U.S. v. Pringle

• Decision Date: 20 July 1978
• Docket Number: No. 77-5177,77-5177
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Earna Jean PRINGLE and Harold Elston, Defendants-Appellants. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1114

576 F.2d 1114

UNITED STATES of America, Plaintiff-Appellee, v. Earna Jean PRINGLE and Harold Elston, Defendants-Appellants.

No. 77-5177

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

July 20, 1978.

William L. Kirby, II, Columbus, Ga. (Court-appointed), for Pringle.

John C. Swearingen, Jr., Columbus, Ga. (Court-appointed), for Elston.

D. L. Rampey, Jr., U. S. Atty., Joseph M. Lawless, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

RONEY, Circuit Judge:

Defendants Earna Jean Pringle and Harold Elston appeal from their convictions for violating the federal drug laws. Defendants' principle contention on appeal is that customs agents searched an incoming international package mailed to Pringle's address from Thailand, in violation of the Fourth Amendment of the United States Constitution and 19 U.S.C.A. § 482, one source of statutory authority for warrantless customs mail searches. Section 482 requires that the customs agents have "reasonable cause to suspect" that the item searched contains illegally imported merchandise. We need not decide whether such "reasonable cause to suspect" existed in the present case, for we find this search justified by another section of the customs laws, 19 U.S.C.A. § 1582, and the regulations thereunder. Those provisions authorize searches of all persons, baggage, merchandise, and mail entering the United States. No "probable cause" or "reasonable cause to suspect" is needed under those provisions. Such searches are constitutionally permissible. The Fourth Amendment prohibits only unreasonable searches and seizures. The courts have long held warrantless border searches, including mail searches, reasonable, without "probable cause" or any ground for "suspicion." The search thus satisfied the statutory and constitutional requirements, so the heroin discovered therein was properly admitted into evidence.

Defendants also contend: the search of Elston's car was unconstitutional, there was insufficient evidence to support their convictions, and the trial judge erred in his instructions to the jury. Finding all of these allegations meritless, we affirm.

I. The Warrantless Mail Search By Customs Agents

On December 29, 1976, Harry Nance, a Customs Mail Specialist at the Varick Street Post Office in New York City, was inspecting packages which had arrived from outside the United States. Nance opened a package addressed to Elaine Grant, 310 Bragg Smith Street, Columbus, Georgia, which had come from Thailand. He opened it because he had been instructed by his supervisors to open all packages from Thailand, because the drug rate coming from Thailand is "very, very high." In the package, he found a pillowcase which contained a plastic bag filled with a white powder, which Nance suspected was heroin. A chemical "field test" confirmed that the substance was indeed heroin.

Defendants contend that under these facts, Agent Nance did not have the "reasonable cause to suspect" required by 19 U.S.C.A. § 482 in order to conduct a warrantless search of incoming international mail. Section 482 provides that

Any of the officers or persons authorized to board or search vessels may . . . search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law . . . .

We need not decide whether "reasonable cause to suspect" existed here, for this search can be justified by another provision of the customs laws. Section 1582 provides that:

The Secretary of the Treasury may prescribe regulations for the search of persons and baggage . . . and all persons coming into the United States from foreign countries shall be liable to detention and search . . . under such regulations.

The implementing regulations authorize searches of all persons, baggage, merchandise, and mail entering the United States. 19 C.F.R. §§ 145.2, 162.6 (1977). Thus, § 145.2 of the regulations provides that:

All mail originating outside the Customs territory of the United States, whether sealed or unsealed, is subject to Customs examination . . . .

Based on these provisions, the Seventh Circuit has held that incoming international mail is

subject to search at the border merely because it was entering the United States from abroad; no other fact, and no suspicion particular to this envelope (package), is necessary under the regulation. . . . Accordingly, the Government is free to spot-check incoming international mail at the port of entry, or to inspect all such mail, or to inspect any such mail which attracts the inspector's attention.

United States v. Odland, 502 F.2d 148, 150-151 (7th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed.2d 680 (1974). Other courts have agreed with the Seventh Circuit's conclusion. ¹

We agree with these courts' interpretation of § 1582 and Regulation § 145.2. Accordingly, Agent Nance was statutorily authorized to open this package, since it was entering the United States from Thailand, without any need to show a "reasonable cause to suspect" that it contained contraband.

This search must also be tested against the Fourth Amendment. Section 1582 and Regulation § 145.2 extend customs authority to search incoming international mail as far as is constitutionally permissible. The Fourth Amendment prohibits only unreasonable searches and seizures. The Seventh Circuit has specifically upheld the constitutionality of § 1582, as we do here. United States v. Odland, 502 F.2d 148, 151 (7th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed.2d 680 (1974). Both this Court, and more recently, the Supreme Court, have held warrantless searches of incoming international mail to be reasonable. United States v. Ramsey, 431 U.S. 606, 616-625, 97 S.Ct. 1972 (1977); United States v. King, 517 F.2d 350, 352-353 (5th Cir. 1975).

The Supreme Court in Ramsey reviewed the long history upholding customs searches, and reaffirmed that warrantless border searches without probable cause are nonetheless constitutionally reasonable:

Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside.

431 U.S. at 619, 97 S.Ct. at 1980. The Court applied the same principle to customs searches of incoming international mail, since no meaningful distinction could be drawn between entry of persons, suitcases and packages, and entry by mail. Id. at 620-621, 97 S.Ct. 1972. The Court thus confirmed the view that has been taken by this Court and the other courts which have considered the question. ²

Mail sorting rooms at a port of entry like New York are border areas. ³ Thus, the instant search was reasonable simply because the package was searched at a border area after entering this country from Thailand.

This search was therefore valid under § 1582 and the Fourth Amendment. The district court was correct in admitting the heroin found as a result of the mail search into evidence.

II. The Search of Elston's Automobile

After Agent Nance's search revealed the package's contents, all but a trace amount of the heroin was removed and replaced with flour. A controlled delivery of the package was then made to 310 Bragg Smith Street, Earna Jean Pringle's house, while Government agents kept the premises under surveillance. The package was accepted by defendant Pringle.

Twenty minutes later, defendant Harold Elston arrived at 310 Bragg Smith Street and entered the house. The surveilling agents saw Elston peek from inside the house through the drawn blinds several times. When he left the house some 10 minutes after he had arrived, the agents noticed that his posture was more erect than before, and that there was a noticeable bulge under his jacket. When the agents had resealed the package prior to delivery, they had inserted in it a beeper type transmitter known as an "AT-4." The AT-4 emits a beeping signal which allows the agents to follow the location of the package. Since the signal from the AT-4 beeper became weaker as Elston drove away, the agents concluded that Elston had the package in his car. The agents stopped the car. As Elston got out, Postal Inspector Lalli saw the package in plain view between the seat and door on the driver's side. It had not been opened. The package was seized, and Elston arrested.

The search of Elston's car was valid, since the agents had probable cause to stop the car and seize the package. Elston left Pringle's house walking in a suspiciously erect manner, with a bulge under his jacket which the agents believed might be the package. As his car drove away, the AT-4 beeper signal from the package grew weaker. These facts gave the agents probable cause to stop the car. When the stop was made, Inspector Lalli saw the package in plain view. Accordingly, the stop of the car, arrest of Elston, and seizure of the package were proper.

While defendants have not raised this issue, we note that the insertion of the beeper into the package and its subsequent use in tracking the package were constitutionally permissible.

Our prior decisions examined the use of beepers in several different situations. In United States v. Holmes, 537 F.2d 227 (5th Cir. 1976) (en banc ), an equally divided en banc decision of this Court affirmed the district court's holding that installation of a beeper on a suspect's car is an illegal search, absent probable cause. ⁴ In United States v. Perez, 526 F.2d 859 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976), a beeper was placed in a television set which undercover agents bartered in return for heroin. The Court distinguished the situation from that in Holmes, assuming without deciding that the defendant had no reasonable expectation of privacy in that...