inspection team occupied itself on the morning of October 31st.
At about 7:15 A.M., a Customs inspector found approximately
half a million dollars secreted in toys contained in a duffel
bag scheduled for loading onto flight 011 and checked through
to South America. While that seizure was pursued, Inspector
Cordova, at approximately 8:10 A.M., spotted another duffel bag
amidst flight 011 luggage checked through to Cali, Colombia.
The name "Bareno-Burgos" was written on tape placed on the
outside. Cordova, who had frequently discovered currency in
duffel bags bound for South America, opened the item and again
found U.S. currency secreted in toys. Doing a quick check to
satisfy himself that more than $10,000 was in the toys, Cordova
proceeded to Eastern security to learn the identity and seat
location of the passenger whose bag he had just opened.
2. The Questioning on Board Flight 011
Accompanied by a plain clothes New York City police officer,
Cordova, also dressed informally, boarded flight 011, which was
being held for take-off, and proceeded to seat 22A. Speaking
Spanish, Cordova identified himself to the defendant, Guillermo
Bareno-Burgos, as a United States Customs inspector and
displayed his badge. In a normal tone of voice, he told
Bareno-Burgos he needed to speak with him and, pointing to a
nearby galley, said, "Come with me, please." At the time,
Cordova was armed with his service revolver, but the weapon was
in his waistband, covered by a pull-over sweater. It is
undisputed that the weapon was never displayed and the court
credits Cordova's testimony that it was not otherwise visible.
Moreover, having observed Inspector Cordova, the court is
persuaded that nothing about his demeanor or tone on the day in
question was threatening or intimidating.
Bareno-Burgos followed Cordova and the police officer into
the galley, whereupon Cordova explained to the defendant the
currency reporting requirements of United States law.
Specifically, Cordova advised the defendant that it was not
illegal to transport more than $10,000 out of the United
States, but that if such an amount were being transported, a
report would have to be filed with U.S. Customs. Cordova had
with him copies of the required reporting form, # 4790. As
Cordova spoke with defendant, he also showed him the Spanish
language version of another Customs form, # 503, which
explained the reporting requirements. This form provides:
There is no limitation in terms of total amount of
monetary instruments which may be brought into or
taken out of the United States, nor is it illegal
to do so. However, if you transport, attempt to
transport, or cause to be transported (including
by mail or other means) more than $10,000 in
monetary instruments on any occasion into or out
of the United States, you must file a report
(Customs Form 4790) with Customs.
Monetary instruments include U.S. or foreign coin,
currency, travelers checks, money orders, and
negotiable instruments or investment securities in
Reporting is required under the Currency and
Foreign Transactions Reporting Act (Public Law
97-258, 31 U.S.C. § 5311, et seq.) as amended.
Failure to comply can result in civil and criminal
penalties and may lead to forfeiture of the
If you have any questions, please contact one of
the Customs Offices listed on the reverse side or:
U.S. Customs Service/Washington D.C. 20229/(202)
Cordova watched Bareno-Burgos follow along the form as the
inspector orally explained the requirements. When Cordova made
oral reference to the $10,000 limit, he circled that amount on
the form explanation. Cordova then asked defendant if he had
currency greater than $10,000. Bareno-Burgos replied that he
did not. Cordova asked specifically as to travelers checks and
money orders. Defendant's responses were all negative. The
inspector inquired if defendant had any money that might have
been given to him by anyone else. Bareno-Burgos answered, "No."
asked if defendant had any money in his checked bags belonging
either to himself or someone else. Defendant again replied,
"No." Cordova asked defendant how much money he had all
together, whether his own or anyone else's. Defendant replied,
"$1,700." Finally, Cordova asked defendant to sign his name on
the explanatory form he had been reading and to note the amount
of money he was carrying. Defendant signed "Guillermo Bareno"
and wrote "$1700."
At that point, Cordova told Bareno-Burgos that he would not
be making the flight to Miami and escorted defendant off the
plane. The entire encounter on board took approximately five
3. The Questioning at Kennedy Airport
Cordova drove defendant back to his team office at Kennedy
Airport. There, using a standard card, he advised defendant in
Spanish of his rights. The court finds that defendant was
properly advised of his rights, that he understood them, and
that he voluntarily agreed to speak with the Customs officials.
With Inspector Cordova serving as an interpreter, Bareno-Burgos
told Agent Geoghegan that he had gotten the duffel bag with the
money the previous day from a woman whose name he did not know
but whom he had met at a bar. She asked him to carry it to
Colombia where he would be met by someone. In exchange for his
services, he received his airline ticket. Further inquiries
prompted defendant to ask for a lawyer, whereupon all
Customs agents did confirm that Bareno-Burgos had in his
possession an Eastern Airlines ticket providing for round-trip
travel between New York and Cali, Colombia.*fn2 Although the
return was left open, defendant was booked for travel on
October 31, 1989 on board both Eastern flight 011 from New York
to Miami and Eastern flight 901 from Miami to Cali, the latter
scheduled to leave Miami at 1:20 P.M. Indeed, defendant already
had his boarding pass for the 901 flight. An Eastern
representative advises that, for such an itinerary, airlines
consider New York the passenger's "point of origin" and Miami
his "port of departure." Agents also found in defendant's
possession claim check 37-62-47, which matched the Cali,
Colombia check on the duffel bag searched by Inspector Cordova.
Agents discovered that the total amount of currency in
defendant's possession on October 31, 1989, whether in baggage
or on his person, totalled $501,818. Trained Customs dogs
reacted positively for the presence of cocaine upon sniffing
the seized currency.
4. Airport Procedure
Of some significance to the pending motions are the
procedures employed at the various airports at issue in this
case. Although two Customs inspectors are assigned on a
permanent basis to LaGuardia Airport, no Customs inspections,
either in-bound or outbound, are performed at that airport on
a daily basis. Passengers and luggage entering the United
States at LaGuardia from such places as Canada and Bermuda are
precleared by U.S. Customs in the foreign country. See
generally United States v. Hernandez, 639 F. Supp. 629 (E.D.N Y
1986) (describing preclearing procedures in Canada). By
contrast, at John F. Kennedy International Airport, thousands
of persons daily entering the United States from abroad are
cleared by Customs at that location.
Even at Kennedy, Customs is not able to check each passenger
or piece of luggage leaving the United States. The outbound
inspection team checks approximately 150 departing
international flights per month at Kennedy. Two to three times
per month, the team travels to LaGuardia, where it checks
approximately seven flights per day.
At Kennedy, signs are posted and oral announcements made
advising outbound passengers of their reporting requirements
under United States law. No such signs
are posted or announcements made at LaGuardia. Although the
agents at LaGuardia will accept reporting forms there if a
passenger wishes to make a declaration, in such circumstances
an airline agent must call a Customs inspector to bring a form
4079 to the gate. They are otherwise not generally available.
At Miami International Airport, signs are posted and
announcements made advising outbound passengers of their
reporting requirements under United States law. Every bag
placed on an international flight at Miami is x-rayed,
including those bags that have arrived on connecting flights.
At the discretion of Miami Customs inspectors, some of these
bags may be searched. Similarly, at the discretion of Customs
inspectors, passengers leaving Miami for a foreign destination,
including passengers who have made connections in Miami from
other flights, may be stopped and questioned at the jetway
before boarding their international flight.
Bags that were placed on board Eastern flight 901 on October
31, 1989 were x-rayed in Miami, but no searches conducted.
Customs inspectors did, however, question a discrete number of
passengers about their compliance with United States reporting
It is undisputed that defendant could properly have filed a
currency report in Miami before leaving the United States for
I. Border Search Exception
At issue in this case is whether a Customs search of baggage
checked through to a foreign destination, but loaded on a
domestic flight from which a foreign connection will be made,
comes within the border exception to the fourth amendment
warrant requirement. For the reasons stated, this court finds
that such baggage is at the functional equivalent of the border
and may be searched without a warrant.
The right of a sovereign nation to protect itself by
searching persons and cargo crossing its borders has long been
recognized. See, e.g., United States v. Ramsey, 431 U.S. 606,
616-19, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977)
(discussion of history of border search exception). Moreover,
the most recent amendment to 31 U.S.C. § 5317 provides that:
For purposes of ensuring compliance with the
requirements of section 5316, a customs officer
may stop and search, at the border and without a
search warrant, any vehicle, vessel, aircraft, or
other conveyance, any envelope or other container,
and any person entering or departing the United
Defendant urges this court to limit the applicability of the
border exception to entries into the United States and, thus,
to declare any broader authority in § 5317 unconstitutional.
That, however, is clearly not the law in the Second Circuit,
which has squarely held that "the border search exception
applies to items leaving as well as entering the country."
United States v. Ajlouny, 629 F.2d 830, 834 (2d Cir. 1980),
cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840
(1981); accord United States v. Benevento, 836 F.2d 60, 67 (2d
Cir. 1987) (search of bags leaving United States upheld within
"border search" exception), cert. denied, 486 U.S. 1043, 108
S.Ct. 2035, 100 L.Ed.2d 620 (1988). Defendant criticizes
Ajlouny for relying on dicta in California Bankers Ass'n v.
Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974), that
"those entering and leaving the country may be examined as to
their belongings and effects, all without violating the Fourth
Amendment. . . .," Id. at 63, 94 S.Ct. at 518 (emphasis added).
Nevertheless, "[e]very circuit that has considered the question
has ruled that the rationales for the `border exception' apply
to both incoming and outgoing persons and instrumentalities."
United States v. Hernandez-Salazar, 813 F.2d 1126, 1137 (11th
1987) (and cases cited therein). Even the Ninth Circuit, some
of whose members have expressed reservations about the border
search exception when applied to departing passengers,
continues to hold "that a suspicionless exit border search is
constitutional." United States v. Nates, 831 F.2d 860, 862 (9th
Cir. 1987) (and cases cited therein), cert. denied,
487 U.S. 1205, 108 S.Ct. 2845, 101 L.Ed.2d 883 (1988). Accordingly, this
court will not declare § 5317 unconstitutional or suppress the
monies seized from Bareno-Burgos' duffel bag simply because the
Customs search at issue was of outgoing rather than incoming
The court turns then to the question of whether the search of
Bareno-Burgos' bags at LaGuardia Airport can properly be
considered an outgoing border search. "What is the border, for
purposes of a Customs search, is not always a simple question"
to answer. See United States v. Gaviria, 805 F.2d 1108, 1112
(2d Cir. 1986), cert. denied, 481 U.S. 1031, 107 S.Ct. 1960, 95
L.Ed.2d 531 (1987). This is because common sense and the
realities of international travel and transportation have long
since prompted judicial recognition of the fact that "border"
searches can occur at places other than where shore meets sea.
This has given rise to two different concepts: the "functional
equivalent" of the border, where searches can take place
without any grounds for suspicion; and the "extended" border,
where searches can take place on reasonable suspicion. Id.
Defendant argues that, if this court must find the search of
his duffel bag a border search, it should do so under the
concept of an extended border, not the functional equivalent.
The court disagrees. Where, as in this case, a bag has been
consigned to a carrier for delivery to a foreign destination, a
border crossing is virtually certain even if intermediate stops
in this country will be made first. Thus, the bag is properly
considered to be at the functional equivalent of the border
from the moment of consignment.
Case law reflects that the functional equivalent of the
border need bear no particular time or space relationship to
the actual border. Indeed, in first articulating the concept,
the Supreme Court recognized that even St. Louis, Missouri
could constitute the functional equivalent of the country's
border if its airport was the arrival point for a nonstop
flight from Mexico City. See Almeida-Sanchez v. United States,
413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973).
In United States v. Gaviria, supra, the Second Circuit went
even further, holding that the functional equivalent of the
border was not dependent upon the United States arrival being
non-stop. In that case, a shipment of canned fruit arrived at
Miami International Airport from Medellin, Colombia on May 8,
1985. A preliminary Customs check in Miami revealed no
contraband. The cargo was transported from Miami to New York,
its ultimate destination, by a bonded truck carrier, arriving
on May 13, 1985 at the Customs facility at Kennedy Airport. On
May 16, 1985, New York Customs inspectors discovered cocaine
concealed in certain of the cans of fruit. The Court of Appeals
found the New York inspection to be the functional equivalent
of a border search even though eight days had passed between
the cargo entering the country and the New York search; even
though Miami and not New York was the original arrival point in
the country; and even though a preliminary search had been
conducted in Miami. In the court's view, New York was the
functional equivalent of the country's border because: (1) it
was the intended final destination of the goods; (2) the goods
had travelled in the United States under Customs bond; and (3)
there was no evidence that any tampering had occurred in
transit. Accord United States v. Caminos, 770 F.2d 361, 365 (3d
Cir. 1985) (Pittsburgh was the functional equivalent of the
border for package sent there after domestic stops in New York
and Chicago); United States v. Sheikh, 654 F.2d 1057 (5th Cir.
1981), (Dallas the functional equivalent of the border for
package sent from Iran with preliminary stop in Houston), cert.
denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982);
United States v. Gallagher, 557 F.2d 1041 (4th Cir.), (Norfolk
was functional equivalent of the border for a camper sent there
from Portugal with initial arrival at port of Baltimore),
cert. denied, 434 U.S. 870, 98 S.Ct. 213, 54 L.Ed.2d 148
In United States v. Udofot, 711 F.2d 831 (8th Cir. 1983),
cert. denied, 464 U.S. 896, 104 S.Ct. 245, 78 L.Ed.2d 234
(1983), the Eighth Circuit applied the same logic to the case
of an exit search similar to that at issue here. Defendant
Udofot checked luggage through to Nigeria when he boarded a
flight from Minneapolis to New York, with connecting tickets to
Paris and Nigeria. The court upheld a Customs x-ray of the
luggage — which revealed undeclared handguns — finding
Minneapolis-St. Paul International Airport to be the functional
equivalent of the border. Defendant had, after all, designated
Nigeria as the final destination of his luggage and his bags
would be at all times in international transit or under a
carrier's custody. 711 F.2d at 840. As the court explained
By checking his luggage through to Calabar,
Nigeria, Udofot made it a virtual certainty that a
border crossing would take place and that nothing
about the object of the search would change in the
course of crossing the border. Moreover, in so
checking his luggage at Minneapolis-St. Paul,
Udofot experienced no greater inconvenience in
having his luggage inspected than he would have
experienced had the luggage been inspected in New
Id. (emphasis in original).