105 F.Supp. 517 (N.D.Cal. 1952), 33097, United States v. Yee Ngee How

Docket Nº:33097.
Citation:105 F.Supp. 517
Case Date:June 12, 1952
Court:United States District Courts, 9th Circuit, Northern District of California

Page 517

105 F.Supp. 517 (N.D.Cal. 1952)




No. 33097.

United States District Court, N.D. California, Southern Division.

June 12, 1952

Page 518

Chauncey Tramutolo, U.S. Atty., and Robert J. Drewes, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.

Jerome Sapiro, San Francisco, Cal., for defendant.

OLIVER J. CARTER, District Judge.

Yee Ngee How, under indictment for violation of Title 21 U.S.C.A. § 174, seeks by petition to this court to suppress as evidence in any criminal proceeding against him a quantity of opium taken from him by representatives of the Customs Service of the United States. The petitioner has also presented his motion to dismiss the indictment against him upon the theory that if his petition to suppress the opium is granted there will remain insufficient evidence to support such an indictment.

Suppression of this evidence is sought upon the ground that it was obtained through an unlawful search and seizure, contrary to the guarantees of the Fourth and Fifth Amendments to the United States Constitution. The facts, as gathered from affidavits and oral testimony, are as follows:

On December 3, 1951 petitioner, in the course of going ashore from the USNS C. G. Morton, a naval transport ship, upon which he was employed and which had just arrived in San Francisco from Japan, was stopped and searched by Port Patrol Officer Phillips of the United States Customs Service. This search was made without a warrant and was not conducted upon the theory that petitioner was an individual under suspicion of then having opium in his possession. However, Officer Phillips had been instructed to give as much attention as possible to persons boarding or leaving the USNS C. G. Morton because civilian crew members of naval transports were suspected of engaging in the illegal importation of contraband drugs. Just prior to searching petitioner, Officer Phillips had inspected another person identified as a crew member enroute ashore. The Officer stated to the court, at the time of hearing argument on this matter, that this search was a routine general search without regard to whether or not persons searched had previously been subjected to a Customs inspection.

The search itself was conducted on Pier 3 in San Francisco, California, at some point in between the gangway of the ship and the pier gate which opened out onto the public streets of the city. Before petitioner was searched he told Officer Phillips, in response to questions, that he was a member of the crew of the USNS C. G. Morton, and that he was not carrying off any contraband or undeclared articles. The search which followed revealed that petitioner was carrying in his hip pocket a lump of material which the searching officer suspected to be opium. Later, chemical analysis proved the material to be prepared smoking opium.

Petitioner, after being informed that he was being held for further investigation, offered Officer Phillips a bribe of $500 to release him. Shortly thereafter Customs Agent Kahler was summoned to the scene. He identified petitioner as being a person then under investigation by the Collector of Customs, the Customs Agency Service, and the District Supervisor of Narcotics because of suspected activities in the smuggling and sale of illicit narcotics. At this time Agent Kahler ordered a more thorough search of petitioner's person. This search resulted in the discovery of two more lumps of opium, lashed to petitioner's body beneath his clothing.

Petitioner contends that these searches of his person contravene his constitutional rights. This contention rests upon the argument that these searches cannot be construed as Customs inspections of persons coming into the United States from foreign countries pursuant to Title 19 U.S.C.A. § 1582. It is his theory that because his person, his baggage, and his living and working

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quarters aboard the USNS C. G. Morton had been inspected by Customs officers the previous day, and because he had been allowed to leave the ship after those initial inspections and enter the city of San Francisco, he could not be subjected to further searches of his person or effects by Customs officers except under the authority of a lawfully issued warrant or upon probable cause that he was engaged in the commission of, or had already committed, a crime.

The Fourth Amendment prohibits not all searches and seizures, but only those which are 'unreasonable.' 1 The Constitution does not define what are 'unreasonable' searches, and that determination cannot be made through the application of any fixed formula. United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653. Reasonableness is not a matter of abstract theory, but a pragmatic question, to be determined, in each case, in the light of its own circumstances. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374. The distinction between a reasonable search and one which is unreasonable, is to be drawn, in each case, in the light of what was deemed reasonable or unreasonable at the time when the Amendment was adopted, and in a manner which will conserve the public interest as well as the interest and rights of individual citizens. Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543.

If a search is valid there is nothing in the Fourth Amendment which inhibits the seizure by law enforcement agents of property, the possession of which is a crime, even though the officers are not aware that such property is on the person when the search is initiated. Harris v. United States, 331 U.S. 145, 155, 67 S.Ct. 1098, 91 L.Ed. 1399. The opium taken from the defendant was properly seized by the searching customs officials. 2 Even though contraband articles may be suppressed as evidence when they have been...

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