People v. Schatz

• Decision Date: 05 May 1971
• Parties: The PEOPLE of the State of New York v. Martin SCHARTZ, Defendant.
• Court: New York Supreme Court

Page 186

321 N.Y.S.2d 186

66 Misc.2d 381

The PEOPLE of the State of New York v. Martin SCHARTZ, Defendant.

Supreme Court, Trial Term, Bronx County, Part XXII.

May 5, 1971.

Burton B. Roberts, Dist. Atty., Bronx County, by Charles E. Padgett, Asst. Dist. Atty.

Rubin, Gold & Geller, New York City, by A. Geller, New York City, of counsel, for defendant.

NATHAN T. HELMAN, Justice:

In February of 1970, two parcels arrived by mail from Afghanistan addressed to 'Bob Goldstein c/o Martin Schartz'. Aware of a developing traffic in narcotic drugs smuggled in from Afghanistan, customs agents examined the packages carefully, and, their suspicions aroused by the weight and appearance of the parcels, had them opened. Upon discovering that the contents were indeed 'Hashish', the parcels were taken to testing laboratories which formally confirmed the inspectors' findings. The subsequent investigatory and enforcement procedures employed by representatives of the City Police, the U.S. Post Office, and the Customs Inspectors, have involved the court in some unusual questions of search and seizure, defendant having moved to suppress the evidence.

Some three weeks after the original opening of the parcels a plan was conceived by the enforcement officers to effect an arret of persons criminally involved in the transaction. Two customs agents, a police officer, and a uniformed post office employee, were dispatched to the apartment of Messrs. Goldstein and Schatz, the addressees on the packages. The post office employee knocked on the door, while the others remained on the floor landing below. When a lady answered the door stating that 'Goldstein' no longer resided at the apartment, and that 'Schatz' was not home, she was given the packages. A few minutes later, pursuant to instructions, the post office representative again knocked on the door, stating that he required a signed receipt. This was returned to him through a peephole signed 'Schatz' on each side of the receipt. Several minutes later the post office employee, this time with a police officer alongside him, knocked again. The door was opened by the defendant Schatz, and the officers entered. Officer Montemarano announced that he was a police officer, and stated 'The parcel delivered to you contained narcotics, where is it?' Defendant Schatz responded 'I don't know what was in the parcel * * * I threw it out the window', pointing to the window. A search of the courtyard below revealed the package, and the defendant Schatz was arrested.

At the outset, the District Attorney contends that defendant Schatz does not have standing to object to the search and seizure of the subject packages. Citing the Convention of the Universal Postal Union, Article 4, he emphasizes the 'ownership' of a postal article in the sender until it has actually been delivered to the designated addressee. The case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, a leading authority on the subject of 'standing', has held that although defendant claims to be neither sender nor addressee there is 'no necessity for a preliminary showing of an interest in the premises searched or the property seized.' Here defendant has been charged with criminal possession of a contraband, and has a direct relationship to the property seized. A test recently applied in People v. Estrada, 28 A.D.2d 681, 280 N.Y.S.2d 825, is whether he has been a 'victim' of an allegedly illegal search, or 'one against whom the search was directed.' In my view, defendant is a person against whom an alleged unconstitutional act was 'directed', and has standing to make this application.

Defendant challenges the original opening of the packages as an unlawful invasion of his constitutional privileges under the Fourth Amendment. The powers of customs inspectors in this area are well-defined in Federal statutes, and in Postal and Customs Regulations and have received broad approval in numerous Federal decisions (Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Alexander v. United States, 9 Cir., 362 F.2d 379). Standards applicable to the movement of mail within the country are not applicable to mail coming in from other countries and traditional requirements of reasonable and probable cause do not apply.

Mail sorting rooms have been established at ports of entry, and Post Office Officials relinquish control of such mail to customs officials for examination. A Treasury Department regulation (19 C.F.R., sect. 9.5) authorizes the opening of sealed parcel post packages by customs agents immediately upon receipt. Similarly, Postal Regulations authorize the opening of imported parcels without formality, even though sealed. 'The right of border search does not depend on probable cause * * *. The searches of persons entering the U.S. from a foreign country are in a separate category from searches generally, (and) * * * are totally different things from a search for and seizure of a man's private books and papers.' (Murgia v. United States, 9 Cir., 285 F.2d 14; United States v. Beckley, 6 Cir., 335 F.2d 86; Landau v. United States Attorney for So. Dist., 2 Cir., 82 F.2d 285).

Such distinctions as exist relate to searches of the person as compared with the opening of parcels containing merchandise. Some recent decisions of the Ninth Circuit Court of Appeals, have gone beyond the standard of 'mere suspicion' as supporting a search, in the case of a strip search of the person. There, a requirement of 'real' suspicion has been added, supported by 'articulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body.' (United States v. Johnson, 425 F.2d 630; United States v. Guadalupe--Garza, 421 F.2d 876.)

Defendant argues, however, that the parcels constituted 'First Class' Mail, and as such were restricted by section 4251, 39 U.S.C., as mail 'closed against postal inspection' and by section 4057 requiring a search warrant. The evidence at the hearing, however, sustained the People's position that this was not 'first class' mail. To begin with, it was not so designated, and was regarded by the Customs Inspector as 4th class mail (S.M. 130). The packages bore none of the markings or descriptive indorsement of first class mail, and were described by the Post Office representative as 'insured' parcels, a classification usually reserved for articles sent by third or fourth class mail (S.M. 133). (Santana v. United States, 1 Cir., 329 F.2d 854.)

'The standards applicable to mail matter moving entirely within the country are not applicable to mail matter coming in from outside the country, at least where it appears that a customs determination must be made.' (United States v. Beckley, 335 F.2d 86.) It may be noted that non-mailable and prohibited matter is the subject of a special section (39 CFR 262.1). As recently as May 3, 1971, the U.S. Supreme Court in an opinion by Mr. Justice White sustained a statute holding illegal the knowing use of the mails for the...