US v. Ezeiruaku, Crim. A. No. 90-00230-01.
| Decision Date | 20 December 1990 |
| Docket Number | Crim. A. No. 90-00230-01. |
| Citation | 754 F. Supp. 420 |
| Parties | UNITED STATES of America v. Vincent O. EZEIRUAKU. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Karl Lunkenheimer, Asst. U.S. Atty., Philadelphia, Pa., for U.S.
Eliot Moskowitz, Arthur J. Kyriazis, Philadelphia, Pa., for Ezeiruaku.
FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW AND ORDER
On April 18, 1990, defendant, Vincent O. Ezeiruaku ("Ezeiruaku"), was arrested by Customs Officers and charged with violating 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a) for failing to report currency in excess of $10,000. His arrest was the product of the Customs Officers' "buck stop" operation which included a search of the defendant's briefcase and a secret search of his luggage which had been checked for transport from Philadelphia International Airport to Brussels, Belgium.
By motion pursuant to Fed.R.Crim.P. 12(b)(3) and Local Criminal Rule 11 Ezeiruaku moved to suppress the fruits of the search challenging, inter alia, the constitutionality of the statute authorizing the search (31 U.S.C. § 5317(b)) and the constitutionality of the statute as applied. A full evidentiary hearing was conducted on Ezeiruaku's Motion to Suppress. At the conclusion of the hearing, this Court, satisfied that the search of Ezeiruaku's luggage was conducted in violation of the Fourth Amendment, granted Ezeiruaku's Motion.
By motion and corrected memorandum of law dated October 22, 1990, the government moved for reconsideration (Government's Memorandum). Ezeiruaku responded by memorandum dated November 6, 1990 (Ezeiruaku's Response).
Pursuant to the written submissions of the parties and the facts adduced at the suppression hearing, this Court makes the following:
I. FINDINGS OF FACT
1. Ezeiruaku is a United States citizen, naturalized in 1987 and originally a Nigerian citizen by birthright.
2. Ezeiruaku is a 1986 Temple University graduate with a degree in civil engineering and currently resides in Pennsauken, New Jersey.
3. Michael Sammaciccia ("Sammaciccia") is an Inspector with the United States Customs Service ("Customs").
4. On April 18, 1990, Sammaciccia was assigned to the exodus team at Philadelphia International Airport responsible for examining outbound shipments for anything including passenger cargo, currency, high technology (e.g., computers and electronics), munition items and stolen vehicles.
5. On April 18, 1990, Sammaciccia and Inspectors Althea Taylor and Tom Williams collectively decided to conduct an outbound "buck stop" operation of Lufthansa Flight 415 to Frankfurt, Germany.
6. The aforesaid customs inspectors elected to set up the "buck stop" operation on that particular day because there was an opening in the schedule of operations.
7. A "buck stop" operation is designed to look for large amounts of unreported currency leaving the United States.
8. Lufthansa Flight 415 was singled out because of its European flight connections to countries such as Nigeria, Lebanon and Pakistan.
9. These aforesaid countries are considered by Customs officers as sources of narcotics being smuggled into the United States and, therefore, high risk for currency leaving the United States.
10. Sammaciccia, Taylor and Williams obtained a list of passengers for Flight 415 with their connecting destinations from Lufthansa's office at the Oversees Terminal.
11. This list was used to identify and target passengers travelling to "high risk" areas that Customs should question.
12. Ezeiruaku was traveling to Brussels, Belgium which was not considered a "high risk" destination such as Nigeria, Lebanon and Pakistan.
13. Two other passengers, Choi and Tung, were travelling to Lagos, Nigeria, and another passenger, Cohen, was destined for Zurich, Switzerland, which is considered high risk for currency because of its banks.
14. Inspector Day had made a seizure on Choi two or three weeks earlier.
15. From the list, Sammaciccia picked out the sur name "Ezeiruaku" because it was a "Nigerian" sounding name.
16. After leaving the Lufthansa office, Sammaciccia and Williams first observed a well-dressed black man (later identified as Ezeiruaku) standing at the Lufthansa ticket counter accompanied by a well-dressed black woman.
17. The Customs Inspectors observed two large suitcases, a suit-bag and a briefcase at Ezeiruaku's feet.
18. Immediately after Ezeiruaku was observed leaving the ticket counter, Sammaciccia approached the Lufthansa representative and inquired as to whether Ezeiruaku had bought his ticket with cash.
19. The ticket agent informed Sammaciccia that Ezeiruaku had not purchased his ticket with cash but had paid by cash for his overweight bags. Sammaciccia was also informed that the woman who appeared to be his companion was not a passenger on Flight 415.
20. Approximately thirty minutes after Sammaciccia questioned the ticket agent, Ezeiruaku approached Sammaciccia and asked him where there was a drinking fountain.
21. Sammaciccia determined that Ezeiruaku had a Nigerian accent.
22. At about 3:30 p.m., Sammaciccia enlisted the help of Inspector Day who was at the time assigned to in-bound flights but had previously spent two years working out-bound flights.
23. Around 3:35 p.m., Sammaciccia informed Day that Ezeiruaku was well-dressed, had paid cash at the ticket counter, his name appeared to be Nigerian and that there was a recent seizure of United States currency in the possession of Nigerians in Boston.
24. Race or nationality of origin was the determinative factor in Sammaccicia's decision to stop, question and detain Ezeiruaku as well as to conduct the search of Ezeiruaku's briefcase and checked luggage.
25. At approximately 3:45 p.m. and prior to processing passengers for the out-going flight, a Lufthansa representative announced the currency regulations.
26. At the time the announcement was made over the loud-speaker, Ezeiruaku was observed standing approximately seventh or eighth in line waiting to board the aircraft.
27. None of the other passengers on the Lufthansa flight list, including those identified as potential currency reporting violators, Messrs. Choi, Tung and Cohen, were stopped, questioned, placed under surveillance or subjected to any investigative scrutiny of their person or checked-in luggage.
28. At approximately 3:50 p.m., Day and Taylor began searching Ezeiruaku's on-board luggage. None of the luggage of the other passengers was searched including those destined for Lagos, Nigeria and Switzerland.
29. While Day and Taylor searched Ezeiruaku's checked-in luggage, Sammaciccia approached Ezeiruaku and asked him if he had heard the currency announcement and if he had over $10,000 on his person. Ezeiruaku responded "no" to both questions.
30. Sammaciccia, pointing in the direction of the aircraft, then asked Ezeiruaku if he had over $10,000 in the bags he had checked with Lufthansa. Ezeiruaku replied no.
31. Sammaciccia asked Ezeiruaku what he did for a living and the purpose and nature of his trip to Brussels.
32. Ezeiruaku told Sammaciccia that he owned a gas station and he was going to Brussels in connection with his import/export business.
33. Inspector Williams asked Ezeiruaku what he exported or imported. Ezeiruaku stated that the business involved beauty products and shrimp.
34. Sammaciccia then requested to look into Ezeiruaku's briefcase. Ezeiruaku complied and opened the briefcase for inspection.
35. In the briefcase, Sammaciccia observed a packet of American currency along with invoices and bills of lading relating to the sale of motor vehicles.
36. At this point, Ezeiruaku was escorted to a room in the corner of the security area where the examination of the briefcase continued.
37. At that time, Sammaciccia asked Ezeiruaku if he was Nigerian.
38. Ezeiruaku responded that he was born in Nigeria but was now a naturalized citizen of the United States.
39. Sammaciccia discovered approximately $1,900 in American currency in the briefcase.
40. Inspector Taylor's search of Ezeiruaku's checked luggage uncovered documents and bills of lading pertaining to the sale of real estate and motor vehicles.
41. Inspector Day uncovered foodstuffs, cigarettes, soap, cosmetics and other items. He also discovered a rolled-up bath mat containing items wrapped in carbon paper.
42. Because Inspector Day was unable to identify the contents of the carbon paper from its outward appearance, he tore open the paper and located United States currency in $20.00 denominations. A further and more exacting search of the luggage revealed additional currency wrapped in carbon paper.
43. Upon his discovery, Day dispatched Sammaciccia to the area where Ezeiruaku's two pieces of checked luggage had been secretly examined.
44. Sammaciccia, who had completed searching Ezeiruaku's briefcase, then left the security area leaving Ezeiruaku with Special Agent Solon Chamberlain.
45. In the luggage searched by Inspector Day, Sammaciccia observed 12 carbon paper wrapped stacks of American currency which Sammaciccia estimated at that time to contain between $20,000-$25,000 in United States currency.
46. The decision to arrest Ezeiruaku was not made at that time because no one had checked to see if a 4790 Form had been filled out declaring the existence of the subject currency.
47. While in the security area, Sammaciccia asked Ezeiruaku for his bag tags. The tags matched the luggage containing the money.
48. The search of the checked luggage revealed a total of $265,000 in United States currency.
49. At approximately 4:00 p.m., Customs advised Lufthansa that Ezeiruaku would not be departing on the flight.
50. At approximately 4:15 p.m., Ezeiruaku was arrested, charged with violating 31 U.S.C. §§ 5316 and 5322(a) and read his constitutional rights.
II. DISCUSSION1
Section 5317(b) authorizes customs officials to conduct border searches to ensure compliance with 31...
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