U.S. v. Odland

• Decision Date: 23 December 1974
• Docket Number: No. 73-2124,73-2124
• Citation: 502 F.2d 148
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David John ODLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 148

502 F.2d 148

UNITED STATES of America, Plaintiff-Appellee, v. David John ODLAND, Defendant-Appellant.

No. 73-2124.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 1974.

Decided Aug. 21, 1974, Certiorari Denied Dec. 23, 1974, See

95 S.Ct. 679.

John H. Lauerman, Franklyn M. Gimbel, Milwaukee, Wis., for defendant-appellant.

David B. Bukey and William J. Mulligan, Asst U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Before CLARK, ¹ Associate Justice, and CUMMINGS and TONE, Circuit judges.

CUMMINGS, Circuit Judge.

Defendant was indicted for importing 8.8 grams of cocaine into the United States from Colombia, in violation of 21 U.S.C. 952(a) and 960. After a bench trial he was convicted and received a two-year sentence; in addition a special parole term of three years was imposed under 21 U.S.C. 960.

Defendant's first argument is that about May 1, 1973, New York customs officials acted improperly in opening an envelope addressed to Patsy Klein, c/o Danial Schwartzman, 11990 Long Lake Drive, Wind Lake, Wisconsin 53185, U.S.A. from Medellin, Colombia. The envelope was found to contain 8.8 grams of a substance suspected to be cocaine. According to the record, this inspection occurred during the routine examination of mail parcels and envelopes arriving in the United States from abroad. We have examined the first class envelope in question and note that it is a thick red envelope enclosing a cardboard greeting card.

In denying reconsideration of its earlier order refusing to suppress evidence, the district court stated: 'I think the right of a Customs authority to inspect at random is implicit in the way the country protects itself from untaxed invasions (importations). It's also a proper way, in my judgment, for the Government to protect itself from the intervention of contraband. So I find no-- I have no difficulty with the original opening of the letter at New York.' We agree that the United States Bureau of Customs in New York was empowered to open this envelope as part of its continuing investigation of narcotics smuggling from foreign countries into the United States.

Defendant contends that the search was impliedly forbidden by 19 U.S.C. 482. That statute provides:

'Officers * * * authorized to * * * search vessels may * * * search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is (dutiable goods or contraband).'

We need not decide what constitutes 'reasonable cause to suspect.' This statute authorizes border searches; it also authorizes the search of trunks and envelopes 'wherever found.' It may be that when conducting searches away from the border, customs officials can rely only on this statute, and that the requirement of 'reasonable cause to suspect' is then a limitation on their powers. But when searching at the border, customs officials may also rely on other statutes. For example, 19 U.S.C. 1582 provides:

'The Secretary of the Treasury may prescribe regulations for search of persons and baggage * * * and all persons coming into the United States from foreign countries shall be liable to detention and search * * * under such regulations.'

The implementing regulation is 19 CFR 162.6, which reads in part:

'All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection and search by a Customs officer.'

International mail is subject to a similar scheme of regulation. The statute guaranteeing confidentiality to first class mail applies only to mail 'of domestic origin.' 39 U.S.C. 3623(d). The relevant regulation is 39 CFR 61.1, which provides:

'All mail originating outside the customs territory of the United States is subject to customs examination, except (certain mail addressed to dipolmats, international organizations and government officials.)'

It is clear that this regulation authorized the search involved here. The envelope was subject to search at the border merely because it was entering the United States from abroad; no other fact, and no suspicion particular to this envelope, is necessary under the regulation.

We also conclude that this sweeping power to search is constitutional. Surprisingly, it appears that the Supreme Court has never been required to determine the permissible scope of searches of persons or goods entering the United States from abroad. Nor has this Court had many occasions to consider the issue, though we have indicated that border searches are different from other searches. See United States v. Kurfess, 426 F.2d 1017, 1020 (7th Cir. 1970); United States v. De La Cruz, 420 F.2d 1093, 1095 (7th Cir. 1970). We therefore turn to the settled law of the Circuits which deal with border searches regularly.

There is substantial authority in those Circuits stating the power to search at international borders in the same sweeping terms as the regulation. Any person or thing coming into the United States is subject to search by that fact alone, whether or not there be any suspicion of illegality directed to the particular person or thing to be searched. Klein v. United States, 472 F.2d 847, 849 (9th Cir. 1973); United States v. McDaniel, 463 F.2d 129, 132 (5th Cir. 1972); United States v. Stornini, 443 F.2d 833, 835 (1st Cir. 1971). This rule is supported by dicta in Supreme Court opinions:

'It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile * * *. Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.' Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 285, 69 L.Ed. 543. 'It is clear that the (First Congress) did not regard searches and seizures (to collect duties) as 'unreasonable,' and they are not embraced within the prohibition of the (fourth) amendment.' Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746.

See also Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 37 L.Ed.2d 596.

We conclude that the 1st, 5th and 9th Circuit cases cited above correctly state the law of border searches, and that mail is not exempt. Accordingly, the Government is free to spot-check incoming international mail at the port of entry, or to inspect all such mail, or to inspect any such mail which attracts the inspector's attention. We therefore do not reach the Government's alternative contention that this envelope and greeting card appeared suspicious. In holding that crossing a border is sufficient under the Fourth Amendment to justify this search, we of course express no view on what have been termed extended border searches or intrusive personal searches. See generally Note, 'Border Searches and the Fourth Amendment,' 77 Yale L.J. 1007 (1968).

We note that other courts which have considered searches of incoming international mail have reached similar results, although the Government advises that no previous case involved opening a first class letter. United States v. Doe, 472 F.2d 982 (2d Cir. 1973); United States v. Galvez, 465 F.2d 681 (10th Cir. 1972); United States v. Beckley, 335 F.2d 86 (6th Cir. 1964); State v. Gallant, Me., 308 A.2d 274 (1973); United States v. Feldman, 366 F.Supp. 356 (D.Haw.1973) (collecting cases).

Defendant's next point is that the affidavits were insufficient to support the search warrant for the Wind Lake, Wisconsin, residence where the incriminating materials were found.

The first affidavit was of Special Agent Wingert of the Bureau of Customs in Milwaukee. The affidavit stated that for eleven years part of his duties consisted of investigating the smuggling of narcotics into the United States. About May 1st, his Milwaukee office was advised by the New York office of the Bureau of Customs that the previously discussed envelope 'was found to contain approximately 8.8 grams of suspected cocaine.' Also about May 1st, according to the affidavit, the envelope was forwarded in a certain locked mail pouch to the Postal Inspector in Madison, Wisconsin. Wingert examined the envelope and obtained a positive result upon testing it for cocaine content.

The second supporting affidavit was by Lee Wittke, a detective for the ...