stating that the “exigencies must be viewed from the totality of circumstances known to the officers at the time of the warrantless intrusion.”
How later courts described this case
- stating that the “exigencies must be viewed from the totality of circumstances known to the officers at the time of the warrantless intrusion.”
- noting the Van Leeuwen Court "reasoned that the main fourth amendment interest in a mailed package attaches to the privacy of its contents and not to the speed of its delivery"
- noting that exigent circumstances are viewed from the totality of the circumstances known to offi- cers at the time of the warrantless action
- reviewing Fourth Amendment claim that had not been considered by the district court
Written by the judges who cited it.
The opinion
NORRIS, Circuit Judge,
dissenting:
I dissent from the court’s holding that exigent circumstances justified the war-rantless seizure because I believe this case is controlled by Corngold v. United States, 367 F.2d 1 (9th Cir.1966) (en banc). In Corngold , customs agents opened a package that the appellant had left at a Trans World Airlines’ cargo loading platform at Los Angeles International Airport. The agents believed the package contained smuggled watches. They opened one of the packages, found that it contained a large quantity of watches, and resealed the package. The packages were then flown to New York, where customs agents maintained constant surveillance until they were claimed three weeks later.
Our court, sitting en banc, held that the warrantless airport search was not justified even if the customs agents had probable cause to believe the packages contained contraband. 367 F.2d at 3 . The court based its holding on the fact that the government made no showing that the packages might have been removed before a warrant could be obtained, that neither appellant nor the airline was threatening to remove them, and that from the time appellant left the packages with the carrier in Los Angeles they were subject to the effective control of the customs agent. Thus, the teaching of Corngold is that exigency does not justify a warrantless search of packages when the owner has temporarily surrendered custody of them to a carrier and the packages are destined for another city. A warrant could have been obtained to seize the packages upon their arrival at their destination.
The only conceivable distinction between the facts of Corngold and those here is that the agents knew that Licata had a friend who worked at Eastern Air Lines Freight. Supra at 544. The record, however, yields no evidence on the issue whether the officers were in fact concerned that the package might be taken by Licata’s friend. This is not surprising given that the issue of exigent circumstances was not litigated below. Indeed, it was argued for the first time in supplemental briefs requested by this panel. As a result, there is no evidence on the issue whether the agents were concerned that Licata’s friend might remove the package.
Although the government conceivably could have made a showing of exigent circumstances had it raised the issue below, I would find, based on the record before us, *546 that there is no meaningful way to distinguish this case from Corngold . There was ample time to seek a warrant authorizing seizure of the package upon its arrival in Georgia.