UNITED STATES of America, Plaintiff-Appellee, v. Edgar HERNANDEZ-SALAZAR, Defendant-Appellant.
No. 86-5398.
United States Court of Appeals, Eleventh Circuit.
April 3, 1987.
For the foregoing reasons, the decision of the district court is AFFIRMED.
Leon B. Kellner, U.S. Atty., Paul A. DiPaolo, Sonia O‘Donnell, Nancy L. Worthington, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Before KRAVITCH and HATCHETT, Circuit Judges, and MORGAN, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
In 1984, Congress amended
Appellant Edgar Hernandez-Salazar and two codefendants were indicted for currency reporting offenses in connection with appellant‘s attempt to transport in excess of $200,000 in United States currency in a checked bag on a flight from Miami to Medellin, Colombia. Count 1 of the indictment charged Adolfo Leon Gomez,3 Hugo Rios4 and appellant with conspiracy to defraud the Internal Revenue Service by failing to file a United States Customs Form 4790, Report of International Transportation of Currency or Monetary Instruments, in connection with transportation of an amount of United States currency in excess of $10,000 from Miami to Medellin, Colombia.5
The parties waived their rights under
Initially, the parties dispute the role that the magistrate‘s factual findings should play in our decision. Appellant contends that the magistrate‘s factual findings are entitled to deference because the district court held no evidentiary hearing and made no factual findings.
We conclude that the magistrate‘s findings are not entitled to deference in this case.10 The district court reversed the magistrate‘s recommendation without making factual findings.11 The parties stipulated for trial to the testimony at the suppression hearing, not to the magistrate‘s factual findings.12 The parties also waived their right to special findings of fact under
On May 4, 1985, United States Customs agents at the Miami International Airport decided to investigate an Avianca Airlines flight travelling from Miami to Barranquilla and Medellin, Colombia, to check for compliance with currency declaration laws.14 United States Customs Inspector Charles Headley and another Customs agent were assigned to inspect checked baggage before the baggage was loaded on the aircraft.15 Because the two agents had only about an hour before the flight was to depart, it would have been impossible for them to search all of the 250 to 300 bags that had been checked.
Due to the time and personnel constraints, Agent Headley utilized certain factors that, in the experience of Customs agents, indicated that a bag should be searched. Headley had been told that, in the experience of Customs agents, hard-sided luggage is often used by smugglers to conceal contraband, unlicensed high technology equipment, weapons, or currency because the bags can be equipped with false sides to offer interior concealment. Headley also had been told that bags without legible name identification tags or claim checks were suspicious. Finally, Headley had been informed that heavy bags were more likely to be false-sided suitcases, containing computers or things of that nature. As of May 4, 1985, however, Agent Headley had never personally discovered currency in checked baggage.16
Agent Headley then radioed United States Customs Service Agent John Howe to inform him that Headley had discovered a large amount of United States currency in examining baggage for outgoing Avianca flight 063. Headley gave Howe the baggage claim check number for the suitcase that contained the cash.
Howe and several other agents proceeded to the gate area where Avianca flight 063 was to depart forty-five minutes later, and set up for outbound inspection of passengers. The agents placed signs in the gate area stating the currency declaration requirements for individuals transporting in excess of $10,000 in monetary instruments out of the United States.17 One of the agents read the currency declaration requirements several times over the public address system and handed out forms detailing the requirements.18
When none of the passengers came forward to declare currency, Agent Howe positioned himself at the entrance to the jetway as the flight began boarding. He examined the passengers’ tickets, boarding passes, and passports prior to letting them pass onto the jetway. When appellant approached and handed his documents to Agent Howe, Howe noticed that the baggage claim check attached to appellant‘s ticket bore the same number as the bag that Agent Headley had discovered contained a large amount of United States currency. After returning the documents and allowing appellant to pass onto the jetway, Howe pointed to United States Customs Service Inspector Robert Estrada to indicate to Estrada that appellant was the person they had been waiting for.
Inspector Estrada stopped appellant in the jetway for questioning.19 After identifying himself, Estrada asked to see appellant‘s passport. When appellant produced the passport,20 Estrada inquired as to whether appellant heard and understood the announcements regarding currency declaration requirements. Appellant said that he had heard and understood. Appellant produced a Customs leaflet describing the reporting requirements when Estrada asked if he had received a leaflet. Estrada then asked whether appellant was carrying over $10,000 in checks, negotiable bonds or instruments, or any commercial items. Appellant replied, “no, no, Inspector. I work for the airlines and I know the law.” Estrada asked to see the handbag that appellant was carrying. Inside the handbag, Estrada found and opened a sealed white envelope that contained six “smurf” checks21 totaling approximately $22,500.
At that point, Inspector Estrada formally placed appellant under arrest and gave him a Miranda warning. In response to questioning, appellant stated that he was not travelling with anyone else and that Hugo Rios had given the money to him to transport to Colombia. The agents took appellant downstairs to the Customs office to interview him further. Later, they transported appellant to the downtown Miami Customs office for processing and further questioning.
Appellant attacks section 5317(b) both on its face and as applied to him. One of his primary arguments on appeal is that the district court erred in reversing the magistrate‘s holding that the statute, granting authority to search luggage on the basis of “reasonable cause,” is void for vagueness. The magistrate found that
Appellant contends that the statute is unconstitutional under the “second form” of the void for vagueness doctrine because it amounts to an unrestricted delegation of power to Customs officers.24 Appellant cites no case in which the constitutional void for vagueness doctrine has been applied to a non-penal statute regulating the circumstances under which officers may conduct a search. The district court concluded that the doctrine was inapplicable because the statute in question is merely “a procedural limitation on the authority of Customs.” We need not decide, however, the question of whether a statute of this type may be unconstitutional under the void for vagueness doctrine because we conclude that the statute is not vague.
In addition, the use of the phrase “reasonable cause to believe” in section 5317(b) does not render the statute constitutionally void for vagueness. The district court read “reasonable cause to believe” to mean “reasonable suspicion to search.” This interpretation is supported by United States v. Arends, 776 F.2d 262, 264 n. 1 (11th Cir.1985), where we declared in dictum that under section 5317(b), “the government must have reasonable suspicion to search individuals or objects for currency violations.” The legislative history indicates that the section was clearly intended to authorize searches on the basis of less than probable cause,28 and Supreme Court precedent suggests that “new” fourth amendment standards other than probable cause and reasonable suspicion are disfavored.29 We conclude that the “reasonable cause to believe” requirement in section 5317(b) requires reasonable suspicion to search and that this standard is not vague.30
Having determined the correct standard by which the legality of a search under section 5317(b) must be determined, we next address whether the standard was met in this case. We first examine the legality of Agent Headley‘s search of appellant‘s luggage, and then determine whether the agents’ subsequent actions in detaining appellant in the jetway and searching appellant‘s carry-on bag violated appellant‘s fourth amendment rights.
Agent Headley‘s search of appellant‘s checked suitcase can only be sustained if the agent reasonably suspected that appellant‘s suitcase was transporting undeclared currency out of the United States in violation of section 5316. Reasonable suspicion to search requires a “particularized and objective basis for suspecting” a section 5316 violation. United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 3311, 87 L.Ed.2d 381 (1985); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).
Although the question is admittedly close, we conclude that Agent Headley had a reasonable and articulable basis for believing that appellant‘s suitcase contained undeclared currency in violation of section 5316. Agent Headley relied upon three characteristics of appellant‘s bag in electing to search the suitcase‘s contents. These factors were: (1) the fact that the suitcase was hard-sided; (2) the absence of a name identification tag; and (3) the excessive weight of the bag. Each of the factors is consistent, in the experience of Customs officers, with an attempt to transport a large amount of undeclared currency out of the United States. Although no one factor would be independently sufficient, we conclude that the presence of all three factors in this case, along with the fact that the bags were being loaded on an Avianca flight from Miami to Colombia, gave the agent sufficient reasonable suspicion to enable him to conduct a lawful search limited to confirming or dispelling the suspicions. See United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).
The search was also narrowly tailored to the circumstances that justified its initiation. Agent Headley opened appellant‘s bag with a pass key and inspected the contents in an area out of public view. Upon discovering the currency, he placed the suitcase back on its way to be loaded on board the aircraft. The search was therefore a limited intrusion upon appellant‘s privacy interests.
Our construction of section 5317(b)‘s grant of authority to search on the basis of “reasonable cause to believe” that a section 5316 violation is occurring is consistent with congressional intent. In enacting section 5317(b) as a part of the Comprehensive Crime Control Act of 1984, Congress sought to grant special authority to Customs officers in border areas to search for currency, the “life blood of organized crime.”31 See United States v. Arends, 776 F.2d 262, 265 (11th Cir.1985) (Hill, J., specially concurring). If section 5317(b) is read as requiring a further basis for suspicion prior to enabling Customs officers to search a checked bag, the intent of subsection (b) would be largely defeated. Under that construction, unless currency were protruding from checked luggage, it is difficult to conceive of a situation where Customs officers would have sufficient suspicion to conduct a lawful search of a checked bag without some independent contact with the bag‘s owner or an informant‘s “tip.” We believe that such independent contact was not intended to be essential in all cases in order for a Customs officer to have reasonable suspicion to search.32
At the time of the stop [on the jetway], Customs agents had information from a reliable informant that Rojas was carrying $1,000,000 in cash, and the agents knew that she had twice denied this and had refused to fill out a reporting form. These facts constituted reasonable suspicion meriting further investigation.
Even if appellant‘s detention on the jetway rose to the level of an arrest,34 our analysis in Rojas leads to the conclusion that appellant committed the section 5316 violation at the time he entered the jetway. When appellant insisted that he was not transporting in excess of $10,000 in undeclared currency, “[c]ustoms agents in effect witnessed the crime and hence had probable cause to arrest” appellant. Id. at 165. We conclude, therefore, that the agents’ actions in this case were consistent with section 5317(b) and that the search and seizure was lawful unless section 5317(b) is unconstitutional.
It is well established that the fourth amendment constrains the power of Congress to authorize searches and seizures. Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); United States v. Villamonte-Marquez, 462 U.S. 579, 585, 103 S.Ct. 2573, 2578, 77 L.Ed.2d 22 (1983). The Supreme Court has stated that a “cardinal principle” of the fourth amendment is that: “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject to a few specifically established and well-delineated exceptions.” United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967).35 “[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Mincey, 437 U.S. at 393, 98 S.Ct. at 2414.
It is also established that appellant had a reasonable expectation of privacy in his checked luggage. As we stated in United States v. Goldstein, 635 F.2d 356, 361 (5th Cir. Unit B 1981), “when airport security is not involved, every passenger who has luggage checked with an airline enjoys a reasonable expectation of privacy that the contents of that luggage will not be exposed in the absence of consent or a legally obtained warrant.” (emphasis omitted).36 Our conclusion in Goldstein is supported by Torres v. Commonwealth of Puerto Rico, 442 U.S. 465, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979). In Torres, the appellant took a non-stop flight from Miami to San Juan, Puerto Rico. Upon arriving in Puerto Rico, local police searched Torres‘s luggage without probable cause or a warrant. The Supreme Court held that the search violated Torres‘s fourth amendment rights. Chief Justice Burger wrote for the court:
The search of appellant‘s baggage . . . did not satisfy the requirements of the Fourth Amendment as we have heretofore construed it. First, the grounds for a search must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests. The governmental interests to be served in the detection or prevention of crime are subject to traditional standards of probable cause to believe that incriminating evidence will be found. Second, a warrant is normally a prerequisite to a search unless exigent circumstances make compliance with this requirement impossible.
442 U.S. at 471, 99 S.Ct. at 2429-30 (citations omitted).
Section 5317(b) authorizes luggage searches without consent, a warrant, probable cause, any risk to airport security, or exigent circumstances. The government apparently concedes that, unless the “border search exception” to the fourth amendment applies, the measure violates the fourth amendment.
The Supreme Court has discussed the scope of the “border search exception” in the context of incoming persons and property.37 The Court has indicated that the “border search exception” is based upon the sovereign‘s authority to protect itself by examining incoming persons and property.38 The Court has not, however, decided any case involving searches of outgoing persons and property.39 We decline to construe the Court‘s general statements of the border search rationale so narrowly as to foreclose the proposition at issue here.
Every circuit41 that has considered the question has ruled that the rationales for the “border exception” apply both to incoming and outgoing persons and instrumentalities. See United States v. Swarovski, 592 F.2d 131 (2d Cir.1979); United States v. Ajlouny, 629 F.2d 830 (2d Cir.1980); United States v. Udofot, 711 F.2d 831 (8th Cir.), cert. denied, 464 U.S. 896, 104 S.Ct. 245, 78 L.Ed.2d 234 (1983); United States v. Stanley, 545 F.2d 661 (9th Cir.1976); United States v. Duncan, 693 F.2d 971 (9th Cir. 1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983).
[B]oth incoming and outgoing border-crossing searches have several features in common: (1) the government is interested in protecting some interest of United States citizens, such as restriction of illicit international drug trade, (2) there is a likelihood of smuggling attempts at the border, (3) there is difficulty in detecting drug smuggling, (4) the individual is on notice that his privacy may be invaded when he crosses the border, and (5) he will be searched only because of his membership in a morally neutral class.
Although we need not decide here whether the “border exception” applies equally in all respects to incoming and outgoing searches at the border, we conclude that Congress may, consistent with the fourth amendment, authorize Customs officers to conduct warrantless searches of persons and property departing the United States on the basis of reasonable suspicion that a currency reporting violation is occurring. The permissibility of a particular law enforcement practice is judged by “balancing its intrusion on the individual‘s Fourth Amendment interests against its promotion of legitimate governmental interests.” United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 3309, 87 L.Ed.2d 381 (1985) (quoting United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S.Ct. 2573, 2579, 77 L.Ed.2d 22 (1983)).
The governmental interest in stemming the flow of unreported currency out of the United States is substantial.42 Large amounts of undeclared currency departing the United States bear an obvious relationship to the “veritable national crisis in law enforcement”43 caused by smuggling of illicit narcotics and money laundering schemes often associated with organized crime.44 The “long-standing right of the sovereign to protect itself”45 that underlies the traditional rationale for the border search exception is implicated to a substantial degree where the international borders of the United States are penetrated by large sums of undeclared currency departing this country.
Balanced against this governmental interest is the fourth amendment rights of individuals to be free from unreasonable searches and seizures. The statute grants authority for only a limited exception to the fourth amendment warrant and probable cause requirements for a search. Section 5317(b) allows Customs officers to search for section 5316 violations only where reasonable suspicion to search is present; thus searches for section 5316 violations on less than reasonable suspicion remain unlawful. See United States v. Chemaly, 741 F.2d 1346 (11th Cir.1984).
An individual‘s expectation of privacy is also less at international borders. United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 3310, 87 L.Ed.2d 381 (1985). Although an individual may have a more substantial expectation of privacy when departing the country than when entering, individuals attempting to depart from the United States are on notice that they may be questioned and searched. Finally, the fourth amendment balance between the interests of the government and the privacy right of the individual is struck much more favorably to the government at the border. Id.
Balancing these considerations leads us to conclude that section 5317(b) does not authorize unreasonable searches and seizures. Finding that the statute is constitutional both on its face and as applied to appellant, we AFFIRM appellant‘s convictions.
I agree with the majority that the statute is constitutional on its face and that reasonable suspicion is the proper standard.
Section 5317(b) of
A Customs officer may stop and search, without a search warrant, a vehicle, vessel, aircraft, or other conveyance, envelope or other container, person entering or departing from the United States with respect to which or whom the officer has reasonable cause to believe there is a monetary instrument being transported in violation of section 5316 of this title.
On the facts of this case, no reasonable suspicion existed that the suitcase in this case contained a monetary instrument. This case presents nothing more than the application of a profile. The customs officer‘s profile described all unusually heavy hard-sided suitcases without name tag checked on Avianca Airlines flights to Colombia. If reasonable suspicion existed for the search of this suitcase, then reasonable suspicion will exist for the search of every hard-sided suitcase without a name tag checked on Avianca Airlines.
The customs officer testified that between February and July 1985, he opened about 50,000 suitcases without finding currency, except in the suitcase in this case. For sure, some of these 50,000 suitcases were searched after the May 4, 1985, search in this case. Nevertheless, this proves either that the profile is too general to raise a reasonable suspicion that a given suitcase meeting the profile contains unreported cash, or the customs officers are simply opening suitcases without any indicators suggesting suspicion. If whatever is being used leads to the correct conclusion only one out of 50,000 times, it is too unreliable to support a finding of reasonable suspicion.
The majority states that Agent Headley “utilized certain factors that, in the experience of Customs agents, indicated that a bag should be searched.” In its simplest form, that is exactly what a profile is. The Constitution does not allow Customs officers or any other law enforcement officers to decide beforehand that certain indicators shall always give them the right to search. They may not search every suitcase because it has a hard cover; they may not search every suitcase because it is to be placed aboard a certain airline; surely, they may not search every suitcase because it is to be transported to a certain country. For this and other good reasons, the Eleventh Circuit has until this case uniformly condemned searches based on profiles designed by law enforcement officers and have demanded that “reasonable suspicion” exist to search a person or thing targeted by law enforcement officers.
It is important to remember that the statute under which the customs officer acted in this case authorizes searches for monetary instruments, not heavy weapons or computers. Consequently, the magistrate found: the weight of the bag could not have been an important factor.
It is equally important to remember that this case does not involve what persons or things may be searched upon entry into
I would reverse.
E.K. WILCOX, Jr., Petitioner-Appellee, Cross-Appellant, v. J. Paul FORD, Warden, Respondent-Appellant, Cross-Appellee.
No. 86-8060.
United States Court of Appeals, Eleventh Circuit.
April 3, 1987.