United States v. Schafer, 71-1004.

• Decision Date: 05 June 1972
• Docket Number: No. 71-1004.,71-1004.
• Citation: 461 F.2d 856
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Lee SCHAFER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

461 F.2d 856 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Terry Lee SCHAFER, Defendant-Appellant.

No. 71-1004.

United States Court of Appeals, Ninth Circuit.

June 5, 1972.

John S. Edmunds, Chief Deputy Public Defender (argued) Honolulu, Hawaii, for appellant.

Joseph M. Gedan, Asst. U.S. Atty. (argued) Honolulu, Hawaii, for appellee.

Before KOELSCH, BROWNING and DUNIWAY, Circuit Judges.

KOELSCH, Circuit Judge.

This is an appeal by Terry Lee Schafer from a judgment convicting her of unlawfully possessing a "depressant stimulant drug," namely Lysergic Acid Diethylamide (LSD) in violation of 21 U.S.C. § 360a(c)(1), 21 U.S.C. § 331(q)(3)(A). The questions all concern the validity under the Fourth Amendment of a warrantless administrative search which revealed appellant's possession of the drug. The facts are undisputed.

Pursuant to authority expressly granted by the Plant Quarantine Act (7 U.S.C. § 161) the Secretary of Agriculture has declared quarantined the State of Hawaii "to prevent the spread of certain enumerated plant diseases and insect infestations . . . which are new to or not widely prevalent or distributed within and throughout the United States. . . ." 7 C.F.R. § 318.13. He further has decreed movement of any of the designated horticultural products "from Hawaii into the continental United States" to be impermissible without a prior inspection.

The Secretary further provided for the inspection of "all baggage and other personal effects of passengers . . . of . . . aircraft moving from Hawaii . . . to ascertain if they contain any of the articles or plant pests prohibited movement by the quarantine. . . ." It was further provided that "no baggage or other personal effects of passengers . . . from Hawaii shall be released until said effects have been inspected and passed." 7 C.F.R. § 318.13-12(a).

Appellant Schafer was the subject of such a warrantless search immediately before preparing to board an aircraft for passage to the mainland United States. In one of her handbags a quarantine inspector discovered a grass-like plant substance he believed to be marihuana. He immediately called the local police, who identified the suspected substance as marihuana and placed Schafer under arrest. Then, looking further into the bag, they discovered LSD tablets; these, and additional tablets discovered in the ensuing search of another of Schafer's bags, form the basis for the charge which led to her conviction.

The warrantless search of appellant Schafer's luggage was expressly authorized by the regulation which, in turn, was within the Secretary's power under 7 U.S.C. §§ 150ee and 162. The only substantial question is whether the search was prohibited by the Fourth Amendment.

1. The validity of the warrantless search provision.

The proposition is firmly established that "except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 529, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967).

However, we conclude that the search provisions in the statutes and regulation under consideration on this appeal do not run afoul of the Fourth Amendment. As the Court said in Camara, supra, "The question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining the warrant is likely to frustrate the governmental purpose behind the search." 387 U.S. at 533, 87 S.Ct. at 1733. In that case, the Court concluded that requiring building inspectors to obtain search warrants imposed no hardship on the conduct of their mission. There was "no compelling urgency to inspect at a particular time or on a particular day," 387 U.S. at 539, 87 S.Ct. at 1736 as the property to be searched was a building, obviously not a thing susceptible to speedy removal. Here, however, the time element is a major consideration. The objects of the search (quarantined fruits, vegetables, and plants) can easily be transported out of Hawaii to the continental United States by departing tourists. The effect of such movement on agricultural crops in the mainland states could be serious, as each of the quarantined items may carry some form of plant disease or insect which could destroy crops in the other areas. The purpose of the quarantine is to avoid these effects by preventing the movement of the potentially dangerous plant substances. We think a search warrant requirement would "frustrate" the purpose of these inspections, because of the time delays inherent in the search warrant mechanism. Unless all departing passengers could be detained while warrants could be obtained, the goods would be moved before the warrants could issue. Whereas, in Camara there was no suggestion that "fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement," 387 U.S. at 533, 87 S.Ct. at 1733 we are persuaded that requiring warrants for agricultural inspections of this type would effectively cripple any meaningful quarantine. See United States v. Biswell, 405 U.S. ___, 92 S.Ct. 1593, 31 L.Ed.2d 87 (1972).

Probable Cause

Appellant further argues that, the warrant issue aside, any inspection of her luggage was invalid under the Fourth Amendment unless the inspector had probable cause to believe that she was, in fact, carrying any of the quarantined articles. We disagree.

"The test of `probable cause' required by the Fourth Amendment can take into account the nature of the search that is being sought." Frank v. Maryland, 359 U.S. 360, 383, 79 S.Ct. 804, 817, 3 L.Ed.2d 877 (1959) (Douglas, J., dissenting). The Court in Camara read this language to...