for the stop, inquiry and subsequent searches. The hearing court denied the suppression motion, finding that these actions were reasonable and lawful under the circumstances. Having justified the initial inquiry and patdown of defendant as a typical border search, the court determined that the discovery of the cocaine from the patdown elevated the officer's suspicions to probable cause, which in turn justified the secondary searches of defendant, including both the strip search and the body cavity search.

Midway through the trial that followed, defendant withdrew her plea of not guilty and pleaded guilty to criminal possession of a controlled substance in the second degree. During the plea allocution she declared that she had been visiting her sister in Colombia, was approached by a woman shortly before her return trip and asked to bring back medicine, was told by a passenger on the plane that the substance was cocaine and, knowing that it was illegal to bring cocaine into the country, she hid it in her body. Defendant was sentenced to an indeterminate term of five years to life imprisonment.

II

The initial issue is whether it was proper for a New York court to accept jurisdiction over the instant offense after the Federal authorities declined to prosecute defendant for a violation of the customs law. The current State prosecution derives from actions undertaken by Federal customs inspectors who performed what is now sought to be justified as a valid border search. While defendant concedes that customs officials have broad investigatory powers under Federal law (see 19 U.S.C. § 1582), she contends that the purpose of these powers is to enforce Federal laws against the unlawful importation of contraband and the illegal entry of aliens. Therefore, according to defendant, if any crime was committed it was a Federal crime and New York should not be concerned with an offense that falls squarely within the scope of Federal law.

The fact that defendant's actions constituted a crime under Federal law does not vitiate the equally undeniable fact that those actions also constituted a crime subject to prosecution under New York law (see Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684; Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729; United States v. Jackson, 470 F.2d 684; People v. Sheppard, 105 Misc.2d 495, 432 N.Y.S.2d 495). Simply stated, defendant unlawfully possessed the cocaine within New York State and is thus subject to prosecution in the courts of this State. Nor is defendant subject exclusively to Federal jurisdiction simply because the crime was committed within the customs area of Kennedy International Airport; defendant has not shown either that New York has expressly ceded that area and jurisdiction over it or that the Federal government has asserted exclusive jurisdiction by clear and unambiguous legislative action (People v. Zipkin, 107 A.D.2d 837, 484 N.Y.S.2d 676; People v. Mitchell, 90 Misc.2d 463, 395 N.Y.S.2d 340; see People v. Kobryn, 294 N.Y. 192, 61 N.E.2d 441; People v. Fisher, 97 A.D.2d 651, 469 N.Y.S.2d 187; cf. Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502). Furthermore, the State offense remains intact regardless of the Federal government's decision not to prosecute the violations of Federal law, and the result is not altered simply because the violations were discovered by Federal rather than State authorities (People v. Zipkin, supra; see People v. Dworkin, 30 N.Y.2d 706, 332 N.Y.S.2d 645, 283 N.E.2d 620; People v. Mitchell, supra; State v. Smith, 399 So.2d 22 [Fla.]; cf. People v. Marcus, 90 Misc.2d 243, 394 N.Y.S.2d 530).

Equally meritless is defendant's claim that she had not cleared through customs and thus may not be prosecuted because she was not officially within the United States when she was apprehended. Kennedy Airport is within the territorial limits of New York State (see, e.g., United States v. Feld, 514 F.Supp. 283) and under Federal law clearing customs is not a prerequisite for finding that contraband has been imported (United States v. Catano, 553 F.2d 497 [5 Cir.] ). Once that importation has occurred, the possessor of the contraband is subject to prosecution under the laws of New York (see People v. Dworkin, supra ).

The companion argument that at most defendant could be guilty of attempted possession, rests on no firmer ground. The fact that defendant had not been formally admitted into the United States when arrested does not limit her crime to that of an attempt. Even under the Immigration and Nationality Laws, where the concept of "formal entry" is truly applicable, a state may prosecute under its statutes those aliens who commit crimes while on American soil but who are not yet officially admitted to the country (Immigration and Nationality Act of 1952 § 288, 8 U.S.C. § 1358; see also Gordon and Gordon, Immigration and Nationality Law § 3.14, pp. 3-48--3-49).

III

While it is thus quite apparent that New York was a proper forum for defendant's trial, the constitutional standards for the review of her Fourth Amendment claims are those applicable to border searches. In this respect, it is immaterial that the State rather than the Federal government chose to prosecute, for the key to any Fourth Amendment challenge is the reasonableness of the governmental intrusion.

The courts of this State have long recognized the permissible use in New York of evidence seized by customs officials under the relaxed border search standards (see People...