United States v. O'BRIEN, Crim. A. No. 66-268-J.
| Decision Date | 06 April 1967 |
| Docket Number | Crim. A. No. 66-268-J. |
| Citation | 265 F. Supp. 953 |
| Parties | UNITED STATES of America, Plaintiff, v. John M. O'BRIEN and William Brian McNeil, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Paul F. Markham, U. S. Atty., Albert F. Cullen, Jr., Asst. U. S. Atty., for the Government.
James F. Freeley, Jr., Boston, Mass., for defendant William Brian McNeil.
This case came on for an evidentiary hearing on the defendant McNeil's motion for the return of property and the suppression of evidence.
The defendants are charged in a two-count indictment with the theft of goods from a foreign shipment, and with receiving goods which they knew had been stolen from a foreign shipment. It is alleged that the defendants committed these offenses on or about August 5, 1966. The goods involved are 24 men's wool shirts consigned from Hong Kong to F. W. Woolworth Co., New York, N. Y., and 32 men's sport shirts consigned from Japan to Cristobal, Panama Canal Zone. These are the goods which the defendant McNeil seeks to have suppressed as evidence against him. He has waived the part of the motion in which he seeks the return of the property. The Government admits that the agents who seized the goods had no search or arrest warrant.
On the basis of the evidence presented I make the following findings of fact.
At approximately twenty minutes past ten on the evening of August 5, 1966, Customs Port Investigators Clain and Lally were assigned to the port at the Boston Army Base. Their duties involved surveillance of crews and longshoremen working on any ships docked in the area to enforce customs rules and regulations. At the time in question a Norwegian vessel called the M/V Troubadour had docked at berths 7 and 8 and was being unloaded by longshoremen. The cargo was being carried into the wharf shed, a long rectangular building which ran parallel to the dock with many large doors both on the side facing the water and on the opposite side facing inland.
The Boston Army Base is an enclosed area controlled by the United States Government. Entrance and exit are had through a gate situated near Summer Street. A small shelter situated in the center of the gateway divides it into two lanes. The lane on the right as one faces the gate from the outside is used as the entrance. The lane on the left is used as the exit. A Government officer stationed at the shelter checks persons and vehicles entering the Base. Only those who have been granted permission to enter are admitted. He does not check persons or vehicles leaving the Base. This was the situation at the time in question.
Agent Clain was sitting in an automobile parked within the area of the Army Base near the exit, observing the area through night binoculars, when he noticed a man coming from the direction of the wharf shed place a carton or case in the back of a station wagon that had been backed up to within 18 or 20 feet of the inland side of the wharf shed.
The station wagon was about 600 feet from where Clain was sitting, and the line of vision was unobstructed. Clain called to Lally, who was standing outside the car, and then saw a figure again placing a square object, about 3 feet by 1½ feet by 1½ feet, in the back of the station wagon. The agents knew that customs had not yet granted the necessary permit for the cargo unloaded from the Troubadour to enter the country. Lally got into the car with Clain, and the agents then saw the headlights of the station wagon come on. For the purpose of stopping the station wagon on its way out of the Army Base the agents drove their car in a U-turn and placed it at the left-hand side of the exit gate as one faces the Army Base from Summer Street. Clain got out of the car and stood by the left front fender so that the station wagon would have to pass beside him on its way out. As the station wagon approached him, Clain extended his right arm with his badge in his right hand. The area was lighted by electric lights from above, and the agent could see two men in the front seat and something bulky in the rear. As the station wagon drew up beside Clain and it became obvious that it was not going to stop, Clain hollered "Halt." The station wagon speeded up through the gate and made a right turn on Summer Street in an attempt to elude the agents. Clain and Lally got into their automobile, turned on the siren, and gave chase. They overtook the station wagon about a sixth of a mile from the gate and brought it to a stop by turning their car into the front of the station wagon.
Clain asked the two men in the station wagon to get out and open the tail gate. When it was opened Clain looked under a covering in the rear and saw two large boxes with the markings "Made in Hong Kong" and "Made in Japan."
The two men in the station wagon were the defendants in this case. Clain asked McNeil for identification and he refused to show any. O'Brien was also asked for identification but he had none. The defendants were then asked to go to the customs office, and they complied. A check with the Registry revealed that McNeil was the owner of the station wagon. The two defendants remained at the customs office until 11:15 P.M., when they were driven by agents to a subway station to make their way home. The station wagon and its contents were seized by the customs agents while the defendants were at the customs office. The two boxes were opened before the defendants left the customs office and were found to contain 24 and 32 shirts, respectively.
The issue before the Court is whether or not the search and seizure were unreasonable and in violation of the rights of the defendant under the Fourth Amendment. On this depends the admissibility of the goods seized at the trial of the defendants.
The defendant claims and the Government concedes that the Government agents searched the vehicle and seized the goods in question neither pursuant to a search warrant nor incident to an arrest. The defendant contends that such search and seizure were violative of his constitutional rights under the Fourth Amendment. The burden rests on the Government to establish the validity of the search and seizure. Cervantes v. United States, 1959, 9 Cir., 263 F.2d 800, 805.1
I find that the search and seizure must be sustained as valid on each of two grounds:
Under 19 U.S.C. § 1581, "any officer of the customs may at any...
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