United States v. Harrington, Crim. No. S-80-157 RAR.

• Decision Date: 03 August 1981
• Docket Number: Crim. No. S-80-157 RAR.
• Citation: 520 F. Supp. 93
• Parties: UNITED STATES of America, Plaintiff, v. John J. HARRINGTON, Defendant.
• Court: U.S. District Court — Eastern District of California

520 F. Supp. 93

UNITED STATES of America, Plaintiff, v. John J. HARRINGTON, Defendant.

Crim. No. S-80-157 RAR.

United States District Court, E. D. California.

August 3, 1981.

Thomas T. Couris, Asst. U.S. Atty., Sacramento, Cal., for plaintiff.

Howard E. Beckler, Beckler & Stevens, Hollywood, Cal., Clyde Blackmon, Blackmon, Wasserman & Blicker, E. Richard Walker, Federal Public Defender, Sacramento, Cal., Joseph Milchen, Frank & Milchen, San Diego, Cal., Harry E. Hull, Jr., Sacramento, Cal., Dean L. Petersen, Bonham & Petersen, Folsom, Cal., Alan M. May, May, Margolese & King, North Hollywood, Cal., William K. Gamble, Santa Ana, Cal., Howard L. Weitzman, Los Angeles, Cal., Michael Pancer, Pancer & Sherman, San Diego, Cal., L. Stephen Turer, Santa

Rosa, Cal., David Grossman, Pebble Beach, Cal., Michael D. Nasatir, Nasatir, Sherman, Hirsch & Re, P.C., Los Angeles, Cal., for defendant.

ORDER

RAMIREZ, District Judge.

The above-entitled matter came on regularly for hearing on defendant's motion for suppression of evidence before the Honorable Raul A. Ramirez on July 15, 1981. Having reviewed and considered the memorandum of points and authorities submitted in support of and in opposition to the motion, the respective arguments of counsel, and the matter having been submitted on the pleadings pursuant to agreement of counsel in open court, the Court now makes the following findings and orders in response to defendant's motion for suppression and return of specific property:

The defendant's motion raises a narrow legal question of first impression: the authority of agents of the Customs Service to apply for and execute search warrants in the course of an investigation into possible violation of the drug laws of the United States. The defendant contends that agents of the Customs Service have no such authority while plaintiff contends otherwise.

At the outset, the United States concedes that the authority exercised by the agent of the Customs Service who applied for and executed the instant warrant does not derive from 19 U.S.C. § 1595 and that, in fact, § 1595 has no application to the instant set of facts. The United States has urged, however, that the authority exercised by the agent derives from 26 U.S.C. § 7607 and Rule 41 of the Federal Rules of Criminal Procedure. Section 7607 of Title 26 reads as follows:

Officers of the customs (as defined in section 401(1) of the Tariff Act of 1930, as amended; 19 U.S.C., sec. 1401(1)), may —

(1) carry firearms, execute and serve search warrants and arrest warrants, and serve subpenas and summonses issued under the authority of the United States, and

(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs (as defined in section 102(16) of the Controlled Substances Act) or marijuana (as defined in section 102(15) of the Controlled Substances Act) where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violations.

Although § 7607 was last amended in 1970, the amendments made therein were of a technical rather than a substantive nature, and as such, absent any other provision of law, § 7607 authorizes the challenged conduct of the agent of the Customs Service who applied for and executed the search warrant under scrutiny herein.

Defendant responds to the argument of the Government by asserting that there is another provision of law that in fact takes away what § 7607 would appear to give. Specifically, the defendant cites the Reorganization Plan No. 2 of 1973, 87 Stat. 1091, 1973 U.S. Code Cong. & Ad. News 3554. As both the text of the Reorganization Plan and the Presidential transmittal memorandum make plain, the purpose of the Reorganization Plan was to remove all investigatory and enforcement functions vis-a-vis the drug laws from the Customs Service and to place those functions in the newly-formed Drug Enforcement Administration. The primary reason for the reorganization was the conviction that the enforcement efforts of the United States would be far more effective and efficient were they concentrated in a single agency.

In his transmittal memorandum, the President of the United States observed:

Seeking ways to intensify our counter-offensive against this menace, I am asking the Congress today to join with this Administration in strengthening and streamlining the Federal drug law enforcement effort ....

The enforcement work could benefit significantly, however, from consolidation of our anti-drug forces under a single unified command. Right now the Federal Government is fighting the war on drug abuse under a distinct handicap, for its efforts are those of a loosely confederated alliance....

More specifically, the drug law enforcement activities of the United States are not merely in two hands but in half a dozen.... The Treasury Department is also heavily engaged in enforcement work through the Bureau of Customs. ....

I therefore propose creation of a single, comprehensive Federal agency within the Department of Justice to lead the war against illicit drug traffic.

This was clearly the understanding of the Congress, see, e. g., 119 Cong.Rec. 18465, et seq. (1973).

A secondary reason for the Reorganization Plan No. 2 of 1973 was the need to end an apparently bitter inter-agency rivalry that was actually hampering federal law enforcement efforts. Congressman Horton, speaking on behalf of the Reorganization Plan when it was being debated in the House of Representatives, discussed what he termed "the unhealthy rivalry" between the Bureau of Narcotics and Dangerous Drugs and Customs, 119 Cong.Rec. 18467 (1973). Horton told his colleagues: "... we cannot afford any longer the senseless rivalry and duplication between Customs and BNDD," 119 Cong.Rec. 18468 (1973). The record is replete with similar expressions of concern, see, e. g., 119 Cong.Rec. 18471 (1973) (remarks of Congressman Brasco), 119 Cong.Rec. 18472 (1973) (remarks of Congressman Robison).

The final method chosen to end the "senseless rivalry" existing between Customs and BNDD was to take Customs out of the drug law enforcement...