Appendix — Chiarito v. United States

APPENDIX A

United States Court of Appeals,

Fifth Circuit.

No. 74-2951

Summary Calendar.*

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel CHIARITO, Defendant-Appellant.

Feb. 6, 1975.

Defendant was convicted in the United States District

Court for the Southern District of Florida at Miami,

Charles B. Fulton, Chief Judge, of importing cocaine and

of possessing cocaine for distribution. Defendant appealed.

The Court of Appeals held that where defendant had not

departed from the customs inspection area of international

airport, he was subject to search by a customs patrol

officer though defendant had already successfully nego-

tiated the baggage checkpoint. Actions of the customs

patrol officer were reasonable where defendant appeared

to be nervous and his vest appeared bulky.

Affirmed.

*Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty

Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

me alan

App. 2

1. Customs Duties—126

Searches and Seizures—7 (10)

Searches conducted by customs inspectors and cus-

toms patrol officers are limited by Fourth Amendment,

but customs inspectors may predicate searches on less than

the “probable cause” required in different circumstances;

border searches are governed by test of reasonable suspi-

cion, rather than that of probable cause. U.S.C.A.Const.

Amend. 4; 19 U.S.C.A. § 482.

2. Customs Duties—126

Where defendant had not departed from customs in-

spection area of international airport, he was subject to

search by customs patrol officer though defendant had

already successfully negotiated baggage checkpoint, and

actions of customs patrol officer were reasonable where

defendant appeared nervous and his vest appeared bulky.

Comprehensive Drug Abuse Prevention and Control Act of

1970, $$ 401(a) (1), 1002(a), 21 U.S.C.A. §§ 841(a) (1),

952(a); U.S.C.A.Const. Amend. 4; 19 U.S.C.A. § 482.

Appeal from the United States District Court for the

Southern District of Florida.

Before GEWIN, GODBOLD and CLARK, Circuit

Judges.

PER CURIAM:

Appellant was convicted of importing cocaine in viola-

tion of 21 U.S.C. 952(a) and of possessing cocaine for

distribution in violation of 21 U.S.C. 841(a)(1). He re-

sora a ‘ aes CRU TGR St Se a ah RR ee

I

App. 3

ceived concurrent four year sentences with a three year

special parole term on each count. We find no merit in

the appellant’s contention that the district court erred in

failing to suppress as evidence cocaine obtained as the

result of an alleged illegal search and seizure. We affirm.

On April 3, 1974 the appellant, enroute from Colom-

bia, South America to Chicago, entered the United States

Customs inspection area at the Miami International Air-

port. After successfully passing through the baggage

checkpoint, but before he exited the Customs inspection

area, the appellant was stopped by a Customs Patrol Of-

ficer escorted to an inspection room and frisked. The

Patrol Officer found a small amount of cocaine wrapped

in a dollar bill in the appellant’s vest pocket. Subsequent

x-rays of appellant’s personal effects revealed more co-

caine hidden in the heels of his shoes.

[1,2] The searches conducted by customs inspectors

and customs patrol officers are, of course, limited by the

Fourth Amendment’s prohibition against unreasonable

searches and seizures. However, in the context of searches

conducted pursuant to the customs and immigration laws,'

the strictures of the Fourth Amendment are ameliorated

by considerations attending the regulation of movement

across national borders. United States v. McDaniel, 463

F.2d 129 (5th Cir. 1972). Stated differently, customs

inspectors may predicate searches on less than the “prob-

able cause” required in different circumstances: “Border

searches are governed by the test of reasonable suspicion,

rather than that of probable cause.” United States v.

Maggard, 451 F.2d 502, 504 (5th Cir. 1971). The question

'19 U.S.C. § 482 is the statute relevant to this case.

App. 4

on appeal is then, whether the activities of the appellant

provided the patrol officer with a reasonable basis for

conducting the disputed search. In arguing that the officer

had no reasonable basis to conduct a search the appellant

places great weight on the fact that he had successfully

negotiated the baggage checkpoint. As earlier indicated,

he had not departed from the customs inspection area of

the international airport. The appellant is apparently

contending that his successful passage through the bag-

| gage line tolled any prior existing suspicion of the customs

patrol officer and that any later search must be based on

some additional suspicious behavior in order to be reason-

able.? The appellant’s position is legally untenable and is

based on a conception of the customs process unsupported

by facts in the record.

The customs inspection process in question involves

both customs patrol officers and customs inspectors. The

inspector is stationed so that he may check the luggage of

incoming passengers while the patrol officer is part of a

plainclothes roving inspection team. The patrol officers

mingle with deplaning passengers both before and after

they pass through the inspector’s checkpoint. The inspec-

tor may, in the event his suspicion is aroused, signal a

patrol officer to conduct a further search subsequent to

the luggage check or a patrol officer may of his own voli-

tion conduct an additional search. The record clearly shows

2United States v. Maggard, 451 F.2d 502 (5th Cir. 1971), cited for

this proposition by the appellant is inapposite. In Maggard the patrol

agents did not have a reasonable suspicion on which to base a search

until they noticed the rear of the vehicle was riding low as the driver

moved away from their check point. In the instant case the customs

patrol officer could have reasonably searched the appellant before he

passed through the luggage line. He needed no additional suspicious

behavior in order to form a sufficient basis for a search.

App. 5

that the baggage check is only one aspect of the customs

inspection process. The inspector testified that, “. . . the

inspector in the booth cannot see the passenger completely.

All he can see is from the waist up, and anything that’s

in front of you, with the baggage in front of you, you

can’t exactly see the complete posture of the man or

woman in front of you. You have to depend on somebody

else to do that for you. If we see it, we refer it.” In any

event a suspect is not immune from further examination

by customs agents by virtue of having passed an initial

customs checkpoint. United States v. Maggard, 451 F.2d

502 (1971). The pertinent legal issue is always whether

the inspectors or the officers have a reasonable basis on

which to conduct a search and this question is unaffected

by the progress of the passenger through the customs

process.

Customs Patrol Officer Payette, a man with more

than three years of customs experience, indicated that the

basis for his search consisted of the nervous appearance

and actions of the appellant as well as the bulky nature of

appellant’s vest. Payette also testified that the origin and

ultimate destination of appellant’s flight increased his

suspicion. The officer also stated that at the time he took

the appellant into custody he suspected the appellant’s

cameras might be subject to duty. We believe that the

actions of the customs patrol officer were reasonable

under the facts and in the circumstances revealed by the

record. See, e. g., United tSates v. McDaniel, 463 F.2d

129 (5th Cir. 1972) ; United States v. Maggard, 451 F.2d

502 (5th Cir. 1971).

Affirmed.

App. 6

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 74-2951

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL CHIARITO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

ON PETITION FOR REHEARING

[Filed March 6, 1975]

Before GEWIN, GODBOLD and CLARK, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby Denied.

x

LES BI ES EWG INSERTS EY IOUS STINE BIH le SETI PET REE ING IRE TTL Ce ays . = }

CERTIFICATE OF SERVICE

I DO HEREBY CERTIFY that a true copy of the

foregoing Petition for Writ of Certiorari was mailed, pur-

suant to Supreme Court Rule 33, to U.S. ATTORNEY

and DONALD L. FERGUSON, ESQ., Assistant U.S. At-

torney, Attorney for Respondent, 300 Ainsley Building,

Miami, Florida 33132; and the SOLICITOR GENERAL,

Department of Justice, Washington, D.C. 20530, this ____

day of April, 1975.

ARNOLD R. GINSBERG

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