United States v. Don Bruce Duncan

dissenting:

• Because I disagree with two important aspects of the majority’s opinion, I must respectfully dissent.

I. Legality of the Stop and Search of Duncan.

I find the majority’s approach to the question of the legality of the stop and seizure in this case flawed in several respects.

*981 The first question in assessing the validity of a search conducted by federal officials must be whether the official in question is acting pursuant to some statutory or other authority. Only if some purported authority is shown must we continue to the second question, that is, whether the grant of .authority for the search is itself consistent with the fourth amendment and thus constitutional. The Supreme Court has repeatedly .employed this two-step analysis. See, e.g., United States v. Ramsey, 431 U.S. 606, 615 , 97 S.Ct. 1972, 1978 , 52 L.Ed.2d 617 (1977); United States v. Brignoni-Ponce, 422 U.S. 873, 876-78 , 95 S.Ct. 2574, 2577-78 , 45 L.Ed.2d 607 (1975).

In United States v. Williams, 617 F.2d 1063, 1074 (5th Cir.1980) (en banc), the Fifth Circuit discussed the correct procedure for inquiry - concerning a search by federal officials. The court concluded that a search carried out by…

Don Bruce Duncan, appellant, was convicted in a jury trial of making a false statement to Customs agents, in violation of 18 U.S.C. § 1001 . We affirm.

FACTS

At approximately 11:00 P.M. on April 3, 1980, United States Customs Special Agents Darryl M. Henry, Donald K. Shruhan, Jr. and C.K. Lauridsen were on assignment at Los Angeles International Airport. They were to survey and, if necessary, search departing passengers to ensure the compliance of international travelers with federal currency laws.

While observing passengers in the boarding area of Braniff Airlines Flight 923, to Bogota, Colombia, Agent Henry noticed Duncan. The agent, in his declaration submitted in Opposition to Duncan’s suppression motion, stated that Duncan did not “have the same demeanor as the other passengers and did not appear ... to be someone looking forward to a trip out of the United States.” Henry also noticed that Duncan was traveling alone, not talking to others in the lounge, and that he appeared to be looking for someone. Agent Henry had eight years’ experience with Customs. He believed that appellant Duncan met the narcotics/currency violator profile used by Customs to identify potential…

693 F.2d 971 12 Fed. R. Evid. Serv. 82 UNITED STATES of America, Plaintiff-Appellee, v. Don Bruce DUNCAN, Defendant-Appellant. No. 80-1459. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 7, 1981. Decided Dec. 3, 1982. Robert Mann, Mark Green, P.C., Los Angeles, Cal., for defendant-appellant. George L. O'Connell, Asst. U.S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee; Charles Pereyra, Asst. U.S. Atty., Los Angeles, Cal., on brief. Appeal from the United States District Court for the Central District of California. Before FLETCHER and ALARCON, Circuit Judges and BURNS * , District Judge. ALARCON, Circuit Judge: 1 Don Bruce Duncan, appellant, was convicted in a jury trial of making a false statement to Customs agents, in violation of 18 U.S.C. Sec. 1001 . We affirm. FACTS 2 At approximately 11:00 P.M. on April 3, 1980, United States Customs Special Agents Darryl M. Henry, Donald K. Shruhan, Jr. and C.K. Lauridsen were on assignment at Los Angeles International Airport. They were to survey and, if necessary, search departing passengers to ensure the compliance of international travelers with federal currency laws. 3 While observing passengers in…