Opinion
February 16, 1993
Appeal from the Family Court, Queens County (Clark, J.).
Ordered that the matter is remitted to the Family Court, Queens County, to hear and report on that branch of the appellant's motion which was to suppress evidence seized from her person, and the appeal is held in abeyance in the interim; the Family Court, Queens County, is to file its report with all convenient speed.
The appellant moved to suppress evidence of the packages of marihuana which were seized from her person by Customs agents at John F. Kennedy International Airport on the ground that the evidence was obtained as a result of an unlawful search and seizure. The prosecution opposed the motion solely on the ground that a pat-down search by Customs agents of a passenger arriving from a foreign country, which occurred here, is constitutionally permissible even in the absence of any suspicion of criminal activity, relying on United States v Montoya de Hernandez ( 473 U.S. 531). The Family Court agreed with the prosecution and summarily denied the request for a Mapp hearing. We find that the Family Court erred in summarily denying the motion on this ground, since the singling out of an arriving passenger for extended detention and a full body pat-down search must be justified by "some level of suspicion" which is based upon legitimate factors (People v Luna, 73 N.Y.2d 173, 179).
The prosecution contends that the motion was nevertheless properly denied because the appellant's moving papers failed to present factual allegations sufficient to warrant a hearing (see, CPL 710.60, [3]; Family Ct Act § 330.2). In the appellant's moving papers, the Law Guardian asserted, based on conversations with the appellant, that the appellant was taken into custody as she was walking in the customs area of the airport after arriving on a flight from Jamaica and that she was not engaged in any suspicious activity at the time. The Law Guardian asserted that the border officials had no objective basis for suspecting the appellant of smuggling. While the affirmation could have been more detailed, we find that the factual allegations were sufficient to warrant a hearing (see, People v Moore, 186 A.D.2d 591; People v Huggins, 162 A.D.2d 129; People v Miller, 162 A.D.2d 248).
We decline to reach the prosecution's remaining arguments regarding People v Luna (supra), as they are better addressed to the Court of Appeals. Mangano, P.J., Bracken, Sullivan and O'Brien, JJ., concur.