The opinion of the court was delivered by: WEINFELD
Before Edward Weinfeld, United States District Judge
Five defendants are named in an indictment charging conspiracy and substantive violations of the RICO statute, 18 U.S.C. § 1962(a), centering primarily about the importation, manufacture, distribution, and possession with intent to distribute heroin in violation of the Drug Control Act, 21 U.S.C. § 812, et. seq. Three codefendants join in motions pursuant to Fed. R. Crim 12(b) and 41 for an order to suppress all evidence obtained as a result of:
1. a warrantless search of the luggage and persons of defendants Ernesto J. Benevento and Ernest A. Benevento at Kennedy Airport, Long Island, New York;
2. warrant searches of the respective residences of Ernesto J. Benevento and Ernest A. Benevento, located in West Palm Beach, Florida;
3. a warrant search of a home owned by Ernest A. Benevento in Chandler, Arizona; and
4. a warrantless search of the person and automobile of defendant Earl Admiral Keller in the vicinity of Tucumcari, New Mexico.
We consider each motion separately.
The Search at Kennedy Airport
Ernesto J. Benevento and Ernest A. Benevento move to suppress the fruits of the warrantless search of their persons and luggage that took place on June 3, 1985 at John F. Kennedy Airport. The search resulted in discovery of $952,000 in undeclared cash which was being transported out of the country in apparent violation of federal currency laws. The Beneventos maintain that there was no probable cause or reasonable suspicion to justify the search.
They first argue that border searches of persons leaving the United States should be held invalid unless conducted in accordance with the probable cause requirement of the Fourth Amendment. This contention is in direct conflict with the clear weight of authority of our Court of Appeals, which has explicitly held that the "border search" exception to the Fourth Amendment, established by the Supreme Court in United States v. Ramsey,
applies to persons leaving the United States as well as persons entering it.
Defendants have presented no reason to disturb this settled precedent.
Defendants next argue that the search was aimed at discovering unreported currency and that under 31 U.S.C. § 5317(b), currency searches may be conducted only if there is "reasonable cause" to believe that evidence of a currency violation will be found. Claiming the government had no such reasonable cause, the Beneventos urge the exclusion of the fruits of the search to deter future violations of § 5317(b). The government does not dispute that the search was a currency search, but maintains, first, that there was "reasonable cause" to conduct the search and second, that even if not and § 5317(b) was violated, the evidence obtained as a result should not be excluded since no exclusionary remedy is provided for in the federal statute.
Defendants, in support of their motion, rely upon the majority opinion in United States v. Chemaly,
an Eleventh Circuit case in which a divided panel held exclusion appropriate for evidence seized in a border search that violated the precursor to § 5317(b). The majority reasoned that when Congress enacted 31 U.S.C. § 1105, requiring a search warrant for currency searches at the border,
[T]he universal understanding of the remedy for an illegal search without a warrant was exclusion of the evidence. If Congress did not specify exclusion as the remedy in 1970 when the legislation was ...