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UNITED STATES v. MARTI

April 16, 1970

UNITED STATES of America
v.
Luis MARTI, Defendant


Weinstein, District Judge.


The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

 I.

 The defendant, charged with the transportation of a stolen necklace in interstate commerce (18 U.S.C. § 2314) and with violation of the Export Control Act (50 U.S.C. App. § 2021 et seq.), has moved to suppress jewelry seized by Customs Agents at John F. Kennedy International Airport after a warrantless search of his suitcase. For the reasons discussed below his motion is denied.

 II.

 Customs Agent George Brosan learned from a confidential informant sometime during the late evening of October 25 or early morning of October 26, 1967 that the defendant, Luis Marti, would be carrying stolen jewelry when leaving on a Lufthansa Airlines flight from New York City to Guayquil, Ecuador on Saturday, October 28. While Agent Brosan had never had prior dealings with this informant he had previously been told by another Customs Agent that his information had led to seizures of contraband and arrests on at least two occasions.

 Attempting to verify this intelligence, Agent Brosan contacted Lufthansa Airlines on Thursday and Friday. On both occasions he was told that no reservations had been made in the name of the defendant. On Saturday morning inquiry revealed that the defendant had a reservation on the flight to Guayquil leaving John F. Kennedy International Airport that afternoon at 3:10. Agent Brosan, several other Customs Agents and a New York City Police Officer proceeded to the airport and established a surveillance of the Lufthansa check-in counters. Agent Brosan testified that the New York authorities were notified because of a general suspicion held by federal and local police officials that the defendant was a prominent dealer in pornographic materials.

 Less than ten minutes before scheduled takeoff, the defendant appeared and was observed depositing a large suitcase at a Lufthansa counter and then, while carrying an attache case, checking in at the ticket counter. Identifying himself as a Customs Agent, both orally and by showing his badge, Agent Brosan asked the defendant if he would accompany him to the baggage area in the rear of the terminal. The defendant consented and upon approaching the baggage area asked, "What is this all about?" He was told that this was a "customs search."

 At the request of Agent Brosan the defendant pointed out his suitcase which was removed from the conveyor belt by another agent. The defendant was then asked by Agent Brosan if he had anything that he should declare or that he should not have in his possession. In response the defendant held up his attache case and stated that there was a gun in it. Another agent took the case from him, opened it, and discovered a pistol.

 The defendant was then taken to a Lufthansa office where his large suitcase was opened and found to contain several hundred pieces of jewelry. Agent Brosan inquired if he had an export license for the jewelry. Receiving no answer, the defendant was arrested for failure to comply with the Export Control Act. He was later indicted for both that offense and for the knowing transfer of stolen goods in interstate commerce. For the purposes of this motion it is conceded that the jewelry was stolen.

 At no time between the receipt of the informant's tip by Agent Brosan and the eventual arrest of the defendant on Saturday afternoon did Agent Brosan or any other law enforcement official attempt to secure either an arrest or a search warrant. The defendant contends that probable cause for an arrest without a warrant did not exist, or if it did, that the absence of an arrest or of a search warrant, when there was time to obtain one, made the search illegal. The government justifies its actions on the ground that applicable "border" or "customs" search rules apply, obviating the need for warrants or an arrest on probable cause prior to the search.

 III.

 The variable nature of the "unreasonable search and seizure" concept is evidenced by the rules covering "border" or "customs" searches. Once within the scope of these rules traditional warrant and probable cause requirements are substantially relaxed. Judicially sanctioned statutes give customs agents and officials broad authority to search without a warrant. See, e.g., United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S. Ct. 999, 22 L. Ed. 2d 126 (1969) (importation of heroin); Landau v. United States Attorney, 82 F.2d 285, 286 (2d Cir.), cert. denied, 298 U.S. 665, 56 S. Ct. 747, 80 L. Ed. 1389 (1936) (importation of watches). "[Mere] suspicion of possible illegal activity within their jurisdiction is enough 'cause' to permit a customs officer to stop and search a person." United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S. Ct. 999, 22 L. Ed. 2d 126 (1969). See also, e.g., Rodriguez-Gonzalez v. United States, 378 F.2d 256, 258 (9th Cir. 1967) (importation of marijuana); Alexander v. United States, 362 F.2d 379, 382 (9th Cir.), cert. denied, 385 U.S. 977, 87 S. Ct. 519, 17 L. Ed. 2d 439 (1966) (importation of heroin); Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967) (same).

 This "border" or "customs" search exception was developed to assist in excluding contraband coming into the country. See 19 U.S.C. § 482 ("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 * * *."); 19 U.S.C. § 1496 (examination "of the baggage of any person arriving in the United States * * *."); 19 U.S.C. § 1499 (inspection, examination and appraisal of "[ imported] merchandise "); 19 U.S.C. § 1582 ("search by authorized officers or agents * * *" of "all persons coming into the United States from foreign countries * * *."); 19 U.S.C. § 1581 (boarding of "any vessel or vehicle at any place * * * and search * * * any cargo on board * * *."). (Emphasis supplied.) See also, e.g., United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, ...


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