Wolf Low v. United States, 21499.

• Decision Date: 22 April 1968
• Docket Number: No. 21499.,21499.
• Parties: WOLF LOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

391 F.2d 61 (1968)

WOLF LOW, Appellant, v. UNITED STATES of America, Appellee.

No. 21499.

United States Court of Appeals Ninth Circuit.

March 6, 1968.

Rehearing Denied April 22, 1968.

Robert Cohen, Las Vegas, Nev., Brody, Grayson & Green, Bernard Lauer, Los Angeles, Cal., for appellant.

Robert S. Linnell (argued), Asst. U. S. Atty., Joseph L. Ward, U. S. Atty., Las Vegas, Nev., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and JERTBERG and DUNIWAY, Circuit Judges.

MADDEN, Judge:

The appellant, hereinafter called the defendant, was convicted in the United States District Court for the District of Nevada of violation of § 545 of Title 18, United States Code. The section makes criminal the receiving, concealment and facilitation of the transportation and concealment of merchandise — in this case watch movements — unlawfully imported into the United States. The trial was by court sitting without a jury.

In anticipation of the trial, the defendant made a motion to suppress the watch movements, which the prosecution had in its possession and intended to introduce in evidence at the trial. The court set the motion for hearing, and at the hearing witnesses were heard and other evidence was received. The following is a summary of the evidence received at that hearing.

On March 28, 1965, a Mr. Hansen was employed as an operations agent for Bonanza Airlines at the Los Angeles International Airport. The defendant, Wolf Low, purchased from Hansen at the ticket counter, a one way ticket to Las Vegas, Nevada, paying cash for the ticket. The defendant had two suitcases, and they exceeded the 45 pound limit for free transportation of baggage. The defendant paid for the excess weight, received his ticket and baggage checks and walked toward the gate from which he would board the plane. Hansen was suspicious as to the contents of the bags, and the airline ultimately opened the bags and examined the contents. We do not discuss the reasons for Hansen's suspicions, because the defendant assumes the legality of the opening and search of the bags by the airline.¹

As a ruse to get the defendant to open one of the bags, the airline pretended to have lost the tag attached to that bag, called the defendant to the boarding area and asked him to open the bag to make certain that it was his bag. He inserted his key, it worked the lock, he said it was his bag, and refused to open it. After the bags had been put on the plane, they were taken off and held at the airport when the plane departed. A Mr. Petre, Hansen's superior in the airline's staff, called on a Los Angeles city policeman who was on duty in the airport when departures and arrivals occurred, to assist him and be a witness to Petre's opening of the bags. They tried keys which the airline had on hand and found one that unlocked the bags. Inside the bags they found many small boxes, each box containing a number of watch movements. It was later shown at the trial that there were some 3500 watch movements in the two bags. The policeman suggested that the United States Customs Service should be informed of what had been found. This was done and a customs official, Mr. Falbaum, came to the airport. The bags had been closed but had not been locked, and they were opened for Falbaum's inspection. The record is not clear as to whether the lids of the unlocked suitcases were physically lifted by airport employees or by Falbaum himself, or by both. He identified the watches as having been manufactured in Switzerland, and as not having been "symbolized," that is, marked by Swiss officials as proper for export to the United States, under the arrangements between the two governments. That meant that the watches were contraband.

At that point Falbaum took charge of the suitcases and the watches. He and another customs official boarded the next Bonanza plane to Las Vegas. The airline's office in Las Vegas had informed the defendant, when he had arrived and his baggage had not arrived, that it would probably be on the next flight, and that he should keep in touch. When Falbaum arrived with the bags, the defendant was advised that the bags had arrived; he came to the airport, picked them up and loaded them in a taxicab. At that point he was arrested and the bags were carried away by the customs officials.

The court, having heard the foregoing evidence at the hearing on the defendant's motion to suppress, denied the motion. At the later trial the watches were admitted in evidence over the defendant's objection. Other evidence not involved in this appeal was introduced by the prosecution and, as we have said, the defendant was convicted. He was sentenced to pay a fine of $5,000, sentence as to imprisonment was suspended and he was placed on probation for five years.

In this appeal the defendant attributes two errors to the district court: (1) erroneous denial of the defendant's motion to suppress the watch movements and exclude them from admission at his trial; (2) the admission of the watch movements in evidence at the trial. It thus appears that there is only one matter in issue, which is: "Did the actions of the United States Customs Officers, after they had been notified by the...