People v. Kosoff

• Decision Date: 29 October 1973
• Docket Number: Cr. 23347
• Citation: 110 Cal.Rptr. 391,34 Cal.App.3d 920
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Jay KOSOFF, Defendant and Respondent.

Page 391

110 Cal.Rptr. 391

34 Cal.App.3d 920

The PEOPLE of the State of California, Plaintiff and Appellant, v. Jay KOSOFF, Defendant and Respondent.

Cr. 23347.

Court of Appeal, Second District, Division 5, California.

Oct. 29, 1973.

Hearing Denied Dec. 27, 1973.

David D. Minier, Dist. Atty. of Santa Barbara County, and Patrick J. McKinley, Deputy Dist. Atty., for plaintiff and appellant.

Whatley, Roden, Monk & Johnson and Stanley M. Roden, Santa Barbara, for defendant and respondent.

ASHBY, Associate Justice.

Defendant was charged in a three count information with possession of marijuana in violation of former Health and Safety Code section 11530, possession for sale of marijuana in violation of former section 11530.5, and possession of narcotic paraphernalia in violation of former section 11555. The trial court granted defendant's motion under Penal Code section 1538.5 to suppress evidence and thereafter dismissed the case against defendant under Penal Code section 1385. The People have appealed. (See Pen.Code § 1238(a) (7).)

On February 25, 1970, a search warrant issued authorizing the search of defendant's apartment, automobile and person, based upon the affidavit of George Bregante, a deputy sheriff of Santa Barbara County. The affidavit stated that on February 20, 1970, Bregante received a call from United States Customs Agent Michael Peel who informed Bregante that on February 5 a package addressed to Miss Jeannie Kosoft (sic), 6636 Pasado, Apartment B, Goleta, California, had arrived in Seattle, Washington, through the international mails. The package indicated that it was from Sgt. Ernest Johns, Serial 624--31--4765, Company B, 1/38th Infantry, Second Division, APO San Francisco 96224. Agent Peel stated that this package had been opened by Joseph O'Brien, a 'Customs opener-verifier' pursuant to 'numerous US Customs Code sections and Customs regulations covering the inspection of International Mail.' On opening the package O'Brien had discovered a pillow which contained a plastic bag with a green leafy substance believed to be marijuana. One week later O'Brien opened another parcel, this one addressed to Mr. and Mrs. J. Kosoft (sic) at the same Pasado address, purportedly from PFC John Mason, Serial 622--43--729, Company B, 1/38th Infantry, Second Division, APO San Francisco 96224. O'Brien again found a plastic bag containing a green leafy substance believed to be marijuana.

O'Brien sent the parcels to United States Customs in San Pedro, California, where on February 18, Agent Peel photographed the packages and contents, removed a sample of the green leafy substance from each, and turned the samples over to a Customs Bureau chemist who examined the material and found it to be marijuana.

Agent Peel sent the two packages to the Goleta post office where they were received by Gordon McDonald, assistant superintendent of mails. Peel sent the withdrawn samples and photographs of the packages and contents to Sergeant Bregante. Bregante examined the samples of vegetable matter and formed the opinion that it was marijuana.

When Superintendent McDonald received the packages from the Customs Bureau they were sealed in cellophane. He did not open the packages. He did, however, show the exterior of the packages to Sergeant Bregante on February 24. Sergeant Bregante observed that the addresses on the packages were as they had been reported to him by Agent Peel.

On February 25 the two parcels were delivered to 6636 Pasado, Apartment B, by a mail carrier under observation by Detectives Dickey and Prince. Prince observed defendant accept the packages at approximately 9:30 a.m. Fifteen to twenty minutes later Detective Prince observed defendant carry both packages out of the apartment and place them in a Corvette parked in front of the residence.

Sergeant Bregante secured a search warrant then executed it, finding marijuana in the packages in the Corvette, and narcotics paraphernalia (pipes), apparently in the residence.

This is the second time this case has been before this court. Previously the trial court granted defendant's motion under Penal Code section 1538.5 on the ground that defendant had been entrapped because he had not been given the opportunity to open the packages and inspect the contents in the presence of postal or law enforcement authorities and to acknowledge or deny ownership or knowledge of the marijuana. The trial court then purported to dismiss the case under Penal Code section 1385. On appeal the order of the trial court was reversed. ¹ The court held that entrapment has no relevance to the sole issue in a hearing under Penal Code section 1538.5 when a warrant has been issued, that is, whether the search was unreasonable because there was not probable cause for the issuance of the warrant. The order was reversed with instructions to the trial court to redetermine the motion under Penal Code section 1538.5.

Upon redetermination the trial court based its order granting the section 1538.5 motion and dismissing the case under Penal Code section 1385 upon two grounds: (1) That the opening of the package by United States Customs was in violation of customs regulation and the Fourth Amendment, and (2) 'The participation of the postal employees and the Sheriff's officers in the opening of the packages, 'setting up' the defendant, were in violation of Fourth Amendment rights.' We will discuss these grounds in inverse order.

The second justification offered by the trial court was clearly erroneous. There was no evidence that postal or sheriff's employees engaged in any unauthorized opening of the packages. As pointed out above, the packages were sealed when received by post office Superintendent McDonald, and he and Sergeant Bregante merely observed the exterior of the packages prior to their delivery to defendant. The packages were seized from defenant's automobile pursuant to a warrant, and it is the validity of the warrant which is in issue here. The trial court's memorandum of decision indicates that the court continued to be concerned with what it believed to be police unfairness in having the package delivered to defendant under circumstances which might make it difficult for defendant to establish that he had no knowledge of its contents and did not arrange for its being mailed to him. This, however, relates to the proof of the necessary elements of the crime as to defendant's intent. While that may be an issue in the case, it is not an issue of probable cause for issuance of the search warrant. It is not the issue for determination in a motion to suppress evidence under Penal Code section 1538.5. It is not an issue of Fourth Amendment rights. Therefore the trial court's ruling must stand or fall based upon the court's first justification, the asserted illegality of the customs search.

We therefore turn to the question of whether the search of the package by a United States Customs agent was contrary to the Fourth Amendment. It is conceded that there was nothing suspicious about the outside appearance of the package and that it was opened by the customs agent without probable cause to believe it contained contraband. As we recently stated, however, in People v. Sloss, 34 Cal.App.3d 74, 81, 109 Cal.Rptr. 583, searches by United States Customs agents of packages coming into our nationhs borders do not require probable cause. Section 1499 of title 19 of the United States Code authorizes examination of imported merchandise and requires that not less than one package in every 10 must be examined unless the Secretary of the Treasury is satisfied that examination of a lesser proportion will amply protect the customs laws. As stated in United States v. Sohnen, 298 F.Supp. 51, 54 (E.D.N.Y.1969), 'A government has a well-recognized right to conduct customs searches of persons and merchandise as they enter the country. See Carroll v. United States, 267 U.S. 132, 149--154, 45 S.Ct. 280, 69 L.Ed. 543 . . . Exercising this historical customs power, Congress has conferred, and the courts have recognized, broad authority in customs officials to conduct border searches without a warrant and without a showing of probable cause. (Citations.)' In Henderson v. United States, 390 F.2d 8058 808 (9th Cir. 1969), it was stated: '. . . it is too well established to require citation of authority that such searches are unique, that the mere fact that a person is crossing the border is sufficient cause for a search. Thus every person crossing our border may be required to disclose the contents of his baggage, and of his vehicle, if he has one. The mere crossing of the border is sufficient cause for such a search. Even 'mere suspicion' is not required.'

As pointed out in the leading case of United States v. Beckley, 335 F.2d 86, 89 (6th Cir. 1964), cert. denied 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807, '(t)here seems to be no reason why these principles should not apply to mail coming into the country, especially where, as here, there is a representation on the package that it contains merchandise.' In United States v. Swede, 326 F.Supp. 533, 536 (S.D.N.Y.1971), it was said: 'If a customs officer may stop a person at an international border and conduct a 'border search' without having first procured a search warrant, or having probable cause to believe that the person searched has committed a crime (citation), it must follow that a package making a similar crossing is subject to at least the same inconvenience. Certainly the Constitution confers no greater rights on packages than people.' There is nothing unreasonable about the search of a proportion of incoming packages, selected at random and without probable cause or suspicion. '. . . Unless such packages were spot-checked, the international mails would provide a broad highway for wanton and wholesale violations of our customs laws.' (United States v. Doe, 472 F.2d 982, 985, (2d Cir. 1973), cert. denied 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d...