Ninth Circuit rejects
defendant’s challenge to border search conducted pursuant to suspicion that
defendant was violating U. S. immigration laws by escorting illegal aliens from
Korea to Hawaii on false passports
On October 19, 1999, the U.S.
Immigration and Naturalization Service (INS) detained two individuals trying to
board a flight to Honolulu from Guam International Airport when they were
unable to answer an INS officer’s questions. Upon review, the officer
discovered that their Taiwanese passports were photo substitutions, and that
their legal names were He and Chen.
Further investigation turned up
the fact that the two had stayed at a Guam hotel that was paid for by the
credit card of one His Huei Tsai. Arrival flight records showed that Tsai was a
passenger not only on the flight He and Chen were trying to board, but also on
the flight He and Chen had taken to Guam. No other passenger was present for
both flights. The INS inferred that the three had been traveling together and
that Tsai was aiding and abetting He and Chen in their effort to enter the U.S.
illegally.
Upon the flight’s arrival at
Honolulu airport, an INS officer stopped Tsai as he deplaned. A search of
Tsai’s valise turned up an airline ticket jacket with the names “Cheng Wen
Ping” and “Chang Ching Hsueh” inside: the names that appeared on the fraudulent
passports of He and Chen. Interrogation of Chen revealed a collaborative alien
smuggling plot in which Tsai and a female escort, using the name “Jessica
Huang,” had initiated a three-legged journey for He and Chen. First, the aliens
flew from Saipan to Seoul with Ms. Huang, using the corporate credit card of a
company called “La Marie Co., Ltd.” Tsai’s wife ran this company, using her
husband’s address in the State of Georgia as its business address. The aliens
stayed in a Korean motel room for several weeks, until Tsai appeared to escort
them to Guam. The final leg of the journey was to consist of the flight from
Guam to Honolulu.
Authorities also found airline
vouchers for a Yee Khong Lim and Gaik Choo Tan in Tsai’s carry-on luggage at
Honolulu airport. From Tsai’s credit card statements, and Chen’s testimony, the
INS concluded that Tsai had escorted Lim and Tam from Saipan to Honolulu one
month earlier, in exactly the same fashion as he had done with He and Chen.
Further investigation uncovered a similar plot that enabled a fifth alien to
travel to Atlanta on a stolen South Korean passport, using the name Ji Yeong
Yun.
The Guam district court found
Tsai guilty on three counts of escorting unauthorized aliens into the United
States for financial gain in violation of 8 U.S.C. Section 1324(a)(2). Tsai
appealed, alleging, inter alia, that the INS search of Tsai’s effects at the
Honolulu airport was unlawful. He argued that the INS inspector knew that the
government suspected Tsai of criminal activity in Guam, and therefore he had
improperly conducted the search for a specific investigative purpose.
The U.S. Court of Appeals for the
Ninth Circuit affirms. The Court views the Honolulu airport as the “functional
equivalent” of a land-border, with respect to searches of international air
travelers. The INS search of Tsai was only minimally intrusive, since it probed
no further than his valise and carry-on luggage.
When the law requires a search
warrant, its scope applies in a broad and general manner. When the law removes
the need for a search warrant, e.g., for border searches, it rescinds it in an
equally broad manner. The Court is unwilling to conclude that the customary,
non-invasive, warrantless search endured by Tsai would be permissible for every
other passenger excepting those under suspicion by the INS of taking part in
criminal activity. The searching officer had reasonable cause to suspect that
Tsai was aiding and abetting aliens in their attempts to penetrate the borders
of the U.S. illegally. He also had grounds to believe that Tsai had thereby
rendered himself ineligible to enter the U.S.
Citation: United States v.
Tsai, 2002 WL 338230 (9th Cir. March 5, 2002).
