U.S. v. Chemaly

• Citation: 741 F.2d 1346
• Decision Date: 20 September 1984
• Docket Number: No. 83-5065,83-5065
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert CHEMALY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1346

741 F.2d 1346

UNITED STATES of America, Plaintiff-Appellee, v. Robert CHEMALY, Defendant-Appellant.

No. 83-5065.

United States Court of Appeals, Eleventh Circuit.

Sept. 20, 1984.

Rehearing Granted Dec. 18, 1984.

Rosen & Rosen, P.A., Lawrence N. Rosen, Miami, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Patricia D. Kenny, Linda Collins Hertz, Gregory W Kehoe, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

GODBOLD, Chief Judge:

This case involves the warrantless search at the border of a person departing the United States. The search discovered over $5,000 in currency, and the defendant was charged with currency reporting violations and with making false statements to customs officials. The currency reporting statute, former 31 U.S.C. Secs. 1101, 1105, requires that probable cause and a warrant exist before searches for violations can occur. We must decide whether the border exception to the fourth amendment's warrant requirement, applicable to incoming passengers, applies in this case to the defendant, an outgoing passenger, and relieves the customs service of the warrant requirement of the statute. We hold that the border exception does not relieve the customs service of the statute's warrant requirement, that the defendant did not consent to the search, and that the convictions must be reversed because of the illegal search.

I. Background

DEA agent Marin received a phone call September 30, 1982 from a confidential informant (known to Marin as Number 24), who had previously provided reliable information. Number 24 stated that Chemaly would be taking Eastern Airlines flight 23 to Aruba that day and would be taking $500,000 in a cardboard box capable of holding TV sets or electrical equipment, to be used to purchase cocaine. After a second call from Number 24 to Marin, the DEA passed the information to special agents of the South Florida Task Force assigned to Miami International Airport.

Number 24 was unable to reach Marin for a third call, but the informant then spoke with Agent Turner. Number 24 described the prior conversations with Marin and then told Turner that Chemaly would carry the money in a brown box with yellow ribbon or tape. Turner passed this information to Agent Colon of the task force.

Colon, along with agents of the customs service, arrived at the airport shortly before flight 23 was to leave. The agents ascertained that Chemaly was a passenger on flight 23 to Aruba. The agents saw no one carrying a brown box with yellow tape or ribbon on it but spotted a person with a yellow shopping bag that contained a small brown box. At Colon's request a ticket agent paged Chemaly, who identified himself to the ticket agent. Chemaly was not the individual carrying the yellow bag but was standing near that person. Chemaly and that person were part of a group of five men standing together.

Task Force agents then placed English and Spanish language posters in the waiting area. These posters described currency reporting requirements (one must report the import or export of more than $5,000 in currency) and the civil and criminal penalties for violating the requirements. Announcements containing the same information were made over the public address system. Agent Colon noticed that Chemaly and those with him stopped talking and listened to the announcement.

After passengers entered the jetway, Agent Medellin of the customs service asked each passenger whether he or she was taking more than $5,000 out of the country. Medellin had customs form 4790 (used for reporting currency being taken out of the country) in his hand for distribution. Chemaly did not ask for a form. Medellin asked Chemaly if he was carrying more than $5,000, and Chemaly stated "no."

Further down the jetway Agent Riggs of the customs service and customs patrol officer Krockenburger stopped, questioned, and searched every person who had been standing with Chemaly in the waiting room. One by one each member of the group was questioned and his person and belongings searched, including the man in possession of the yellow shopping bag with the brown box in it. The box contained neither currency nor contraband. Chemaly was the last of the group to be stopped and searched. Thus, the customs agent stopped and searched him after the yellow bag and the brown box had been searched and found to be innocent.

When Chemaly reached the agents, he was also questioned. Chemaly was told to step aside so that the other passengers could continue to board the plane, and he was removed from the flow of traffic. Riggs requested Chemaly's passport and ticket, and Chemaly handed them to the agent.

Riggs asked Chemaly how much cash he was taking out of the United States. Chemaly replied that he had about $4,000. Riggs asked him to produce the money, and Chemaly pulled out $4,900 in $100 bills from his pocket. Riggs, suspicious because of the amount and the bill denominations, asked if he could examine Chemaly's attache case. Chemaly agreed and opened the case. Riggs found an envelope inside the case that because of its shape and size looked as though it might contain Federal Reserve notes. Riggs asked Chemaly if he knew the contents of the envelope. Chemaly stated that it was for his father. Riggs then asked if the envelope could contain currency. Chemaly responded that it could. Riggs opened the envelope and found $10,000 in $100 bills wrapped in gift wrapping.

Riggs had noticed a bulge in Chemaly's pants. He asked Chemaly if he was carrying any additional currency; Chemaly said he was not. Chemaly then consented to a pat-down search that produced an additional $10,049 from his pocket and wallet. Thus the total of currency found in Chemaly's possession was $24,949.

Chemaly was then taken back to the passenger waiting area where Medellin advised him of his rights. Chemaly stated that he did not fill out form 4790 when leaving because he had brought the money to the United States and had not filled out the form upon arrival. On three previous occasions he had filled out form 4790.

Chemaly was charged with making a false statement to a customs official in violation of 18 U.S.C. Sec. 1001 (1976) (Count I) and with failing to file form 4790 in violation of former 31 U.S.C. Sec. 1101 (1976) (recodified at 31 U.S.C.A. Sec. 5316 (1983)) (Count II). Chemaly filed a motion to suppress, which the district court denied. The district court found that only reasonable suspicion was necessary to search at the border a person leaving the country. The court found reasonable suspicion. The court further found Chemaly's consent to the search was voluntary but expressly stated that its consent determination was only a secondary ground for denial of the suppression motion. After denying the motion to suppress, the district court found Chemaly guilty on both counts.

Chemaly contends that reasonable suspicion did not exist for his seizure and that probable cause and a warrant are required for search of outgoing passengers at the border for currency violations. The government counters that no suspicion is required for a search of outgoing passengers at the border or its functional equivalent and that the search and seizure of Chemaly were thereby justified. Alternatively the government contends that, if the border search rationale did not justify the search, Chemaly consented to the stop and search and cannot complain of the results and that probable cause existed for his arrest and search.

II. The border exception and Sec. 1105

Former 31 U.S.C. Sec. 1101 criminalized the exportation of over $5,000 in currency without filing the required report. Former 31 U.S.C. Sec. 1105 (recodified at 31 U.S.C.A. Sec. 5317 (1983)) provided for searches of persons suspected of violating this statute. Section 1105 provided:

(a) If the Secretary has reason to believe that monetary instruments are in the process of transportation and with respect to which a report required under section 1101 of this title has not been filed or contains material omissions or misstatements, he may apply to any court of competent jurisdiction for a search warrant. Upon a showing of probable cause, the court may issue a warrant authorizing the search of any or all of the following:

(1) One or more designated persons ...

(3) One or more designated or described letters, parcels, packages, or other physical objects....

Any application for a search warrant pursuant to this section shall be accompanied by allegations of fact supporting the application.

(b) This section is not in derogation of the authority of the Secretary under any other law.

The legislative history of this statute indicates that the warrant requirement of Sec. 1105 is mandatory absent existing authority to conduct a search of outgoing passengers. On the warrant requirement the Senate Report states:

The Secretary is given authority to conduct searches to enforce compliance provided he first obtains a search warrant from any court of competent jurisdiction upon a showing of probable cause. The purpose of the warrant is to avoid an excessive burden on persons entering or leaving the country. However, nothing in the bill would limit the authority of the Secretary to conduct searches under existing law. Should unreported currency be discovered pursuant to a search by the Bureau of Customs under its existing legal authority, the person transporting the currency would be subject to the penalties under this legislation if the discovery of the unreported currency was incidental to the main purpose of the search.

S.Rep. No. 1139, 91st Cong., 2d Sess. 7 (1970).

Supplemental statements of other senators confirm this view:

The bill considered by the committee contained a provision, the enforcement of which would have required the opening of mail and searches of...