United States v. Pedersen

300 F. Supp. 669, 1969 U.S. Dist. LEXIS 12589
CourtDistrict Court, D. Vermont
DecidedJune 27, 1969
DocketCrim. Nos. 6592, 6593
StatusPublished
Cited by2 cases

This text of 300 F. Supp. 669 (United States v. Pedersen) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pedersen, 300 F. Supp. 669, 1969 U.S. Dist. LEXIS 12589 (D. Vt. 1969).

Opinion

OPINION

LEDDY, District Judge.

These cases are both criminal prosecutions for smuggling marijuana into the United States in violation of 21 U.S.C. § 176a and failing to pay transfer tax on marijuana in violation of 26 U.S.C. § 4744(a)(2). These cases have been consolidated for purposes of identical motions.

In each case, a motion has been filed to suppress certain evidence seized in connection with a search of the person of the defendants made on May 7, 1969, at the Burlington International Airport, Burlington, Vermont. A hearing was held on these motions on June 2, 1969. The sole witness at that hearing was a customs official, Joseph P. Fitzgerald, who had conducted the search at the Burlington airport. The only other evidence introduced at the hearing was the report of Mr. Fitzgerald and two envelopes, each containing three and one-half pounds of hashish, the material seized by Mr. Fitzgerald. From the testimony of Mr. Fitzgerald and the other evidence introduced, I find the following to be the facts surrounding the search and seizure made at the Burlington airport on May 7,1969.

On May 7, 1969, Mr. Joseph P. Fitzgerald was employed by the United States Customs Office as Port Director of the port of Burlington, Vermont. At 2:00 P.M. on that day, Fitzgerald received a telephone call from an Inspector Guthrie, a United States Customs Officer, stationed at Dorval Airport in Montreal, Quebec. Fitzgerald was not personally acquainted with Inspector Guthrie. Inspector Guthrie informed Fitzgerald that two persons would arrive on flight 95 from Montreal at 3:05 P.M. He named these persons as William Hardy Pedersen and Frank Robert VanSchaik. Fitzgerald did not know nor had he ever heard of Pedersen and VanSchaik prior to the phone call from Inspector Guthrie.

Guthrie described Pedersen as approximately six feet tall and stated that both Pedersen and VanSchaik were dressed as hippies. He also mentioned that one of the two was wearing a large hat. This description of their dress and physical appearance was apparently made only for the purpose of identification. Inspector Guthrie asked Fitzgerald to conduct an inspection of Pedersen and VanSchaik. He did not state that he had conducted a prior examination nor does the testimony of Fitzgerald show that he told Fitzgerald why he wanted them examined. He made no mention of narcotics. In fact, the testimony of Fitzgerald indicates that apart from asking Fitzgerald to conduct an examination, Inspector Guthrie’s conversation related solely to identifying the individuals involved. None of Guthrie’s information related to his reasons for asking Fitzgerald to examine Pedersen and VanSchaik.1

[671]*671Upon receiving the telephone call from Inspector Guthrie, Fitzgerald prepared for the examination by asking Mr. Mun-ton, a supervisor for the Federal Aviation Administration for the use of his office to conduct the examination. He told Mr. Munton that he had received a call from Montreal and that he would have to make an investigation of the baggage of Pedersen and VanSchaik.

When the flight identified by Inspector Guthrie arrived at the airport, Fitzgerald went to the door of the airplane and asked for the general declaration. He asked Pedersen and VanSchaik for their tickets and inquired if they were getting off in Burlington. When they answered affirmatively, he asked for their passports. He then asked Pedersen and VanSchaik to get off the airplane and to proceed around the side of the plane. He asked them to identify their baggage and had it taken off the baggage car. He also asked VanSchaik where he was going. VanSchaik answered that he was going to Plainfield, Vermont, to visit a friend. Fitzgerald then directed them to proceed before him into the FAA office.

Once in the FAA office, Fitzgerald asked both Pedersen and VanSchaik to put their baggage on a table. He opened the baggage and examined the contents. He also examined the sleeping bag that each carried with him. He found nothing suspicious in either the baggage or the sleeping bags. During the search of the baggage, he asked Pedersen what he was doing overseas and whether he was employed. Pedersen responded that he was camping and that he was a band member. The evidence shows no other conversations between Fitzgerald and Pedersen and VanSchaik from the time the plane arrived until after the baggage was searched. The evidence does show that Fitzgerald felt that Pedersen and VanSchaik acted like the normal tourists that he saw every day.

After examining the baggage, Fitzgerald asked Pedersen to stand up and to remove his shirt. Pedersen took off his shirt and between his belt and his body he pulled out a package wrapped in plastic. He laid it on the table and said “this is illegal.” At that point, VanSchaik also removed a package from under his belt and laid it on the table. Fitzgerald identified these packages as containing hashish.

At this time, Fitzgerald called Mr. Chagnon, a customs agent stationed at Rousses Point, New York. On the advice of Mr. Chagnon, he also called the Vermont State Police. Because no one was available at the State Police barracks, he called the South Burlington, Vermont, Police Department. In response to these calls, two officers arrived from the South Burlington Police Department and two customs agents arrived from Rousses Point.

After calling the custom agent and the police but before any of these persons arrived, Fitzgerald returned to the FAA office. He asked VanSchaik to stand up and to remove his shirt, his [672]*672pants and his shoes and stockings. After this was done, he found another package of hashish strapped to his leg. In the same way, he apparently found another package of hashish strapped to Pedersen’s leg.

Subsequently, the South Burlington police arrived and Fitzgerald asked them to stand by. When the customs agents arrived, they took custody of the hashish and placed both Pedersen and VanSchaik under arrest.

The law applicable to these motions is not in dispute although there is dispute as to the application of the law to the facts. The search made by Customs Officer Fitzgerald at the Burlington Airport was a “border search.” That is, it was a search made by a customs official in connection with the entry of persons into the United States at an international port of entry. See United States v. Glaziou, 402 F.2d 8 (2d Cir. 1968).

It has been universally recognized that the power of customs officials to search at the border is broader than the power of other officials within the interior of the country. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). While border searches are not exempt from the reasonableness requirement of the Fourth Amendment, they do not require a warrant nor must they meet the rigorous standard of probable cause. See Morales v. United States, 378 F.2d 187 (5th Cir. 1967). “Typically, mere suspicion of possible illegal activity within their jurisdiction is enough ‘cause’ to permit a customs officer to stop and search a person.” United States v.

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Bluebook (online)
300 F. Supp. 669, 1969 U.S. Dist. LEXIS 12589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pedersen-vtd-1969.