United States v. Carlos Nates

831 F.2d 860, 1987 U.S. App. LEXIS 14423

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 30, 1987
• Docket: 86-5247
• Status: Published

Opinions

WIGGINS, Circuit Judge:

Following the district court's denial of his motion to suppress evidence, Carlos Nates entered a conditional guilty plea under Fed.R.Crim.P. 11(a)(2) to one count of making a false statement to a government agency in violation of 18 U.S.C. § 1001 and one count of failing to report transporting currency in violation of 31 U.S.C. § 5316(a)(1)(A). The court sentenced him to eighteen months imprisonment. Nates appeals his conviction and sentence on the grounds that: (1) 31 U.S.C. § 5317(b) (Supp. Ill 1985) [hereinafter § 5317(b)] (current version at 31 U.S.C.A. § 5317(b) (West Supp.1987)) violates the fourth amendment of the Constitution by authorizing unreasonable searches and seizures; and (2) the district court erred in finding the customs officer had reasonable cause to search his luggage under § 5317(b). We affirm.

FACTS

United States customs agent Ausalon Miramontes was on duty at Los Angeles International Airport on April 29, 1986 visually inspecting baggage checked onto Avianca Airlines flight 81 bound for Bogota, Colombia. He was seeking to discover baggage carrying large amounts of undeclared currency from the United States. Miramontes selected Nates’ two bags for inspection because they were new (one still bearing a price tag), had no passenger name tag, and were unusually heavy. He opened the bag with the price tag, discovered $2,000 in a towelettes container, and noticed a portable electric organ smelling strongly of glue. Alerted customs agents stopped Nates as he was about to board flight 81, matched his baggage claim number to the baggage Miramontes inspected, and explained the currency reporting law to him in English and Spanish. Nates reported that he was not transporting more than $2,000 out of the country. The agents brought Nates to the customs office where he claimed the suitcases. In Nates’ presence Miramontes continued to search the baggage. He removed the rear panel of the electric organ and discovered $105,000. The agents also found $2,769 in Nates’ possession for a total sum of $109,769.

Nates moved to suppress the evidence on the grounds that the search violated § 5317(b) and the fourth amendment. The district court denied the motion ruling that the customs agents had reasonable suspicion to inspect the luggage as required under § 5317(b).

DISCUSSION

I. Constitutionality of § 5317(b)

Nates claims that § 5317(b) is unconstitutional because travelers who are leaving the United States may not be searched without a search warrant or probable cause. This is a question of law, which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Miramontes searched Nates’ luggage under authority of § 5317(b) which stated at the time:

A customs officer may stop and search, without a search warrant, a vehicle, vessel, aircraft, or other conveyance, envelope or other container, or 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.

Section 5316 requires persons transporting more than $10,000 in currency into or outside of the United States to report the currency to customs officials. Although the Ninth Circuit has not expressly addressed the constitutionality of § 5317(b), prior precedent effectively forecloses the issue. The border search exception to the fourth amendment, which allows a search to be initiated without a warrant, probable cause or articulable suspicion, applies to exit searches. United States v. Whiting, 781 F.2d 692, 695 (9th Cir.1986); United States v. Cardona, 769 F.2d 625, 628 (9th Cir.1985); United States v. Duncan, 693 F.2d 971, 977 (9th Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); accord United States v. Udofot, 711 F.2d 831, 839-40 (8th Cir.), cert. denied, 464 U.S. 896, 104 S.Ct. 245, 78 L.Ed.2d 234 (1983); United States v. Ajlouny, 629 F.2d 830, 833-34 (2d Cir. 1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840 (1981). The rule has been criticized in dissent, Duncan, 693 F.2d at 983-84 (Fletcher, J. dissenting), and in dicta, United States v. Des Jardins, 747 F.2d 499, 503-04 (9th Cir.1984), modified in part on other grounds, 772 F.2d 578 (1985), but has not been overruled. This circuit holds that a suspicionless exit border search is constitutional. A fortiori, § 5317(b), requiring reasonable cause, is also constitutional.

II. Reasonable Cause

The government does not argue that it could search Nates’ luggage for unreported currency under the border search exception. It conceded below that the statute's “reasonable cause to believe” standard applies. Reasonable cause is a mixed question of law and fact, reviewed de novo. United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir.1987); United States v. Most, 789 F.2d 1411, 1415 (9th Cir.1986).

The government contends the customs agent had reasonable cause to believe that Nates’ luggage contained unreported currency before he initiated his search. It claims five factors satisfy the requirement: the bags were destined for Bogota, Colombia, a known source-country for narcotics; Avianca Airlines flight 81 is a flight often used by currency smugglers; the bags had no name identification tags; the bags were brand new and unusually heavy. The district court found that the agent did not select all bags, nor select them randomly. It also found that the agent used credible professional judgment based on an evaluation of objective criteria, i.e. weight and appearance of bags, before selecting any particular bag to search. The court concluded that the agent had reasonable cause.

The Supreme Court has not construed the “reasonable cause to believe” standard of § 5317(b). It has construed another statute that mandates a “reasonable cause to suspect” standard in regulating customs searches, 19 U.S.C. § 482, which provides in part: “Any [customs agent] may ... search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law____” In United States v. Ramsey, 431 U.S. 606, 614, 97 S.Ct. 1972, 1977, 52 L.Ed.2d 617 (1977), the Court ruled the customs agent had “reasonable ‘cause to suspect’ ” that there was contraband in a letter under § 482 because it came from Thailand, was bulky and weighed more than a normal letter. Though slightly different (reasonable cause to suspect rather than reasonable cause to believe), the similar phraseology and similar context (customs searches of international mail) justify analogizing to § 5317(b). See United States v. Hernandez-Salazar, 813 F.2d 1126, 1135 n. 32 (11th Cir.1987) (one purpose of § 5317(b) is to allow search for currency in course of search for contraband under § 482, therefore § 482 can provide guidance on level of suspicion required under § 5317(b)).

This circuit has equated the “reasonable cause to suspect” standard under § 482 with “reasonable suspicion”, and has defined the test as one milder than that of “probable cause”. Most, 789 F.2d at 1415. “To justify a search under § 482 on the basis of reasonable suspicion, an official must be aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the package contains illegal material.” Id. In Most, the customs agent had reasonable cause to open a mailed package because it came from a source country, the label described a cheap article, and it weighed more than expected. Id. at 1416; see also United States v. Dubrofsky, 581 F.2d 208, 211 (9th Cir.1978) (“ ‘[reasonable cause to suspect’ is a considerably milder standard than probable cause” and it is reasonable to suspect that a crated container imported from Thailand contains narcotics). Thus, the Supreme Court and this circuit have held that external characteristics of a container from a suspect country, alone, are sufficient to establish reasonable cause under § 482.

The Eleventh Circuit has analyzed § 5317(b)’s reasonable cause standard when applied to an inspection of luggage. In Hernandez-Salazar, 813 F.2d at 1134, the court concluded that the agent’s search of luggage¹ under a reasonable suspicion standard was justified because the suitcase was destined for Colombia on Avianca Airlines, was hard-sided, had no name identification tag, and was unusually heavy. The reasons cited by the government for using those factors were that: Avianca’s track record indicated use by currency smugglers, hard-sided luggage could often be equipped with false sides, heavy bags were more likely to have false-sides, and bags without name tags were suspicious. Id. at 1130 & 1130 n. 14.

The factors used in Hernandez-Salazar are similar to those in Nates’ case; the luggage was bound for Columbia on Avian-ca airlines, it was new, heavy, and without name tags. We find the customs agent had reasonable cause to inspect Nates’ luggage. The § 482 cases and HemandezSalazar provide sufficiently analogous precedent.²

CONCLUSION

Section 5317(b) is constitutional. The customs agent had reasonable cause to inspect Nates’ baggage, therefore we affirm.

1 . The search was conducted, as in this case, outside the presence of any passengers. Hernandez-Salazar, 813 F.2d at 1130 n. 15.

2 . Moreover, Congress has indicated by its latest amendment that it does not want more stringent standards applied to exit searches of persons or luggage than can now be conducted by customs agents in any other context under the border search exception. The current version of the statute states:

Searches at border. — For purposes of ensuring compliance with the requirements of section 5316, a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States.

31 U.S.C.A. § 5317(b) (West Supp.1987).