MEMORANDUM-DECISION AND ORDER*fn1
Defendant Steven Maigar ("Defendant" or "Maigar") is accused of knowingly concealing more than $10,000 in U.S. Currency, to wit: approximately $345,962, and attempting to transport such currency from a place in the United States to a place outside the United States, in violation of 31 U.S.C. § 5332(a)(1). Indictment (Dkt. No. 9). On February 22, 2008, Defendant filed a motion seeking to suppress all direct and derivative evidence obtained from the stop of the vehicle in which he was a passenger. Dkt. No. 18. On June 19, 2008, the parties filed a Stipulation of Facts in lieu of an evidentiary hearing. Dkt. No. 34.
On or about July 27, 2007, at approximately 1:30 a.m., in the Rouses Point Port of Entry, in the State and Northern District of New York, Amanda Walker was operating a vehicle (the "Vehicle") registered, according to Vermont records, in the name of Amanda Walker.
Stipulation of Facts ("Stip.") at ¶ 1 (Dkt. No. 34). Maigar does not own, nor is he registered to, the Vehicle. Id. At that date and time, Amanda Walker was attempting to drive from the United States across the border into Canada. Id. at ¶ 2. As depicted in the stipulated photographs, the Rouses Point Port of Entry is approximately three-quarters (0.75) of one mile from the United States-Canadian Border (there is swampland between the Port of Entry inspection facility and the United States-Canadian Border). See Stip., Exh. A.
United States Customs and Border Protection Officers stopped the Vehicle driven by Amanda Walker approximately seventy-two (72) feet east of the outbound inspection booths, past the last practical point for Amanda Walker to turn off and declare United States currency in excess of $10,000 at the outbound declaration booths, as required by law. Stip. at ¶ 10. By statute, any person transporting more than $10,000 Unites States currency from a place in the U.S. to or through a place outside the United States, or to a place in the United States from or through a place outside the United States is required to declare that currency at the Port of Entry and to file a report. 31 U.S.C. § 5316. On two prior occasions, Amanda Walker filed two inbound declarations at the Rouses Point Port of Entry. Stip. at ¶ 8, Exh. B and C.
The Vehicle was not stopped as a result of an alleged violation of any law, rule or ordinance. Stip. at ¶ 9. The subject vehicle was selected at random, and was inspected pursuant to a routine outbound border inspection conducted by duly authorized United States Customs and Border Protection Officers ("the Officers"). Stip. at ¶ 10.
The Officers, after stopping the Vehicle, questioned Amanda Walker if she had more than $10,000.00 U.S. currency to declare. Amanda Walker responded in the negative. Stip. at ¶ 11.
If called to testify, Amanda Walker would state that she told the Officers that she was going to her "boyfriend" Maigar's house. The Officers were aware of the Maigar Family and the fact that they resided in Canada. Stip. at ¶ 12. The Officers then directed Amanda Walker to exit her vehicle and open the trunk. At that time, Maigar, who was in the trunk, jumped out and began to run from the Vehicle southbound. Defendant Maigar was apprehended and taken into custody. Stip. at ¶ 13.
The Officers then inspected and searched the trunk in which Maigar had been located, and found more than $345,962.00 in U.S. currency contained in a "knap" sack located in the trunk. The inspection and search occurred without the consent of either Amanda Walker or Defendant Maigar. Stip. at ¶ 14. Maigar is a Canadian citizen and resident who is inadmissible in the U.S. due to his criminal record. Stip. at ¶ 16.
Defendant challenges the stop of the vehicle as "not based upon either probable cause or reasonable suspicion." Dft's Mem. at 6 (Dkt. No. 35). Defendant also argues that the "border exception" to the warrant requirement does not apply because the stop occurred three quarters (0.75) of one mile from the U.S.-Canada border and seventy-two (72) feet from the outbound inspection station. Defendant contends that the location where the Vehicle was stopped and/or "the 'outbound inspection station' referred to by the government" were not "at the 'border' or 'functional equivalent' of the border." Id. at 6-7.
A. Border Search Exception
It has long been recognized that border searches are made reasonable by the person's decision to cross the border and thus are not violative of the Fourth Amendment's prohibition against unreasonable searches. United States v. Asbury, 586 F.2d 973, 975 (2d Cir. 1978); see also States v. Irving, 452 F.3d 110, 123-24 (2d Cir. 2006) (noting that border searches are one of the exceptions to the Fourth Amendment warrant requirement). Accordingly, border searches do not require a warrant, probable cause, or reasonable suspicion. United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (holding that border searches "of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant").
In addition, the enforcement provision for 31 U.S.C. § 5316--the statute requiring persons transporting over $10,000 across the border to declare so--states that "[f]or 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 . ...