The opinion of the court was delivered by: GREEN
CLIFFORD SCOTT GREEN, District Judge.
Presently before the court are defendants' appeals from judgments of convictions before a United States Magistrate on a complaint charging theft
from a shipment moving in international or interstate commerce in violation of Title 18 U.S.C. § 659 which provides in relevant part:
The Magistrate denied defendants' motions to suppress as evidence the allegedly stolen articles and held the challenged search and seizure valid as meeting the requirements of a "border search." We decide that under the facts and circumstances of the instant case, the search and seizure were unreasonable, and not in accordance with the dictates of the Fourth Amendment, and accordingly the evidence should have been suppressed.
In the case at bar, we are faced with the delicate task of balancing the federal government's interest in effective law enforcement against the individual's right to be free from "unreasonable searches and seizures." The evidence viewed in the light most favorable to the government does not support a finding that the search and seizure were reasonable under the circumstances, as required by the Fourth Amendment.
On April 16, 1972, the vessel M/V Leersum was unloading cargo at Pier 80 in Philadelphia.
Between 4:00 and 4:15 P.M. on the aforementioned date, Customs Agents Harrison and Friedrich at a distance of approximately 150 yards from the pier gate, observed defendants Murray and Beck leaving the pier carrying blue tote bags. Agent Harrison testified that the bag which defendant Beck carried in his left hand appeared heavy because his arm hung straight down and did not swing back and forth. Because both Murray and Beck were wearing gray helmets, Agent Harrison identified them as watchmen. The agents observed the defendants place the tote bags on the rear floor of a white 1966 Ford, throw their helmets on the back seat, and drive away. The agents immediately followed and subsequently stopped them on Water Street, a distance of about one-half mile away from the pier. Agent Friedrich immediately searched the trunk of the car driven by Murray but did not find any contraband. Agent Harrison searched Beck's tote bag and found the articles referred to in the complaint; Murray's bag was likewise searched by the agents, and it also contained items which were later determined to have been stolen. The agents then searched the interior of the car and found additional stolen merchandise.
Defendants were then placed under arrest. The agents returned to the pier to look at the bonded locker and the next day learned for the first time that the articles seized from defendants had been removed from cartons within the bonded area. A check of the manifest and entry documents of the M/V Leersum indicated the articles in the tote bags were carried by that ship. The evidence supports a finding that the merchandise was stolen from an international shipment.
On April 20, 1972, both defendants waived their right to trial in the United States District Court, and elected, as was their right, to be tried by the United States Magistrate. Defendants moved that the seized evidence be suppressed on the ground that it was the fruit of an unconstitutional search and seizure. The Magistrate concluded that the search met the requirements of a valid "border search" and denied the motion to suppress. The Magistrate found each of the defendants guilty as charged, and sentenced each to pay a fine of One Hundred ($100.00) Dollars. It is from this judgment of conviction and sentence that defendants have prosecuted this appeal.
On appeal, defendants contend that their motion to suppress the evidence seized by the customs agents should have been granted. In support of this contention, defendants assert the following grounds: First, the search undertaken by the customs agents was not a border search, and therefore probable cause was required; second, they contend that even if the search is classified as a border search, the customs agents did not have reasonable suspicion to believe that defendants were violating customs laws. The government concedes that the search can only be sustained if it is classified as a "border search."
Because a "border search" must be in accord with Fourth Amendment requirements, we believe that determining the search and seizure to be reasonable under the circumstances is the essential standard for constitutional validity and not merely applying a label of "border search." One of the basic constitutional protections is that against unreasonable searches and seizures. The Fourth Amendment of the United States Constitution provides that:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Evidence which is acquired in violation of the Fourth Amendment is excluded by both federal
and state courts.
Evidence must be the product of a reasonable search and seizure if it is to be admissible. The Supreme Court has held that a reasonable search with or without a warrant must be based on probable cause.
However, it is well established that border searches are in a separate category from searches generally. Because of the peculiar and difficult problems associated with policing our national boundaries, Congress has granted customs officials extensive statutory authority to stop and search any persons or vehicles suspected of carrying illegally imported merchandise into the United States and to seize any merchandise that they have reasonable cause to believe has been illegally imported. 19 U.S.C. § 482.
Border searches like all searches by public officials must be reasonable. United States v. Hill, 430 F.2d 129 (5th Cir. 1970); United States v. Poindexter, 429 F.2d 510 (5th Cir. 1970); United States v. Tsoi Kwan Sang, 416 F.2d 306 (5th Cir. 1970); Walker v. United States, 404 F.2d 900 (5th Cir. 1968); United States v. Glaziou, 402 F.2d 8 (2nd Cir. 1968); cert. denied, 393 U.S. 1121, 89 S. Ct. 999, 22 L. Ed. 2d 126 (1968); United States v. McGlone, 394 F.2d 75 (4th Cir. 1968); Morales v. United States, 378 F.2d 187 (5th Cir. 1967); Thomas v. United States, 372 F.2d 252 (5th Cir. 1967); King v. United States, 348 F.2d 814 (9th Cir. 1965), cert. denied, 382 U.S. 926, 86 S. Ct. 314, 15 L. Ed. 2d 339 (1965); Marsh v. United States, 344 F.2d 317 (5th Cir. 1965).
The traditional type of situation which the courts have labelled "border search" involves searches by customs agents at an international entry point. Persons such as foreign seamen or international travelers who are about to enter the United States belong to a class which may be routinely searched. The very fact of entry into the country is sufficient to satisfy the reasonableness requirement of the Fourth Amendment.
In the instant case, there is no evidence that defendants had just entered the country; however, we recognize that the courts have not limited the "border search" doctrine to cases where recent border crossings are proved. The courts have labelled searches conducted by customs agents at locations geographically removed from the border as "border searches" or "extended border searches", and it is well settled that proof of a border crossing is not the sine qua non of a border search. Persons and vehicles in and about the border area may be the proper subjects of a search by customs agents if there is direct contact with or some reasonable relationship of said persons or vehicles to the border area, and the search is reasonable under the circumstances. United States v. Hill, supra.
"those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise." 267 U.S. at 154, 45 S. Ct. at 285.
Consistent with this proposition in Carroll is the rationale in United States v. Yee Ngee How, 105 F. Supp. 517, 523 (N.D.Cal.1952), where the district court said that once a person or vehicle had passed through a customs barrier located at some fixed position between the international border and the internal public streets of the United States, probable cause would be necessary to justify the search. Because the search in the instant case took place a half mile from the pier, this rationale would appear to lend support to defendant's contention. However, it is not always practical or realistic to restrict customs searches to the boundary line or "barrier" itself. Ramirez v. United States, 263 F.2d 385 (5th Cir. 1959). Clearly, customs laws would be frustrated if customs agents were not allowed to search persons about whom they had the requisite amount of suspicion, merely because such suspects managed to slip away or escape into our public thoroughfares. The "border area" is elastic, Murgia v. United States, 285 F.2d 14 (9th Cir. 1960), and "reasonably includes not only actual land border checkpoints but also the checkpoints at all international ports of entry and a reasonably extended geographic area in the immediate vicinity of any entry point." United States v. Glaziou, supra, 402 F.2d at 12-13.
In light of the foregoing discussion, the court is of the opinion that the instant search may be characterized as a "border search"; however, we limit the significance of the "border search" label to considering the proximity of the search to the border area as one of the factors properly to be considered in determining the reasonableness of the search. The border search designation standing alone does not make the search reasonable and in conformity with the Fourth Amendment requirements.
Defendants advance the argument that even if the present search is a "border search", it is nonetheless invalid since the Fourth Amendment requirement of reasonableness has not been satisfied. We agree. At one time in determining the "reasonableness" and validity of border searches, the courts considered the remoteness of the search from the international border as the most significant factor. See, Cervantes v. United States, 263 F.2d 800 (9th Cir. 1959); Contreras v. United States, 291 F.2d 63 (9th Cir. 1961); Plazola v. United States, 291 F.2d 56 (9th Cir. 1961). However, because of the necessity to prevent the smuggling of narcotics and other contraband, the courts took steps to minimize the emphasis on the proximity of the search by customs officials to the border. As a result, alternative criteria and standards were developed in subsequent court opinions,
with respect to "extended border searches."
In the Ninth Circuit, customs officials have the right to search vehicles without probable cause at a distance far removed from the border, if customs agents are 'reasonably certain' that parcels have been smuggled across the border and placed in a vehicle, whether or not the vehicle (or person) has crossed the border. United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied, 401 U.S. ...