Petition — Carter v. United States

Suprery Court, US NT

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—_ a 4

MAR 15 1979

IN THE

| MI@MAPL BODAK, JR., CLERK

Supreme Court of the Unite

Octoser TERM, 1978

——#8-1421

No.

GEORGE FRANKLIN CARTER, ITI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

OLIVER M. SPURLOCK,

180 North LaSalle Street, Suite 1212,

Chicago, Illinois 60601, (312) 263-2664,

Attorney for Petitioner.

CHESTER SLAUGHTER,

188 West Randolph Street, Suite 2105,

Chicago, Illinois 60601, (312) 236-5277,

Of Counsel.

Keenan Printing Company 312-648-0050 <i> 3865

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IN THE

Supreme Court of the United States

Ocroser TERM, 1978

No.

GEORGE FRANKLIN CARTER, ITI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

To the Honorable, the Chief Justice and Associated Jus-

tices of the Supreme Court of the United States.

GEORGE FRANKLIN CARTER, III, the petitioner

herein, prays that a writ of certiorari issue to review the

judgment of the Seventh Circuit Court of Appeals entered

in the above entitled case on February 15, 1979.

OPINION BELOW

The opinion of the appeals court of February 15, 1979,

affirming the conviction of petitioner is not officially re-

ported (Appendix A, infra).

JURISDICTION

The judgment of the Court below (Appendix A, infra,

page 7) was entered on February 15, 1979. The jurisdiction

of the Supreme Court is invoked under 28 U.S.C. 1254 (1).

QUESTIONS PRESENTED

Whether an interrogation and routine search of a travel-

ler’s luggage, which reveals nothing unusual is sufficient

grounds for a more intensive cooperative search by Customs

inspectors and DEA agents?

Whether a Drug Enforcement Administration agent may,

without probable cause, jointly participate with a United

States Customs Inspector in a warrantless border search of

a traveler’s person and luggage?

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

1. United States Constitution Amendment IV. The

rights of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and

the person or things to be seized.

2. Law Enforcement in Illicit Drug Activities. Reorgani-

zation Plan No. 2 of 1973. The following plan prepared by

the President and transmitted to the Senate and the House

of Representatives in Congress assembled, March 28, 1973,

pursuant to the provisions of Chapter 9 Title 5 of the United

States Code (5 U.S.C.S. §§ 901 et seq.) and amended Mar.

16, 1974, P. L. 93-253, § 1, 88 Stat. 50, became effective July

1, 1973. Section 1. Transfers to the Attorney General. There

are hereby transferred from the Secretary of the Treasury,

the Department of the Treasury, and any other officer or

any agency of the Department of the Treasury, to the At-

torney General all intelligence, investigative, and law en-

forcement functions, vested by law in the Secretary, the

Department, officers, or agencies which relate to the sup-

pression of illicit traffic in narcotics, dangerous drugs, or

marihuana, except that the Secretary shall retain, and con-

tinue to perform, those functions, to the extent that they

relate to searches and seizures of illicit narcotics, danger-

ous drugs, or marihuana or to the apprehension or detention

of persons in connection therewith, at regular inspection

locations at ports of entry or anywhere along the land or

water borders of the United States: Provided, that any illi-

cit narcotics, dangerous drugs, marihuana, or related evi-

4

dence seized, and any person apprehended or detained by

the Secretary or any officer of the Department of the Treas-

ury, pursuant to the authority retained in them by virtue

of this section, shall be turned over forthwith to the juris-

diction of the Attorney General; Provided further, that

nothing in this section shall be construed as limiting in any

way, any authority vested by law in the Secretary of Treas-

ury, the Department of the Treasury, or any other agency of

that Department on the effective date of this Plan with re-

spect to contraband other than illicit narcotics, dangerous

drugs, and marihuana: and Provided further, that nothing

in this section shall be construed as limiting in any way any

authority the Attorney General, the Department of Justice,

or any other officer or any agency of that Department may

enforcement activities, including activities relating to the

suppression of illicit traffic in narcotics, dangerous drugs,

and marihuana, at ports of entry or along the land and wa-

ter borders of the United States.

3. Title 5 U.S.C. § 905. Limitations on powers.-(a) A

reorganization plan may not provide for, and a reorganiza-

tion under this chapter (§§ 901-9B of this title) may not

have the effect of-

(4) authorizing an agency to exercise a function

which is not expressly authorized by law at the

time the plan is transmitted to Congress;

4. Title 19 U.S.C. § 482. Customs Duties—Enforcement

Provisions. Any of the officers or persons authorized to

board or search vessels may stop, search, and examine, as

well without as within their respective districts, any vehicle,

beast, or person, on which or whom he or they shall suspect

there is merchandise which is subject to duty, or shall have

been introduced into the United States in any manner con-

5

trary to law, whether by the person in possession or charge,

or by, in, or upon such vehicle or beast, or otherwise, and

to search any trunk or envelope, wherever found, in which

he may have a reasonable cause to suspect there is mer-

chandise which was imported contrary to law; and if any

such officer or other person so authorized shall find any

merchandise on or about any such vehicle, beast, or person,

or in any such trunk or envelope, which he shall have rea-

sonable cause to believe is subject to duty, or to have been

unlawfully introduced into the United States, whether by

the person in possession or charge, or by, in, or upon such

vehicle, beast, or otherwise, he shall seize and secure the

same for trial.

STATEMENT

On February 8, 1978 the petitioner arrived at the inter-

national terminal at O’Hare Field in Chicago, Illinois after

an non-stop flight from Amsterdam, Holland. He was

cleared through immigration and he proceeded to the Uni‘ed

States Customs inspection line with his luggage. Petition-

er’s luggage consisted of a brown vinyl suitcase, a blue gar-

met bag, and a sealed, yellow plastic shopping bag which

contained duty-free purchased cigarettes and liquor from a

duty-free shop in the Amsterdam airport.

The Customs Inspector, David Guoding, asked petitioner

a series of routine questions, and wrote some of petitioners

answers to those questions on the back of petitioner’s cus-

toms declaration form. Inspector Gooding examined the

contents of the brown vinyl suitcase and found nothing un-

usual. Petitioner was then ordered to proceed to a small sec-

ondary search room located away from the main customs

area. Agent John Whittington of the Drug Enforcement

Administration, on his own volition, immediately followed

petitioner and the customs inspector into the secondary

search room.

Inside the search room inspector Gooding instructed Peti-

tioner to empty his pockets on the table. Petitioner placed

a large quantity of American bills on the table along with

his receipt for the purchase of cigarettes and vodka. Good-

ing then searched Petitioner’s overcoat and found another

large quantity of bills. The facts are in dispute as to the

dialog that occured between Gooding and Petitioner re-

garding Petitioner’s answer to questions about his money.

The Customs inspector claimed that when he first asked

Petitioner if he was carrying more than five thousand dol-

lars Petitioner replied that he was carrying two thousand

7

dollars. He further claimed that after he discovered -more

money in Petitioner’s overcoat he again asked Petitioner

if he was carrying more than five thousand dollars and

Petitioner stated ‘‘five thousand and no more.” Petitioner

testified that his answer to both questions was ‘‘A few

thousand dollars.”

The facts were also in dispute as to whether govern-

ment’s exhibit number one, a piece of tin foil, containing

a minute amount of white powdery substance was recov-

ered from the inside suitcoat jacket of Petitioner. The

Customs inspector claimed that he removed a small, one-

half inch square, piece of foil from Petitioner’s inside suit-

coat pocket, opened it, observed a small amount of white

powder, refolded it and placed it inside his pants pocket.

Petitioner testified that the Customs Inspector did not

remove a piece of tin foil from his pocket.

The Customs inspector then closed the door of the search

room and he and agent Whittington performed a strip

search upon Petitioner. They did not observe any weapons

and they instructed Petitioner to redress. The Customs

inspector left Petitioner alone with agent Whittington and

went to get a form that is required for passengers carry-

ing more than five thousand dollars. While the Customs

inspector was away, agent Whittington maintained custody

of Petitioner and counted his money. Inspector Gooding

returned with the form and instructed Petitioner in how to

complete it, and again left Petitioner alone with Whitting-

ton. Gooding returned with Petitioner’s luggage and left

all three bags on the floor of the hallway outside the search

room.

Gooding then asked permission to observe -Petitioner

while Petitioner completed the negotiable instruments form.

After giving Petitioner additional instructions, Gooding

elias

8

again left Petitioner in Whittington’s custody and carried

the brown suitcase and blue garment bag into another

search room and examined them.

While Gooding was searching the luggage, U.S. Customs

Inspector Edward Gross arrived at the search room. Agent

Whittington asked Gross whether the yellow duty-free bag

on the floor of the hallway belonged to Petitioner. Both

Gross and Whittington looked into the bag and observed a

bottle of vodka and four cartons of cigarettes. Inspector

Gross took a knife and cut the green Amsterdam tape that

sealed the top of the bag. Whittington and Gross each

removed cigarette cartons, and Whittington asked Petiti-

tioner what was inside. Petitioner replied ‘‘Cigarettes, go

ahead and open them.’’ Whittington then instructed Gross

that the cigarettes should be opened.

Inspector Gooding returned to the hallway and picked up

the yellow duty-free bag and took it into the other search

room. Agent Whittington followed Gooding, observed him

open the cartons and individual packages, and saw the

white powdery substance. Agent Whittington’s partner per-

formed a field test for heroin and agent Whittington then

formally placed Petitioner under arrest.

Petitioner was charged in a two count indictment with

the importation of a controlled substance (21, U.S.C.

952(a)) and with possession with the intention to distribute

a controlled substance (21, U.S.C. 841(a)(1)).

The first trial of this matter was heard before the Honor-

able John P. Crowley and a jury. Appropriate pre-trial

motions to suppress the physical evidence were filed and

after a hearing were denied. The matter was then tried

before the jury which, after lengthy deliberation, announced

that it was hopelessly deadlocked. Judge Crowley declared

a mistrial on March 22, 1978.

9

The second trial was heard before the Honorable Joel M.

Flaum and a jury. Judge Flaum granted defendant leave

to adopt the pre-trial motions filed in the first trial before

Judge Crowley, and without a hearing, denied defendant’s

motion to suppress the physical evidence. Following the

trial before Judge Flaum and a jury the defendant was

found and adjudged guilty of both counts in the indictment.

Appropriate post-trial motions were filed, but denied. Peti-

tioner was sentenced to the custody of the Attorney General

for a period of twelve years on each count, said sentences

to run concurrently and a $15,000.00 fine on count one.

10

REASONS FOR GRANTING

THE WRIT

This court should examine and clearly articulate the con-

stitutional validity of a joint, Drug Enforcement Adminis-

tration—-Customs Bureau border search, as it affeets the

constitutional rights guaranteed by the fourth amendment

to the Constitution of the United States.

Searches by customs officials are common but on occasion

present problems that are unique in the area of Fourth

Amendment rights. Since the first border search statute

was enacted in 1789, customs officials have been authorized

to stop and examine any vehicle, person, or baggage arriv-

ing in the United States on suspicion that merchandisee is

concealed which is subject to duty or which cannot legally

be imported in the United States. 19 U.S.C. § 482 (1964).

This statutory power is supplemented by regulations pro-

mulgated by the Secretary of the Treasury and which deal

with the search of persons and baggage 19 U.S.C.A. § 1582

(1964).

The Presidential Reorganization Plan No. 2 of 1973 spe-

cifically reserved to the Secretary of the Treasury, the ex-

clusive duty to conduct searches of travellers and their

belongings at ports of entry. This same Reorganization

Plan has been judicially interpreted to authorize concur-

rent authority by the Drug Enforcement Administration to

also conduct warrantless searches without probable cause,

of travelers and their belongings at borders and ports of

entry. Untied States v. Bates, 526 F. 2d 966, 967 (5th Cir.

1976) ; United States v. Ortega, 471 F. 2d 1350, 1360 (2d

Cir. 1972), Cert. denied, 411 U.S. 948 (1973) ; United States

v. Carter, No. 78-1666, (7th Cir. 1979).

11

It is the contention of the petitioner that warrantless

border searches without probable cause by agents of the

Drug Enforcement Administration was neither authorized

nor contemplated by the Presidential Reorganization Plan

No. 2. That the developing judicial interpretations of co-

operative efforts between the Customs Bureau and DEA

represent the engraftment of an unconstitutional exception

to the warrant clause of the Fourth Amendment to the Con-

stitution of the United States.

The petitioner further contends that Reorganization Plan

No. 2, is controlled by the Limitation of Powers section of

Title 5 §§ 905(a) (4) which provides that;

(a) A reorganization plan may not provide and an

reorganization under this chapter may not have

the effect of—

(4) authorizing an agency to exercise a function

which is not expressly authorized by law at the,

time the plan is transmitted to Congress.

Agents of the Drug Enforcement Administration have

never been authorized to conduct or participate in warrant-

less border searches, without probable cause. Whether the

authority of DEA agents may be extended to fall within

an exemption from the requirements of probable cause

should be settled by this Court.

The petitioner further contends that the doctrine of joint

participation enunciated by this Court in Byars v. United

States, 273 U.S. 28 (1927) and Lusting v. United States,

338 U.S. 74 (1949) should be applied to warrantless border

searches conducted by the combined efforts of U.S. Customs

inspectors and Drug Enforcement Administration agents.

12

CONCLUSION

For the foregoing reasons this petition of a writ of

certiorari should be granted.

Respectfully submitted,

Ottver M. SpurLock,

180 North LaSalle Street, Suite 1212,

Chicago, Illinois 60601, (312) 263-2664,

Attorney for Petitioner.

CuHEsTER SLAUGHTER,

188 West Randolph Street, Suite 2105,

Chicago, Illinois 60601, (312) 236-5277,

Of Counsel.

Al

APPENDIX

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 78-1666

UNITED STATES OF AMERICA,

Plaintiff-Appllee,

v.

GEORGE FRANKLIN CARTER,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78 CR 68—JOEL M. FLAUM, Judge.

Argued January 4, 1979—Decided February 15, 1979.

Before CUMMINGS, SPRECHER and BAUER, Circuit

Judges.

SPRECHER, Circuit Judge. This appeal raises the ques-

tion of whether a Drug Enforcement Administration agent

may participate with customs inspectors in conducting a

border search. We hold that there is neither constitutional

nor statutory infirmity in such participation under the cir-

cumstances of this case.

A2

I

The defendant arrived at the international terminal at

O’Hare Airport in Chicago on February 8, 1978, terminat-

ing a nonstop flight from Amsterdam, Netherlands. He

passed through immigration, retrieved his luggage, consist-

ing of a brown vinyl suitcase, a blue garment bag, and a

yellow duty-free bag, and proceeded to the customs inspec-

tion area. He handed his customs declaration form, airline

ticket and passport to Customs Inspector Gooding, who

asked routine questions and inspected the brown suitcase.

The defendant was then taken to a secondary search room

by Gooding, where they were immediately joined by Drug

Enforcement Administration agent Whittington. Gooding

asked the defendant to empty his pockets onto a table in

the search room, which resulted in the defendant’s removal

of a large quantity of United States currency. Gooding then

requested the defendant to remove his overcoat which Good-

ing examined and in which he found another large quantity

of currency. Gooding then requested the defendant to re-

move his suiteoat which Gooding examined and in which he

found a folded tinfoil packet holding a white, powdery sub-

stance later determined to contain heroin.

At this point, Gooding’s supervisor, Customs Inspector

Knezev appeared in the secondary search room, and Knezev

obtained a small plastic bag into which the tinfoil packet

was placed. Knezev also ordered Gooding to conduct a strip

search of the defendant. Gooding, with Whittington still

present, conducted the strip search.

As the defendant dressed, Gooding left the search room

to obtain a form necessary when more than $5,000 in cur-

rency is brought into the country. While Gooding was ab-

A3

sent, Whittington counted the money. When he returned

the defendant filled out the currency form. Gooding then

left the defendant with Whittington while he carried the

brown suitcase and the blue garment bag into another search

room and inspected them. At that time, Knezev returned

with Customs Inspector Gross, who joined Whittington and

the defendant.

The yellow duty-free bag had remained in the hallway

outside the secondary search room, where Gross and Whit-

tington examined it and found it to contain a bottle of vodka

and four cartons of cigarettes. Gross cut the tape which

sealed the bag shut and removed a carton. Whittington re-

moved a second carton and asked the defendant, ‘‘ What is

in here, besides cigarettes?” The defendant appeared to be-

come somewhat nervous and responded, ‘‘Nothing, go

ahead, open them, if you want to.” The cartons were re-

turned to the yellow bag.

Gooding returned and picked up the yellow bag which

he proceeded to inspect. Upon removing one of the cigar-

ette cartons, he noted that it felt heavy and resisted pres-

sure when squeezed. He opened the carton and removed one

of the individual packs which also resisted pressure when

squeezed and shook when rattled. He opened the pack and

found a plastic bag containing a white powdery substance.

A second pack produced the same result.

Whittington, who had been present, then instructed his

DEA partner to test the substance. The test revealed that

the substance contained an opiate. It developed that 36 of

the 40 cigarette packs contained a total of 930.40 grams of

heroin, 786.16 grams of which were 85% pure and 144.24

grams of which were 84% pure. The tinfoil packet contained

.02 grams of heroin.

A4

Whittington arrested the defendant and Gooding turned

over to Whittington the duty-free bag and its contents, as

well as the tinfoil packet. Gooding took custody of the

$6,969 in currency.

The defendant was charged in a two-count indictment with

intentional importation and possession with intent to dis-

tribute heroin in violation of 21 U..C. §§ 952(a) and 841(a)

(1). He was found guilty of both counts by a jury and was

sentenced to 12 years’ imprisonment on each count, to run

concurrently, to be followed by a three-year mandatory

special parole term. The defendant was also fined $15,000.

II

The defendant argued on appeal that the search was un-

constitutionally conducted because of the participation by

the DEA agent with the customs inspectors. In his presen-

tation the defendant has not given full consideration to the

unique nature of a border search.

A search of a passenger and his luggage upon arriv-

ing by airplane at O’Hare Airport after a nonstop flight

from Amsterdam is the functional equivalent of a border

search. United States v. Brown, 499 F. 2d 829 (7th Cir.),

cert. denied, 419 U.S. 1047 (1974). Searches made at the

border, pursuant to the long-standing right of the sovereign

to protect itself by stopping and examining persons and

property crossing into the country, are reasonable simply

by virtue of the fact that they occur at the border. United

States v. Ramsey, 431 U.S. 606, 616 (1977). Routine in-

spections and searches of individuals or conveyances seek-

ing to cross the borders or their functional equivalents are

not subject to the warrant provisions of the Fourth Amend-

ment. Almeida-Sanchez v. United States, 413 U.S. 266,

A5

272 (1973).* See also United States v. Odland, 502 F. 2d

148, 150-51 (7th Cir.), cert. denied, 419 U.S. 1088 (1974).

Customs officers characteristically and properly inspect

luggage. ‘‘[I]t is an old practice and is intimately associ-

ated with excluding articles from the country.” United

States v. Thirty-Seven Photographs, 402 U.S. 363, 376

(1971).? Also, those entering the country may be examined

as to their “belongings and effects” without violating the

Fourth Amendment. California Bankers Association v.

Schultz, 416 U.S. 21, 62-63 (1974). Belongings and effects

have been held to include the contents of a person’s purse,

wallet or pockets. Henderson v. United States, 390 F. 2d

805, 808 (9th Cir. 1967). See also United States v. Flores,

477 F. 2d 608, 609 (1st Cir.), cert. denied, 414 U.S. 841

(1973); United States v. Summerfield, 421 F. 2d 684, 685

(9th Cir. 1970).

The discovery of incriminating matter during routine

searches is ‘‘reasonable cause to suspect” that a more in-

tensive search will produce more contraband. Customs

agents customarily proceed from the less intrusive to

1. The Court in Almeida-Sanchez stated that, for ex-

ample, ‘‘a search of the passengers and cargo of an air-

line arriving at a St. Louis airport after a nonstop flight

from Mexico City would clearly be the functional equiva-

lent of a border search.’’ 413 U.S. at 273.

2. The statute authorizing border searches expressly

provides that any customs officer ‘‘may... search any trunk

or envelope ... in which he may have a reasonable cause

to suspect there is merchandise which was imported con-

trary to law... .’? 19 U.S.C. § 482. The statute authorizing

the Secretary of Treasury to prescribe regulations for bor-

der searches speaks of searching ‘‘persons and baggage.’’

19 U.S.C. § 1582.

A6

the more intrusive form of search. United States v. Afana-

dor, 567 F. 2d 1325, 1329 n. 4 (5th Cir. 1978) ; United States

v. Asbury, 586 F. 2d 973, 976 (2d Cir. 1978).

The defendant’s argument is centered on the fact that a

DEA agent was involved with the customs inspectors in

conducting the search of the luggage, belongings and effects

of the defendant.

Customs officials under the supervision of the Secretary

of Treasury and drug enforcement officials under the super-

vision of the United States Attorney General have tradi-

tionally cooperated and exercised some joint powers over

drugs searched for and seized in border searches.* The

present relationship between these kinds of federal offi-

cers is detailed in Reorganization Plan No. 2 of 1973,‘

3. In United States v. Ortega, 471 F. 2d 1350 (2d Cir.

1972), cert. denied, 411 U.S. 948 (1973), the court said

‘*{w]e may remark, parenthetically, that a combination of

customs agents and agents of the Bureau of Narcoties and

Dangerous Drugs made an examination of the Jaguar and

its contents in the hold of the Elizabeth II as she came up

the harbor and one of the 180 bags of heroin was removed

for testing.’’ Zd. at 1353-54. The court concluded that

‘*[t]he search by a Customs Agent and others helping him,

in the hold of the Elizabeth II while still in midstream, was

clearly proper as a border search.’’ Jd. at 1360.

See also United States v. Thompson, 475 F. 2d 1359 (5th

Cir. 1973) (respective powers of customs agents and border

patrol officers who are employees of the Immigration and

Naturalization Service under the supervision of the United

States Attorney General).

4. Effective July 1, 1973, 38 F.R. 15932, 87 Stat. 1091, as

amended March 16, 1974, Pub. L. 93-253, § 1, 88 Stat. 50, 28

U.S.C. § 509 annotation, promulgated pursuun! to 5 U.S.C.

§§ 902-12.

- eee

sr

A7

which provides that all intelligence, investigative and law

enforcement functions vested in the Secretary of Treasury

which relate to the suppression of illicit traffic in drugs are

transferred to the Attorney General

except that the Secretary shall retain, and continue to

perform, those functions, to the extent that they relate

to searches and seizures of illicit narcotics, dangerous

drugs, or marihuana or to the apprehension or deten-

tion of persons in connection therewith, at regular in-

spection locations at ports of entry or anywhere along

the land or water borders of the United States: Pro-

vided, that any illicit narcotics, dangerous drugs,

marihuana, or related evidence seized, and any person

apprehended or detained by the Secretary or any offi-

cer of the Department of the Treasury, pursuant to the

authority retained in them by virtue of this section,

shall be turned over forthwith to the jurisdiction of the

Attorney General. . and Provided further, that noth-

ing in this section shall be construed as limiting in any

way any authority the Attorney General, the Depart-

ment of Justice, or any other officer or any agency of

that Department may otherwise have to make investi-

gations or engage in law enforcement activities, in-

cluding activities relating to the suppression of illicit

traffic in narcotics, dangerous drugs, and marihuana,

at ports of entry or along the land and water borders

of the United States.

Section 1, Reorganization Plan No. 2, 28 U.S.C. § 509

annotation.

The Reorganization Plan contemplates the very kind of

cooperation and joint effort engaged in by the officers in

this case. The DEA agent was primarily an onlooker until

the tinfoil packet of heroin was found in the defendant’s

pocket, whereupon his participation became somewhat more

active. After the sizeable quantity of drugs was discovered,

he made the arrest and the evidence was ‘‘turned over

A8

forthwith” to him by the customs inspector. The search was

proper in every way.

The defendant sought to rely upon Byars v. United

States, 273 U.S. 28 (1927), holding that when a federal

officer participates officially with state officers in a search,

the constitutionality of that search is to be tested as though

it were an official federal search and not merely as a state

or private search, the fruits of which would be fully usable

by federal officers. The issue posed by Byars is not present

here; the search here was an acknowledged federal search

governed by border search standards. Defendant’s reliance

upon United States v. Chadwick, 433 U.S. 1 (1977), is also

misplaced since Chadwick does not deal with a border

search.

Iil

We find no merit in the defendant’s second argument that

the evidence was insufficient to show knowing possession

of heroin.

The judgment of conviction is affirmed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit