U.S. v. Whiting
| Citation | 781 F.2d 692 |
| Decision Date | 23 January 1986 |
| Docket Number | No. 85-1088,85-1088 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. George WHITING, and Theodore Whiting, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George L. O'Connell, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellant.
Malcolm Segal (argued), James R. Kirby, II, on the brief, Sacramento, Cal., for defendants-appellees.
An Appeal from the United States District Court Eastern District of California.
Before: ANDERSON, and PREGERSON, Circuit Judges, and TASHIMA, * District Judge.
The district court granted defendants' motion to suppress evidence seized by the Department of Commerce in a search of packages deposited in the mail by defendants' company for overseas shipment. On appeal the government contends that the court erred in holding that: (1) the search was not a valid "border search;" and, (2) the search was not within the "good faith" exception to the fourth amendment's exclusionary rule under United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We affirm.
In 1982, the Department of Commerce ("Commerce") started to investigate Western Engineers, a Sacramento company owned by defendants George and Theodore Whiting. Commerce had learned that Western Engineers was exporting electronic components from the United States in violation of the Export Administration Act By January 1983, OEE agent Ohlson determined that the Whitings were regularly shipping electronic components from Elk Grove, California to Switzerland without the export licenses required by the EAA. He then decided to inspect outgoing packages at the Elk Grove Post Office to determine if they contained licensable goods. The local postal authorities advised agent Ohlson that he needed a warrant to search the packages. Ohlson obtained this warrant from a Federal Magistrate based on Ohlson's affidavit which simply cited Commerce regulations. Ohlson then searched several packages mailed by Western Engineers and found assorted microcircuits and electronic components. Ohlson placed three of these packages in the Postal Inspector's vault in Sacramento. On January 14, 1983, Ohlson obtained a second warrant and seized several more packages.
of 1979 ("EAA"). 1 Brooks Ohlson, an agent of the Department of Commerce, Office of Export Enforcement ("OEE"), 2 who had been with the OEE for two months, was assigned to the matter
Based on evidence obtained from these searches, Ohlson (along with other Commerce agents and a Federal Marshal) sought and obtained from a Federal Magistrate a search warrant for the Western Engineers business premises. A search there disclosed business records indicating illegal export of licensable commodities. Ohlson seized these records and at that time informed the Whitings of his previous seizures of packages mailed at the Elk Grove post office.
A federal grand jury indicted the Whitings for conspiracy, unlawful export of high technology electronic parts, and false statements to a federal agency. The Whitings moved the district court to suppress the evidence seized at the post office and at their business premises, contending that the Elk Grove package search warrants were invalidly issued and the business premises search warrant was overbroad. 3 The government argued before the district court that the package search warrants were valid and, even if the warrants were invalid, the search at the post office was either a valid border search or one permissible under the "good-faith" exception to the fourth amendment's exclusionary rule stated in United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). 4 The government stipulated at oral argument on the motion to suppress that if the post office package searches were invalid, the business premises search was also invalid under the "fruit of the poisonous tree" doctrine. 5
The district court held that the package search warrants were invalid because OEE agent Ohlson was not a "law enforcement officer" authorized to obtain a search warrant under Fed.R.Crim.P. 41(a). 6 The court On appeal, the government no longer contends that the package search warrants were valid; accordingly, both parties now treat the searches of the packages at the post office as "warrantless" searches.
further held that neither the EAA nor regulations promulgated thereunder authorized agent Ohlson to conduct a border search. Finally, the court ruled that the agent had not acted in "good faith" under Leon. Because of the government's stipulation, the court also invalidated the search of the business premises. The district court therefore granted defendants' motion to suppress
A district court's ruling on the validity of a border search is reviewed de novo. United States v. Cardona, 769 F.2d 625, 628 (9th Cir.1985).
Searches at international borders require neither a warrant nor probable cause. United States v. Ramsey, 431 U.S. 606, 616-17, 97 S.Ct. 1972, 1978-79, 52 L.Ed.2d 617 (1976); United States v. Soto-Soto, 598 F.2d 545, 548 (9th Cir.1979). Based on dicta in California Bankers Association. v. Schultz, 416 U.S. 21, 63, 94 S.Ct. 1494, 1518, 39 L.Ed.2d 812 (1974), this circuit has extended the "border search" doctrine to searches of persons and things exiting the United States. See United States v. Duncan, 693 F.2d 971, 977 (9th Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); United States v. Stanley, 545 F.2d 661, 665-67 (9th Cir.1976), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978). This includes search and seizure of mail leaving the country. Cardona, 769 F.2d 625, 629.
Elk Grove, located in the Eastern District of California, is clearly not an international border. A "border search," however, need not take place at the actual border. See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). Two separate doctrines extend border searches to points within the international boundary of the United States. The "functional equivalent" doctrine permits border searches at places other than the actual border where travelers functionally enter or exit the country. Almeida-Sanchez, 413 U.S. at 273, 93 S.Ct. at 2539; United States v. Duncan, 693 F.2d at 977. In addition, the "extended border" doctrine allows border searches to be conducted before or after the border is actually crossed. See, e.g., United States v. Caicedo-Guarnizo, 723 F.2d 1420, 1422 (9th Cir.1984). "Extended border" searches are thought to be more intrusive on an individual's legitimate expectation of privacy than searches at the actual border. Accordingly, such searches must be justified by "reasonable suspicion" that the subject of the search was involved in criminal activity. Cardona, 769 F.2d at 628-29; United States v. Alfonso, 759 F.2d 728, 734 (9th Cir.1985). While the distinction between the two doctrines is often blurred, Cardona, 769 F.2d at 628, the "extended border" doctrine is more appropriate in cases like the instant case where the search occurred long before the item searched actually crossed the border. Id. at 628-29 (); cf. Alfonso, 759 F.2d at 734 ().
In Cardona, this court applied the "extended border" doctrine to a search similar This case is essentially indistinguishable from Cardona. Although Elk Grove is far from an international border 7 and the packages shipped by Western Engineers would go through two domestic post offices before leaving the country for Switzerland, the search of the packages, under the extended border doctrine as enunciated in Cardona, occurred at a "border." 8 Further, agent Ohlson had reasonable suspicion, based on reports of illegal shipments and his own investigation, that the Whitings were shipping goods in violation of the EAA. The district court therefore correctly ruled that the search occurred at the border.
to the one involved in the instant case. There, a United States Customs agent searched a parcel delivered to Federal Express in Bell, California for eventual delivery to Colombia. The court upheld the search under the extended border doctrine, noting that "[w]hen the parcel was placed in the custody of Federal Express, it was all but certain that the parcel's condition would remain unchanged until it crossed the United States border." 769 F.2d at 629. The court also noted that reports of criminal activity and the agent's observations established reasonable suspicion that the parcels contained illegally exported items. Id.
A warrantless border search is valid only if conducted by officials specifically authorized to conduct such searches. United States v. Soto-Soto, 598 F.2d 545, 548-50 (9th Cir.1979). This court has upheld warrantless border searches conducted by the United States Customs Service ("Customs"), Border Patrol, and Coast Guard. 9 Id. at 549. A thorough analysis of the EAA and its administrative regulations is necessary to determine whether OEE agents such as Ohlson are similarly authorized to conduct warrantless border searches.
The EAA itself does not expressly provide search and seizure authority. 10 The search and seizure provisions relevant to this case are found in regulations promulgated under EAA by the Secretary of Commerce ("export regulations"). 15 C.F.R. Sec. 386.8(a), entitled "Delegation of authority to customs offices and postmasters", provides:
Customs offices and postmasters, including all customs and post office officials (...
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