People v. Sortino

• Decision Date: 30 September 1971
• Citation: 325 N.Y.S.2d 472,68 Misc.2d 151
• Parties: The PEOPLE of the State of New York v. Victor SORTINO, Defendant.
• Court: New York Supreme Court

Page 472

325 N.Y.S.2d 472

68 Misc.2d 151

The PEOPLE of the State of New York v. Victor SORTINO, Defendant.

Supreme Court, Criminal Term, Queens County, Part VIII.

Sept. 30, 1971.

[68 Misc.2d 152] Rubin, Gold & Geller, New York City, for defendant.

Thomas Mackell, Dist. Atty., Kew Gardens, for the People.

MEMORANDUM

ALBERT H. BUSCHMANN, Justice.

The defendant herein was indicted for Criminal Possession of a Dangerous Drug in the Fourth Degree. He now moves for an order to suppress one and a half ounces of marijuana found in his hand luggage by a customs agent.

On December 25, 1970 defendant was a passenger at Kennedy Airport awaiting a flight to Puerto Rico for the holidays. A Pan American employee, alert to the possibility of possible hijacking, became suspicious of defendant for some unexplained reason and confided his suspicions to Customs Agent Bunze. This customs agent was stationed nearby for the purpose of searching passengers for concealed weapons on outgoing flights, a security measure instituted by the airlines in the wake of plane hijacking. Agent Bunze approached defendant, spoke to him about weapons and searched him. No permission was given by defendant for this search. Finding nothing, the agent then examined defendant's hand luggage and discovered one and a half ounces of marijuana. This drug was confiscated. A New York City police officer was called and defendant arrested for possession of narcotics.

The agent testified at the hearing that he had not received any information about guns or contraband from the Pan American employee or any other facts which might have aroused his suspicions. Further, he, himself, observed nothing unusual about the defendant, and the search was merely a precautionary measure as part of his duty under the 'Air Marshall' program. Additional testimony revealed the fact that the agent tried to search as many passengers as possible for concealed weapons on this particular flight as a security precaution.

The People condeded that the search of defendant was not based on probable cause. However, they maintain that the search did not violate the Fourth Amendment because federal statutes granted the officials authority to search with less than probable cause. These statutes fall into two broad categories: (1) 'border' or 'custom' federal statutes; (2) newly created 'air marshall' federal statutes.

Turning to the first category--the People allege that historically customs officials have broad authority to search without a warrant (United States v. Louis Marti, E.D.N.Y., 321 F.Supp. 59; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543). The cases seem to be in agreement that probable cause is not required in these searches. (Murgia v. United States, 9 Cir., 285 F.2d 14; United States v. Beckley, 6 Cir., 335 F.2d 86, 89.) What constitutes sufficient cause for search, however, is not clearly defined in these cases and ranges from 'mere suspicion of possible illegal activity' (United States v. Glaziou, 402 F.2d 8, 2d Cir. 68, cert. Den. 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126) to a requirement of 'real' suspicion supported by 'articulable' effects (United States v. Johnson, 9 Cir., 425 F.2d 630). This Court, therefore, must agree that probable cause is not required for customs searches.

However, defendant contends that even if this be so, the search of Agent Bunze was outside the scope of his authority and that customs officials have no right to examine the person of an outgoing passenger on a domestic flight.

Examining the relevant statutes, this Court finds that uniformly they restrict the duties of customs officials to merchandise or people Entering this country. Thus, 19 U.S.C. 482 ('stop, search, and examine * * * any * * * person (or) merchandise * * * introduced into the United States'); 19 U.S.C. 1496 ('an examination to be made of the baggage of any person Arriving in the United States'); 19 U.S.C. 1499 ('inspection * * * of Imported merchandise'); 19 U.S.C. 1582 ('search by authorized officers * * * also persons Coming into the United States from foreign countries') are typical. In brief, this Court has failed to find any cases that favor the proposition that customs officials have the general right to search a person as he is about to leave on a domestic flight. (See United States v. Marti, Supra, p. 63.) Nor did the fact that marijuana was found change the picture, since the statute that gave additional authority to the Bureau of Customs in narcotics matters, limits that authority to those circumstances when the officer has 'reasonable grounds to believe that the person to be arrested has committed or is committing such violation' (26 U.S.C. 7607, United States v. Rubio, 7 Cir., 404 F.2d 678, cert. Den. 394 U.S. 993, 89 Sup.Ct. 1482, 22 L.Ed.2d 770). No allegation to that effect was made in this case.

Taking all these facts into account, this Court can only hold that the officer exceeded the scope of his authority as a customs official in making a search of ...