The opinion of the court was delivered by: PLATT
In this ever-worsening drug infested age in which we live, the other side of the coin in the attempt to interdict the importation and distribution of controlled substances is the attempt to curtail the money laundering of the receipts and profits therefrom. Defense counsel in this motion to suppress the fruits of a border search seeks to have us interpret recently enacted 31 U.S.C. Section 5317(b) so as to thwart an attempt by Congress partially to implement this latter objective. This we decline to do; first, because Congress in such Section did not, as defendant claims herein, proscribe a border "stop" "without reasonable cause" but rather only a "stop and search" without such cause, and second, because Congress did not prescribe "suppression" as a remedy for a violation of this Section, all as more fully explained hereinafter.
Defendant, Ernesto Turner, in this case has been charged in a two count indictment with attempting to transport monetary instruments in excess of $10,000 to a place outside of the United States without filing the required currency report and with willfully making a false statement to a United States Customs Inspector. The statutory Sections involved are 31 U.S.C. § 5316(a)(1) and § 5322, and 18 U.S.C. § 1001. Defendant has moved for dismissal of the indictment and inspection of the grand jury minutes, suppression of all evidence seized and for discovery and a bill of particulars.
On March 21, 1986, defendant was preparing to board Eastern Air Lines Flight 915 at John F. Kennedy International Airport. Flight 915 was bound for Panama City. At that time several Customs Inspectors were conducting an "Outbound Currency Operation" at the departure area for Flight 915.
An Outbound Currency Operation is an effort by the United States Customs Service to enforce the currency reporting laws of the United States. An announcement over the loudspeaker system is made to the departing passengers that although it is not illegal to transport more than $10,000 out of the United States, a form must be filed with the United States Customs Service reporting the amount transported. In addition, Customs Inspectors stationed in the departure area ask passengers whether they are transporting more than $10,000 in monetary instruments. Apparently, the Inspectors have available supplies of the required "Form 4790" to furnish to those passengers who wish to file the required report. The Inspectors also request the passports and airline tickets of some departing passengers for a cursory examination. Finally, some passengers are subjected to a search after the foregoing questioning and examination of travel documents.
On March 21, 1986, defendant was stopped by Customs Inspector Dan McDonald in the jetway leading to Flight 915. Inspector McDonald asked the defendant for his passport and airline ticket. Upon examining the ticket and passport Inspector McDonald noticed that defendant had purchased his ticket with cash, that his destination was indeed Panama, which has a notorious reputation as a haven for money launderers, and that his passport reflected numerous trips into and out of the United States. At this point Inspector McDonald asked the defendant whether he had heard the announcement concerning the transportation of monetary instruments. Defendant replied that he had not. Inspector McDonald thereupon repeated the contents of the announcement to the defendant and asked the defendant whether he understood the announcement. Defendant replied in the affirmative. The Inspector noted that the defendant looked very nervous and he then asked him whether he was transporting more than $10,000 out of the United States, to which the defendant replied, "no." After this response of the defendant, Inspector McDonald asked him to open the briefcase he was carrying. The defendant complied, and Inspector McDonald found three packets of United States currency totaling approximately $17,000 in the briefcase.
The discovery of the $17,000 led Inspector McDonald to take further action. He asked the defendant whether this was all of the currency that he was taking out of the United States and the defendant said, "yes." Inspector McDonald then ordered other Inspectors to conduct a patdown of the defendant and left the jetway to call the Office of Investigation. The patdown of the defendant yielded the discovery of four more packets of United States currency in defendant's jacket and trousers. Defendant was again asked if this was all of the currency he was taking out of the United States and again he replied, "yes."
Special Agent John P. Weyman eventually responded to the jetway. Agent Weyman transported defendant to the Office of Investigation at the International Arrivals Building. Agent Weyman read defendant his Miranda rights and asked him whether he understood them, to which the defendant said, "yes." The Agent then asked defendant several questions, in particular whether he had any other currency, to which the defendant replied, "no." The Agent asked defendant to empty his pockets and an additional $4,000 in currency was found in his wallet. Defendant was thereupon placed under arrest.
A total of $66,880 was seized from the defendant. It should be noted also that the team of Customs Inspectors questioned several other passengers of Flight 915 and inspected their travel documents in addition to the defendant. The United States Customs Service pays special attention to flights departing for Panama, which, as indicated above, is well known as a haven for money launderers. Apparently, some other passengers were also subjected to stops and minimal searches but only the defendant was arrested.
Defendant has moved to suppress any evidence derived from his encounter with the United States Customs Inspectors. He asserts that 31 U.S.C. § 5317(b) requires Customs Inspectors conducting currency enforcement operations to have a "reasonable suspicion" before they can approach, stop and question a departing passenger.
Thus, he contends that because there was nothing unusual in his behavior or manner of dress, the Customs Inspectors had no justification for their initial approach to and stop of the defendant and their initial request for travel documents. He argues that any subsequent search is therefore "tainted" with illegality and the evidence seized must be suppressed. Defendant's motion presents a novel question of law as Section 5317(b) has, to this Court's knowledge, never before been interpreted by a federal court. The issues raised have broad implications for the proper enforcement of currency laws by the United States Customs Service.
A. Fourth Amendment Concerns
It is clear from the outset that the conduct of the Customs Inspectors in this case did not amount to any violation of the defendant's constitutional rights. The facts of this case clearly fall within the so-called "border search exception" to the Fourth Amendment under which routine searches at the border may be made without regard to probable cause and no warrant is necessary. United States v. Ramsey, 431 U.S. 606, 616-19, 52 L. Ed. 2d 617, 97 S. Ct. 1972 (1977).
The border search exception does not, of course, completely eviscerate the protections of the Fourth Amendment merely because the search takes place at the border or its functional equivalent. Customs Inspectors, for example, must have "reasonable suspicion" before they may detain an incoming traveler for a search beyond the normal, routine customs search and inspection, e.g., for a strip search. United States v. Montoya De Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 3311, 87 L. Ed. 2d 381 (1985); United States v. Ogberaha, 771 F.2d 655, 658 (2d Cir. 1985), cert. denied, 474 U.S. 1103, 106 S. Ct. 887, 88 L. Ed. 2d 922 (1986); United States v. Asbury, 586 F.2d 973, 975-76 (2d Cir. 1978). However, it is the law that an initial search of a traveler at the border may be made with no justification other than that the search occurred at the border. This preliminary search may include a person's luggage, personal belongings, outer clothing, wallet, purse, and even one's shoes. United States v. Grotke, 702 F.2d 49, 51-52 (2d Cir. 1983).
The fact that the defendant in this case was an outgoing passenger does not change the above constitutional analysis. The vast majority of legal authority has applied the border search exception with equal force to so-called outbound searches. The Second Circuit has clearly held that departing passengers and outgoing goods may be searched without the need for probable cause, a warrant, or even reasonable suspicion. United States v. Ajlouny, 629 F.2d 830, 833-34 (2d Cir. 1980), cert. denied, 449 U.S. 1111, 66 L. Ed. 2d 840, 101 S. Ct. 920 (1981); United States v. Swarovski, 592 F.2d 131, 133 (2d Cir. 1979).
The proposition that outgoing searches are also encompassed by the border search exception has been approved by the courts of other circuits as well. United States v. Cardona, 769 F.2d 625, 628 (9th Cir. 1985); United States v. Udofot, 711 F.2d 831, 839-40 (8th Cir.), cert. denied, 464 U.S. 896, 78 L. Ed. 2d 234, 104 S. Ct. 245 (1983); United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982), cert. denied, 461 U.S. 961, 77 L. Ed. 2d 1321, 103 S. Ct. 2436 (1983); United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976). Only one court has questioned applying the border search exception to outgoing searches but that court acquiesced to prior precedent that upheld the application. United States v. Des Jardins, 747 F.2d 499, 503-04 (9th Cir. 1984), rehearing, 772 F.2d 578 (9th Cir. 1985).
Given the above case law, it is plain that the defendant may make no constitutional challenge to the items seized. See Julian v. United States, 463 U.S. 1308, 77 L. Ed. 2d 1290, 103 S. Ct. 3522 (1983) (Rehnquist, J., Circuit Justice). The actions of the Customs Inspectors were minimally intrusive and thus well within the ambit of a routine border search and ...