Denman, P. J. (dissenting). I respectfully dissent. Defendant was the subject of a routine border stop by a United States Customs officer when questions arose concerning ownership of the vehicle he was driving. During the course of a search of defendant’s vehicle and personal papers, a search that defendant does not challenge, and that in any event was a proper border search (see, United States v Ramsey, 431 US 606, 616; People v Luna, 73 NY2d 173, 176), defendant produced two papers. When the officer examined the papers, which defendant and the majority apparently concede he was entitled to do (see, People v Luna, supra), the officer noted that they resembled gambling records that he had seen in previous cases. The papers contained columns of names or initials and numbers as well as various references to loans, payments, and baseball games, thus giving rise to reasonable suspicion that they were gambling records. Defendant’s conflicting explanations and ultimate reference to an "office pool” served to confirm that suspicion.
Acting on his reasonable suspicion, the Customs officer attempted to contact local police to obtain confirmation that the documents were gambling records. Unsuccessful in that attempt, the officer photocopied the papers before returning them to defendant and releasing him. Subsequently, the Customs officer turned over the photocopies to local police, who commenced prosecution of defendant for possession of gambling records.
The majority concludes that, because the seizure of the *50gambling records was outside the scope of the Customs officer’s limited authority, it was required to be supported by probable cause and that, because the Customs officer lacked probable cause, the papers must be suppressed. I disagree with that analysis because it makes what I consider an erroneous distinction between gambling records and other contraband, such as drugs, that the majority concedes Customs officers are authorized to seize in the exercise of their duties. No such distinction is supported by the established definition of "contraband”, by Federal criminal laws, or by statutes defining a Customs officer’s search and seizure authority.
I agree with the majority that Customs officers have limited authority and do not possess general law enforcement powers (see, People v Esposito, 37 NY2d 156), but disagree with the application of that principle to this case. In Esposito, Customs officers illegally searched the person of the defendant, an airport baggage handler, at the behest of police who were investigating internal airport thefts but lacked particularized suspicion of defendant. Esposito is thus distinguishable, both because it did not involve a border search and because the Customs officers there were obviously acting as agents of the police.
I disagree with the majority’s conclusion that the Customs officer in this case exceeded his authority under Federal law. It is a Federal crime for an individual knowingly to carry or send "in interstate or foreign commerce any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing, or other device used, or to be used, or adapted, devised or designed for use in (a) bookmaking; or (b) wagering pools with respect to a sporting event” (18 USC § 1953 [a]; see also, 18 USC § 545). Thus, the papers imported by defendant constituted contraband. Customs officers are granted broad statutory authority to search for and seize prohibited or illegally imported goods at the border (see, Alexander v United States, 362d 379, 381-383, cert denied 385 US 977). In particular, a Customs officer is authorized to "stop, search, and examine * * * any * * * person * * * on * * * whom he or they shall suspect there is merchandise which * * * shall have been introduced into the United States in any manner contrary to law * * * by the person in possession * * * and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law” and, finding same, "shall seize and secure the same for trial” (19 USC § 482). Similarly, 19 USC *51§ 1496 grants a Customs officer broad authority to examine the "baggage of any person arriving in the United States in order to ascertain what articles are contained therein and whether * * * [they are] prohibited.” Finally, 19 USC § 1595a (c) provides for the seizure of any "merchandise that is [clandestinely] introduced or attempted to be introduced into the United States contrary to law”. The statutory definition of "merchandise” as "chattels of every description” including "merchandise the importation of which is prohibited” (19 USC § 1401 [c]) is certainly broad enough to include gambling records (cf, 19 USC § 1496 ["articles”]).
On the basis of the foregoing Federal laws, I believe that the Customs officer had clear statutory authority to seize the records. Gambling records are contraband under any plausible interpretation of Federal criminal statutes and Customs laws, and the papers in question were lawfully seized by the Customs officer based upon his reasonable suspicion that they constituted gambling records unlawfully imported by defendant (see, 19 USC § 482). It makes no difference that the Customs officer, after photocopying the records and returning the originals to defendant, later forwarded them to State authorities. The Fourth Amendment focuses on the encounter between the Customs agent and the defendant, and whatever happened later could not divest the encounter of its character as a "border search”, nor retroactively invalidate the seizure.
Fallon, Callahan and Doerr, JJ., concur with Green, J.; Denman, P. J., dissents and votes to affirm in a separate opinion.
Judgment reversed, on the law, motion to suppress granted, and indictment dismissed.