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United States v. Salter

decided: August 15, 1975.


Appeal from a judgment of the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, convicting Salter, after a verdict, of unlawfully encouraging the entry of aliens into the United States in violation of 8 U.S.C. § 1324(a)(4). Affirmed.

Moore, Friendly and Van Graafeiland, Circuit Judges.

Author: Friendly

FRIENDLY, Circuit Judge:

This is an appeal from a conviction, after trial before Chief Judge Curtin and a jury in the United States District Court for the Western District of New York, on two counts of an indictment which charged appellant with unlawfully encouraging the entry of two Jamaican women not lawfully entitled to enter or reside within the United States, in violation of 8 U.S.C. § 1324(a)(4).*fn1 Although several points are raised, only one merits discussion.

One of the women, Shirley Paul, testified that while in Canada she had given $600 to an unknown man to transmit to Salter, who later acknowledged its receipt, for his assistance in bringing her into the United States. The other, Myrtle Hurst, testified that while in Canada she had given Salter $250 in Canadian currency for the same purpose. The women turned up at Salter's home in Buffalo, New York, on the afternoon of Sunday, July 29, 1973, although there is some confusion over the details as to just how they got there.*fn2 It is undisputed that their entry into the United States was illegal.

Around 9:00 P.M. Salter escorted the two women to the Greyhound Bus Terminal where they purchased one-way tickets to New York City. Border Patrol Agents Fernan and Chandler had conducted what they termed a routine "immigration check" of persons boarding the bus.*fn3 After the agents thought that all passengers had been checked, they saw the two women, still escorted by Salter, about to enter the bus. The agents returned and, after showing their credentials, asked Salter and the women to state their citizenship and where they were born. All answered "Buffalo" but the women did this "with a heavy accent" sounding, Agent Fernan testified, like "Boofalo."*fn4 Agent Fernan thereupon asked Salter to come into the baggage room, while Agent Chandler took the two women across the terminal to the agents' car. After giving Salter "a quick frisk," Agent Fernan asked for identification. Salter pulled a thick wallet from his pocket and opened it to get out a driver's license. The agent observed a large quantity of currency, some of it red and apparently Canadian - an observation confirmed when at Agent Fernan's request Salter counted the money.*fn5 Shortly after this, Agent Chandler entered the baggage room and announced "Well, the girls broke. He did bring them in. They stated it."*fn6 Salter was then placed under arrest.

The defendant does not assert that the routine interrogation by Border Patrol Agents of passengers boarding a bus in Buffalo bound for New York City was invalid, and we accordingly express no opinion on that point.*fn7 His argument is rather that the testimony as to the contents of the wallet should have been excluded as being the fruit of unlawful conduct by the agents after that initial contact. We find nothing unlawful. To a trained border patrol agent at Buffalo, only two miles from the nearest bridge from Canada, the assertions of two women with "heavy accents" that they had been born in "Boofalo" was enough to warrant further investigation, although not to justify an arrest. In contrast to the situation in California and many other states where the number of Mexicans who have been legally admitted or have become American citizens renders Mexican accent or appearance insufficient as an indicator of illegal entry, see United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607, 43 U.S.L.W. 5028, 5032 (1975); United States v. Mallides, 473 F.2d 859 (9 Cir. 1973), the agents could rely on their experience that few people born in Buffalo have a Jamaican accent. United States v. Brignoni-Ponce, supra, 422 U.S. 873. 95 S. Ct. 2574, 43 U.S.L.W. at 5032. Although Salter did not have a foreign accent, his close involvement in helping the women get on the bus, combined with his silence when they said they were born in "Boofalo," was sufficient to raise a reasonable suspicion that he was a participant in violating the law. That suspicion serves to authorize a brief interrogation, as the Supreme Court held in Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972):

A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

United States v. Brignoni-Ponce, supra, 422 U.S. at 881, 95 S. Ct. at 2580, 43 U.S.L.W. at 5031, has now settled that such an investigation, based on reasonable suspicion, may be used to enforce the immigration laws.*fn8 We likewise see nothing wrong in Agent Fernan's asking Salter to step into the baggage room, a place more convenient for interrogation than an open platform; in any event this had no causal relation to what transpired.

The remaining question, if there be one, is whether the agent had the right to demand identification rather than simply asking for Salter's name and address. Once a lawful stop for investigative purposes is under way, it is mere routine for an officer to ask for identification, see United States v. Lincoln, 494 F.2d 833, 838 (9 Cir. 1974). Adams v. Williams, in the language just quoted, appears to sanction this. We have previously done so, United States v. Santana, 485 F.2d 365, 368 (2 Cir. 1973), cert. denied, 415 U.S. 931, 39 L. Ed. 2d 490, 94 S. Ct. 1444 (1974), as have other courts, Dell v. Louisiana, 468 F.2d 324, 326 (5 Cir. 1972), cert. denied, 411 U.S. 938, 36 L. Ed. 2d 400, 93 S. Ct. 1904 (1973). Such a request is relatively non-intrusive, and there are important reasons why an officer needs to obtain a correct identification. In this case, Agent Fernan might have wished to telephone Border Patrol Headquarters to see whether Salter had a record of smuggling aliens from Canada. To imagine an even simpler case, an officer may need to know a person's identity so as to be able to contact him at a later date. See ALI, Model Code of Pre-Arraignment Procedure, Commentary, 270 (Proposed Official Draft April 15, 1975). Naturally, there is a possibility of harassment in even routine requests for identification, but there are too many legitimate uses not to allow it once an otherwise lawful stop has taken place. LaFave, " Street Encounters" and the Constitution : Terry, Sibron, Peters, and Beyond, 67 Mich. L. Rev. 39, 61-62 (1968).

When Salter responded to this request for identification by exposing his wallet, the large amounts of currency came into plain view and were lawful evidence. Harris v. United States, 390 U.S. 234, 236, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968); cf. United States v. Riggs, 474 F.2d 699, 704 (2 Cir.), cert. denied, 414 U.S. 820, 38 L. Ed. 2d 53, 94 S. Ct. 115 (1973). We need not debate whether the plain view exception also covers the slightly more detailed testimony of what Agent Fernan observed after Salter counted the money. If it did not, which we do not decide, any additional impact of this testimony was so minimal that the doctrine of harmless error would apply.


Disposit ...

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