DECISION AND ORDER

The defendant is charged by this Indictment with six (6) counts of Criminal Possession of a Forged Instrument in the Second Degree, Penal Law § 170.25 and one (1) count of Identity Theft in the Second Degree, Penal Law § 190.79. The defendant moves to suppress the statements allegedly made by him and the physical evidence seized pursuant to Section 710.20 of the Criminal Procedure Law. A hearing was conducted pursuant to People v. Huntley, 15 NY2d 72 (1965),Mapp v. Ohio, 367 U.S. 643 (1961) and Dunaway v. New York, 442 U.S. 200 (1979). Officers Jeremy Gomoka, Sonia Moran, Melissa Ackley and Patricia Kustes of the Transportation Security Administration (TSA), Officers Bruce Schaefer and Joseph Ippolito of the Niagara Frontier Transit Authority Police (NFTA) and Agent Michael Zanutto of the United States Secret Service testified at the hearing.

The credible testimony at the hearing revealed that on August 11, 2007 at approximately 12:20 p.m., the defendant entered the secure area in the Greater Buffalo Niagara International Airport to board a Continental Airlines flight from Buffalo to Newark, New Jersey. He showed [*2]attendants a boarding pass and photo identification in the name of Terry Morse in order to enter the secure area. He had a black duffel bag with outside pockets as carry-on luggage as he approached the magnetometers for screening. The defendant followed the protocols required by TSA. He removed his shoes, belt and all metal objects from his person and placed them in the plastic bins provided, which he then placed on the conveyor belt, along with the duffel bag. He passed through the magnetometer and awaited his property. Officer Gomoka observed a mass in the duffel bag on the x-ray machine, the nature of which he could not determine. He alerted Officer Moran who was in the property search position to conduct a more intrusive search to rule out the presence of weapons, explosives or any material potentially dangerous to the airplane. Officer Moran responded immediately. She held up the bag and repositioned it on the conveyor belt and sent it back through but still could not determine what the mass was. She then held the bag up and asked who it belonged to. The defendant told her it was his. She directed him to a table a few feet away from the magnetometer and asked if there was anything sharp that might cut, stick or otherwise injure her. The defendant told her there was an oddly shaped belt buckle inside the bag. Officer Moran opened the side pocket where the x-ray machine showed the mass to be located. She removed an eyeglass case, cigarettes and four (4) white envelopes that were rubber-banded together. Without requesting the defendant's consent or making any inquiry, she removed the rubberbands and opened one of the envelopes. Inside she found a Massachusetts driver's license bearing the defendant's photograph, in the name of Terry Dobbins. There were several credit cards from various banks in the same name, which was also hand written on the outside of the envelope. She opened the other three (3) envelopes and inside each was a Massachusetts driver's license bearing the defendant's photograph, in the name of either Sean Turner or Anthony Buss and several credit cards from various banks in these names. There was a total of 58 credit cards in the four (4) envelopes. TSA officers are trained in the recognition of fraudulent documents and her observations made her suspicious of criminal activity. She asked the defendant if the items were his. The defendant said he was a movie producer and the credit cards and licenses were movie props. It was clear to Officer Moran that the items were not weapons or explosives and no concealed weapons like razor blades were hidden between the cards after she fanned them. She was nevertheless suspicious of the defendant's luggage because she observed different names on photo identification and numerous credit cards in the names on the identifications. She summoned her lead officer, Melissa Ackley, who immediately responded to their location and took over the investigation. The defendant never demanded to leave or indicated his urgency in catching his flight.

Officer Ackley examined the licenses and credit cards and observed that ink jet printing was used instead of microprinting, which is customarily used in both government issued identifications like driver's licenses and credit cards. She asked the defendant about the items and he gave the same answers. She asked to see his boarding pass and photo identification and the defendant gave her the requested items in the name of Terry Morse, which further escalated her suspicion of criminal activity. She summoned her superior officer, Patricia Kustes, who responded immediately. Officer Kustes was similarly suspicious of the defendant after being briefed by Officer Ackley and examining the credit cards and licenses. She asked the defendant about the items and he again gave the same answers. She summoned Behavior Detection Officers Tony DiGiore and Joe Pyjasz, who also work for TSA and they responded immediately. [*3]The officers were similarly briefed and examined at the items. They were similarly suspicious.

Officer Kustes said that TSA standard operating procedures required her to notify a law enforcement officer (NFTA) if she encountered suspicious or invalid forms of identification. TSA could not detain passengers, but they could prevent them from boarding a plane. Since no TSA officer could resolve the situation, they were required by their standard operating procedures to notify NFTA. Officer Schaefer responded to the magnetometer area from the NFTA podium which was nearby. In order to defuse the situation and save the defendant from embarrassment, he brought the defendant to a partitioned area several feet away and asked him questions regarding the items. No guns were drawn, no handcuffs were used, no threats or promises were made and no coercion was used. The defendant separated the Morse license and boarding pass from the pile to indicate his identity. He repeated the items were movie props and furthermore, told Officer Schaefer he did not purchase his airline ticket with any of the 58 credit cards. He also said his employees could not verify the information he provided because his office was closed and he had no relatives who could verify the information. Officer Schaefer called fellow NFTA Officer Ippolito to check the Massachusetts licenses to confirm their validity. He did so and within minutes determined that no such licenses were issued by the State of Massachusetts. The defendant appeared to get pale and sickly looking. When asked if he felt okay, the defendant said he had taken methadone earlier and needed to use the restroom. Before he was permitted to do so, he was told to empty his pockets and he gave the officers a wallet, a New York State driver's license in the name of Joseph Siddons and over $7,000.00 in cash. When he returned from the restroom, Officer Ippolito handcuffed the defendant and transported him in his patrol car to NFTA Police Headquarters. The handcuffs were removed and the defendant was taken into an interview room. Officer Ippolito called a local restaurant and used one of the credit cards to make a purchase and based on the successful use of that card, the defendant was placed under arrest and was advised of the appropriate Miranda warnings and said he understood them. The defendant was again handcuffed while NFTA officers awaited the arrival of Secret Service Agent Zanutto. He arrived at approximately 2:10 p.m. and was briefed by the officers and shown the items. He concluded that the credit cards were fake by the flawed microprinting, holograms and flying V symbol on the Visa cards. He checked the criminal history of the defendant and discovered that he had two (2) credit card fraud cases from Albany, NY and from Washington, DC. The detention of the defendant totaled approximately two (2) hours.

A person must allege standing to suppress evidence by establishing a reasonable expectation of privacy in the place or items searched, People v. Ramirez-Portoreal, 88 NY2d 99 (1996). The defendant has an expectation of privacy in the clothing he wears and the personal effects he carries on his person, as well as in the carry-on bags he travels with that society deems reasonable. However, society has required a diminished expectation of privacy in these things when people travel in airplanes because of the compelling governmental interest in safeguarding passengers in the air and citizens on the ground from the carnage caused by terrorists and hi-jackers. This compelling governmental interest precedes the 9/11 attacks, People v. Marquez, 410 F3d 612 (9th Cir. 2005) and People v. Kuhn, 33 NY2d 203 (1973).

This compelling interest also applies to border crossings, courthouses and government buildings. The means of achieving safety are designed to be only as intrusive as necessary. [*4]These means include magnetometers, x-ray machines and when necessary frisks and searches of persons and personal effects. The average citizen expects to be screened before boarding an airplane or at border crossings or entering courthouses and government buildings. An airport is the functional equivalent of a border and thus, a search there may fit within the border search exception, United States v. Gaviria, 805 F2d 1108 (2nd Circuit 1986). Routine airport screening searches of a person's belongings are made reasonable by that person's decision to fly on an airplane. Routine searches include those searches of outer clothing, luggage, a purse, a wallet, pockets or shoes which unlike a strip search do not substantially infringe on a traveler's privacy rights, United States v. Irving, 452 F3d 110 (2nd Circuit 2004). The search of the defendant's bag conducted by TSA was routine because the level of intrusion was not so great as to degrade or humiliate him. Even a non-routine border search does not offend the Fourth amendment if it is supported by reasonable suspicion. The TSA and NFTA had such reasonable suspicion.

At the Greater Buffalo Niagara International Airport, the defendant followed the routine of the approximately 700 million airline passengers that travel throughout the United States every year on commercial airlines, United States v. Aukai, 497 F3d 955 (9th Cir. 2007). He showed picture identification and a boarding pass. He approached the magnetometer and x-ray machine and followed the protocols. When the x-ray machine revealed an unidentified mass in the duffel bag, the TSA officers were required to investigate further to insure there were no explosives or weapons. Officer Moran acted reasonably and in compliance with TSA standard operating procedures and the Fourth amendment when she opened the defendant's bag. She needed to open the four (4) envelopes and examine their contents to eliminate the possibility that knives or razor blades could have been secreted between the licenses and credit cards. The mere presence of six (6) out-of-state driver's licenses, in three (3) different names, bearing the defendant's photograph and 58 credit cards in those different names was reasonable suspicion to believe that criminal activity was afoot. TSA officers are not police officers and they are unarmed and ill-equipped to forcibly detain persons suspected of criminal activity. However, they work with the NFTA police when such situations arise. For example, where the screening process reveals readily apparent contraband such as drugs or guns, the TSA would alert the police and a warrantless arrest may be made based on the requisite probable cause, Marquez, supra, Aukai, supra and cf. United States v. Louis, 2005 US Dist. Lexis 1087 (USDC SDNY2005).

The defendant contends that the observations the several TSA officers made during their inspection of his bag did not rise to the level of reasonable cause to believe a crime was committed and, therefore, their extended interference with his liberty interests not only humiliated him, it also delayed the countless other would-be travelers in line for screening. The situation he contends, was akin to Rolex watches or bootleg CD's and not drugs, guns or child pornography. Had the TSA officers been authorized to immediately call NFTA police and had they done so, the defendant would not object to their actions. It is the extended detention on less than reasonable cause he contends, that makes it unreasonable.

This Court is satisfied that the TSA had the requisite reasonable cause to notify NFTA police officers. Their indecisiveness in doing so immediately does not diminish the quantum of suspicion just as a police officer's attempts to clarify an emergency before forcibly breaching a door does not defeat the emergency doctrine, People v. Molnar, 98 NY2d 328 (2002). TSA officers should not be penalized for being courteous and non-coercive to airline passengers [*5]before calling on law enforcement officers to resolve matters they are incapable of resolving on their own pursuant to federal rules, regulations and protocols. Under the totality of the circumstances, despite the length of the defendant's detention, the TSA's actions were reasonable. It should also be noted that a traveler without any form of picture identifications would not be prohibited from flying, so long as he was subjected to a more intrusive search of his person and property to insure the airplane's safety. Because the defendant had so many different licenses with his photo and different names, his situation was akin to a person with no identification and, therefore, the more intrusive search and investigation resulting in an extended temporal delay was similarly reasonable.

The defendant contends that notwithstanding the reasonable suspicion of criminal activity in the secure area of an airport, the TSA officers should have permitted the defendant to board the airplane since the officers had determined that the defendant's bag did not contain weapons, explosives or incendiary devices and that is what the screening process is designed to detect and prevent. The People contend that the TSA and NFTA acted reasonably with the least restrictive and least intrusive interference with the defendant's liberty and privacy interests in light of the location of the search in the secure area of the airport. They acted with caution asking investigatory questions, examining the fraudulent documents, calling on superiors and calling law enforcement only as the last resort, after they could not resolve the situation pursuant to their standard operating procedures.

The Fourth amendment prohibits unreasonable searches and seizures, not all interference with the privacy interests of citizens. The defendant would have this Court condone his illegal conduct because he did not pose a threat to the airplane as shown by the security screening process. He argues that bootleg compact discs, Rolex watches or other suspicious discoveries would not have precipitated the same response from TSA officers. He argues that because the licenses and credit cards were not readily apparently contraband and obviously no threat to anyone, the defendant should have been allowed to keep his property and board the airplane.

The touchstone of search and seizure jurisprudence is reasonableness. The conduct of the TSA officers and the NFTA officers, when balanced against the location of the incident in a secure area of the airport, was reasonable. Since Officer Moran was in a legal, lawful position to see the credit cards and licenses, it was virtually impossible to look through them without reading the names on them. Arizona v. Hicks, 480 US 321 (1987) is distinguishable. In Hicks, supra, the officer made a warrantless entry into the defendant's apartment predicated on the exigent circumstances of a shooting through the floor that injured the occupant of the apartment beneath it. During the search, which should have been strictly circumscribed by the exigency that justified its initiation, See, Mincey v. Arizona, 437 US 385 (1978), the officer saw expensive stereo equipment which looked out of place among the squalid conditions present in the apartment. He moved the equipment and recorded the serial numbers which matched that stolen in an armed robbery the defendant was ultimately charged with. The Court held that the actions of the officer constituted a search without probable cause that was unrelated to the exigency and exceeded its permissible scope and therefore, required suppression, See, State v. Crumb, 307 N.J. Super. 204 (1997).

This Court is aware of the societal implications of the exclusionary rule and the realization that the Constitution sometimes insulates the criminality of a few in order to protect [*6]the privacy of many, Hicks, supra. Since the defendant has a diminished expectation of privacy by virtue of his passing through the secure area of an airport, the conduct of the TSA officers, while intrusive, does not offend the United States and the New York State Constitutions. The TSA officers were confronted with a situation they were uncertain how to resolve. They were cautious, but did not restrain the defendant or use force to curtail his movement. He never resisted or refused to answer their questions. His conduct was calculated to convince the screeners that he was a law-abiding citizen. The defendant has two (2) federal credit card fraud convictions and this Court takes judicial notice of his state conviction of Criminal Possession of Stolen Property in the Fourth Degree in assessing the defendant's familiarity with the criminal justice system and knowledge of his constitutional rights. The TSA officers acted reasonably in searching the defendant's bag, seizing the fraudulent documents and calling the NFTA police.

The People have the burden of establishing the voluntariness of a person's statement beyond a reasonable doubt, People v. Witherspoon, 66 NY2d 973 (1985). Miranda warnings are an absolute prerequisite to custodial interrogation, Miranda v. Arizona, 384 U.S. 436 (1966). The test to determine custody is what a reasonable person innocent of any crime would have thought had he been in the defendant's position, People v. Yukl, 25 NY2d 585 (1969). When the defendant first entered the secure area he was not in custody because he and his carry-on bag were being screened for safety and his freedom of movement was not curtailed to any significant extent. At that point, a reasonable person innocent of any crime in the defendant's position would not have believed he was not free to leave. There were no guns drawn, no restraint used and no threats or promises were made by the TSA officers when they asked investigatory questions about the mass they saw in the duffel bag. The did not unreasonably detain the defendant for an extended period of time while they attempted to resolve the situation without calling the NFTA police, People v. Johnson, 91 AD2d 327 (4th Dept. 1983), aff'd. 61 NY2d 932 (1984). The questions were not designed to elicit an incriminating response and the defendant's responses were not entirely responsive to them. Rather, the defendant attempted to innocuously explain the possession of the fraudulent documents. Since the defendant was not in custody, the absence of Miranda warnings by the TSA officers did not vitiate the voluntariness of his statements.

When the NFTA officers became involved in the investigation, the defendant had been detained by three (3) TSA officers and two (2) behavior detection officers for a period of approximately 20 minutes. Officer Schaefer removed the defendant from the public's view to a partitioned area and had possession of the defendant's duffel bag and the licenses and credit cards. Although no restraint was used and no promises or threats were made and no coercion was used, a reasonable person, under the totality of the circumstances, in the defendant's position would not have felt he was free to leave. The questions at this point were not investigatory but accusatory in nature. When Officer Ippolito determined the Massachusetts licenses with the defendant's photo and four (4) different names were not valid, there was probable cause to arrest the defendant. The further detention was custodial and the questioning that ensued should have been preceded by the appropriate Miranda warnings. Since the Miranda warnings were not given to the defendant until after he was arrested at NFTA police headquarters, his statements to Officers Schaefer and Ippolito were not voluntarily made.

Accordingly, the defendant's motion to suppress the statements allegedly made by him to [*7]NFTA officers is GRANTED and the motion to suppress the statements allegedly made by him to TSA officers and the physical evidence seized is DENIED.

This decision constitutes the Order of this Court.

DATED:Buffalo, New York

June 12, 2008



RUSSELL P. BUSCAGLIA

Supreme Court Justice

GRANTED: