United States v. Swede

• Citation: 326 F. Supp. 533
• Decision Date: 28 April 1971
• Docket Number: No. 70 CR. 737.,70 CR. 737.
• Parties: UNITED STATES of America v. Southworth Wells SWEDE a/k/a Samuel Cook, Simon Wesley Cook, Defendant.
• Court: U.S. District Court — Southern District of New York

326 F. Supp. 533

UNITED STATES of America v. Southworth Wells SWEDE a/k/a Samuel Cook, Simon Wesley Cook, Defendant.

No. 70 CR. 737.

United States District Court, S. D. New York.

April 28, 1971.

Whitney North Seymour, Jr., U. S. Atty. for S. D. N. Y., for plaintiff; Arthur J. Viviani, Asst. U. S. Atty., of counsel.

Rubin, Gold & Geller, New York City, for defendant; William Gold, New York City, of counsel.

MEMORANDUM

TENNEY, District Judge.

Defendant, Southworth Wells Swede, having been indicted in three counts for unlawful possession of Lysergic Acid Diethylamide¹ (hereinafter referred to as "LSD"), and charged in another with unlawfully manufacturing the same,² moves pursuant to Fed.R.Crim.P. 41(e) for an order suppressing evidence allegedly seized by federal agents in violation of the First and Fourth Amendments to the United States Constitution.

Preliminary to a consideration of the legal issues raised herein, it would be useful to set forth the facts underlying the motion as summarized from the affidavits submitted by the defense and the Government and as found by the Court from the evidence adduced at a hearing conducted on February 17, 1971. At said hearing, Mr. Stephen J. Tjiong of the United States Customs Service, whose duty it is to supervise the screening of foreign mail for drugs, pornography and other dutiable merchandise, testified that on July 24, 1970, a first class envelope mailed from Zurich, Switzerland, and addressed to movant under an assumed name (Samuel Cook), was referred to him for inspection. Upon examination of the envelope, some powder escaped which responded negatively to tests for heroin and cocaine. Still suspicious that the powder was a narcotic drug, Mr. Tjiong opened the envelope and gave it and its contents to his partner, who sent a transmittal letter to the Director of the Import Compliance Unit. Although it is customary for foreign mail containing merchandise to have a declaration of content and price, the envelope involved herein contained no such declaration. On cross-examination, Mr. Tjiong testified that international air mail initially arrives at JFK International Airport while overseas mail arriving by ship is first unloaded at the Brooklyn Army Terminal. In either case, all such mail designated for delivery to New York City is delivered without inspection to the Manhattan General Post Office. Although there is no evidence of any written communication having been placed or found in the envelope, it is undisputed that when the envelope was opened a plastic bag containing powder was found therein.

The only other witness called at the February 17 hearing was special agent James Greenan of the Bureau of Customs, who testified that on August 11, 1970 he received an envelope addressed to movant at apartment 2, 326 West 20th Street, New York, N. Y. Accompanying the envelope was a transmittal letter indicating that it was suspected that the envelope contained marijuana. Chemical analysis, however, revealed that the bag actually contained approximately 15 grams of pure LSD. The envelope was subsequently resealed with its contents, and marked for future identification. On August 13, 1971, agents Greenan and D'Ulisse spoke to the landlord of 326 West 20th Street and learned that movant resided there under yet another assumed name (Simon Wesley Cook) and was only in on Mondays. The following Monday, August 17, 1971, the landlord telephoned agent Greenan and told him that the defendant was in. The next morning, both agents went to the vicinity of 326 West 20th Street where they met Postal Inspector Linus and Mail Carrier Bowman. After the envelope was marked "Postage Due 25 cents", agent Greenan proceeded to the second floor landing of 326 West 20th Street. The mail carrier then knocked on Mr. Swede's door and stated: "Mr. Samuel Cook?" — to which movant replied affirmatively, and opened the door. Carrier Bowman again asked the defendant if he was Samuel Cook and told him he had a letter for him with 25 cents postage due. Movant acknowledged that he was Mr. Cook and the letter was delivered. A few minutes thereafter, the postal inspector and the two agents proceeded to apartment 2. Agent D'Ulisse knocked on the door, announced his authority and asked that the door be opened. A person inside the apartment was heard to be running, whereupon the agent again knocked, stated who he was, and requested entry. Getting no response, the three men forcibly entered the barren apartment and after a few moments pulled the defendant away from a window which he was leaning out of. After agent Greenan noticed that the envelope just delivered was lying on the street below, Inspector Linus retrieved the same and the defendant was arrested.

Although no search of the premises was made at this time, the apartment was secured and left under surveillance with two other agents. Subsequently the defendant's apartment and safety deposit box were searched pursuant to warrants issued upon affidavits prepared and signed by agent D'Ulisse.

Finally, agent Greenan testified that the purpose of going to defendant's apartment, pre-marking the envelope and requiring 25 cents additional postage was to make a controlled delivery of the package and then to reseize it. The arrest was allegedly predicated upon the agent's belief that the recipient voluntarily took possession of the package with knowledge of its contents and exercised dominion and control over the same.

Movant first urges that the envelope addressed to him be suppressed, contending that the search and seizure thereof violated his rights under the First and Fourth amendments to the United States Constitution.

Probative of this issue is the following authority, United States v. Glaziou, 402 F.2d 8 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969); United States v. Beckley, 335 F.2d 86 (6th Cir. 1964), cert. denied, Stone v. United States, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965); United States v. Sohnen, 298 F.Supp. 51 (E.D.N.Y.1969), which, when collectively considered, compel the conclusion that the envelope was lawfully seized and properly subject to a warrantless search. Since the subject envelope was international mail matter crossing domestic borders, the Court, in ruling on this motion, must be mindful that "Fourth Amendment 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, supra 335 F.2d at 88.

With this caveat in mind, we turn to consider whether the envelope addressed to movant was lawfully searched and seized by the customs officials. Resolution of this issue in part depends upon whether the envelope be deemed a "package" or not. Inasmuch as the evidence adduced at the February 17 hearing undisputedly demonstrated that the envelope contained a quantity of powder, packaged in a plastic bag, and no evidence has been produced which even suggests that a letter or written communication was ever placed or found inside the envelope, the Court must conclude, for purposes of this motion, that the envelope addressed to movant was a "package". Thus we do not determine whether "the Constitution * * * prevents the opening of letters, as opposed to packages containing merchandise, without a search warrant". United States v. Sohnen, supra 298 F. Supp. at 55.

If a customs officer may stop a person at an international border and conduct a ...