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January 31, 1996


The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 January 31, 1996


 This opinion and order follow a hearing on September 28, 1995 pursuant to F.R.C.P. 43(e) to resolve the issues of jurisdiction as set forth in our prior opinion of August 18, 1995 in this matter. Garcia v. U.S., 1995 WL 493251 (E.D.Pa.). In that opinion, we determined that disputed issues of fact existed and that the proper vehicle for raising subject matter jurisdiction was a motion to dismiss under F.R.C.P. 12(b)(1). Garcia v. U.S., 1995 WL 493251 (E.D.Pa.), n.1.

 Plaintiffs James Garcia and Evaristo Vazquez have brought claims before us under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA) for circumstances surrounding their detention by customs officers at Newark International Airport on February 3, 1994. Id. at *1. Plaintiffs contend that this court continues to have jurisdiction pursuant to 28 U.S.C. § 1331 and § 1346(b). We previously noted that the Defendant United States' position is that jurisdiction is lacking because Plaintiffs' claim is barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Although we agreed that the customs officers possessed the statutory and regulatory authority to stop passengers under 19 U.S.C. § 1582 and 19 C.F.R. § 162.7, we believed it necessary to allow Plaintiffs an opportunity to prove that the customs inspectors' detention and search of Plaintiffs was unconstitutional and therefore not protected by the discretionary function exception. Id. at *4. While we agreed that the United States had not waived its immunity with respect to constitutional tort claims under the FTCA, we nonetheless concluded that the FTCA "clearly does waive that sovereign immunity for claims based on state law." Id. at *5. Plaintiffs base their substantive claims under the common tort law of New Jersey. *fn1"

 In our previous opinion, we also declined to rule at that time as a matter of law that the customs inspectors' conduct was indeed based upon "reasonable suspicion." In light of our reading of U.S. v. Montoya de Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985), a case we find seminal if not controlling to the issues raised by this case, we stated:

In holding that the detention of a suspected alimentary canal smuggler at the border, beyond the scope of a routine customs search and inspection, must be supported by "reasonable suspicion", the Montoya court specifically left open the question of what level of suspicion would justify the types of searches at issue here. "We suggest no view on what level, if any, is required for nonroutine border searches such as strip, body-cavity or involuntary x-ray searches."

 Garcia v. U.S., 1995 WL 493251 at *5 (quoting Montoya, n.4, 473 U.S. 531 at 541, 87 L. Ed. 2d 381, 105 S. Ct. 3304).

 Because we could not, based upon the record before us, preclude the possibility that the inspector's conduct was unconstitutional, we denied the government's motion to dismiss. After a detailed analysis of the two-pronged discretionary function inquiry, we held that, "provided the conduct of customs inspectors was within constitutional bounds, both prongs of the discretionary function are satisfied." Id. at *7.


 1. James Garcia and Evaristo Vazquez are American citizens of Hispanic descent, both approximately 26 years old, and residing in Bethlehem and Allentown respectively. The two have been good friends for several years. In the latter part of 1993, Mr. Garcia and Mr. Vazquez decided to take a vacation to Jamaica, where Mr. Garcia had been before. On January 17, 1994, Mr. Garcia went to Liz Cruises & Travels, in Bethlehem, Pennsylvania, to purchase their tickets. (Transcript (hereinafter "T.") at 13-14, 50-51)

 2. An employee at Liz Cruises purchased a package vacation that included transportation and lodging for Mr. Garcia and Mr. Vazquez from Friendly Holidays, a major wholesale firm whose size allowed it to secure the lowest prices. The Friendly Holidays corporate office is located in the state of New York. Approximately 95% of all Liz Cruises and Travels' clients are accommodated through such packages, a number that is typical of the industry. (T. at 7, 13)

 3. It is not uncommon for an American traveler to travel with tickets originating outside his or her state of residence. Liz Cruises invoiced Plaintiff Garcia on January 18, 1994 for $ 2594.00 plus a late booking fee of $ 25.00, for the two package tours. The tickets showed a New York origin as a result of Liz Cruises use of Friendly Holidays' New York office. The customs inspectors involved in the detention and search of plaintiffs had no training regarding the practice of travel agencies in purchasing tickets at locations outside a passenger's state of residence. (Plaintiffs' Exhibit 8)

 4. On January 27, 1994, Mr. Vazquez and Mr. Garcia were driven to Newark by another friend with whom arrangements were made to return them to Bethlehem upon their return on February 3, 1994. Mr. Garcia and Mr. Vazquez spent the next seven nights on vacation at the Jamaica Grand in Montigo Bay. On February 3, 1994, they returned to the United States aboard Continental Airlines flight 442. (T. at 16, 38-39)

 5. Both plaintiffs had eaten breakfast in Jamaica and slept on the plane. Upon arriving at Newark International Airport, each man recovered a single checked bag. The plaintiffs testified they were together at the time when they were approached by customs officers. (T. at 17, 37, 52)

 6. It is the mission of the United States Customs Service at Newark International Airport to facilitate passengers arriving from international flights, to protect the revenue of the United States, to enforce its laws and to interdict contraband from entering the country. In response to increasingly frequent cases of internal drug smuggling, the United States Customs Service at Newark has instituted procedures to determine if an entrant into the country is carrying drugs in the body's digestive tract. These procedures provide that if, after conducting a thorough baggage examination and personal search with negative results, an Inspector continues to have reasonable suspicion to believe a passenger has secreted narcotics internally (by swallowing balloons or condoms filled with narcotics), he is to request supervisory approval for an x-ray examination. (T. at 246, 257. Government Exhibit 3, Paragraph A)

 8. The Customs Service has identified Jamaica as a "source country" for smuggling drugs into the United States. Because of a large number of successful drug seizures on Continental Airlines flight 442 from Jamaica, the Customs Service has specifically designated that flight as "high risk" for drug smuggling. (T. at 82)

 9. Defendant United States asserts that for high risk flights, "roving" Customs Inspectors walk the floor and randomly question as many passengers as possible. Plaintiffs assert that Inspectors decide who to search based on "profiles" which take into account factors officially condoned by U.S. Treasury Regulations. *fn3" Plaintiffs further assert that the primary factors in the profile to which they were matched were that they were young and hispanic. As noted in our discussion, numerous cases involving law enforcement personnel, including customs agents, make reference to the use of profiles. *fn4" Nevertheless, there has been no direct proof that a profile was used in the present case and we therefore find that one was not used. As noted in our prior opinion, Plaintiffs also conceded in their brief of July 10, 1995, p.14, n.3, that they did not challenge the initial decisions of the customs inspectors to stop and question them. (T. at 82, 159, 248)

 10. After Mr. Garcia and Mr. Vazquez had retrieved their checked luggage at approximately 5:30 p.m., at or near the so-called Customs "choke point," U.S. Customs Inspector Domenico Calise approached Plaintiff Garcia and asked him for his Customs Declaration, identification and passport and escorted him to an examination table at the rear of the Customs hall, a few feet away. Inspector Calise was coordinator of the passenger analysis team at Newark in February, 1994, and trains other Customs Inspectors around the country in analyzing passenger and smuggling techniques. He has been involved in more than 50 drug seizures, 20 of which were on Continental flight 442 from Jamaica. At or near the same time, Inspector Sebastiano Faraone approached Mr. Vazquez. (T. at 83-85, 134-136)

 11. Neither officer recalled seeing either plaintiff with anyone else at the time. Inspector Calise saw nothing unusual when he first approached Mr. Garcia and saw nothing unusual in his passport. He did not check the Treasury Enforcement Communication System (TECS) databank, which contains a wide breadth of data concerning known or suspected smugglers, for Mr. Garcia's name. At the examination table, Inspector Calise searched Mr. Garcia's luggage. That search revealed no contraband. During the search, Inspector Calise asked him questions concerning his trip. (T. at 20, 99-100, 118-19)

 12. Inspector Calise grew suspicious when he learned that Mr. Garcia (1) had only a small amount of cash with him; (2) presented no explanation of how he was to get home to Bethlehem; (3) when asked how he obtained his ticket, replied he had given cash to "a guy"; (4) displayed nervousness (stepped back from the inspection table, provided "evasive" answer, and gave no eye contact); (5) was unable to identify the occupation of his traveling companion, Mr. Vazquez and (6) gave a conflicting story about the length of his stay, first telling the inspector that his stay in Jamaica was only four days but later changing his story to seven days. (T. at 103, 141, Government Exhibit 8, page 6).

 13. On cross examination, Mr. Garcia clearly admitted that the inspector was confused about the length of his stay and that he told him he did not know if his traveling companion was working. Regardless of who was at fault in causing the confusion, the customs officer clearly did reasonably believe the ...

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