United States of America, Plaintiff-appellant, v. Alberto M. Arends, Defendant-appellee, 776 F.2d 262 (11th Cir. 1985)

Arends was indicted on one count of transporting over $5,000 out of the United States without filing a currency and monetary instrument report, in violation of 31 U.S.C. § 5316(a) (1) (A) and Sec. 5322(b). See also 31 C.F.R. Sec. 103.23 and 103.49(b). The district court granted his motion to suppress the currency because it was seized without a warrant in violation of 31 U.S.C. § 5317(a) (1983).

Canine Officer Eckard, a member of the Customs Service assigned to a special contraband enforcement team for two weeks, discovered over $500,000 in currency during a random search of cargo being shipped from Miami to Aruba. For the most part Eckard used a dog trained to identify drugs or objects that had come into contact with drugs. When Eckard opened the packages containing the currency, his dog was resting. The dog subsequently identified a drug scent on the currency.

At a suppression hearing the district court found that Eckard was primarily searching for currency when he opened the boxes bound for Aruba. He did not have a search warrant. Defendant moved to suppress the currency on the basis of 31 U.S.C. § 5317(a) (1983), which required a warrant showing probable cause to search an individual, place, or object for possible violations of the currency reporting provisions.¹ 

In U.S. v. Chemaly, 741 F.2d 1346 (11th Cir. 1984), rehearing en banc granted, 741 F.2d 1363 (1984), order granting reh'g en banc vacated and panel opinion reinstated, 764 F.2d 747 (1985), this court held that unreported currency discovered after a warrantless search of the defendant was illegally obtained and had to be suppressed. The court applied Sec. 5317 to outgoing searches,²  and relying on the legislative history of the provision found that Congress intended it to apply to persons leaving the country. Chemaly at 1350.

The government asserts that Chemaly does not control this case because the search was of an object while in Chemaly the search was of a person. Section 5317 applies equally to searches of people, places and objects for possible reporting violations. We can find no basis in the statute or in Chemaly for treating searches of objects differently from searches of people.

The government contends that the currency was discovered incident to a valid search for drugs and other contraband and that the district court was plainly erroneous in finding that Eckard was searching for currency. In considering a ruling on a suppression motion all facts must be construed in the light most favorable to the successful party below. U.S. v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir. 1984). Credibility choices made by the district court, U.S. v. Waksal, 709 F.2d 653, 656 n. 4 (11th Cir. 1983), and factual determinations, U.S. v. Newbern, 731 F.2d 744, 747 (11th Cir. 1984), must be upheld unless plainly erroneous.

The government concedes that Eckard was working in conjunction with an intensified two-week program of the Customs Service to enforce the export reporting requirements of the Export Administration Act, 50 U.S.C.App. Sec. 2401 et seq. (1979), and the currency reporting requirements of 31 U.S.C. § 5316. Signs were posted in passenger areas with respect to declaring currency exports, and pamphlets were given out concerning both currency reporting and export licenses and declarations for export of merchandise. Public address announcements gave notice of the same subjects. In response to the government's contention that Eckard inadvertently came across the currency, the district court stated: " [t]he one thing that I am absolutely clear on in my mind, this was a concerted effort to discover money, not incidentally to do it, but to discover it." Tr. at 207. The record supports this conclusion. The finding by the district court was not plainly erroneous.

Chemaly decided that suppression is an appropriate remedy for violation of the warrant requirement of Sec. 5317. 741 F.2d at 1354 n. 2.³ 

AFFIRMED.

JAMES C. HILL, Circuit Judge, specially concurring:

This nation, through its government, may learn, by inspection, what is crossing its borders, with one exception. We held in United States v. Chemaly, 741 F.2d 1346 (11th Cir. 1984) that the life blood of organized crime, currency, may not be inspected without a warrant. Because we are bound by that case, I concur.