502 F.2d 391 (D.C. Cir. 1974), 24788, United States v. Pryba

Docket Nº:24788.
Citation:502 F.2d 391
Party Name:UNITED STATES of America v. Dennis E. PRYBA, Appellant.
Case Date:July 29, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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502 F.2d 391 (D.C. Cir. 1974)

UNITED STATES of America

v.

Dennis E. PRYBA, Appellant.

No. 24788.

United States Court of Appeals, District of Columbia Circuit

July 29, 1974

Argued Nov. 2, 1971.

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[Copyrighted Material Omitted]

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Stanley M. Dietz, Washington, D.C., for appellant.

C. Madison Brewer, Asst. U.S. Atty., with whom Thomas A. Flannery, U.S. Atty. at the time the brief was filed, and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and ROBINSON, Circuit Judge.

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SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

On this appeal, we are summoned to review appellant's conviction of interstate transportation of obscene matter 1 and possession of such matter with intent to disseminate. 2 Following indictment and a nonjury trial culminating in the findings of guilt, the trial judge imposed but suspended a one- to three-year sentence of imprisonment on the transportation count and levied a general $1,000 fine on the two counts. 3 Our study of appellant's several contentions in light of the record and the evolving judicial precedents 4 reveals no error. We accordingly affirm.

I

The events foreshadowing this prosecution began at San Francisco International Airport one evening when a man identifying himself as Tom Moore 5 sought to ship a paper-wrapped box via United Airlines to appellant in Washington, D.C. 6 When an air freight clerk, Rex Feight, inquired as to the contents of the box, Moore first claimed he did not know; 7 when Feight explained why the airline needed the information, 8

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Moore paced about for 'a couple of minutes' and suggested reluctantly that the box contained 'something personal.' 9 After further discussion, it was decided that the shipment would be described as 'personal effects.'

His suspicion aroused by Moore's curious behavior, 10 Feight later turned the box over to his supervisor, Robert G. Miller, who opened it 11 and found 30 unpackaged reels of 8-millimeter color movie film bearing titles unsubtly suggesting sex. 12 Miller held portions of two films up to the light and on one saw nude males, and on the other nude males and females, engaging in sexual acts. Miller then notified the Federal Bureau of Investigation, and an agent was sent to Miller's office with a projector. After viewing two more films, which depicted both heterosexual and homosexual activity, Miller repacked the films in the box and placed the box back in transit.

On the next morning the box was shipped to Washington on a United Airlines flight, and on the day thereafter was delivered at the Potomac News Company in Southeast Washington, the address listed on the wrapping with appellant's name as consignee. Meanwhile, on the basis of information relayed by the FBI office in San Francisco, 13 agents in Washington obtained a warrant authorizing a search at the Potomac News Company for the Films. 14 The warrant was executed immediately, and the box of films was seized when an employee of the Potomac News Company removed it from above the ceiling tiles in appellant's office, where it had been concealed. Inside the box were 30 reels exhibiting 15 separate titles, 15 and the paper wrapping and material used for interior packing were recovered from a trash can in appellant's office.

Five days later, the parties were convened, at the Government's request, for an adversary hearing in the District Court to determine whether the films

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were obscene. 16 Appellant's counsel stood on his position that a judicial determination on obscenity should have preceded the seizure of the films; he offered no opposition to the Government's claim of obscenity, but merely 'acquiesced' in the proceeding. Two of the films were viewed by District Judge Gasch, who adjourned the hearing upon conviction that a specific ruling was unnecessary. 17 An indictment followed, charging appellant and others 18 with the violations in suit.

Before trial, appellant moved to suppress the films on the grounds that the examination of the box by the United Airlines' freight supervisor violated the Fourth Amendment; 19 that the affidavit in support of the search warrant was insufficient to establish probable cause; 20 and that seizure of the films without prior judicial ascertainment of their obscenity at an adversary hearing was unlawful. 21 The motion was heard by District Judge Pratt, 22 who by written opinion denied it. 23 The charges against appellant's codefendants were dropped, appellant waived a jury trial, and the case proceeded.

At the trial, before Judge Pratt, the Government's evidence traced appellant's arrangements to obtain the films from a party in California, 24 their delivery to United Airlines by Tom Moore, the investigation at the San Francisco airport and the seizure of the films at the Potomac News Company. Two of the films were shown to Judge Pratt; the parties stipulated, and an FBI agent who had viewed all of the films testified, that those two were typical of the others. 25

Appellant introduced no evidence, but rested upon a motion for a judgment of acquittal for alleged insufficiency of the evidence to legally sustain conviction on either of the two counts of the indictment. 26 Judge Pratt rejected these contentions and, satisfied beyond a reasonable doubt as to the films' obscenity and appellant's offensive relationship

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to them, 27 found him guilty on both counts.

Appellant's bid for reversal of his conviction is four-fold. He argues that United Airlines' examination of the box in San Francisco and the FBI's seizure of the films in Washington were unlawful invasions of Fourth Amendment rights. 28 He also asserts that the seizure was invalid for the additional reason that there was no prior adversary hearing culminating in a judicial determination that the films were in fact obscene. 29 Additionally, he claims that the statute underlying the charge of interstate transportation of obscene matter 30 is unconstitutional as applied to an adult receiving such matter for his own private use or for non-commercial exhibition. 31 And he further contends that the statute outlawing possession of obscene matter with intent to disseminate 32 is unconstitutional as applied to possession by an adult with a view to non-commercial distribution to another consenting adult without obtrusive advertising or pandering. 33 We consider, in that order, each of these arguments 34 and, for reasons to be stated, we find none of them persuasive.

II

We first address appellant's Fourth Amendment claims-- challenges both to United Airlines' inspection of the box at the San Francisco airport and the search of Potomac News Company's premises in Washington. Appellant contends that the airline's freight supervisor was constitutionally forbidden to open the box or to examine the films enclosed therein. 35 Appellant further contends that the affidavit supporting the subsequently-issued search warrant was constitutionally deficient because it alleged facts communicated to and not personally known by the affiant.

A. The San Francisco Search

The Fourth Amendment lays its proscriptions 36 upon exertions of federal authority. 37 By the Due Process Clause of the Fourteenth Amendment, the same restraints are imposed upon exercises of state power. 38 But, the Supreme Court holds, individual conduct devoid of governmental sanction is beyond the purview

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of either Amendment. 39 Courts honor the distinction between governmental and individual action, as they must, in their dealings with searches by air carriers for contraband. 40

Where the search is made at the behest of or with the assistance of law enforcement officers, there must be probable cause, and in appropriate instances an authorizing warrant, if the search is to pass constitutional muster. 41 But where the search is made on the carrier's own initiative for its own purposes, Fourth Amendment protections do not obtain for the reason that only the activities of individuals or nongovernmental entities are involved. 42 So frequently and so emphatically have the courts enunciated and applied these principles 43 that, at least for the time being, they must be regarded as settled law. 44

This body of doctrine would, of course, immunize United Airlines' inspection of the box from appellant's attack. Appellant points, however, to Rule 24 of Civil Aeronautics Board Regulation 96, which provides in part that 'all shipments are subject to inspection by the carrier.' 45 Appellant then asserts that Rule 24 was the assumed source of the airline's authority to open

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and examine the box, 46 and that the rule purports to authorize warrantless searches without probable cause, in contravention of the Fourth Amendment. This argument might have force-- by itself and without more-- if Rule 24 had played the role which appellant ascribes to it, 47 but it is evident to us that it did not.

Rather, the airline's inspection privilege exists independently of Rule 24. It is rooted in the rule of the common law that common carriers have the right to decline shipment of packages proffered in circumstances indicating contents of a suspicious, indeed of a possibly dangerous, nature. 48 Justification for the carrier's refusal is to be found in the exigencies of safeguarding life and property, 49 and undeniably the frustration of criminality is likewise a worthy carrier endeavor. 50 The imperatives of either objective may warrant inquiry by the carrier as to the contents of a parcel tendered for shipment; 51 they may suffice, too, to justify a reasonable inspection of the parcel to fulfill that purpose. 52 And the carrier's interest in ascertaining the character of suspicious parcels...

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