U.S. v. Most, 85-5177

• Decision Date: 20 May 1986
• Docket Number: No. 85-5177,85-5177
• Citation: 789 F.2d 1411
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Karl August MOST, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1411

789 F.2d 1411

UNITED STATES of America, Plaintiff-Appellee, v. Karl August MOST, Defendant-Appellant.

No. 85-5177.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 4, 1986.

Decided May 20, 1986.

Patrick O'Toole, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Patrick K. O'Toole, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Merle N. Schneidewind, San Diego, Cal., for defendant-appellant.

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

Before PREGERSON, POOLE, and THOMPSON, Circuit Judges.

POOLE, Circuit Judge:

Appellant Karl August Most appeals his conviction for conspiracy to import heroin and importation of heroin in violation of 21 U.S.C. Secs. 952, 960, and 963, conspiracy to possess heroin with the intent to distribute, and two counts of possession of heroin with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1), and 846. Appellant contends that the district court erred in denying his motions to suppress all evidence flowing from a Customs mail search of a package containing heroin and certain incriminating statements he made to DEA agents. We affirm.

I.

In November 1984, a package arrived from Thailand at the United States Customs Mail Facility in Oakland. The package was labeled by Thailand Customs officials as containing a blowfish paperweight and weighing 11-12 pounds. An Oakland Customs technician opened the package, drilled into the base of the paperweight and discovered heroin. The Drug Enforcement Agency was notified of the discovery. Pursuant to the DEA's request, the heroin was left inside, and after the base had been repaired, the package was sent on to the Postal Inspection Division in San Diego. There, the DEA applied for a search warrant with respect to the package and for permission to install an electronic transmitter. Although both the DEA agent's affidavit as well as the cover sheet for the affidavit specifically referred to the electronic beeper, the actual search warrant issued did not.

After the search warrant was issued, agents removed most of the heroin from the package, installed an electronic device, and forwarded the package to its destination address, a private mail service in San Diego. Here, agents observed Most leave the mail service with the package and join co-defendant Naslund and Most's girlfriend, Jackie Hale, in a car. The agents attempted to follow the car, but lost visual contact for about 10 minutes, during which time an increase in frequency of the signals emitted by the electronic device indicated that the package was being opened. After some 15 minutes, agents once again spotted the car and observed Most driving at high speed and turning frequently. They arrested Most and Naslund at approximately 3:30 p.m.

Upon arrest, Most was advised of his Constitutional rights and a short time later requested to speak to an attorney. Hale was advised of her Constitutional rights and volunteered to take the agents to a house on Jessie Street where Most had taken the paperweight. Most and the remaining agents arrived at this location (4-5 blocks away) shortly thereafter.

At the Jessie Street residence, one of the agents saw the blowfish paperweight in the backyard. Most asked another agent how Hale was. He told the agent that Hale did not know anything about what was going on, and asked what would happen to them.

The agent who had found the paperweight walked back to where Most was being held. According to his testimony at the suppression hearing, Most asked him "What's going on?" The agent replied that they had found the paperweight and were going to search the house for the beeper and the heroin sample. Most then admitted to the agent that he had thrown the beeper in the backyard and said he would show the agent where. Most asked again what would happen to Hale and the agent responded that he did not know. Approximately one and a half hours after arriving at the Jessie Street residence, Most was taken to the DEA station where he gave a statement regarding the paperweight. He asked again what would happen to Hale and was told that it was unclear whether or not she would go to jail. At the station, Most consented to a search of his safe located back at the Jessie Street residence. There, agents discovered approximately 166.5 grams of heroin.

At around 7:00 or 8:00 p.m., Most was taken to the Metropolitan Correctional Center (MCC). At no time other than shortly after being advised of his rights did Most request to speak with an attorney.

II.

Most claims that installation of the monitoring device was illegal because it was not specifically provided for in the search warrant.

We have previously held that the warrantless insertion of electronic devices pursuant to a lawful Customs search does not violate the Fourth Amendment. United States v. Bernard, 625 F.2d 854, 860 (9th Cir.1980) (relying on United States v. Dubrofsky, 581 F.2d 208, 211 (9th Cir.1978)). Therefore, we look to see whether the Customs agents in Oakland complied with statutory and constitutional requirements for opening a package to determine whether they could insert a beeper.

Inspection of mail from abroad is a border search for which neither a search warrant nor probable cause is required. United States v. Ramsey, 431 U.S. 606, 619-23, 97 S.Ct. 1972, 1980-82, 52 L.Ed.2d 617 (1977); see United States v. Whiting, 781 F.2d 692, 695 (9th Cir.1986); United States v. Alfonso, 759 F.2d 728, 733 (9th Cir.1985). Such searches are considered reasonable under the Fourth Amendment simply by virtue of the fact that they occur at the border. As the Supreme Court stated in Ramsey, "[t]his longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless 'reasonable' has a history as old as the Fourth Amendment itself." 431 U.S. at 619, 97 S.Ct. at 1980. Therefore, the opening of the package by the customs officer without a search warrant was constitutionally permissible.

Title 19 U.S.C. Sec. 482, provides in part as follows:

Section 482, Search of Vehicles and Persons

Any of the officers or persons authorized to board or search vessels may stop, search and examine * * * any vehicle, beast, or person, on which or whom they shall suspect there is merchandise which is subject to duty or shall have been introduced into the United States in any manner contrary to law * * * and to search any trunk or envelope, wherever found in which he may have reasonable cause to suspect there is merchandise which was imported contrary to law * * *.

Most contends that the constitutional power to open and search incoming packages and letter mail from abroad is limited by the provisions of the foregoing section. He further argues that the Customs technician did not have reasonable cause to suspect a violation of law when he opened the package.

The government claims that 19 U.S.C. Sec. 1581, not Sec. 482, governs the search in this case. Section 1581(a) provides in part: "Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States * * * and examine, inspect, and search the vessel or vehicle and * * * any person, trunk, or package, or cargo on board * * *." The broad language of this statute authorizes customs searches without probable cause or even mere suspicion. United States v. Dobson, 781 F.2d 1374, 1376 (9th Cir.1986). The government contends that Sec. 1581 is the general border search statute and distinguishes Sec. 482 as a more specialized statutory provision applicable to mailed articles which have already entered the United States. See United States v. Glasser, 750 F.2d 1197, 1204 (3d Cir.1984); DeVries v. Acree, 565 F.2d 577, 581 (9th Cir.1977) (Kilkenny, J., dissenting).

The government further contends that 19 U.S.C. Sec. 1582, which authorizes the Secretary of Treasury to prescribe regulations for the search of persons and baggage, was enacted in order to implement both Sec. 1581 and Sec. 482. See Glasser, 750 F.2d at 1204. Pursuant to this authorization, the Secretary has promulgated certain regulations. Regulation 145.2 of title 19 of the Code of Federal Regulations, which both parties agree governed the search of the package in this case, deals specifically with mail importations and provides that all mail, except certain governmental and diplomatic correspondence, arriving into the United States or the Virgin Islands from places outside thereof is subject to Customs examination. Because this regulation applies to mail as it enters the United States and is not restricted to items having previously crossed the border, the government argues that the regulation implements Sec. 1581. Id. Contra DeVries, 565 F.2d at 578. Consequently, since Sec. 1581 contains no "reasonable cause to suspect" standard, the government contends that Customs officials were permitted to open the package without cause.

We decline to decide whether 19 U.S.C. Sec. 482 limits the government's power to inspect incoming packages and letter mail from abroad, and we further decline to resolve what appears to be the statutory conflict between Secs. 482 and 1581, because we agree with the district court that the Customs technician had reasonable cause to suspect that the package contained contraband when it arrived at the Customs mail facility in Oakland, and thus the resulting search satisfied the "reasonable cause to suspect" standard of Sec. 482. United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977).

The presence of reasonable cause is a mixed question of law and fact, and therefore reviewable de novo. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). See United States v. Cardona, 769 F.2d 625, 628 (9th Cir.1985).

The test for "reasonable cause to suspect" or "reasonable suspicion" has been applied in a number of...