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UNITED STATES v. MIRMELLI

July 29, 1976

UNITED STATES of America, Plaintiff,
v.
Errol Jay MIRMELLI, Defendant



The opinion of the court was delivered by: LACEY

 On May 24, 1976, a motion was made by defendant Mirmelli to suppress evidence obtained in the above-entitled case pursuant to Rules 41(f) and 12(b) of the Federal Rules of Criminal Procedure. A hearing on the motion took place on March 24 and continued to March 25, 1976, prior to the commencement of trial. At the conclusion of the hearing the motion was denied based on the following findings of fact and conclusions of law.

 Defendant Mirmelli, on March 22, 1976, piloted an aircraft N815G which departed Opa Locka Airport, Opa Locka, Florida, his flight plan indicating that his destination was Portland International Jetport, Portland, Maine. Stipulation of June 9, 1976. During the flight, the flight plan was amended to reflect that defendant was to land at Teterboro Airport, Teterboro, New Jersey. Id. At approximately 1:15 p.m., the aircraft landed at Teterboro Airport and taxied to the Atlantic Aviation area where defendant signed in. A blue Dodge van with New York registration arrived and defendant and three companions began to unload the cargo from the plane into the van. The cargo consisted of approximately 53 numbered boxes. Approximately 35-40 feet away, through a window in the Customs Office, customs inspectors observed defendant and his companions unloading the aircraft. They approached the aircraft and questioned defendant as to the contents of the boxes and the point of origin of both the flight and the cargo. Defendant responded that the boxes contained ceramics and that he had flown up from Florida. The inspectors requested invoices or bills of lading, to which defendant responded that he had none and was unaware of the destination of the boxes. When defendant was asked to open one of the boxes, he refused. Inspector Wood opened one box and found that it contained marijuana. All 53 boxes when opened were found to contain marijuana.

 On March 30, 1976, the Grand Jury returned an indictment against defendant charging him with travelling in interstate commerce for the purpose of distributing 1,695 pounds of marijuana and with carrying on said unlawful activity in violation of 18 U.S.C. § 1952. Count II charged him with the knowing possession with the intent to distribute approximately 1,695 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1).

 Defendant's motion to suppress is based on two grounds. Defendant argues that the search performed by the customs agents violated the fourth amendment in that the agents did not have the requisite probable cause to support the search. While conceding that customs agents can predicate a border stop on reasonable suspicion rather than probable cause, he denies that the questioning of defendant amounted to a border stop. Finally, defendant contends that even if the reasonable suspicion test was applicable, that standard was not met.

 Two types of airports provide for international air traffic. Aircraft arriving from a foreign country may land at either an "international airport" as that term is designated in 19 C.F.R. § 6.13 or a "landing rights airport." According to the Customs Guide for Private Flyers, published by the Department of the Treasury, United States Customs Service, at 3 (1973):

 
The term "landing rights airport" means an airport at which permission to land may be granted by the appropriate Customs officer with the concurrence of the Immigration and Naturalization Service, the Public Health Service, and the Animal and Plant Health Inspection Service of the Department of Agriculture. Such landing rights are required before an aircraft may land at an airport which has not been designated for Customs purposes as an international airport.

 Permanent facilities for inspection and clearance exist at Teterboro and customs inspectors are permanently assigned to that facility. See Customs Guide at 25. The Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S. Ct. 2535, 2539, 37 L. Ed. 2d 596 (1975), provided that a routine border search may take place at the border itself or at its "functional equivalents." As an example it specified that

 
a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.

 Id. Teterboro Airport, then, is the functional equivalent of the border and customs officials there are empowered to perform border searches.

 Because of the peculiar problems faced by customs officials in policing borders and international airports, broad interpretation is given to their statutory powers and special standards are applied to their searches and seizures at these places. United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S. Ct. 999, 22 L. Ed. 2d 126 (1969). The fourth amendment, however, imposes limits on search and seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. See United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); United States v. Ortiz, 422 U.S. 891, 895, 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975); Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967).

 In delineating the constitutional safeguards applicable in particular contexts, the court must weigh the public interest against the fourth amendment interest of the individual. United States v. Brignoni-Ponce, supra, 422 U.S. at 878, 95 S. Ct. 2574; Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

 I note here the substantiality of the public interest in the practice of routine checks for inquiry at border checkpoints, a practice identified as very important from the standpoint of inhibiting illegal drug traffic. While the need to prevent drug traffic is great, the consequent intrusion on fourth amendment interests is rather limited. The stop does intrude to a limited extent on a right to "free passage without interruption," Carroll v. United States, 267 U.S. 132, 154, 45 S. Ct. 280, 69 L. Ed. 543 (1925). But the detention is a brief one during which, like that requirement in United States v. Brignoni-Ponce, supra, 422 U.S. at 880, 95 S. Ct. at 2580, for an illegal aliens search, all that is required of the pilot is "a response to a brief question or two and possibly the production of a document" evidencing citizenship or the fact that the flight was not international.

 Some quantum of individualized suspicion is a prerequisite to a constitutional search and seizure in these circumstances although "the Fourth Amendment imposes no irreducible requirement of such suspicion." United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 3084, 49 L. Ed. 2d 1116 (1976). See also Almedia-Sanchez v. United States, supra, 413 U.S. at 283-85, 93 S. Ct. 2535 (Powell, J., concurring); id. at 288, 93 S. Ct. at 2535 (White, J., dissenting); United States v. Biswell, 406 U.S. 311, 315-16, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 76-77, 90 S. Ct. 774, 25 L. Ed. 2d ...


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