Waterman and Feinberg, Circuit Judges, and Bryan, District Judge.*fn*
This is an appeal by two defendants, French seamen, from a judgment of the United States District Court for the Eastern District of New York entered upon a jury verdict. They had been convicted of having concealed and facilitated the concealment of a large quantity of heroin while knowing that the drug was imported illegally into this country in violation of 21 U.S.C. § 174. Appellant Glaziou was sentenced to fifteen years imprisonment and appellant Lemieux to seven years imprisonment. Both appellants urge that heroin taken from them following an allegedly unconstitutional search of their persons should have been suppressed, that certain evidentiary rulings and the utterance of certain statements in open court by the trial judge were prejudicial errors, and that the trial judge's charge to the jury was prejudicially erroneous in several respects. There is no merit in any of these contentions warranting a determination of prejudicial reversible error, and we affirm the convictions.
The indictment against the appellants charged them with having concealed or facilitated the concealment of 21 pounds, 11.7 ounces of heroin. At a hearing prior to the trial the court suppressed the use as evidence of plastic bags of heroin weighing over 12 pounds, some of which had been discovered in a car rented by Glaziou and some of which had been found on board the ship Le Moyne D'Iberville, upon which Lemieux had been a deckhand.*fn1 Other plastic bags of heroin weighing more than eight pounds had not been suppressed; these bags had been found on the persons of the appellants. It is the appellants' contention that the bags of heroin found on their persons also ought to be suppressed because they were discovered as the result of an unconstitutional stop and search.
On December 14, 1966, customs officers Ratnofsky and Hogan were on patrol duty along the Brooklyn waterfront. Their assignment was to keep as close a watch over the individual piers as seemed in their judgment to be desirable. At approximately 6:00 P.M. the officers turned onto Atlantic Avenue, a street which deadends at an enclosed dock area between Piers 6 and 7. They parked their car on the Pier 6 side of Atlantic Avenue, facing the piers, a short distance from the dead end of the street. From this point the gate to enclosed Pier 6 could be seen about 100 feet down the street on their right, and the gate to enclosed Pier 7 opposite that of Pier 6 could be observed diagonally across Atlantic Avenue at a slightly greater distance. A few moments later the officers saw two men, later identified as appellants, exit through the gate of enclosed Pier 7 and proceed up the curb on the Pier 7 side of Atlantic Avenue beside the fence enclosing Pier 7. Apparently they were intending to leave the pier area. Although one of the officers knew that the Le Moyne D'Iberville had docked that morning at Pier 7, the officers were not in a position to see whether the appellants had come directly from the ship. The officers drove toward the dead end, made a U-turn, overtook the walking appellants, and parked their car under a lamp post about 40 feet ahead of them. As appellants approached the parked car Officer Ratnofsky got out, displayed his credentials, and told appellants to stop. He then asked Glaziou whether he had a seaman's immigration landing card. Glaziou opened his suit jacket, took out his passport, and with trembling hand give it to Ratnofsky. Ratnofsky then noticed a bulge around Glaziou's waist, reached forward, squeezed it, and felt a lump there. The appellants were ordered into the officers' car. Glaziou's shirt was pulled up and a big white elastic band around his midwaist was disclosed. Ratnofsky pulled up the elastic band and discovered five plastic bags containing a white powder, later identified as heroin. Thereupon Lemieux, who spoke no English, was instructed by sign language to disgorge whatever he might be secreting, and Lemieux forthwith produced from a similar apparatus three more bags filled with the white powder. Appellants claim that this search was unlawful and the fruits of it, the heroin seized, ought to have been suppressed by the trial court. We do not agree.
At the outset two important factors must be noted: the officials involved here are officers of the Bureau of Customs and the search, seizure and arrest occurred beside an enclosed pier at a seaport after the officers had observed the appellants proceeding out from the pier's gate. Both Congress and the courts have long appreciated the peculiar problems faced by customs officials in policing our extensive national borders and our numerous, large international port facilities. E.g., Act of July 31, 1789, 1 Stat. 29, 43; Boyd v. United States, 116 U.S. 616, 623-624, 6 S. Ct. 524, 29 L. Ed. 746 (1889); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); King v. United States, 348 F.2d 814 (9 Cir.), cert. denied, 382 U.S. 926, 86 S. Ct. 314, 15 L. Ed. 2d 339 (1965); Alexander v. United States, 362 F.2d 379 (9 Cir. 1966). Realization of customs officials' special problems has resulted not only in the courts' giving the broadest interpretation compatible with our constitutional principles in construing the statutory powers of customs officers, see, e.g., Witt v. United States, 287 F.2d 389 (9 Cir.), cert. denied, 366 U.S. 950, 81 S. Ct. 1904, 6 L. Ed. 2d 1242 (1961); Morales v. United States, 378 F.2d 187 (5 Cir. 1967); but also has resulted in the application of special standards when the legality of a stop, search, and seizure made by a customs official at or near our borders or international port facilities has been challenged. See, e.g., United States v. Berard, 281 F. Supp. 328 (D.Mass. 1968).
A customs officer has the unique power to stop a person at an international entry point and to conduct a "border search" without having a search warrant or even having a probable cause to believe the person has committed a crime. Murgia v. United States, 285 F.2d 14 (9 Cir. 1960), cert. denied, 366 U.S. 977, 81 S. Ct. 1946, 6 L. Ed. 2d 1265 (1961); Rodriguez-Gonzalez v. United States, 378 F.2d 256 (9 Cir. 1967); Thomas v. United States, 372 F.2d 252 (5 Cir. 1967); see, e.g., Denton v. United States, 310 F.2d 129 (9 Cir. 1962). Typically, mere suspicion of possible illegal activity within their jurisdiction is enough "cause" to permit a customs officer to stop and search a person. Rodriguez-Gonzalez v. United States, supra; Witt v. United States, supra; United States v. Berard, supra; Thomas v. United States, supra. This is not to say that the restrictions of the Fourth Amendment that searches and seizures may not be unreasonable are inapplicable to border stops and searches conducted by customs officials. On the contrary, border stops and searches, like all stops and searches by public officials, are restricted by the requirement that they be reasonable, see, e.g., Boyd v. United States, supra; Carroll v. United States, supra; Morales v. United States, supra, but what is reasonable, of course, will depend on all the facts of a particular case. E.g., Cooper v. State of California, 386 U.S. 58, 59, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967); Boyd v. United States, supra; Carroll v. United States, supra; United States v. McGlone, 394 F.2d 75 (4 Cir. 1968).
A customs officer's unique power to conduct a "border search" is co-extensive with the limits of our international border areas, and a search and seizure within these areas by a customs officer, reasonable enough under these circumstances, could perhaps be challenged as violative of the Fourth Amendment if conducted by different officials elsewhere. The term "border area" in this context, is elastic, see Murgia v. United States, supra; the precise limits of the border area depend on the particular factual situation presented by the case raising the issue. For our purposes, it need only be said that "border area" reasonably includes not only actual land border checkpoints but also the checkpoints at all international ports of entry and a reasonable extended geographic area in the immediate vicinity of any entry point.
The necessity for an elastic definition of "border area" is well illustrated by the facts presently before us. The appellants would confine the border area, and consequently the customs officers' authority, to that area enclosed by the gates and fences that surround the New York City port facilities. Such a restriction is unreasonable. The locations of fences, gatehouses, and customs offices are dictated by considerations other than the effective enforcement of the customs laws. The needs and development of the seaport's metropolitan area and those of the port facility itself will determine where the fences, gates, and customs offices are placed. To limit the customs officers' authority to the area suggested by the appellants would unduly impair the effective enforcement of the customs laws. United States customs officials must have the unquestioned authority to conduct border searches not only within the enclosed piers of a seaport but also upon the public streets near the piers. See United States v. Yee Ngee How, 105 F. Supp. 517, 520-521 (N.D.Cal. 1952).*fn2
Even if the officers' authority extended to the area outside the enclosed piers, appellants question whether the customs officers had the right to stop and search them for, though they exited from Pier 7 gate, appellants argue that they were not persons subject to border search because the customs officers had no grounds to believe that they were just entering, or had but recently entered, this country. This objection is not well taken.
The class of persons who may be subjected to a border search is not limited to those suspected persons who are searched for contraband upon first entering the United States. Also included in the class are persons who work in a border area when leaving the area, see United States v. McGlone, supra; cf. United States v. Yee Ngee How, supra; persons engaged in suspicious activity near a border area, cf. Lannom v. United States, 381 F.2d 858 (9 Cir. 1967), cert. denied, 389 U.S. 1041, 88 S. Ct. 784, 19 L. Ed. 2d 833 (1968); Rodriguez-Gonzalez v. United States, supra; and, in some situations, persons and vehicles after they have cleared an initial customs checkpoint and have entered the United States. E.g., King v. United States, supra; Ramirez v. United States, 263 F.2d 385 (5 Cir. 1959); Murgia v. United States, supra.*fn3 Therefore, we hold that when an individual has direct contact with a border area, see United States v. McGlone, supra; Mansfield v. United States, 308 F.2d 221 (5 Cir. 1962), or an individual's movements are reasonably related to the border area, cf. e.g., Lannom v. United States, supra, that individual is a member of the class of persons that a customs officer may, if his suspicions are aroused, stop and search while the individual is still within the border area. But of course once the individual has left the applicable reasonably defined border area he is not subject to search by customs officials on mere suspicion.*fn4 See Carroll v. United States, supra; Montoya v. United States, 392 F.2d 731 (5 Cir. 1968); Cervantes v. United States, 263 F.2d 800 (9 Cir. 1959).
In this case, appellants were within the "border area." At the time they were stopped, questioned, and searched, they were walking together on the curb beside the Pier 7 fence and only 200 feet up the street from the Pier 7 gatehouse.
The customs officers had observed the two men coming out of the Pier 7 gate at a time when the pier area was apparently deserted. One officer knew that the freighter Le Moyne D'Iberville had docked in the morning of December 14, 1966, and, upon arriving in the pier area, he had observed that the French freighter was, in fact, tied to Pier 7. Under these circumstances, the officers were justified in stopping the appellants to investigate further appellants' nocturnal exit from that pier.
Once having stopped appellants, the officers' suspicions were sufficiently aroused to justify the search. When Glaziou and Lemieux were stopped they appeared to be extremely nervous and this heightened the officers' suspicions.*fn5 Then when Glaziou reached for his passport, Officer Ratnofsky observed the bulge around Glaziou's waist, and this naturally made the officer even more suspicious.*fn6 Accordingly there were ample grounds for the officer to search Glaziou. Although the bulge around Lemieux's waist was not revealed at the same moment, he was accompanying Glaziou out of the pier gate and up the ...