Appeal by the United States from that part of an order of the United States District Court for the Eastern District of New York, Pratt, Judge, which granted the motion of defendant-appellee to suppress certain evidence obtained by Customs Agents following a citizen's arrest, which the district court held invalid. Reversed.
Medina, Anderson and Timbers, Circuit Judges.
On October 28, 1975, Manfred Swarovski was indicted for attempting to export, without a license from the State Department, a military camera known as the KB25A, designed to be used as a gunsight camera in the F-4 fighter plane, in violation of the Munitions Control Act, 22 U.S.C. § 1934 (c), as implemented by Executive Order 10973, Part I, § 101, 22 C.F.R. §§ 121.01, 123.01, 127.01, and for conspiring to do so. Swarovski was arrested by United States Customs Agents at JFK International Airport on April 2, 1975, as he was waiting to board a flight to Germany. In response to inquiries by the agents, he told them that he was not exporting any item that required a State Department license. The agents, however, had discovered the KB25A camera in baggage Swarovski had checked with the airline and had seized it together with some documents that were also found in his bags. Thereafter while he was in custody he was advised of his Miranda rights and in response to questioning by the agents made several more statements. Prior to trial, Swarovski moved to suppress the camera, the documents found in his bags, and all post-arrest statements. On November 5, 1976 the district court granted the motion to suppress the statements and the Government now appeals pursuant to 18 U.S.C. § 3731.
Photo-Sonics, Inc., a California firm, manufactures the KB25A camera. Two Canadian firms, Canosphere Industries, Ltd., and Swarolite of Canada, Ltd., ordered from Photo-Sonics four cameras of various types, including the KB25A. When informed that a State Department license was required for exportation of the KB25A camera, R. N. Parker of Swarolite of Canada completed the forms necessary to secure a license and gave the final destination of the camera as Austria. The State Department, however, refused to issue a license because the intended ultimate use for the camera was not specified. Parker then asked Photo-Sonics whether an export license was required in order to ship the camera to a consignee in the United States. Upon learning that no license would be necessary for such a shipment, a new purchasing order was filed requesting that the camera be shipped to Swarolite, Inc., in Columbia, Tennessee. Photo-Sonics suspected that the camera was still destined for Austria and notified Customs Agent VanPatten in California, who instituted an investigation.
With the cooperation of the manufacturer and the United States Postal Service, Customs Agents were present on March 29, 1975 when the KB25A camera arrived at a post office box in the name of Swarolite, Inc., in Columbia, Tennessee. One James Sproul picked up the package and was observed by the Customs Agents when he delivered it to Manfred Swarovski, a citizen of Austria, at a motel in Columbia. The Agents thereafter kept Swarovski under surveillance, and followed him when he left for New York via Chicago. The constant surveillance over his activities was continued during Swarovski's stay at the Waldorf-Astoria Hotel, to which he had been driven by an agent, posing as a taxi driver.
Swarovski had made reservations on a Lufthansa flight to Munich, Germany, leaving from JFK Airport on April 2nd. When he failed to check in for the Munich flight, the agents who were continuing the surveillance and investigation at the Airport, checked at other airlines and discovered that Swarovski had checked in on an overseas flight with Pan American Airlines. Thereupon several agents converged on the Pan Am passenger area where Swarovski was seen waiting to pass through the security area. While other agents followed Swarovski to the boarding area, Customs Agent Fish went to locate Swarovski's luggage, which he found among the baggage being assembled for the Pan Am flight. He immediately opened one bag and found the camera. He then closed the bag and took Swarovski's luggage to the Pan Am boarding area. Meanwhile, Customs Agents Rennish and Grattan approached Swarovski, identified themselves as Customs Agents, and asked to speak with him in private. The Agents and Swarovski moved into the corridor where defendant handed them his passport. Agent Rennish asked him whether he had purchased anything with a value in excess of $250 while he was in the country, whether he had any items requiring a shipper's export declaration, and whether he had any articles necessitating a State Department license for export. Swarovski answered "no" to each question. After the agents asked for and received his airline ticket, he was accompanied to another lounge where the luggage, which he identified as his, had been placed on a table. One of the bags opened by the Agent disclosed the camera. When Swarovski admitted that he did not have an export license, he was formally placed under arrest, read his Miranda rights, and, because he is an Austrian citizen, given a card with the warnings printed in German. Further questioning took place at the Customs Office after his arrest and in the courthouse prior to arraignment. Both the arrest and the search of Swarovski's luggage were made exclusively by Customs Agents without warrants.
The Government argues that under the regulations promulgated by the State Department,*fn1 district directors of customs have been authorized under 22 C.F.R. 127.05(a) to "take appropriate action" to prevent the illegal exportation of items on the munitions list, and that customs agents are, therefore, empowered to make warrantless arrests when they have probable cause to believe an individual is attempting to export arms in violation of the Munitions Control Act.
Section 127.05(a), however, does not constitute specific statutory authority to make warrantless arrests and such power "is not a natural incident derived from the catalogue of [an agent's] duties but must be separately granted by the act of a sovereign." United States v. Heliczer, 373 F.2d 241, 245 (2d Cir.), cert. denied, 388 U.S. 917, 18 L. Ed. 2d 1359, 87 S. Ct. 2133 (1967). The only specific and express federal statutory authorization for customs agents to make warrantless arrests is in 26 U.S.C. § 7607 and concerns violations of federal laws relating to narcotics and marihuana. Therefore, "the law of the state where an arrest without warrant takes place determines its validity" and thus "the New York statute provides the standard by which this arrest must stand or fall." United States v. DiRe, 332 U.S. 581, 589, 591, 68 S. Ct. 222, 92 L. Ed. 210 (1948) (emphasis supplied). See also, United States v. Watson, 423 U.S. 411, 420-21 n. 8, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976); United States v. Rosse, 418 F.2d 38, 39 (2d Cir. 1969), cert. denied, 397 U.S. 998, 25 L. Ed. 2d 408, 90 S. Ct. 1143 (1970); United States v. Heliczer, supra, 373 F.2d at 244-45.
The district court held, ". . . that the arrest of Swarovski by customs agents at J.F.K. Airport on April 3, 1975 was illegal because the agents lacked any authority to make the arrest." It cited United States v. Watson, supra, 423 U.S. at 420-21, for the general proposition that in the absence of specific federal statutory authority for customs agents to make warrantless arrests for offenses other than those enumerated in 26 U.S.C. § 7607, authority must be found in the law of the state where an arrest without a warrant takes place, to be valid. The district court concluded that the State of New York has no such law, that the arrest of the defendant Swarovski was unlawful, and that all post-arrest statements by him to the agents must be suppressed as fruits of an illegal arrest.*fn2 It also concluded that the decisions by this court in United States v. Burgos, 269 F.2d 763 (2d Cir. 1959), cert. denied, 362 U.S. 942, 4 L. Ed. 2d 771, 80 S. Ct. 808 (1960); United States v. Viale, 312 F.2d 595 (2d Cir.), cert. denied, 373 U.S. 903, 10 L. Ed. 2d 199, 83 S. Ct. 1291 (1963); United States v. Heliczer, supra, and United States v. Rosse, supra, which held that federal officials who had no federal arrest authority, could, as private citizens, arrest in the State of New York, a person who has in fact committed a felony, were erroneously decided because the panels deciding them "do not seem to have focused closely upon New York statutes which carefully define and limit a citizen's power of arrest." The district judge said, ". . . the New York Penal Law simply does not include federal crimes within its carefully framed definitions of 'felony' and 'offense'." The Government, on the other hand, cites the same decisions of this court as governing authorities for upholding the validity of the arrest.
This is the principal issue in the present case, and it has arisen in part because of amendments made during this century to the body of New York law known as the Penal Code. In its 1909 version it defined a "crime" as "an act or omission forbidden by law, and punishable upon conviction" by death, imprisonment, fine, removal from office, disqualification to hold any office of trust, honor or profit under the state; or other penal discipline. It subdivided or classified a crime as either "a felony" or "a misdemeanor." A felony was described as "a crime which is or may be punishable by: 1. Death; or, 2. Imprisonment in a state prison."
The Penal Code had been adopted in 1881; and, contemporaneously with it, there was enacted the Code of Criminal Procedure (Criminal Code), which, among other provisions, included § 183 which authorized a private person to arrest another person "for a crime, committed or attempted in his presence; [or] . . . when the person arrested has committed a felony, although not in his presence."
The Criminal Code used the word "crime" but not the word "offense." It remained in effect until September 1, 1967, when it was amended by substituting the words "an offense" for the words "a crime." On September 1, 1971, the Code of Criminal Procedure was replaced by the Criminal Procedure Law which became effective on that date, and § 183 was superseded by § 140.30 of the Criminal Procedure Law. It reads as follows:
"1. Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter ...