Melvin Corngold v. United States

367 F.2d 1, 1966 U.S. App. LEXIS 4865

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 29, 1966
• Docket: 19613_1
• Status: Published

Opinions

BROWNING, Circuit Judge:

Melvin Corngold was convicted of receiving and concealing smuggled watches in violation of 18 U.S.C.A. § 545, and of conspiring to commit that offense in violation of 18 U.S.C.A. § 371. He appeals, contending that evidence introduced against him was obtained in violation of the Fourth Amendment. We reverse.

Customs agents saw appellant carrying packages into his apartment house. They detected the presence of radioactive material in appellant’s apartment by means of a “scintillator,” an instrument sensitive to radiation. They observed appellant and two other men carry packages from the apartment to appellant’s car, and followed appellant as he drove to the Los Angeles International Airport. En route the scintillator indicated the presence of radioactive material in appellant’s car. At the airport the customs agents observed appellant and the two others carry the packages to the Trans World Airlines’ cargo loading platform. After arranging for shipment of the packages to New York City, appellant and his companions left. The customs agents tested the packages with the scintillator and obtained a positive reaction. One of the packages was opened and found to contain a large quantity of watches with radium-treated dials. The opened package was resealed, and the three packages were flown to New York City. By prearrangment, customs agents met the plane on arrival in New York City, and maintained a constant surveillance of the packages until they were claimed three weeks later. Several persons were arrested. The day following the New York arrests appellant was arrested in his Los Angeles office.

I

Appellant contends that the walls of his apartment were “penetrated” and his apartment was searched by means of the scintillation detector in violation of his Fourth Amendment rights, and that it was error to admit evidence obtained in this way.

The agents entered the apartment building through an unlocked public entrance. They employed the scintillator in public hallways outside appellant’s apartment. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), is controlling authority that appellant’s Fourth Amendment rights were not violated. See also On Lee v. United States, 343 U.S. 747, 752-754, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

II

Appellant asserts that opening the packages at Los Angeles International Airport and inspecting their contents was an unconstitutional search.

1. The officers had no warrant, and there were no circumstances which might have justified a search without one. No arrest was made to which a search without a warrant might be incident. The government made no showing that the packages might be removed before a warrant could be obtained. Appellant was not threatening to remove them, nor was the airline, except under such conditions as the officers saw fit to impose. From the time appellant left the packages with the carrier in Los Angeles they were subject to the effective control of the customs agents. There was nothing to prevent the agents from securing a warrant on a proper showing, either before the packages were shipped from Los Angeles or after they arrived in New York. On this record, search without a warrant was not justified even if the customs agents had probable cause to believe the packages contained contraband. Chapman v. United States, 365 U.S. 610, 613-616, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Jones v. United States, 357 U.S. 493, 497-498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); United States v. Jeffers, 342 U.S. 48, 51-52, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925).¹

2. The government makes a passing suggestion that authority for the search may be found in 19 U.S.C.A, § 482 — a broad delegation of authority to . customs agents to search and seize illegally imported merchandise. We have treated the outer limits of authority delegated by the statute as available only in border searches (Cervantes v. United States, 263 F.2d 800, 803, n. 5 (9th Cir. 1959); see e. g., King v. United States, 348 F.2d 814 (9th Cir. 1965); Denton v. United States, 310 F.2d 129, 132 (9th Cir. 1962); Plazola v. United States, 291 F.2d 56, 61 (9th Cir. 1961); Witt v. United States, 287 F.2d 389, 391 (9th Cir. 1961); Murgia v. United States, 285 F.2d 14, 17 (9th Cir. 1960)),² and there is nothing in the record to suggest that the search of appellant’s packages occurred in the course of an entry into this country. However, we need not examine the statute’s precise meaning, for appellant’s attack upon the search of his package is based solely on constitutional grounds; and, however it is to be read, the statute could not effectively authorize a search which the Constitution prohibited. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 523, 29 L.Ed. 746 (1886).

f 3. The government’s principal contention is that the search was a private one, conducted by an employee of Trans World Airlines pursuant to a right of inspection reserved in the contract of carriage. The government places primary reliance upon United States v. Blum, 329 F.2d 49 (2d Cir. 1964). Its argument also appears to invoke the principle that the Fourth Amendment restricts only the sovereign, and therefore the exclusionary rule does not apply to evidence secured by private persons without governmental participation. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Goldberg, 330 F.2d 30, 35 (3d Cir. 1964) ; United States v. Ashby, 245 F.2d 684, 686 (5th Cir. 1957). See also Irvine v. People of State of California, 347 U.S. 128, 136, 74 S.Ct. 381, 98 L.Ed. 561 (1954).

The district court did not make explicit findings as to the circumstance surrounding the search, but there was no substantial disagreement as to what occurred.

While appellant was at the counter talking with the TWA transportation agent who was preparing the waybill, a customs agent approached TWA’s ramp manager and identified himself. He asked the ramp manager to talk with appellant’s two companions, who were waiting nearby, and find out what he could about the shipment, including the nature of the merchandise, to whom it was going, and how often such shipments were made. The agent also asked the ramp manager to observe appellant and his companions so he could identify them later. He asked the ramp manager to show him where the packages were. The ramp manager did as the agent requested. After looking at the packages, the agent left.

After appellant and his companions departed, the four customs agents returned and spoke to TWA’s transportation agent. They conducted a scintillator test of the packages for his benefit, and told him they suspected the packages contained watches. They gave him appellant’s true name and pointed out that this was not the name of the shipper appearing on the waybill. They asked him if he had authority to open the packages, and he stated that he did. They then asked him if he wanted to open the packages, and told him that if he did they wanted to be with him. He then read the inspection clause of the TWA tariff,³ and telephoned his supervisor.

Thereupon, one agent testified, the TWA transportation agent “initially opened the package and then we helped”; and, further, after the TWA employee opened the package, “I aided him.in holding the flaps so he could look inside and we could look inside.” The other agent testified, “I helped open it up after he initially broke it open and we could see the contents.” The agents testified that they saw tissue-wrapped packages and small boxes inside the large package, but no watches were visible. They took a number of the small boxes out of the large package and opened them. They found that the small packages contained watches marked “Swiss” which did not bear certain symbols required to be placed on foreign watches as a condition to legal importation. One of the agents wrote his initials on the inside of the lids of several of the small boxes. The agents replaced the tops on the small boxes and replaced them in the large package. They testified that they were not sure whether the TWA employee participated in opening the small boxes. The large package was resealed and the agents departed.

The TWA transportation agent testified that the customs agents told him that they suspected the packages contained smuggled watch movements. He testified that “the gist” of the conversation between him and the customs agents “was that they would like to inspect the shipment. They were wondering if I had authorization * * * to question the shipment, to open the shipment.” He testified repeatedly that the agents asked him to open the package. The court then asked, “Was there more than one reason for your opening the package?” and the TWA employee responded, “It was opened because of the government’s request.” The court again asked “Was that the only reason? Would you open any package that the government requested you to open?” and the witness replied, “Yes.” The TWA employee testified that he read the inspection provision of the tariff “to make sure it was legally right to open the packages,” and that he called his supervisor because he “had never run into anything like this before and * * * wanted to get an okay.” He confirmed the testimony of the customs agents that he had opened the large package and looked inside. He testified that he had not opened any of the small inner boxes or examined the watches, and that this had been done by the customs agents alone.

The district court overruled the motion to suppress on the authority of United States v. Blum, 329 F.2d 49 (2d Cir. 1964). The court also indicated that it thought there was probable cause for the search.

It would be difficult to justify any conclusion other than that the TWA employee participated in the search solely to serve the purposes of the government. No doubt both the customs agents and the TWA transportation agent relied upon the inspection clause in TWA’s tariff and the act of TWA’s agent in cutting open the outside package to furnish technical legal justification for the search. But as we have noted, the TWA employee himself testified that he opened appellant’s package only because the government agents asked him to, and there is nothing else in the record which would indicate that the package was in fact opened for any purpose of the carrier — it does not appear, for example, that the rate for carrying furniture and watches differed, or that the carrier took any action on its own behalf when the mislabeling was revealed.

The fruits of a search conducted solely in aid of the enforcement of a federal statute, as this one was, are inadmissible when the search fails to meet Fourth Amendment standards. Gambino v. United States, 275 U.S. 310, 316-317, 48 S.Ct. 137, 72 L.Ed. 293 (1927). The search was in substance a federal search, cast in the form of a carrier inspection to enable the officers to avoid the requirements of the Fourth Amendment. Judge William E. Orr’s statement in Taglavore v. United States, 291 F.2d 262, 266 (9th Cir. 1961), “[t]he violation of a constitutional right by a subterfuge cannot be justified, and the circumstances of this case leave no other inference than that this is what was done * * * ” though made in a different factual context, is plainly applicable. See also State of Montana v. Tomich, 332 F.2d 987, 989 (9th Cir. 1964). As the Supreme Court said in Byars v. United States, 273 U.S. 28, 33-34, 47 S.Ct. 248, 250, 71 L.Ed. 520 (1927). “The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies ; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right.” See also Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 83 L.Ed. 1281 (1939).

But the evidence would be ex-cludable in the present case even if the TWA employee had not acted solely to satisfy the government’s interest in viewing the contents of the package, but instead had initiated and participated in the search for reasons contemplated by the inspection clause in TWA’s tariff. The customs agents joined actively in the search. They held open the flaps of the large package; removed, opened, and inspected the contents of the small boxes which it contained; and marked the small boxes for future identification. Thus, at the very least, the search of appellant’s package was a joint operation of the customs agents and the TWA employee. When a federal agent participates in such a joint endeavor, “the effect is the same as though he had engaged in the undertaking as one exclusively his own.” Byars v. United States, supra, 273 U.S. 28, at 33, 47 S.Ct. 248 at 250, 71 L.Ed. 520.⁴ As Justice Frankfurter said in Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949):

[A] search is a search by a federal official if he had a hand in it * * *. The decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it. Where there is participation on the part of federal officers it is not necessary to consider what would be the result if the search had been conducted entirely by State officers. Evidence secured through such federal participation is inadmissible for the same considerations as those which made Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652], the governing principle in federal prosecutions.

The facts in United States v. Blum, 329 F.2d 49 (2d Cir. 1964), are not clear from the opinion. There is a suggestion that the package involved was opened by customs agents “with permission” of the carrier. 329 F.2d at 50. On the other hand, the opinion indicates that the customs agents secured a search warrant after the package was initially opened and its contents disclosed (ibid.), and the ruling of the court is stated in language which suggests that the carrier itself opened the carton and examined its contents for the purposes contemplated by its reservation of a right of inspection. 329 F.2d at 52. We would of course agree that if a carrier, while inspecting packages for its own purposes pursuant to a provision in the contract of carriage, discovers contraband and notifies the customs agents of that fact, and the agents then secure a warrant on the basis of this information and conduct a search, the search is entirely proper. This is precisely the procedure which the Fourth Amendment contemplates.

4. The government has not made the alternative argument that even if the inspection of appellant’s package was a federal search, it was consented to by the carrier and was for that reason proper. Nonetheless, this possible ground for overruling appellant’s motion to suppress is presented by the facts and we therefore deal with it.

In Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), the Supreme Court rejected the argument that the search of a hotel room conducted without the occupant’s consent was lawful because conducted with the consent of the hotel clerk. Justice Stewart said (376 U.S. at 489, 84 S.Ct. at 893):

It is important to bear in mind that it was the petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. | It was a right therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.

Since the Fourth Amendment protects “papers, and effects,” as well as persons and houses (United States v. Jeffers, 342 U.S. 48, 51, 79 S.Ct. 93, 96 L.Ed. 59 (1951)), no principled distinction can be drawn between this case and Stoner.

With the exception of our decision in Marshall v. United States, 352 F.2d 1013 (9th Cir. 1965), prior rulings of the courts of appeals are consistent with this conclusion.

Appellant’s standing to assert the illegality of the search of his package has not been challenged. Cases relating to that problem are therefore not relevant. Compare United States v. Reiburn, 127 F.2d 525, 526 (2d Cir. 1942); United States v. Ebeling, 146 F.2d 254, 257 (2d Cir. 1944); United States v. Walker, 190 F.2d 481, 483 (2d Cir. 1951); United States v. Walker, 197 F.2d 287, 289 (2d Cir. 1952); and Von Eichelberger v. United States, 252 F.2d 184, 186 (9th Cir. 1958), with Jones v. United States, 362 U.S. 257, 260-267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Also irrelevant are cases holding that the rights of the owner of personal property are not violated where the property is observed during a search made with the consent of another who has an equal and independent right of access to the place searched. See, e. g., Nelson v. People of State of California, 346 F.2d 73, 77 (9th Cir. 1965); Burge v. United States, 342 F.2d 408 (9th Cir. 1965); Von Eichelberger v. United States, 252 F.2d 184, 186 (9th Cir. 1958); Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958). The independent right to authorize entry does not depend upon the wishes of the owner of personal property which may be on the premises. Roberts v. United States, 332 F.2d 892, 897 (8th Cir. 1964). Thus, TWA could grant access to its own loading area without regard to appellant’s wishes. But the contents of appellant’s package were not observed during a search of TWA’s loading area. They were disclosed by a search of the package itself. TWA and its employees had no right of access to appellant’s package independent of appellant’s consent. The right of the customs agents to search appellant’s package must rest upon a showing that appellant himself waived his personal right of privacy “by word or deed, either directly or through an agent.” Stoner v. State of California, supra, 376 U.S. at 489, 84 S.Ct. at 893. See also Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955).

The owner of personal property may bring his right of privacy to an end by abandoning the property. See e. g., Abel v. United States, 362 U.S. 217, 240-241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Feguer v. United States, 302 F.2d 214, 248-249 (8th Cir. 1962). He may expressly authorize another to acquiesce in a search of his personal property. Or he may give another such complete and unrestricted freedom over his property that he will be held to have accepted the risk that the person will consent to a search; he may, in other words, impliedly authorize another to consent to an invasion of his right of privacy. Sartain v. United States, 303 F.2d 859 (9th Cir. 1962), and United States v. Eldridge, 302 F.2d 463 (4th Cir. 1962), are such cases. See generally Note, 113 U.Pa.L.Rev. 260, 272-76 (1964).

Appellant did not abandon his package; and mere surrender of custody to a carrier did not forfeit appellant’s right to privacy. See Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878); Santana v. United States, 329 F.2d 854, 856 (1st Cir. 1964); Oliver v. United States, 239 F.2d 818, 820-821, 61 A.L.R.2d 1273 (8th Cir. 1957). He did not expressly authorize TWA to consent to search of his package by customs agents. Therefore, unless appellant impliedly authorized TWA to acquiesce in such a search, TWA’s consent could not bind appellant. The facts negate any intention to grant TWA such broad authority. Appellant’s package, securely wrapped and tied, was delivered to the airline solely for transportation from Los Angeles to New York, and the inspection clause in TWA’s tariff authorized examination only by the carrier itself.⁵

In Marshall v. United States, supra, 352 F.2d 1013, we held that a person entrusted with the possession of a briefcase by its owner with instructions that it was not to be given to anyone else, could validly consent to search of the briefcase by agents of the Federal Bureau of Investigation. It is apparent that the result which we reached in Marshall is inconsistent with our ruling in this case, and, we believe, with the principle announced in Stoner v. State of California, supra, 376 U.S. at 489, 84 S.Ct. 889. Marshall is therefore overruled.

It is perhaps worth repeating that although this court may now be faced with the choice of justifying a warrantless search or letting a guilty man go free, that choice did not face the customs officers. -They could have secured a warrant, or, if próbable cause for search was lacking, continued their investigation until information establishing probable cause was obtained.

Ill

. It appears probable that all or substantially all of the evidence implicating appellant was secured by the government through exploitation of the information obtained by the illegal search of appellant’s package, and would be inadmissible for that reason. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It also appears probable that any ruling we might make on other grounds urged for reversal would serve no purpose. If we are in error, the government may so advise us on petition for rehearing.

Reversed.

1 . Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965), is not to the contrary. There local officers, whose jurisdiction was limited to their state, searched the luggage of an interstate air passenger who was scheduled to depart before a warrant could have been obtained.

2 . The holding in Romero v. United States, 318 F.2d 530 (5th Cir. 1963), may appear to be to the contrary, tut see the earlier decisions of the Court of Appeals for the Fifth Circuit collected in Mansfield v. United States, 308 F.2d 221, 223 (5th Cir. 1962), and its later decision in Marsh v. United States, 344 F.2d 317, 324-325 (5th Cir. 1965).

3 . The clause read, “Inspection of Shipments. Shipments are subject to inspection by carriers to determine their acceptability and to determine proper charges thereon.”

4 . If such a search does not meet Fourth Amendment standards, evidence which it discloses is excludable even though the search would have been lawful had the federal agents not participated. Lustig v. United States, supra, 338 U.S. at 79, 69 S.Ct. 1372; Byars v. United States, supra, 273 U.S. at 29, 47 S.Ct. 248.

5 . See note 3.