581 F.2d 208 (9th Cir. 1978), 77-3738, United States v. Dubrofsky

Docket Nº:77-3738.
Citation:581 F.2d 208
Party Name:UNITED STATES of America, Appellee, v. Leonard Joel DUBROFSKY, Appellant.
Case Date:August 09, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 208

581 F.2d 208 (9th Cir. 1978)

UNITED STATES of America, Appellee,

v.

Leonard Joel DUBROFSKY, Appellant.

No. 77-3738.

United States Court of Appeals, Ninth Circuit

August 9, 1978

Rehearing Denied Aug. 31, 1978.

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[Copyrighted Material Omitted]

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Christopher Jon Cole (argued), San Francisco, Cal., for appellant.

Robert Dondero, Atty. (argued), San Francisco, Cal., for appellee.

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

Before KILKENNY, TRASK and SNEED, Circuit Judges.

SNEED, Circuit Judge:

Leonard Dubrofsky was convicted of importing heroin in violation of 21 U.S.C. § 952 and possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and sentenced to a 15-year prison term for each violation, each term to run consecutively. He brings this appeal, challenging the use of an electronic tracking device, the admission of evidence from two searches, and several aspects of the sentencing decision. We affirm the conviction.

I.

Facts.

On May 13, 1977, a package mailed from Thailand addressed to "Francis Schneider, P.O.B. 276, Brookdale, California, 95007 U.S.A." arrived at the San Francisco Airport Customs Air Mail Facility. A lawful customs search revealed ten plastic bags containing heroin in the hollowed out walls of the package. On May 16 agents of the Drug Enforcement Administration removed these bags and replaced them with six bags of white powder and two bags of heroin. In addition, electronic surveillance devices were placed inside the parcel. These devices emitted beeping signals that allowed agents to follow the parcel. The beep changed tone if the parcel was opened.

The package was resealed and sent to the post office for a controlled delivery. On May 17 Dubrofsky picked up the parcel and drove to the residence of Ms. Cheryl Lovejoy in Santa Cruz. He was followed by federal agents and local police.

Soon after Dubrofsky entered Lovejoy's house the beeper changed tones, indicating that the package had been opened. Six or seven officers approached the residence and requested entry. Ms. Lovejoy admitted them, was informed of their purpose, and indicated that Dubrofsky was in the basement. The agents went there and discovered that the basement was locked from the outside. They obtained the combination from Ms. Lovejoy, opened the door, and ordered Dubrofsky to come out. Dubrofsky obeyed and was arrested.

After the arrest, Ms. Lovejoy was informed that she was a suspect in the investigation. She was given a Miranda warning, and her consent was requested to search the basement. Although a written consent was apparently given after the search, evidence at the suppression hearing indicates that Ms. Lovejoy gave a valid oral consent prior to the search. The package, heroin, heroin substitute, and the beepers were found in the basement.

Later that day a warrant was obtained to search Dubrofsky's home in Boulder Creek. The warrant was issued in San Francisco and telephonically relayed to an agent waiting at Dubrofsky's home. The agent performing the search never saw the warrant nor was informed of the specific items authorized to be seized. A passport, an alien registration card, a small amount of heroin, narcotics paraphernalia, a phone bill, a plane ticket, and a loan document were discovered in the search.

II.

Installation and Use of the Electronic Surveillance Devices.

Dubrofsky contends that the installation and subsequent use of the electronic surveillance devices was a search falling within the Fourth Amendment's protections. We disagree.

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A two-step analysis is required for problems presented by the use of electronic surveillance devices in law enforcement activities. First, it must be determined if the Fourth Amendment was violated when the device was installed. United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976) (per curiam). If installation of the device was proper, the court must then determine if the continued surveillance by the device violates a reasonable expectation of privacy. United States v. Hufford, 539 F.2d 32 (9th Cir.), Cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

There is no question that the initial opening of the package by customs agents was lawful. Customs officials are authorized to inspect incoming international mail when they have a "reasonable cause to suspect" that the mail contains contraband. United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). "Reasonable cause to suspect" is a considerably milder standard than probable cause. 431 U.S. at 612-13, 97 S.Ct. 1972. Substantial quantities of narcotics are imported into the United States from Thailand, and it is reasonable to suspect that a crated package like the one in controversy contains contraband. Therefore, the package was lawfully opened, and the mere insertion of the devices did not violate any Fourth Amendment right. Such rights, we recognize, easily can be violated by the installation of beepers, but this is not such a case.

The actual use of the devices, providing continued surveillance of the package and indicating when it was opened, presents a different problem. Electronic tracking devices continually broadcast "here I am" and when appropriate "the package has been opened." United States v. Holmes, 521 F.2d 859, 865 n.12 (5th Cir. 1975), Aff'd en banc by an evenly divided court,537 F.2d 227 (5 Cir. 1976). This intrusion, though, is slight and is not an impermissible search. Transmitting the package's location is merely an aid to what can be accomplished by visual surveillance. Permissible techniques of surveillance...

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