Alleged Misconduct of Police In Using Federal Customs Agents at Airport to Conduct Local Investigation by Wrongful Means

In People v. Esposito (37 NY2d 156 [1975]), local airline and police officials suspected baggage handlers at Kennedy International Airport of stealing from passengers' baggage on incoming and outgoing international flights. Unable to pursue their investigation by constitutional means, they decided to use Federal customs officials on the assumption that they were not subject to the same proscriptions. In overturning the search, the Court of Appeals stated: "The 'border search' exception to the requirement of probable cause accorded to customs ... is a limited power. Its purpose is to permit such officials to search for contraband coming into the country without payment of duty or in contravention of statutory prohibitions. It does not extend to searches of baggage going out of the country upon which no duty is payable and on which no prohibitions are placed. As these cases make clear, the limited exception was granted to customs officials for a particular purpose; it may not be used to circumvent the constitutional requirement of probable cause placed upon police officers." (People v. Esposito, supra, at 159-160). Thus, the core evil which the Court of Appeals sought to address in Esposito was the misconduct of local law enforcement in using Federal Customs agents to conduct a local investigation by unlawful means. It is for this proposition that Esposito continues to be cited, not for its discussion of the scope of the border exception. (People v. LePera, 197 AD2d 43 [4th Dept 1994].) Moreover, no appellate court in New York has dealt directly with the application of the border exception to outgoing goods since Esposito was decided. And, in this court's opinion, were the Court of Appeals to address this issue today, it would adopt the rule in effect in virtually every Federal Circuit.