U.S. v. Sherwin

Decision Date02 July 1976
Docket NumberNo. 73-3124,73-3124
Citation539 F.2d 1
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Richard Norton SHERWIN, dba Marquis Publishing Corporation, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit
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 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.

A. 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 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 (9th Cir. 1968).

In light of the above, we reach the unmistakable conclusion that the truck terminal manager in this case was not acting as an instrument of the government. There was no official involvement until after the terminal manager had completed his search and called the FBI. 6 When the agents arrived they did not conduct a more extensive search; their activities were confined to viewing the materials displayed to them by the manager. As of this point, then, there had been no search within the meaning of the fourth amendment.

B. Was There a Seizure?

The defendants argue that, in any event, a seizure to which the fourth amendment is applicable occurred at a later point, when the FBI agents obtained the two books from the terminal manager. This argument is supported by a recent decision of the Eighth Circuit in a case similar to the one before us. United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976). There the court held that a search by a private carrier did not implicate the fourth amendment, but that the government's subsequent acquisition of books discovered in the search constituted a "seizure" in violation of that amendment. Id. at 1371-72. However, we decline to follow Kelly because we do not regard the government's acceptance of materials obtained in a private search to be a seizure. In this regard we are guided by Coolidge v. New Hampshire, in which the Supreme Court held that the fourth amendment was not implicated when articles discovered in a private search were voluntarily turned over to the government. 403 U.S. at 488-89, 91 S.Ct. 2022. 7

The defendants contend that the terminal manager in this case was without authority to consent to a governmental taking of the two books. For the purpose of determining if a seizure has taken place, however, only the fact of consent is relevant, not whether it was properly authorized. The appellee's argument is mistaken because it confuses the question of third party consent as a justification for a governmental search with the problem of when the government's acquisition of property constitutes a seizure.

In the former case, the search concededly falls within the scope of the fourth amendment because it is conducted by government agents. For such a search to be reasonable, it must ordinarily be made pursuant to a warrant; an exception is made where one with proper authority consents to the search. See United States v. Matlock, 415 U.S. 164, 171 & n.7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) and cases cited therein. Such consent makes the search reasonable, but it is still a search within the meaning of the fourth amendment.

In the latter situation, the question is whether the governmental activity falls within the scope of the fourth amendment at all. A consensual transfer is by definition not a seizure. See Caldwell v. United States, 338 F.2d 385, 388 (8th Cir. 1964), cert. denied, 380 U.S. 984, 85 S.Ct. 1354, 14 L.Ed.2d 277 (1965). The private person's legal authority to approve a transfer of objects found in a private search has no bearing on whether his relinquishment of those objects to the government is coerced or voluntary. In Coolidge, for example, there was no indication the wife had any authority over the objects turned over, nor were the police required to determine the scope of her authority. 8 If a transfer is voluntary, then it is not a seizure and the ...

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