United States v. Love

• Decision Date: 15 April 1976
• Docket Number: Crim. No. 75-H-221.
• Citation: 413 F. Supp. 1122
• Parties: UNITED STATES of America v. Harvey Gene LOVE.
• Court: U.S. District Court — Southern District of Texas

413 F. Supp. 1122

UNITED STATES of America v. Harvey Gene LOVE.

Crim. No. 75-H-221.

United States District Court, S. D. Texas, Houston Division.

April 15, 1976.

Scott L. Campbell, Asst. U. S. Atty., Houston, Tex., for plaintiff.

Charles Szekely, Asst. Public Defender, Houston, Tex., for defendant.

MEMORANDUM OPINION

SINGLETON, District Judge.

Defendant was charged with the unlawful possession of counterfeit obligations of the United States, in violation of 18 U.S.C. § 472.¹ To this charge defendant pleaded not guilty. Thereafter, having properly executed a waiver of a trial by jury defendant was tried by this court on January 14, 1976. By the totality of the evidence presented at trial, having denied defendant's motion to suppress, the court found beyond a reasonable doubt that the defendant did have the requisite intent to defraud and that he did have in his possession at the relevant time counterfeited obligations of the United States. Therefore, defendant was found guilty as charged.

At trial the Government called two witnesses, Tony R. Martinez, a United States Customs inspector, and Mack Dennis Hartsell, Jr., a special agent of the United States Secret Service. In addition, crucial to this court's determination of defendant's guilt was the admission into evidence of fifteen $20 counterfeited federal reserve notes found in the possession of defendant. Defendant did stipulate on the record that the notes were counterfeited and that defendant knew that such notes were counterfeited. However, defendant made a motion to suppress the introduction of the notes themselves into evidence as well as any statements made by defendant after his being searched and the notes seized including those statements made during and after the time of arrest. The court deemed it proper to carry defendant's motion along with the trial, that is, admitting the relevant evidence subject to defendant's motion to suppress. Depending solely upon his motion, defendant called no witnesses.

Having viewed the entire evidence, this court finds that the facts are quite uncomplicated. That is, on March 28, 1975, at approximately 4:30 p. m., Harvey Gene Love arrived at Houston International Airport aboard a Braniff airliner after a flight originating in Mexico City. Arriving in Houston on board an aircraft that had made no other stop since crossing into the United States from Mexico, Love was subjected to a customs search. The sole basis for the search was extremely detailed information which the searching Customs inspector had received from his supervisor. The Customs inspector made no independent observations of any conduct by defendant before he was searched that was out of the ordinary.

The search of Love took place in two segments. First, there was a purely luggage search in the outer Customs area. Second, not having found certain contraband that the Customs inspector was advised was in the possession of Love, the Customs inspector carried out a search, in a private search room, of the garments which Love was wearing. Nothing was found in the defendant's outer garments. However, after Love had fully undressed, the inspector discovered fifteen counterfeit United States $20 bills in a plastic pouch concealed in the crotch of defendant's underpants. At that point, defendant was placed under arrest and shortly thereafter turned over to the custody of Secret Service agents.

This court must agree with the assessment of defendant's attorney that the Government's entire case would stand or fall on whether or not defendant's motion to suppress would be granted. The primary thrust of defendant's arguments is that he was subjected to an illegal search and seizure in violation of his fourth amendment rights. As stated above, this court has found that defendant's motion was without substance and necessarily has thereby found that there was no illegal search and seizure.

The right to be free from illegal searches and seizures is a right emanating directly from the fourth amendment of the United States Constitution. However, not all searches and seizures are denounced, only those that are "unreasonable." Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543, 548-49 (1925). And further, that which might be considered as unreasonable in one setting is not unreasonable in another setting.

The setting in this case which influences the mode of analysis is that the search here was a "border search." A second pertinent fact is that by requiring defendant to disrobe, the Customs agent in charge was conducting what has been characterized as a "strip search." United States v. Carter, 480 F.2d 981 (9th Cir. 1973); see United States v. Price, 472 F.2d 573 (9th Cir. 1973); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967).

With regard to a characterization of the search in this instance as being a "border search," the facts here exactly fit one example given by Justice Stewart to describe what constitutes a "functional equivalents of a border search."² Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596, 602 (1973). Of course the relevance of the search in this case being a "border search" is that where such a search is conducted under proper authority, it is not necessary that there be a warrant or "probable cause" to conduct such a search. United States v. Bowman, 502 F.2d 1215, 1219 (5th Cir. 1974). As has been stated in United States v. McDaniel,

In substance, the term "border search" is merely a short-hand method of stating that a search is, under the circumstances, a "reasonable" stretch of the usual Fourth Amendment standard of "probable cause" because of the proximity of an international frontier and other attendant factors.

463 F.2d 129, 132 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973).

Of course the reason that some lesser standard than probable cause is acceptable in this context is that there is a traditional and widely accepted right for a nation to examine both goods and people entering its borders. King v. United States, 517 F.2d 350, 352 (5th Cir. 1975). This traditional right of the sovereign is related to the logical conclusion that there is a possibility that a person crossing an international boundary might be attempting to enter illegally or else might be attempting to bring contraband into the country. Given the volume of traffic entering a country, "border searches" are justified as a measure of national self-protection. Carroll, supra 267 U.S. at 154, 45 S.Ct. at 285, 69 L.Ed. at 551-52; McDaniel, supra at 132.

As noted before, some standard not rising to the level of probable cause is necessary to justify a search by a person with statutory authority to conduct a search at a border or its equivalent. However, there appears to be a great deal of uncertainty as to the exact rule to be applied. There are several complicating factors.

The first problem is to determine the precise authority under which the person conducting the relevant search is operating. This issue can be clouded by the fact that apparently Border Patrol agents can wear two hats, that is, they can act as either Customs agents or Border Patrol agents depending on the particular situation. United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973), McDaniel, supra at 134. However, in this instance clearly the Customs agent who searched the defendant was operating under the authority of 19 U.S. § 482.³ In relevant part, § 482 would give this Customs agent the authority to "stop, search, and examine any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law."

A second problem, indeed the most crucial inquiry, is the degree of suspicion which is "reasonable" under a given set of circumstances to justify a search. With regard to the standard to be applied, the language of § 482 is itself ambiguous. In that portion of the statute which specifically deals with searches, the term used is "suspect." Thus taken literally, a person can be searched if there is mere suspicion by a Customs agent that such person is carrying something unlawfully imported into the United States. On the other hand, that part of § 482 which deals with seizures authorizes Customs agents to seize any merchandise which they "`shall have reasonable cause to suspect believe . . . to have been unlawfully introduced into the United States.'" Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967).

However, judicial decisions in the Fifth Circuit have restated the applicable standard in terms of "reasonable suspicion,"⁴ or else in terms of "unfettered discretion." United States v. Storm, 480 F.2d 701 (5th Cir. 1973). Several decisions have sought to reconcile the differences in terminology on the basis of the location of the search. It is stated in these decisions that when a search occurs at the border itself, then the search can be made with almost total impunity by an authorized government agent, i. e. that there is a virtually "unfettered discretion" to search.⁵ United States v. Soria, 519 F.2d 1060, 1063 (5th Cir. 1975); United States v. Bowman, 502 F.2d 1215, 1218-1219 (5th Cir. 1974). In contrast, with regard to searches conducted away from the border, the court in Soria asserted that before Almeida-Sanchez, supra, the Fifth Circuit "consistently imposed a reasonable suspicion requirement at points beyond the border itself." 519 F.2d at 1062. However, it is certain that not all the decisions of the Fifth Circuit can be reconciled purely in terms of geographical proximity to the border.⁶

The key question at this stage is whether in this case the test to be applied should be "reasonable suspicion," "unfettered discretion," "mere suspicion," or some other equally elusive term.

In formulating the proper test, another element must be...