U.S. v. Hernandez-Salazar

• Decision Date: 03 April 1987
• Docket Number: D,HERNANDEZ-SALAZA,No. 86-5398,86-5398
• Citation: 813 F.2d 1126
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgarefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1126

813 F.2d 1126

UNITED STATES of America, Plaintiff-Appellee, v. Edgar HERNANDEZ-SALAZAR, Defendant-Appellant.

No. 86-5398.

United States Court of Appeals Eleventh Circuit.

April 3, 1987.

Guy W. Turner, Miami, Fla., for defendant-appellant.

Leon B. Kellner, U.S. Atty., Paul A. DiPaolo, Sonia O'Donnell, Nancy L. Worthington, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before KRAVITCH and HATCHETT, Circuit Judges, and MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

In 1984, Congress amended 31 U.S.C. Sec. 5317 to add a provision to expand the authority of Customs officers to search persons and property entering and departing the United States for currency reporting violations. In this issue of first impression, ¹ the constitutionality of the 1984 amendment to 31 U.S.C. Sec. 5317(b) ² is challenged.

Appellant Edgar Hernandez-Salazar and two codefendants were indicted for currency reporting offenses in connection with appellant's attempt to transport in excess of $200,000 in United States currency in a checked bag on a flight from Miami to Medellin, Colombia. Count 1 of the indictment charged Adolfo Leon Gomez, ³ Hugo Rios ⁴ and appellant with conspiracy to defraud the Internal Revenue Service by failing to file a United States Customs Form 4790, Report of International Transportation of Currency or Monetary Instruments, in connection with transportation of an amount of United States currency in excess of $10,000 from Miami to Medellin, Colombia. ⁵ 18 U.S.C. Sec. 371. Count 2 charged appellant, Gomez and Rios with the substantive offense of knowingly failing to file the required report, in violation of 31 U.S.C. Secs. 5316, 5322. ⁶ 18 U.S.C. Sec. 2. Count 3 charged appellant with making a false, fraudulent and fictitious statement to a United States Customs Service agent. Appellant allegedly stated that he was not carrying more than $10,000 in monetary instruments when in fact he was carrying approximately $203,000 in United States currency. 18 U.S.C. Sec. 1001. ⁷

The issues before this court arise from appellant's motion to suppress the evidence against him as the product of an illegal search. After an evidentiary hearing, the magistrate recommended that all evidence against appellant be suppressed as the fruit of an illegal search; he found the statute granting authority to Customs officers to search outgoing luggage without a search warrant on the basis of "reasonable cause," 31 U.S.C. Sec. 5317(b), unconstitutional on its face. ⁸ After hearing oral argument on the motion, the district court sustained the government's objections and reversed the magistrate's recommendation.

The parties waived their rights under Fed.R.Crim.P. 23(c) to special findings of fact, and the case proceeded to a bench trial on stipulated facts. ⁹ Appellant was convicted on all three counts and sentenced to three concurrent three year sentences and $150 fine.

Initially, the parties dispute the role that the magistrate's factual findings should play in our decision. Appellant contends that the magistrate's factual findings are entitled to deference because the district court held no evidentiary hearing and made no factual findings.

We conclude that the magistrate's findings are not entitled to deference in this case. ¹⁰ The district court reversed the magistrate's recommendation without making factual findings. ¹¹ The parties stipulated for trial to the testimony at the suppression hearing, not to the magistrate's factual findings. ¹² The parties also waived their right to special findings of fact under Fed.R.Crim.P. 23(c). ¹³ Where the defendant waives his right to special findings under Rule 23(c), findings will be implied on appeal in support of the judgment if the evidence, viewed in the light most favorable to the government, warrants them. United States v. Ochoa, 526 F.2d 1278, 1282 n. 6 (5th Cir.1976); United States v. Gant, 691 F.2d 1159, 1163 (5th Cir.1982). See also 8A J. Moore, Moore's Federal Practice p 23.05 (2d ed. 1986). This rule is not altered where the magistrate made findings at a pre-trial suppression hearing, timely objections were made, and the district court made inadequate factual findings. United States v. Lewis, 621 F.2d 1382, 1387 (5th Cir.1980) (where district court made inadequate factual findings in affirming magistrate's recommendation on suppression issue, appellate court may make its own findings on the basis of the transcript at the suppression hearing before the magistrate), cert. denied, 450 U.S. 935, 101 S.Ct. 1400, 67 L.Ed.2d 370 (1981); United States v. Berry, 670 F.2d 583, 603 n. 25 (5th Cir. Unit B 1982) (en banc) (same). See also United States v. Smith, 543 F.2d 1141, 1145 (5th Cir.1976) (appellate court would make independent review of record, accepting evidence supporting the judgment where conflict exists, when district court made no findings of fact in ruling on suppression issue), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977).

I. FACTS

On May 4, 1985, United States Customs agents at the Miami International Airport decided to investigate an Avianca Airlines flight travelling from Miami to Barranquilla and Medellin, Colombia, to check for compliance with currency declaration laws. ¹⁴ United States Customs Inspector Charles Headley and another Customs agent were assigned to inspect checked baggage before the baggage was loaded on the aircraft. ¹⁵ Because the two agents had only about an hour before the flight was to depart, it would have been impossible for them to search all of the 250 to 300 bags that had been checked.

Due to the time and personnel constraints, Agent Headley utilized certain factors that, in the experience of Customs agents, indicated that a bag should be searched. Headley had been told that, in the experience of Customs agents, hard-sided luggage is often used by smugglers to conceal contraband, unlicensed high technology equipment, weapons, or currency because the bags can be equipped with false sides to offer interior concealment. Headley also had been told that bags without legible name identification tags or claim checks were suspicious. Finally, Headley had been informed that heavy bags were more likely to be false-sided suitcases, containing computers or things of that nature. As of May 4, 1985, however, Agent Headley had never personally discovered currency in checked baggage. ¹⁶

After about ten minutes of investigating the baggage, Agent Headley noticed a hard-sided American Tourister bag with a baggage claim stub but no name identification tag. Headley lifted the bag and found it to be unusually heavy. Upon discovering that the bag was locked, Headley forced the locks open with one of his pass keys. Inside the bag, Headley discovered clothing, personal belongings, and several foodstuff boxes. Headley felt the boxes but they didn't feel like they contained foodstuffs. He opened the boxes and found a large quantity of United States currency.

Agent Headley then radioed United States Customs Service Agent John Howe to inform him that Headley had discovered a large amount of United States currency in examining baggage for outgoing Avianca flight 063. Headley gave Howe the baggage claim check number for the suitcase that contained the cash.

Howe and several other agents proceeded to the gate area where Avianca flight 063 was to depart forty-five minutes later, and set up for outbound inspection of passengers. The agents placed signs in the gate area stating the currency declaration requirements for individuals transporting in excess of $10,000 in monetary instruments out of the United States. ¹⁷ One of the agents read the currency declaration requirements several times over the public address system and handed out forms detailing the requirements. ¹⁸

When none of the passengers came forward to declare currency, Agent Howe positioned himself at the entrance to the jetway as the flight began boarding. He examined the passengers' tickets, boarding passes, and passports prior to letting them pass onto the jetway. When appellant approached and handed his documents to Agent Howe, Howe noticed that the baggage claim check attached to appellant's ticket bore the same number as the bag that Agent Headley had discovered contained a large amount of United States currency. After returning the documents and allowing appellant to pass onto the jetway, Howe pointed to United States Customs Service Inspector Robert Estrada to indicate to Estrada that appellant was the person they had been waiting for.

Inspector Estrada stopped appellant in the jetway for questioning. ¹⁹ After identifying himself, Estrada asked to see appellant's passport. When appellant produced the passport, ²⁰ Estrada inquired as to whether appellant heard and understood the announcements regarding currency declaration requirements. Appellant said that he had heard and understood. Appellant produced a Customs leaflet describing the reporting requirements when Estrada asked if he had received a leaflet. Estrada then asked whether appellant was carrying over $10,000 in checks, negotiable bonds or instruments, or any commercial items. Appellant replied, "no, no, Inspector. I work for the airlines and I know the law." Estrada asked to see the handbag that appellant was carrying. Inside the handbag, Estrada found and opened a sealed white envelope that contained six "smurf" checks ²¹ totaling approximately $22,500.

At that point, Inspector Estrada formally placed appellant under arrest and gave him a Miranda warning. In response to questioning, appellant stated that he was not travelling with anyone else and that Hugo Rios had given the money to him to transport to Colombia. The agents took appellant downstairs to the Customs office to interview him further. Later, they transported appellant to the downtown Miami Customs office for processing and further questioning....