Devries v. Acree

• Citation: 565 F.2d 577
• Decision Date: 30 November 1977
• Docket Number: No. 76-3238,76-3238
• Parties: J. H. DeVRIES and Peter R. Beyerinck, Plaintiffs-Appellants, v. Vernon D. ACREE, Commissioner of Customs, William E. Simon, Secretary of the Treasury, and U. S. Customs Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 577

565 F.2d 577

J. H. DeVRIES and Peter R. Beyerinck, Plaintiffs-Appellants, v. Vernon D. ACREE, Commissioner of Customs, William E. Simon Secretary of the Treasury, and U. S. Customs Service, Defendants-Appellees.

No. 76-3238.

United States Court of Appeals Ninth Circuit.

Nov. 30, 1977.

Robert C. Vanderet (argued), Donald M. Wessling, Merrick J. Bobb, Kenneth M. Glazier and Fred Okrand, on the brief, Los Angeles, Cal., for plaintiffs-appellants.

Dzintra I. Janavs, Asst. U. S. Atty. (argued), William D. Keller, U.S. Atty., and Frederick M. Brosio, Jr., Asst. U.S. Atty., on the brief, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before HUFSTEDLER and KILKENNY, Circuit Judges, and GRANT, ^* District Judge.

HUFSTEDLER, Circuit Judge:

The Government successfully contended in the district court that customs officers are statutorily and constitutionally entitled to open and to search first class letters from abroad without notice to or consent of the addressees and without any cause to suspect that such letters contain either contraband or dutiable merchandise. The sweeping power over international letter mail that United States v. Ramsey (1977), 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 said was not asserted by the Government in that case is sought here. If the Government's argument were sustained, every piece of first class letters from abroad addressed to any person or corporation in the United States could be opened and searched by customs officers at will or whim. We reject the Government's contentions on statutory grounds without reaching the constitutional issues engendered by its claims.

The appellants are naturalized American citizens who emigrated from Holland. Their complaint averred that customs officers opened and searched three described first class letters from named relatives in Holland, without appellants' prior knowledge or consent, without any cause to suspect that the letters contained dutiable merchandise or contraband, and without probable cause or a warrant. They sought a declaration that the officers' conduct was in violation of statutory law (19 U.S.C. § 482) and of their rights secured by the First and Fourth Amendments, and they prayed for an injunction to prevent customs officers from repeating their illegal acts.

The Government moved to dismiss the complaint on the ground that no claim for relief had been or could be stated on the facts alleged, the truth of which was admitted for the purpose of the motion. Relying on United States v. Barclift (9th Cir. 1975) 514 F.2d 1073, and United States v. Odland (7th Cir. 1974) 502 F.2d 148, the district court granted the motion. The district court held that "the mere fact that it (first class mail) comes into the United States from outside the country is enough to warrant its opening. If some type of reasonable suspicion is required, it is automatically and invariably supplied by the mere fact of entry of the letter into the United States."

Although the district court recognized that 19 U.S.C. § 482 required that customs searches be supported by reasonable cause to suspect that the letters contained contraband or dutiable merchandise, it concluded that the search was authorized by "19 U.S.C. § 1582, which has in it no such requirement in its language or in the regulations promulgated thereto, 19 C.F.R. 145.2."

The district court was misled by some language in United States v. Barclift, supra, and by its erroneous assumption that 19 C.F.R. § 145.2 was a regulation implementing 19 U.S.C. § 1582.

Section 145.2 is a regulation implementing 19 U.S.C. § 482, as the Supreme Court points out in United States v. Ramsey, supra, 431 U.S. at 612 n. 8, 97 S.Ct. 1972. The regulation thus necessarily incorporates the " 'reasonable cause to suspect' test adopted by the statute." (Id. at 612, 97 S.Ct. at 1977).

This unlimited search was not authorized by 19 U.S.C. § 1582. Section 1582 states that the "Secretary of the Treasury may prescribe regulations for the search of persons and baggage and he is authorized to employ female inspectors for the examination and search of persons of their own sex; and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under such regulations." Nothing in either the language or the legislative history suggests that this statute was related to searches of international mail.

The district court's reliance on Section 1582 was apparently engendered by the statement in United States v. Barclift, supra, 514 F.2d at 1074: "No meaningful distinction . . . can be drawn between the entry of mail into the United States and the entry of automobiles or baggage." Using that comment, the district court assumed that the reference to "baggage" in Section 1582 was interchangeable with the word "envelope" in Section 482, and that the lack of statutory limitations on searching baggage applied also to opening and searching mail as it crossed the border.

The interchangeability assumption confuses the statutory issues with the constitutional issues. The fact that two different statutes granting two different kinds of authority to customs agents may both be constitutional does not mean that both statutes mean the same thing or that the lack of limitations on authority conferred by one statute can repeal or override the limitations on authority imposed by the second statute.

Barclift did not consider or discuss any issue of statutory construction. It cited neither 19 U.S.C. § 482 nor 19 U.S.C. § 1582. Indeed, as far as the opinion reveals, the panel was unaware that 19 C.F.R. § 145.2 was a creature of 19 U.S.C. § 482, thus incorporating the reasonable cause to suspect test in § 145.2. For the purpose of deciding whether the district court correctly denied the appellants' motion to suppress evidence which had its source in an "examination" at the border of some envelopes addressed to a third person from a sender in Bogota, Colombia, Barclift assumed that no limitations had been statutorily imposed upon the customs officers' search of the envelopes. ¹ In short, the sole issue discussed in Barclift was the validity of Section 145.2 (unmoored from 19 U.S.C. § 482) against Fourth Amendment attack. Because we do not reach either the First or the Fourth Amendment issues in this case, we have no occasion to reconsider the Barclift rationale in the light of United States v. Ramsey, supra, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617. ²

The judgment below cannot stand because, entirely apart from any constitutional question, appellants have alleged that the opening and searching of their letters was in violation of 19 U.S.C. § 482, in that the officers acted without reasonable cause to suspect that the letters contained contraband or dutiable merchandise. (United States v. Ramsey, supra, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617.

REVERSED.

KILKENNY, Circuit Judge, dissenting:

Because I believe the majority relies on the wrong statute and that 19 C.F.R. §§ 145.1 and 145.2 were promulgated to implement the provisions of 19 U.S.C. § 1581, rather than 19 U.S.C. § 482, I dissent.

DISCUSSION OF STATUTES

A proper analysis of the history of the two statutes is crucial to a sound disposition Of controlling importance is the fact that § 2 of the 1866 law, the parent of 19 U.S.C. § 1581, authorized the Customs officers, and other authorized agents of the Treasury Department, " . . . to go on board of any vessel, as well without as within his district, and to inspect, search, and examine the same, and any person, trunk or envelope on board, and to this end to hail and stop such vessel if under way, and to use all necessary force to compel compliance . . . ." (Emphasis supplied).

of this case. The parents of both statutes were initially enacted as §§ 2 and 3 of Chapter 201, 39th Congress, Session 1, 1866, 14 Stat. 178. The forerunner of 19 U.S.C. § 1582, authorizing the promulgation of regulations to implement the two sections was part and parcel of the same legislation.

Section 3 of the law of 1866, and its progeny 19 U.S.C. § 482, on which the majority relies for its view that 19 C.F.R. § 145.2 is limited to the provisions of § 482 is by its specific language limited to search by an officer of goods, wares, or merchandise which have been introduced into the United States in a manner contrary to law and additionally " . . . to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there are goods which were imported contrary to law; . . . " (Emphasis supplied). Manifestly, this language speaks in the past tense and applies only to trunks or envelopes which have already been introduced into the United States. The section has absolutely nothing to do with inspections or searches at the border or with opening letters at the border.

In other words, § 2 of the 1866 law, now 19 U.S.C. § 1581, was enacted to permit inspections and searches at the border, while § 3, now 19 U.S.C. § 482, was enacted to permit inspection and search where the officers had reasonable cause to suspect that the goods had been imported contrary to law.

The fact that § 2 of the 1866 legislation did not mention vehicles is quite understandable. At that time there were few, if any, highways or roadways entering the United States from foreign countries and, for that matter, even trains of foreign origin were probably quite uncommon. Most, if not all, foreign commerce, with the exception of smuggled goods from Canada, entered by way of ocean going ships.

Section 2 of the initial law, the parent of § 1581 permitted searches on board the vessels without reasonable suspicion, which I deem the statutory and historical equivalent of today's border search. This section was revised by Section 581, Chapter 356, 67th Congress, Sess. II, 1922, 42 Stat....