Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Criminal No. 90-00230-01.
Stapleton, Scirica and Aldisert, Circuit Judges.
The question for decision in this appeal by the United States is whether the fourth amendment "border search" exception to the requirement of probable cause, reasonable suspicion or a warrant applies to outgoing as well as to incoming border searches of luggage. The district court determined that there was no justification for applying the border search exception to outgoing searches. We disagree, and for the reasons that follow, will reverse.
Jurisdiction was proper in the trial court based on 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3731. The appeal was timely filed under Rule 4(b), F.R.A.P.
On April 18, 1990, a team of U.S. Customs inspectors conducted operations at the Philadelphia International Airport. The team--consisting of Inspectors Sammaciccia, Taylor and Williams--was an Exodus team responsible for examining outbound shipments from the United States for currency, high technology items, munitions, stolen vehicles and other forms of contraband.
The inspectors targeted Lufthansa Flight #415 to Frankfurt, Germany for what was called a "buck stop" operation. The main focus of this operation was to uncover large amounts of unreported currency leaving the United States, but the inspectors were also looking for prohibited munitions and high technology items. They selected the Lufthansa flight because Frankfurt has air connections to many high-risk areas for currency exportation, including Lagos, Nigeria, Lebanon and Pakistan, which are specifically associated with heroin trafficking.
To facilitate their selection of passengers who might present a suspicious profile, the inspectors obtained a list of passengers with connections out of Frankfurt. The inspectors then chose four persons for further review--two persons going on to Lagos, Nigeria, one going on to Zurich, Switzerland, and Vincent Ezeiruaku, who was ticketed to Brussels.
Inspector Sammaciccia testified that he saw an expensively dressed man and a female at the Lufthansa counter. At the man's feet were two very large brown suitcases, a suit bag and a briefcase. The man appeared to be paying the Lufthansa representative in cash. Inspector Sammaciccia stated that, based on past experience, travelers usually pay for tickets with credit cards and that he viewed passengers who pay with cash to be "highly suspect." Sammaciccia subsequently spoke to the Lufthansa representative, who advised him that although the man's ticket had not been paid for with cash, he had used the cash to pay for the overweight charges on his bags. The Lufthansa representative identified the man as Ezeiruaku.
While Sammaciccia was speaking to the Lufthansa representative, Inspector Taylor noticed that the woman with Ezeiruaku was acting overly concerned with that conversation, and looking nervously at Inspectors Sammaciccia and Taylor. Inspector Taylor reported the woman's actions to Sammaciccia. At that point, Inspectors Day, Benedetti, Spade and Hughes and Special Agent Solon Chamberlain went to question the people they had selected from the Lufthansa connection list.
In the security area for outbound international flights, Ezeiruaku approached Inspector Sammaciccia and asked him for the location of a drinking fountain. Inspector Sammaciccia determined that Ezeiruaku's accent was Nigerian. Inspector Day, who had 19 years of Customs experience, joined the outbound inspectors. After reviewing the list of passengers with connections out of Frankfurt, Day focused on another individual going to Nigeria, two persons going to Zurich and Ezeiruaku. Inspector Sammaciccia told Day that Ezeiruaku had paid cash for overweight luggage, and Taylor recounted that Ezeiruaku's female companion had shown an "abnormal interest in the Customs in the area." Because Ezeiruaku's name appeared twice on the connection list, Inspector Day thought that the female companion was also a passenger. From intelligence reports, lookouts and records of seizures and arrests in other ports, Day knew that Nigerians were at risk for taking money and merchandise, including high technology goods and other merchandise requiring an export license, out of the United States.
At that point, Inspectors Day and Taylor went to inspect the checked luggage that was being placed in containers to be loaded on the plane. Day intended to look first at Ezeiruaku's bags and then at the bags of others on the flight. He found Ezeiruaku's bags outside the building, ready to be loaded on the plane. The inspectors then searched the bags. In one of the bags, they found documents relating to the shipping of cars to Nigeria. In the other bag, Inspector Day found $265,000 in cash, contained in $2,000 packs of $20 bills separately wrapped in carbon paper, and all wrapped in a rubber bath mat.
The officers conducted the search in an area not visible from the terminal. Day testified that bags usually are chosen for inspection based on factors such as size and destination. He gave several reasons for deciding to search Ezeiruaku's bags--his destination, that he paid cash at the ticket counter and that the female companion was "very nervous and had excessive interest in the Customs officers." Day said also that based his decision was based on previous seizures, computer information and his own experience. He was aware of previous cases of seizures from both Nigerian nationals and United States citizens of Nigerian descent on outbound flights.
While Inspectors Day and Taylor were inspecting checked luggage, a Lufthansa representative announced over the loudspeaker that anyone transporting more than $10,000 in currency out of the country had to file a Customs form. Posters including that information were displayed at several spots in the security area.
Inspector Sammaciccia spoke with Ezeiruaku, who acknowledged that he had heard the currency announcement but denied having over $10,000 on him or in his checked luggage. He said that he owned a gas station and was going to Brussels on business. Sammaciccia considered it odd that a gas station owner would go to Brussels on business and asked Ezeiruaku why. Ezeiruaku answered that he exported and imported beauty products and shrimp, and consented to a search of his hand-carried briefcase. Looking for currency and export permits related to Ezeiruaku's claimed business, Sammaciccia found a "large wad of American money" banded and folded over. To avoid putting Ezeiruaku in danger by examining him in front of the other passengers, Sammaciccia asked him to go to a nearby room used by security personnel on their breaks. Ezeiruaku had approximately $2,000 in $20 bills in the briefcase.
Continuing his examination of the briefcase, Sammaciccia found documents indicating shipments to Nigeria. Ezeiruaku told Sammaciccia that he was born in Nigeria but was now a naturalized U.S. citizen. Sammaciccia then received a radio call from Inspector Day, who asked him to go to the checked luggage area, where Sammaciccia saw at least $20,000 of what was later determined to be $265,000 in cash. Inspector Day had begun his search at approximately 3:40 p.m., and had radioed Sammaciccia at approximately 3:55 p.m., about five minutes after Sammaciccia had first spoken to Ezeiruaku in the boarding line. After viewing the money in the checked luggage and verifying that the bags were Ezeiruaku's, Sammaciccia returned to the break room, conferred with Special Agent Chamberlain and advised the airline and Ezeiruaku that he would not be making the flight.
After the inspectors found the cash, they placed Ezeiruaku under arrest. They gave him Miranda warnings on more than one occasion. After saying that he wanted to think about whether he would talk with Agent Chamberlain, Ezeiruaku asked to speak with Special Agent Rovello. He was ...