People v. Duncan

• Decision Date: 26 July 1974
• Docket Number: Cr. 11224
• Citation: 115 Cal.Rptr. 699,40 Cal.App.3d 940
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Anthony DUNCAN, Defendant and Appellant.

Page 699

115 Cal.Rptr. 699

40 Cal.App.3d 940

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Anthony DUNCAN, Defendant and Appellant.

Cr. 11224.

Court of Appeal, First District, Division 1, California.

July 26, 1974.

Romines, Wolpman, Tooby, Eichner, Sorensen & Constantinides, Menlo Park, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., William E. James, Asst. Attys. Gen., W. Eric Collins, Eugene Kaster, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

Defendant who was admitted to probation for a period of three years following his conviction by plea of guilty of possession of cocaine in violation of section 11500 (now § 11350) of the Health and Safety Code, has appealed from that order. ¹ He seeks review of an order of the trial court which denied his motion to suppress evidence (Pen.Code, § 1538.5, subd. (m)), and also, having secured a certificate of probable cause (§ 1237.5), he seeks review of an order denying his motion to dismiss (§ 995) a count of the information charging him with importation of hashish into this state in violation of section 11531 (now § 11360) of the Health and Safety Code, which charge, together with a charge of possession of marijuana in violation of section 11530 (now § 11357) of that code were dismissed as a result of the plea bargain which resulted in defendant's conviction.

The search and seizure of which defendant complains was made under a federal warrant issued to, and on the affidavit of, a special agent of the Bureau of Customs, Department of the Treasury, and involved the delivery to and receipt by the defendant of a package of hashish mailed from abroad which was the subject of one dismissed count of the information. ² Defendant contends that the affidavit upon which the warrant was issued was insufficient to justify issuance of a warrant for a search for the package in question, and, more specifically, insufficient to justify authorization of a general search of the premises for other contraband, which in fact turned up the cocaine, the subject of the charge of which he was convicted, and the marijuana, which was the subject of the other dismissed count of the information. More particularly he claims that the affidavit contains insufficient facts from which the magistrate could have determined the reliability of the information before him, and that the original search of the parcel, transmitted as first class mail, was illegal because there was nothing to show that the opening agent had a real suspicion that the parcel contained contraband, or that it was opened by an agent authorized to do so. He recognizes that regulations promulgated and effective at or about the time the defendant sent for the hashish have a less stringent standard, but contends those regulations are invalid because in conflict with the governing statute. These contentions are examined and found wanting.

He also seeks to attack this conviction, because it was in part adduced by the fact that he was charged with importation of hashish, by showing that such charge was invalid under the commerce clause and the supremacy clause of the United States Constitution (art. I, § 8; and art. VI), since federal law has preempted the field. Because that charge was dismissed this case is not the vehicle to determine that point, but in any event it does not appear meritorious. The order admitting the defendant to probation must be affirmed.

I

The record shows that the parcel entered the United States through the mail. It was stipulated at the hearing on defendant's motions to suppress and to dismiss that the parcel was transmitted as first class mail. If there was no authority to open the parcel, the affidavit was ineffective to give rise to the issuance of a search warrant irrespective of any other technical inadequacies.

The authority for customs seizures is found in section 482 of title 19 of the United States Code. ³ It is generally recognized that under this section '. . . a customs officer may search an individual's baggage and outer clothing, in a reasonable manner, based on subjective suspicion alone, or even on a random basis . . .. The arriving international traveler is on notice that such a search may be undertaken, and the search itself involves only the most minor affront to the individual's dignity.' (United States v. Stornini (1st Cir. 1971), 443 F.2d 833, 835 (cert. den. (1971), 404 U.S. 861, 92 S.Ct. 162, 30 L.Ed.2d 104).) In United States v. McDaniel (5th Cir. 1972), 463 F.2d 129 (cert. den. (1973), 313 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041), the court observed: '. . . the fact that one is in the process of crossing an international boundary provides sufficient reason in itself to permit a search for aliens or contraband, without the presence of any other circumstance that would normally have to attend the requirements of the Fourth Amendment.' (463 F.2d at p. 132. See also Carroll v. United States (1925), 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543; Murgia v. United States (9th Cir. 1960), 285 F.2d 14, 17; (cert. den. (1961), 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265); King v. United States (5th Cir. 1958), 258 F.2d 754, 756 (cert. den. (1959), 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639), and Landau v. United States Attorney (2d Cir. 1936), 82 F.2d 285, 286.) The general rule of inspection of persons is qualified by recognition that 'nothing leads a person to anticipate that, on reaching our border, . . . he will be subjected to a skin search.' (United States v. Guadalupe-Garza (9th Cir. 1970), 421 F.2d 876, 878.) 'The customs official must have 'at least a real suspicion, directed specifically to that person,' to sustain such a search.' (Id., at p. 879. See also United States v. Johnson (9th Cir. 1970), 425 F.2d 630, 632 (cert. granted (1971), 400 U.S. 990, 91 S.Ct. 451, 27 L.Ed.2d 437), and Henderson v. United States (9th Cir. 1967), 390 F.2d 805, 808.) Border searches must be reasonable even though they may be made without a warrant or the probable cause necessary for an arrest. (See Boyd v. United States (1886), 116 U.S. 616, 623--624, 6 S.Ct. 524, 29 L.Ed. 746, and United States v. Glaziou (2d Cir. 1968), 402 F.2d 8, 12 (cert. den. (1969), 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126).)

Numerous cases have determined that imports by mail may by inspected without the probable cause required for a search of domestic mail. (See People v. Sloss (1973), 34 Cal.App.3d 74, 81, 109 Cal.Rptr. 583; United States v. Doe (2d Cir. 1973), 472 F.2d 982, 984--985 (cert. den. (1973), 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691); United States v. Galvez (10th Cir. 1972), 465 F.2d 681, 687; Chapman v United States (10th Cir. 1971), 443 F.2d 917, 920; United States v. Beckley (6th Cir. 1964), 335 F.2d 86, 88--89 (cert. den. (1965), 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807); United States v. Swede (S.D.N.Y.1971), 326 F.Supp. 533, 535--536, and United States v. Sohnen (E.D.N.Y.1969), 298 F.Supp. 51, 54--55.) ⁴

Defendant contends that because of the express words of the statute, and the regulations promulgated for the guidance of customs and postal officers and employees, he, and presumably the sender, had a reasonable expectation of privacy which rendered the opening of the package an unlawful search. (See Katz v. United States (1967) 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576; People v. Krivda (1971), 5 Cal.3d 357, 364, 96 Cal.Rptr. 62, 486 P.2d 1262 (cert. den. (1973), 412 U.S. 919, 93 S.Ct. 2734, 37 L.Ed.2d 145), and People v. Edwards (1969), 71 Cal.2d 1096, 1102--1105, 80 Cal.Rptr. 633, 485 P.2d 713.) ⁵ He distinguishes the cases upholding postal searches decided after Katz because they do not discuss the right to a reasonable expectation of privacy. (See, however, People v. Kosoff (1973), 34 Cal.App.3d 920, 930-- 932, 110 Cal.Rptr. 391, and United States v. Doe, supra, 472 F.2d 982, 985.)

The regulations relied upon by defendant provided that any sealed first class parcel from abroad which does not bear a label permitting customs officers to open them for inspection may not be opened unless the addressee furnishes written authority therefor. If no such authority is furnished the parcel is to be returned to its origin. (See former 19 C.F.R., § 9.5, subd. (b); and former 39 C.F.R., § 261.3, subd. (a), prior to amendment June 22, 1971 ⁶).

The parcel in this case first appears of record on August 30, 1971, when one customs special agent advised another of the discovery of the package. One special agent testified at the preliminary examination that the defendant stated he sent $150 to Holland for the hashish approximately the first or second week in August. ⁷ Therefore, amendments to the postal and customs regulations published June 22, 1971, and effective July 22, 1971, govern this case. (See People v. Sloss, supra, 34 Cal.App.3d 74, 81, 109 Cal.Rptr. 583.) The earlier regulations provided, 'All mail believed to contain merchandise . . . (is) subject to customs examination . . . (with noted exceptions).' (39 C.F.R., § 261.1, and see language in 19 C.F.R., § 9.5, subd. (b), fn. 6 above.) The new regulations provide, 'All mail originating outside the customs territory of the United States is subject to customs examination . . . (with noted exceptions) . . ..' (39 C.F.R., § 61.1) The references to labeling and notice to the addressee have been deleted from the customs regulations. (Cf. 39 C.F.R., § 61.3; see 36 F.Reg. No. 120P--11851, June 22, 1971.) At the same time the customs regulations were revised to provide, 'When upon customs examination, a parcel or envelope from abroad . . . is found to contain material prohibited importation or imported contrary to law, the merchandise is subject to seizure and forfeiture . . ..' (19 C.F.R., § 9.5.) The provision for notice to the addressee or the sender in connection with such goods was deleted. Further amendments provided, 'Except...