OPINION
DITTER, District Judge.
Defendant, Henry A. Molt, Jr., is charged with participating in a conspiracy to violate customs and wildlife laws in violation of 18 U.S.C. § 371.
He has now moved to suppress all the evidence obtained from him by United States customs agents on January 14, 1975, by a search and seizure without a warrant as well as all items seized on January 22, 1975, pursuant to a search warrant which Molt contends was the unlawful fruit of a poisoned tree.
I agree with him and accordingly will suppress all the evidence secured on those two occasions.
1.
The Factual History.
As a result of information received from the New York Customs office and prior visits,
Michael O’Kane and John Friedrich, United States Customs Agents, went to defendant’s place of business, the Philadelphia Réptile Exchange (Exchange), Willow Grove, Pennsylvania, on January 14, 1975, for the purpose of examining his importation records. They were accompanied by John P. McGowan, a detective of the local police department. Molt purchases and sells reptiles to zoos, hobbyists, and collectors. In carrying out his business activities, Molt deals not only with reptiles native to the United States but also those from other countries. After initially denying the records were at the Exchange,
Molt asked Agent O’Kane by what authority could United States customs inspect importation records. O’Kane showed him photostatic copies of 19 U.S.C. §§ 1509, 1510, and 1511 which Molt read. Molt then said he had no objection to O’Kane’s looking at his records but that he found it hard to believe that they could search without a warrant and that he wished to talk to his attorney. While waiting for the attorney to return his call, Molt asked what would happen if he did not consent to having his records examined. Agent O’Kane testified that he responded as follows:
“Let me make it clear to you. Number one, you are not under arrest. Number two, you are not being detained. You are not under any rule or order to show us your records and you could tell us to get out of your store and we’ll have to go.” And I said, “But if I do leave,” I said, “It will be for the purpose of getting into my car, going down to the city, obtaining a
warrant,
come (sic) back and examine your Customs importation records.” (N.T. 1-29). (Emphasis added)
Thereafter, the lawyer telephoned Molt and spoke to O’Kane who cited to him Sections 1509, 1510 and 1511 of Title 19. O’Kane told the attorney that so far as he knew there was nothing wrong with regard to Molt, and at this point, in fact, O’Kane had no knowledge that Molt had committed any offense. The agent also related that Molt was not under arrest and that if requested to leave, he would do so but that he would get a warrant so that Molt’s records could be examined. He stated, “I can leave somebody here to keep this place under surveillance, go back and get the paperwork and come here and do what I have to do” (N.T. 1-160), but that an examination of the records on the premises was authorized without such paperwork. Molt once again spoke with his counsel, and restated that he had nothing to hide. As a result of these conversations, the lawyer advised Molt that he might as well let the agents examine the records. Molt then said that since O’Kane had the right to see his papers he would open his files and did so. O’Kane then examined records in Molt’s “foreign” file drawer for well over an hour,
discovering numerous instances of false invoicing,
which he interpreted to show violations of the customs laws. These same documents were then compared with entries in Molt’s check ledger for at least another half hour. O’Kane also looked at records in Molt’s “to be filed” box and others on his desk. Having found what he considered to be evidence of numerous violations, O’Kane told Molt that he would have to take the files with him. Molt protested and asked to call his lawyer once more. O’Kane spoke with the attorney again, assuring him that he had the power to take Molt’s records and commenting that he would be remiss if he failed to do so. Thereafter, O’Kane seized the contents of Molt’s “foreign” file drawer, taking not only those “numerous” files which showed “obvious” violations but also all of the files (71 in all) in this drawer, together with a notebook from the drawer and certain papers from the “to be filed” box. Molt then asked for permission to remove personal papers from the files, but this request was refused on the basis that Molt had previously stated that the files contained nothing personal in nature. Molt refused to sign a receipt prepared by O’Kane and told Detective McGowan, “I want it known for the record that these records are being taken from my establishment against my wishes” (N.T. 3-81). Molt and his attorney were invited to go to the Customs House when the seal to the box would be broken the next day, at which time Molt could look through the files for any personal correspondence, but neither did so.
As a result of an examination made of these files and additional information gained from speaking with other witnesses, O'Kane went before United States Magistrate Richard A. Powers, III, on January 21, 1975, and obtained a search warrant for Molt’s business premises.
This search was carried out on the following day, January 22,1975, at which time and pursuant to the warrant, additional files, notebooks, mailing lists, and tapes were seized. In addition, a Nile Crocodile was taken and three other reptiles were constructively seized.
After a three-day suppression hearing, I asked defense counsel and the assistant United States attorney to file briefs addressing these issues: 1) do Sections 1509, 1510, and 1511 give customs agents the authority to inspect documents on an importer’s premises and if not, what are the consequences if the agents do so nonetheless; 2) did Molt consent to the initial search; 3) would the agents’ good faith make any difference; and 4) what was the agent’s authority to remove any or all of the documents? I shall address each of these issues separately.
2.
Sections 1509, 1510 and 1511 of Title 19 do not authorize customs agents to examine importation documents on the importer’s premises.
It is obvious from reading 19 U.S.C. §§ 1509,1510 and 1511 that Agents O’Kane and Friedrich went far beyond their statutory authority when they told Molt and his attorney that they had the
right
to inspect importation records at the Exchange. The three sections narrowly prescribe what agents may do when an importer refuses to allow the inspection of his documents.
Section 1509
provides that an importer may be cited to appear before customs offi
cers, give testimony, and produce documents in connection with the classification, value, or amount or rate of duty of merchandise imported within one year. Should the importer neglect or refuse to attend, testify, or produce records, he may be fined not less than $20. nor more than $500. as provided by Section 1510.
If he fails to allow an appropriate customs officer to inspect his records, Section 1511
provides that customs shall then prohibit him from importing any merchandise and shall withhold delivery of any-merchandise already imported.
Clearly, the only section on which the government can rely at all is 1511 since Molt was not cited to appear before customs officers to give testimony or produce documents. The government asserts that Section 1511 is part of the general administrative scheme which has provided customs officers with great discretion in the collection of revenue
and the enforcement of strict and severe statutes governing the seizure, forfeiture, and mitigation of penalties arising out of customs laws violations.
Because of this broad administrative authority, the government argues, Section 1511 looks to the voluntary, consensual disclosure of information by an importer.
While Section 1511 may look to voluntary disclosure and compliance, it is part of a statute which gives agents certain limited enforcement powers. Although customs agents can ask to see records, if they represent that they have the unqualified right to make an inspection, they are wrong. It is evident Congress intended that when an importer refuses to allow an inspection upon an oral request, the investigating officer must first obtain a written request before he can demand anything.
Should the importer thereafter fail to permit the inspection, the remedy is to prohibit any further importation and withhold delivery of already-imported merchandise. Section 1511 does not give agents the power to follow any other course. Therefore, I hold that the agents acted beyond their authority in telling defendant and his attorney that they had the right to inspect Molt’s importation records on his premises.
3.
Molt did not consent to the examination of January 14, 1975.
It is well-settled that one exception to the requirement of both probable cause and a warrant is a search that is conducted pursuant to consent. When a prosecutor relies upon consent to justify the lawfulness of a search, he has the burden of proving it was “freely and voluntarily given,”
Bumper v. North Carolina,
391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968), and if the search is coerced by threats or force, or granted only in acquiescence to an improper claim of lawful authority, the consent will be declared invalid.
Id.
at 548-49, 88 S.Ct. at 1792. “. . . [I]t is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.”
Schneckloth v. Bustamonte,
412 U.S. 218, 233, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854 (1973). While knowledge of the right to refuse consent is one factor to be considered, “the government need not establish such knowledge as the
sine qua non
of an effective consent.”
Id.
at 227, 93 S.Ct. at 2048.
Here, all conversations were at Molt’s place of business, so that “the specter on incommunicado police interrogation in some remote station house is simply inapposite” and there is no reason to find that Molt was “presumptively coerced.”
Schneckloth v. Bustamonte,
supra, 412 U.S. at 247, 93 S.Ct. at 2058. The conversations were admitted by all to be “low-key” and congenial, at least until Molt objected to the seizure of the documents. Although Detective McGowan accompanied the agents to the Exchange, there was by no means an excessive display of police force or authority. In addition, Molt is college educated and an experienced businessman who frequently traveled overseas to develop his business interests. Despite these factors, however, I conclude that Agent O’Kane’s misrepresentation of his power to examine the records so pervaded the atmosphere at the Exchange as to make Molt believe he had no choice but to submit to the agents’ search.
It is true that Molt did state on a number of occasions that he had nothing to hide and that he would permit an inspection but he also questioned the agents’ right to examine on a similar number of occasions. He refused to allow the inspection until he had spoken to his attorney to whom O’Kane also misrepresented what he could do. It was only after this conversation that Molt allowed access to the filing cabinet. Despite the fact that Molt was permitted to read three sections from Title 19, this hardly made him a lawyer or apprised him of the narrow scope of O’Kane’s power. In short, Molt was told he had to submit to an inspection and he accepted what he was told. This was not knowing and voluntary consent, but surrender to a totally inappropriate assertion of authority.
Much was made at the suppression hearing about the difference between a citation and a search warrant. Agent O’Kane testified that when he told Molt and Molt’s lawyer that he could get a warrant to inspect Molt’s records he was referring to a citation to appear and produce documents.
At that time, O’Kane knew he had no probable cause as is evident from the fragmentary facts then in his possession and from what he told Molt’s attorney. Nevertheless, O’Kane used the word “warrant,” as he himself said, and when he described to Molt what he intended to do, it was what a warrant would permit. There was no description of the citation procedure.
In summary, I find that O’Kane did not have the authority to search but said that he did. However innocent this misrepresentation may have been, it was the key that unlocked Molt’s files. Molt’s consent was therefore invalid.
4.
The warrantless seizure of Molt’s documents was invalid.
Whatever might be said about Molt’s consenting to a search of his papers, no one contends that Molt consented to the warrantless
removal
of his records from the Exchange. All the evidence, including the testimony of Detective McGowan, is precisely to the contrary.
Is there any other basis on which that seizure can be justified?
The government contends that the documents were evidence of a crime and, as such, might be seized on Molt’s premises because they were in plain view. This argument cannot avail.
It is well established that in certain circumstances law enforcement officers may seize without a warrant evidence which is in their plain view. The limits on the doctrine are essentially twofold. First, there must be some prior justification for the officers presence, whether it be a warrant for another object, hot pursuit, a search incident to a lawful arrest, or some other legitimate reason unconnected with a search for the object in question. The second limitation is that the discovery of evidence in plain view must be inadvertent. The plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating develops.
Coolidge
v.
New Hampshire,
403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971).
As I have previously stated, Molt’s consent to an examination of his records was invalidly procured. Thus, there was no justification for the intrusion upon his files. But even if I were to conclude that his consent was validly obtained, the discovery of the evidence was not inadvertent. It was the result of a deliberate, systematic, exploratory search — a general rummaging.
The plain view doctrine did not justify a warrantless seizure.
Even if it be assumed for the sake of argument that agents could seize
incriminating
documents without a warrant, the fact remains that they admittedly took far more than those which O’Kane thought showed obvious violations. The agents took the entire “foreign” drawer, 71 files in all. There was a notebook in the drawer. It showed no illegality — only that Molt had imported specimens. The agents took it anyway. They took papers from Molt’s “to be filed” box, some, but not all of which, Agent O’Kane felt showed violations. The same was true of other papers on Molt’s desk.
The conclusion that the agents acted unlawfully is buttressed by customs regulations which state what an agent may do.
First of all, a customs officer may obtain a search warrant. Had the right to search existed, Agent O’Kane’s discovery of incriminating documents may well have provided the necessary probable cause. However, “[Cjustoms officers to whom a warrant is issued to search for and seize merchandise are without authority to remove letters and other documents and records, unless they themselves are instruments of crime and are seized as an incident to a lawful arrest.” 19 C.F.R. § 162.14.
Thus, the only documents which may be lawfully seized are those which are instrumentalities of a crime, not merely incriminatory. On the other hand, a customs officer who is lawfully on an importer’s premises and “is able to identify merchandise which has been imported contrary to law may seize such
merchandise
without a warrant” (emphasis added). 10 C.F.R. § 162.11.
Obviously, had Congress and the Secretary of the Treasury intended that an agent be authorized to seize records without a
warrant, the same authority that permits the seizure of merchandise could have been given. Instead, the authority to seize records only exists as to those which are themselves instruments of crime and then only as an incident to a lawful arrest.
The more searching the analysis, the more the law is examined in the light of the facts, the more ludicrous any pretended legality becomes. Obviously there was no consent to or justification for any seizure, much less to the total seizure which occurred.
5.
Despite the agents’ good faith, the evidence must be suppressed.
I found as a fact in this case that Agents O’Kane and Friedrich acted in good faith— that is, they did not deliberately misstate their authority to Molt. Unfortunately, this does not right the wrong which follows from their unlawful conduct.
The Fourth Amendment “was intended to protect the ‘sanctity of a man’s home and the privacies of life,’
Boyd v. United States,
116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886), from searches under unchecked general authority” (footnote omitted).
Stone v. Powell,
428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976). The exclusionary rule is a judicially created means of effecting those rights. In
Stone,
supra, Justice Powell, writing for the majority, stated that the purpose of applying the rule is to deter law enforcement officials from violating the Fourth Amendment and, in the long run, to encourage them to incorporate Fourth Amendment ideals into their value systems. But he also recognized that application of the rule deflects from the truth-finding process and often affords a guilty defendant an undeserved windfall, particularly where the error committed by the police official is minimal. Justice White, urging a modification of the rule, added that when law enforcement personnel have acted in good faith and on reasonable grounds, the exclusion of evidence can have no deterrent effect and the only consequence is to keep unimpeachable and probative evidence from the fact-finder.
It may be that
Stone
presages a modification in the harsh effect of automatic exclusion in the face of a Fourth Amendment violation. If that be so, this is not the minimal error, reasonable grounds case to introduce such a change. Here the agents’ conduct was not incidental or accidental, but was planned and prolonged. Even under any balancing test,
the conduct was of such magnitude and significance that highly relevant evidence must be withheld from the trier of fact. I must suppress because the importance of deterring future unlawful activity of this type transcends the regrettable effect that exclusion may have on the possibility of successfully prosecuting Molt.
6.
The evidence seized pursuant to the search warrant is fruit of a poisoned tree and must be suppressed.
It is clear from a reading of Agent O’Kane’s affidavit of probable cause for the January 21, 1975, search warrant that heavy reliance was placed on the records unlawfully seized at the Exchange the week before. Aside from some sketchy information received from the New York Customs office, a reference to two fines Molt had paid,
and a statement that Molt
possessed a reptile on the endangered species list, Agent O’Kane’s allegations were premised on 16 exhibits to his affidavit. These exhibits were all documents which Agent O’Kane had carried away from the Exchange. It follows that the evidence obtained pursuant to the warrant was secured by exploitation of the initial illegality, is fruit of a poisoned tree, and must be suppressed.
Wong Sun v. United States,
371 U.S. 471, 83 S.Ct. 407, 99 L.Ed.2d 441 (1963).
In addition, this is not a case where “the connection between the lawless conduct of the . . . [agents] and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’ ”
Id.
at 481, 83 S.Ct. at 417, quoting
Nardone v. United States,
308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). Agents O’Kane and Friedrich continued their investigation until January 21, 1975, when they secured the warrant, but none of the information gained in this interim was used as support for probable cause. Thus, the evidence seized on January 22, 1975, was not secured “by means sufficiently distinguishable to be purged of the primary taint” (citation omitted).
Id.
at 488, 83 S.Ct. at 417.
7.
The motion to dismiss the indictment must be denied.
Defendant has moved to dismiss the indictment on the ground that the pre-indictment delay in this case has caused substantial prejudice to his right to a fair trial.
There was a long delay — over 30 months
— but the mere passage of time is insufficient to cause dismissal. Not only must defendant demonstrate that he suffered actual prejudice, he must also show that the government used the delay solely to gain tactical advantage over him.
United States
v.
Lovasco,
431 U.S. 783, 788-796, 97 S.Ct. 2044, 2048-2052, 52 L.Ed.2d 752 (1977);
United States v. Marion,
404 U.S. 307, 324-25, 92 S.Ct. 455, 465-66, 30 L.Ed.2d 468 (1971). Defendant has failed to carry this burden. Here the prosecutor waited until he was completely satisfied that he should prosecute and would be able to establish guilt beyond a reasonable doubt. Therefore, there is no basis to dismiss the indictment.
8.
Conclusion.
I find the evidence discovered in the warrantless search must be suppressed. Molt did not consent to the search, but merely acquiesced to a claim of legal authority that was completely misrepresented. Even if he did consent, the agents acted beyond their authority in seizing Molt’s documents. The seizure was not justified under any exception to the requirement of a warrant. Moreover, the agents’ good faith conduct will not preclude application of the exclusionary rule. As a result of the illegal seizure without a warrant, the subsequent seizure pursuant to a warrant was fruit of a poisoned tree and must be suppressed. However, there has been no showing that the delay between the government’s learning of Molt’s alleged illegal activities and the return of the indictment provides any basis for dismissal.