367 F.2d 1 (9th Cir. 1966), 19613, Corngold v. United States

Docket Nº:19613.
Citation:367 F.2d 1
Party Name:Melvin CORNGOLD, Appellant, v. UNITED STATES of America, Appellee.
Case Date:September 29, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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367 F.2d 1 (9th Cir. 1966)

Melvin CORNGOLD, Appellant,

v.

UNITED STATES of America, Appellee.

No. 19613.

United States Court of Appeals, Ninth Circuit.

September 29, 1966

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Jess Whitehill, Fred Okrand, Los Angeles, Cal., for appellant.

Manuel L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U.S. Atty., Asst. Chief, Crim. Div., John A. Mitchell, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.

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

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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.

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Boyd v. United States, 116 U.S. 616, 6 S.Ct. 523, 29 L.Ed. 746 (1886).

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 of 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

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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...

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