forfeited to the United States Government. . . .
31 U.S.C. § 5317(b) - (c) (West Supp. 1990). As amended in 1986, section 5317(b) omitted a previous requirement that Customs agents have "reasonable cause" to believe that currency violations are present before conducting a stop and search. Apparently, the statute now authorizes routine "border stops" to the full extent allowed by the Constitution. Benevento, supra at 69, n. 1.
The legislative history of 31 U.S.C. § 5317(b) indicates that the section was clearly intended to authorize searches on the basis of less than probable cause. Hernandez-Salazar, supra at 1133 (citations omitted).
Moreover, there is nothing in the legislative history which indicates that Congress intended an exclusionary remedy for violations of the statute. U.S. v. Benevento, 836 F.2d 60, 69-70 (9th Cir. 1987) cert. denied 486 U.S. 1043, 108 S. Ct. 2035, 100 L. Ed. 2d 620 . At the same time, courts have also stated that searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border. United States v. Charleus, 871 F.2d 265, 267 (2d Cir. 1989) (quoting United States v. Ramsey, 431 U.S. 606, 616, 52 L. Ed. 2d 617, 97 S. Ct. 1972 (1977)). The border search exception has been held to apply to searches of persons leaving the country. U.S. v. Nates, 831 F.2d 860, 862 (9th Cir. 1987) (citations omitted); California Bankers Ass'n v. Shultz, 416 U.S. 21, 39 L. Ed. 2d 812, 94 S. Ct. 1494 (1974); Julian v. United States, 463 U.S. 1308, 77 L. Ed. 2d 1290, 103 S. Ct. 3522 (1983).
At the post-trial hearing on Obiuwevbi's motion, his counsel called several persons to testify as to the existence of a Customs or policy of harassment by Customs Agents of Nigerians arriving and departing from the United States to Nigeria. That testimony has not led this court to believe that Customs Officials are engaging in any policy of harassment against Nigerians on the basis of their race. The court believes that the Government has clearly demonstrated that there is indeed a history of drug transport by Nigerians travelling to the United States from Nigeria and a history of money laundering by Nigerians leaving the United States for Nigeria. Such a history would justify a search based upon a standard less that probable cause. I do not believe that the Government is free in these situations to search people solely because of their race. However, since the testimony offered by the Government clearly demonstrates that not to be the case, and since the testimony elicited by the witnesses of the defendant does not show otherwise, the court finds that the Government's search was not improper. Therefore, the court finds no credence to the defendant's assertion that the Government was simply "harassing" these Nigerians and the defendant because the Government has a racial prejudice against Nigerians, blacks, or persons of African descent.
From the testimony at the trial and the post-conviction hearing, this court cannot but conclude that even under the "reasonable suspicion" standard, Customs Inspector Personnett's search of Mr. Obiuwevbi was proper because Obiuwevbi fit within the courier profile of the United States Customs Department. In U.S. v. Nates, 831 F.2d 860 (9th Cir. 1987) cert. denied 487 U.S. 1205, 108 S. Ct. 2845, 101 L. Ed. 2d 883, the Court of Appeals for the Ninth Circuit found that a Customs agent had "reasonable cause" to believe that luggage being flown out of United States contained unreported currency and that the agent, therefore, could conduct a warrantless search of the luggage pursuant to the statute because the luggage was bound for Columbia on an airline which was often used by currency smugglers, was heavy and new, and contained no name tags.
The evidence of widespread drug trafficking and money laundering by Nigerians justified the Customs Agent's decision to consider Obiuwevbi's nationality in deciding to search him. The fact that Obiuwevbi is black and is originally from Africa, however, is but an incident of the reason for the Agent's decision to search him. The country of Nigeria and Nigerians traveling to that country were made targets by the Customs Inspectors in Operation Buck Stop. However, not all countries in Africa were made targets by the Customs officials. Nor were all Africans or black persons. Rather, the Customs officials targeted certain countries throughout the world on account of histories of drug trafficking and/or currency violations.
The witnesses who testified for Mr. Obiuwevbi, all of whom were originally from Nigeria, were all very black in color. Afro-Americans, however, are not all of the same exact color (just as all caucasian Americans are not all of the same hue of white). The testifying Nigerians also had dress and speech patterns that were discernable. Observing these characteristics, coupled with the undisputed and overwhelming fact that Nigeria has a very serious problem with drug trafficking, definitely qualifies as a reasonable suspicion necessary to conduct a search under the Fourth Amendment.
A decision to search black persons solely because of their race, or simply because of their African descent would indeed be an injustice and violative of the principles at the core of the Fourth Amendment. However, the overwhelming evidence in this case shows that the Customs Department did not target all black persons. It is an undisputed fact -- not a statement based on racial prejudice -- that the individuals who are most likely to be transporting money illegally out of the country and bringing narcotics back into this country from Nigeria are Nigerians. And those Nigerians happen to be black. It is those persons who were targeted. Moreover, as stated before, it was not the practice of the Customs Inspectors to stop and search all Nigerians. Rather, the Customs officers would stop those acting in a suspicious manner and would not conduct a search until the person stopped demonstrated some further peculiar quality indicative of an awareness of self-guilt. The Government's law enforcement efforts and the national interests of this country would be severely hampered if a quota were set on how many Nigerians the Customs Department could stop and search. Absent a showing of a clear abuse by the Government of the stop and search process towards a particular race or nationality this court will not consider imposing one. The defendant has not come close to making such a showing here.
IV. Conclusion of Law
As mentioned above, Customs Inspector Personnett noticed that Obiuwevbi was standing at the front of the line waiting to board the plane with his arms folded. Obiuwevbi stared at Inspector Personnett. Obiuwevbi did not turn away when Personnett stared back at him. Personnett was in full uniform. Inspector Personnett formed the belief that Obiuwevbi was conducting himself in the manner of a person that is aware of his own guilt and aware that he is engaging in unlawful conduct. There were also approximately five signs posted in the terminal indicating the currency reporting requirement for outbound passengers. The behavior by Obiuwevbi fit a pattern or profile of typical currency violators and of drug couriers. When the agent spoke with Obiuwevbi he could discern from his heavy accent that Obiuwevbi was of Nigerian origin. The agent, being fully aware of Nigeria's immense drug problem and also aware of Obiuwevbi's suspicious conduct, was then put on alert that something was amiss. After further questioning of Obiuwevbi, the agent was quite sure of this. Only then did the agent make a full body search of the defendant. His conduct cannot be said to have been solely based on an irrational prejudice against Africans, or blacks.
Inspector Personnett acted in a manner befitting a Customs Inspector who has studied all of the data collected on international drug trafficking and currency laundering. Personnett also acted based upon his own prior experience in dealing with persons aware of their own illegal conduct. This court believes that Personnett searched Obiuwevbi only after considering all of these factors and forming a reasonable suspicion. This search was not based upon racial prejudice. The court therefore finds that the search of Obiuwevbi was not in violation of the Fourth Amendment, and accordingly, defendant's motion for a new trial is denied.
Defendant Obiuwevbi's motion for a new trial on the grounds that the evidence obtained against him was obtained pursuant to an unconstitutional search is dismissed. The search was well within the scope of the Fourth Amendment. Defendant shall await sentencing by this court.
DATED: April 10, 1991
James B. Parsons, United States District Court Judge