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June 19, 1990


The opinion of the court was delivered by: Raggi, District Judge:


Guillermo Bareno-Burgos has been charged in a two-count indictment with violating the currency reporting requirements of 31 U.S.C. § 5316 and with having made a false statement to a U.S. Customs Inspector in violation of 18 U.S.C. § 1001. Defendant moves to dismiss the § 5316 count claiming that he was under no duty to file a currency report at the time of his arrest since he had simply boarded a domestic flight to Miami and had not yet made his connection to the flight that would take him to Colombia. He moves to dismiss the § 1001 count in reliance upon the "exculpatory no" doctrine. Defendant further contends that U.S. Customs was not authorized by the border exception to the fourth amendment to conduct a warrantless search of his bags in New York, thereby requiring suppression of any monies seized. He also seeks suppression of various statements made in purported violation of his fifth amendment rights. For the reasons stated herein, the court grants the motion to dismiss the § 5316 count. All other defense motions are denied.

Factual Background

Having conducted an evidentiary hearing at which two employees of the United States Customs Service, Inspector Jerry Cordova and Special Agent John Geoghegan testified, and having reviewed certain stipulations entered into between the parties, the court makes the following findings of fact.

1. The Search of Defendant's Duffel Bag

On October 31, 1989, Jerry Cordova, together with other Customs inspectors and various officers of the New York City and Port Authority Police Departments, arrived at LaGuardia Airport to inspect luggage that was checked through for international travel.*fn1 Cordova was one of a team of six Customs inspectors based at John F. Kennedy International Airport that focuses primarily on searching baggage and individuals leaving the United States.

On the morning of October 31, 1989, this outbound inspection team directed its attention to Eastern Airlines flight 011, scheduled to depart LaGuardia at 8:00 A.M. and to arrive in Miami shortly after 11:00 A.M. Law enforcement authorities had no special information about this flight. Rather, it was one they routinely searched on their visits to LaGuardia because it was popular with passengers wishing to connect in Miami to flights for South America. Eastern would, as a matter of course, segregate the baggage of such connecting passengers, which was already checked through to a foreign destination, from baggage that would be claimed in Miami. It was with this separate container that the outbound 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
  bearer form.
  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
  monetary instruments.
  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." Cordova 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 minutes.

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 questioning ceased.

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 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 requirements.

It is undisputed that defendant could properly have filed a currency report in Miami before leaving the ...

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