539 F.2d 1 (9th Cir. 1976), 73-3124, United States v. Sherwin

Docket Nº:73-3124.
Citation:539 F.2d 1
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Richard Norton SHERWIN, dba Marquis Publishing Corporation, et al., Defendants-Appellees.
Case Date:July 02, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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539 F.2d 1 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellant,

v.

Richard Norton SHERWIN, dba Marquis Publishing Corporation,

et al., Defendants-Appellees.

No. 73-3124.

United States Court of Appeals, Ninth Circuit

July 2, 1976

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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John L. Murphy, Atty. (argued), and John E. Harris (argued), both of Crim. Div., Justice Dept., Washington, D. C., for plaintiff-appellant.

Gilbert Deitch (argued), Los Angeles, Cal., James J. Brown (argued), Las Vegas, Nev., for defendants-appellees.

OPINION

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.

ANTHONY M. KENNEDY, Circuit Judge:

The Government appeals a pretrial order suppressing from evidence certain allegedly obscene books and ordering their return to the defendants. We hold the district court incorrectly analyzed the first and fourth amendment questions presented to it, and reverse the order to suppress. 1

On April 10, 1972, the Milne Truck Lines terminal in Las Vegas received a shipment of seventeen cartons bearing shipping labels from "Marquis Publishing Company" in Van Nuys, California, addressed to "Talk of the Town Adult Book Store" in Las Vegas. The terminal manager noticed that one carton was damaged and that another had apparently been broken into and pilfered. Pursuant to company regulations, he inventoried the contents of these two cartons and found that one contained copies of a book titled Miscegenation, and the other, copies of a book titled Wife Swapping. The manager then called the Federal Bureau of Investigation, and two of its agents came to the terminal. When the agents arrived, they saw books from the two cartons on the manager's desk. The manager gave Agent Murray one copy of each of the two titles to take to the United States Attorney.

On April 11, 1972, the United States Attorney's office petitioned a federal magistrate for an order to show cause why a search warrant should not be executed for the entire shipment of seventeen cartons. Attached to the petition were the two books obtained from the trucking terminal and an affidavit prepared by Agent Murray. The magistrate ordered the seventeen cartons brought before him and notice given to the defendants. Copies of the petition and order were served on an employee of the Talk of the Town Book Store at 4:05 that afternoon and reached Marquis Publishing Company in Van Nuys six days later. The seventeen cartons were delivered to the magistrate by Milne Truck Lines at 4:30 p. m. The magistrate ordered the search warrant executed in his presence and the seventeen cartons were opened. That examination yielded the four books which formed the basis for the defendants' subsequent indictment on charges of using a common carrier for the interstate transportation

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of obscene materials, 18 U.S.C. §§ 1462 & 1465. One of the two titles originally taken from the terminal was among the four books included in this indictment.

On September 6, 1973, the district court held a pretrial hearing. 2 The court considered a written stipulation of facts submitted by the parties and the record of proceedings before the magistrate. In addition, it heard testimony from Agent Murray and defendant Sherwin. The court thereupon granted the defendants' motions for return of seized property and suppression of evidence.

The district court held that the magistrate's order for seizure of the seventeen cartons was invalid for two reasons. 3 First, the two books on which the magistrate based his order were obtained by the FBI from the trucking terminal in violation of the fourth amendment. 4 Second, the magistrate issued his order without first satisfying the first amendment requirement of an adversary hearing, with adequate notice to the parties in interest, on the question of obscenity. On this appeal, we consider each of the two grounds for the district court's decision.

I. INITIAL TAKING OF THE TWO BOOKS AS A VIOLATION OF THE

FOURTH AMENDMENT

We hold that the FBI agent did not violate the fourth amendment by failing to obtain a warrant before receiving the books in question from the trucking terminal manager.

  1. The Search by the Terminal Manager

    At the outset we observe that the fourth amendment protects against unreasonable intrusions by the government, but not against the conduct of private individuals. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), cited in Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion); United States v. Ogden, 485 F.2d 536, 538-39 (9th Cir. 1973), cert. denied, 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974). Thus, evidence discovered in a private search is not subject to exclusion for failure to obtain a search warrant

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    or otherwise comply with the requirements of the fourth amendment.

    In defining a private search, the Supreme Court has stated that the fourth amendment applies only if the private party, "in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the state." Coolidge v. New Hampshire, supra, 403 U.S. at 487, 91 S.Ct. at 2049. Application of this definition will frequently require a careful factual analysis. However, there is little difficulty in holding the fourth amendment inapplicable to the instant case because prior or contemporaneous governmental involvement in the search was totally absent.

    A private person cannot act unilaterally as an agent or instrument of the state; there must be some degree of governmental knowledge and acquiescence. In the absence of such official involvement, a search is not governmental. United States v. Goldstein, 532 F.2d 1305, 1311 (9th Cir. 1976); United States v. Harless, 464 F.2d 953, 956-57 (9th Cir. 1972); Eisentrager v. Hocker, 450 F.2d 490, 492 (9th Cir. 1971); Duran v. United States, 413 F.2d 596, 608 (9th Cir.), cert. denied, 396 U.S. 917, 90 S.Ct. 239, 24 L.Ed.2d 195 (1969). See also United States v. Clegg,509 F.2d 605, 609 (5th Cir. 1975); United States v. Issod, 508 F.2d 990, 994 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975); United States v. Burton, 475 F.2d 469, 471 (8th Cir.), cert. denied, 414 U.S. 835, 94 S.Ct. 178, 38 L.Ed.2d 70 (1973). 5 And once a private search is completed, the subsequent involvement of government agents does not retroactively transform the original intrusion into a governmental search. United States v. Harless, supra, 464 F.2d at 957; Eisentrager v. Hocker, supra, 450 F.2d at 492; Wolf Low v. United States, 391 F.2d 61...

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