Petition — California v. Whyte

— ark

n FILED

j

r—JUE-18 1979

5

;

In the Supreme Co :

f

SO ee ee

United States

Octoser Term, 1979

No. 29-8 Sal

Tue PEoPLE OF THE STATE OF CALIFORNIA

Petitioner,

Vs.

Joun MicHarL WHYTE

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal, First Appellate District,

State of California

Grorcs DEUKMEJIAN

Attorney General of the State

of California

Rosert H. Purrmosian

Chief Assistant Attorney General—

Criminal Division

Epwarp P. O’Brien

Assistant Attomey General

Wii D. Stem

Deputy Attorney General

Linpa LupLow

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Attorneys for Petitioner

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © S.F.,CAS4111 © (415) 981-7882

SUBJECT INDEX ;

Page

ee, ad dew dateseavesess 1

TNR © ie rae ss 08). See ead. os cms 2

eu bore castuccer ss cab sles 2

Constitutional provision involved .......................... 2

RP ely re de a Peat: 2

: Statement under Rule 33(2)(b) .............4....0..00.. 3

ee a Soba a ce ceeece 3

a rl ni bee re 3

ee ey cee s owt te nes 5

: ES I 7

EG OO SET Sr etal A aa 8

J Federal agents could properly conduct a warrantless search

and seizure of goods imported from abroad ............... 8

Raga ES Ea SEE ALE TOS a a rr 15

:

a ,

4

li

TABLE OF AUTHORITIES CITED

Cases

Page

Alexander v. United States (9th Cir. 1966) 362 F.2d 379, cert.

UE EI he Od ae eo sce 10, 11

Almeida-Sanchez v. United States 413 U.S. 266 (1973) ....... 9

Boyd v. United States 116 U.S. 616 (1886) ................. 8

Brown v. United States 411 U.S. 223 (1973) ................ 13

Carroll v. United States 267 U.S. 132 (1925) ............... 9

Combs v. United States 408 U.S. 224 (1972) ................ 13

Elkins v. United States 364 U.S. 206 (1960) ................ 14

Jones v. United States 362 U.S. 257 (1960) ................. 13

Katz v. United States 389 U.S. 347 (1967) .......... 0.00005. 12°

Mapp v. Ohio 367 U.S. 643 (4961) .....................6.. 14

People v. Edgar 60 Cal.2d 171, 32 Cal.Rptr. 41, 383 P.2d 449

RU aL anes ay Le inal ody dt ble oe Bia So vaduedean | 12

People v. Martin 45 Cal.2d 755, 290 P.2d 855 (1955) ......... 13

1 di.

— v. Solario 19 Cal.3d 760, 139 Cal.Rptr. 7

6

7 (1977) 13

People v. Superior Court (Cleaver) 24 Cal.3d 297, 155 Cal.

Retr, HO, ee POG GOA (AGO) hc ei ee acs 13

Silverman v. United States 365 U.S. 505 (1961) ............. 12

Simmons v. United States 390 U.S. 377 (1968) ............. 13

Stoner v. State of California 376 U.S. 483 (1964) ............ 12

United States v. Davis (7th Cir. 1959) 272 F.2d 149 ......... 9,11

United States v. Fogelman (5th Cir. 1978) 586 F.2d 337 ...... 10

United States v. King (5th Cir. 1975) 517 F.2d 350 .......... 10

United States v. Martinez (5th Cir. 1973) 481 F.2d 214, cert.

RE MI WEN OI sori rails cle whic cake <M Rata Wing one cu 0B e's 10

United States v. Nelson (6th Cir. 1972) 459 F.2d 884........ 12

United States v. One 1974 Jeep (9th Cir. 1976) 536 F.2d 1285. 10

United States v. Ramsey (1977) 431 U.S. 606 ............... 8,9

United States v. Thirty-Seven Photographs 402 U.S. 363 (1971) 9

United States v. 12 200-Ft. Reels of Film 413 U.S. 123 (1973). 9

PE TBE OILS

ee

iil

TABLE OF AUTHORITIES CITED

Constitution

Page

United States Constitution:

ee Se eee ion So oy ae ee ee 2,7, 8, 12, 13, 14, 15

Regulation

BP es Be 08s kc as Lee as Che ewan aed 9

Rule

Rules of the Supreme Court of the United States:

I Si aoc Ns ihr ca ee oes hee eed oss val ns Sta 3

Statutes

California Health and Safety Code:

CSRS A a ey Petes FE Sr 3

California Penal Code:

RR yi RO A 2.¥ Se i 12

EE Sa 85E oo tod iis cia ns oh a aun ian Ovdae © 4 4

Ce os aS cm. GR AS A ENS Sie Cybex 4

See SP Bevis) Sigs S insta dn Rip mies: 4

SUBA. Ape Th, SORE Gia free, os ces ens 9

ee gin sla s whch eke emai ta owe 2,7,8

SP a SPUD, Rigi ede Sena Bann He 2

In the Supreme Court

OF THE

United States

Octoser Term, 1979

No.

Tue PEopuLe or THE STATE oF CALIFORNIA

Petitioner,

VS.

JoHn MicHaEL Wuyte

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal, First Appellate District,

State of California

The People of the State of California, respectfully

petition for a writ of certiorari to review the judgment of

the California Court of Appeal affirming the trial court’s

suppression of forty-three pounds of hashish imported

from India and thereby precluding respondent’s prosecu-

tion.

OPINION BELOW

The opinion of Division: Two, First Appellate District,

California Court of Appeal, is set forth as Appendix A

to this petition. It is also reported as People v. Whyte,

90 Cal.3d 235, 152 Cal. Rptr. 280 (1979). A copy of that

court’s order denying our petition for rehearing is set

- ul :

2 .

7

7

-

forth as Appendix B. A copy of the California Supreme

Court’s order denying our petition for hearing is set forth

as Appendix C.

JURISDICTION

Petitioner invokes the jurisdiction of this Court under

28 U.S.C. section 1257(3) since a right is claimed under

the Fourth Amendment to the Constitution of the United

States.

The Supreme Court of California denied hearing in this

case on April 19, 1979. The instant Petition for a Writ of

Certiorari is filed within ninety days of that order.

QUESTIONS PRESENTED

Whether federal agents could properly conduct a

warrantless search and seizure of goods imported from

abroad?

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment IV:

“The right of the people to be secure in their persons,

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.”

STATUTES INVOLVED

19 United States Code section 482:

“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

3

shall suspect there is merchandise which is subject to

duty, or shall have been introduced into the United

States in any manner contrary 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 merchandise

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 reasonable 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 other-

wise, he shall seize and secure the same for trial.”

STATEMENT UNDER RULE 33(2) (b)

“Since the proceeding draws into question the con-

stitutionality of 19 U.S.C. § 482, an Act of Congress

affecting the public interest, and neither the United

States nor any agency, officer, or employee is a party,

it is noted that 28 U.S.C. § 2403(a) may be applicable.”

STATEMENT OF THE CASE

A. History of the Case

In an information filed in the California Superior Court

for the County of Marin, respondent was charged with the

unlawful transportation and importation of hashish in

violation of section 11360(a) of the California Health and

Safety Code (Cl.Tr. 1-2).* Respondent thereafter entered

a plea of not guilty. Respondent’s motion to set aside the

‘Reference is to the clerk’s transcript of the trial court proceed-

ings. Section 11360(a) is set forth in Appendix D,

+

information pursuant to California Penal Code section

995,? and his motion pursuant to California Penal Code

section 1538.5*° were heard on October 13, 1977 and the

matter was submitted on the basis of the preliminary

examination transcript and points and authorities filed by

counsel (Cl.Tr. 33). On October 14, 1977, the court granted

respondent’s motion and dismissed the case (Cl.Tr. 33-34).

Petitioner appealed to the California Court of Appeal,

First Appellate District, from the judgment of dismissal

and the order suppressing the evidence. Such appeal was

properly brought under California Penal Code section

1538.5(n)(v) and under the authority of People v. Miner-

vint (1971) 20 Cal.App.3d 832, 836, 98 Cal.Rptr. 107. On

January 31, 1979, Division Two of that court affirmed the

judgment and order of the superior court in an opinion

*California Penal Code section 995 states in pertinent part that

an information must be set aside if “the defendant had been

committed without reasonable and probable cause.”

‘California Penal Code section 1538.5 states in applicable part

that:

“(a) A defendant may move for the return of pogeety: or

to suppress as evidence any tangible or intangible thing ob-

tained as a result of a search or seizure on either of the

following grounds:

(1) The search or seizure without a warrant was un-

reasonable.

(2) The search or seizure with a warrant was unreason-

able because (i) the warrant is insufficient on its face; (ii)

the property or evidence obtained is not that described in

the warrant; (iii) there was not probable cause for the

issuance of the warrant; (iv) the method of execution of the

warrant violated federal or state constitutional standards;

(v) there was any other violation of federal or state con-

stitutional standards.

o e a

“(n) ... Nothing in this section shall be construed as alter-

ing . . . (v) the procedure or law relating to a motion made

pursuant to Section 995 or the procedures which may be ini-

tiated after the granting or denial of such a motion.”

oe eee ee

5

set forth in Appendix A. The court’s opinion is based

solely on Federal Constitutional law. A petition for re-

hearing was denied on March 2, 1979.

The California Supreme Court denied a petition for

hearing on April 19, 1979.

B. Statement of the Facts

Douglas Ross, a United States Customs agent, was

working with a specially trained dog at the foreign import

section at the San Francisco Airport cargo shed on April

9, 1977 (RT 8-11).* The dog, “Boy,’”*® began scratching at

six large bales of burlap. Ross notified Customs Inspector

Kaufman and they opened one bale and found approxi-

mately thirty ounces of hashish concealed in a laminated

board in the center of the bale (RT 12-13, 23). All bales

were taken to the Customs Office for security at about

12:30 p.m. (RT 22).

The shipping documents attached to the burlap showed

that the shipper was “John Michael Whyte, c/o the Taj

Mahal Hotel, Bombay, India” and that the recipient was

“John Michael Whyte, c/o the Asiatic Galleries, 335 San

Anselmo Avenue, San Anselmo, California.” (RT 25).

On April 12, 1977, respondent John Michael Whyte

requested the Frank Dow Brokerage Company to deliver

the shipment by the Boland Trucking Company on the

following day, April 13, 1977 (RT 25-26).

*“RT” designates the reporter's transcript of the preliminary

examination held on June 24 and July 15, 1977.

’“Boy” was fully — as an expert in the detection of mari-

ee and hashish virtue of his training (400 hours at the

arcotics Detector Dog Training Center) and his experience

(70-90 finds of marijuana and 50 finds of hashish) (RT 8-10).

6

Agent Clinton Cook of the Drug Enforcement Admin-

istration of the United States Department of Justice was

contacted by Customs and assigned to accompany the truck

and help deliver the bales (RT 26). He arrived at the

Abraxas Book Store at 335 San Anselmo Avenue on April

13 at 11:30 a.m. and contacted the clerk, Carla Cunningham,

regarding the bales (RT 27).

Ms. Cunningham had been telephoned by respondent

approximately a week previously. He told her some “art

goods” would be arriving and that she should accept them

when they came (RT 48). On April 13, 1977, about 10:45

a.m., respondent came into the store and told Ms. Cunning-

ham that the “art goods” would arrive that day. She was

instructed to give the delivery persons a check which he

left. He then said to have the bales, which would be big,

placed in front of the store as he would pick them up

later (RT 50-51).

When Agent Cook notified Ms. Cunningham that the

goods had arrived, she gave him a certified check for

$268.38. Ms. Cunningham told Cook that respondent had

given her the check for payment of the goods and, pursuant

to respondent’s specific instructions, told Cook to put the six

bales on the sidewalk outside the store (RT 28). The bales

were heavy and it took two men to place them in front of

the store (RT 36). About an hour after Cook and the other

deliverymen left, respondent came into the store and told

Ms. Cunningham that he needed to get a truck to pick up

the bales (RT 51). About 4:30 p.m., respondent called Ms.

Cunningham and said he didn’t have the truck yet, that she

should go ahead and close the store and he would. pick up

~ e egorrn

the bales later (RT 52). He again told her to leave and

that he would pick up the bales from the sidewalk (RT 52).

At about 5:45 p.m. another clerk in the store said that

the bales shouldn’t be left outside as they were “expen-

sive.” He proceeded to drag the bales into the store (RT

52). Federal agents, assisted by San Anselmo Police, came

in and arrested Ms. Cunningham (RT 53). The bales were

put back outside in front of the store (RT 61).

Throughout the day, Federal agents had kept the store

under surveillance (RT 32-36, 43, 57). At about 1:20 p.m.,

respondent was observed entering the store and then

leaving after a few minutes (RT 58). Shortly thereafter,

he was seen walking out of an alleyway across the street.

He came out, looked around and then went back down the

alley. Later, he was observed sitting in a vehicle near the

Post Office about 200 yards from and facing the book store

(RT 58). Respondent was later seen driving past the book-

store (RT 59).

Agents continued the surveillance until 11:15 p.m.; they

then took the bales into custody at the San Anselmo Police

Station (RT 61). There was over forty-three pounds of

hashish inside the bales of cloth (RT 63).

REASONS FOR GRANTING THE WRIT

The decision of the California Court of Appeal is in

direct conflict with the grant of authority set out in Title

19, section 482, of the United States Code which empowers

federal customs agents to conduct warrantless searches and

seizures of goods imported from abroad. The court’s

opinion represents a misunderstanding of Fourth Amend-

° ew Tyan en,

8

ment warrant requirements and of the federal law govern-

ing border searches. As California has one of the most ex-

tensive borders and import operations in the United States,

the decision has a far-reaching impact on the conduct and

authority of federal customs agents acting under Title 19

U.S.C. section 482.

ARGUMENT

FEDERAL AGENTS COULD PROPERLY CONDUCT A

WARRANTLESS SEARCH AND SEIZURE OF GOODS

IMPORTED FROM ABROAD

It is well established that searches made at the border

are reasonable. Such searches are made pursuant to the

longstanding right of the sovereign to protect itself by

stopping and examining persons and property crossing

into this country. United States v. Ramsey, 431 U.S. 606

(1977). This right was recognized even prior to the pro-

posal of the Fourth Amendment. As explained in Boyd v.

United States, 116 U.S. 616, 623 (1886):

“The seizure of stolen goods is authorized by the

common law; and the seizure of goods forfeited for a

breach of the revenue laws, or concealed to avoid the

duties payable on them, has been authorized by Eng-

lish statutes for at least two centuries past; and the

like seizures have been authorized by our own revenue

acts from the commencement of the government. The

first statute passed by Congress to regulate the col-

lection of duties, the act of July 31, 1789, 1 Stat. at L.

43, contains the same provisions to this effect. As this

act was passed by the same Congress which proposed

for adoption the original amendments to the Constitu-

tion, it is clear that the members of that body did not

regard searches and seizures of this kind as ‘unreason-

9

able,’ and they are not embraced within the prohibition

of the amendment.”

The reasonableness of warrantless border searches has

been upheld consistently by this Court. Carroll v. United

States, 267 U.S. 132, 153-154 (1925); United Siates v.

Thirty-Seven Photographs, 402 U.S. 363, 376 (1971);

United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 125

(1973) ; Almeida-Sanchez v. United States, 413 U.S. 266,

272 (1973).

Here the record shows that the search of the imported

articles was commenced by customs agents (RT 8-11, 22,

26). The delivery and ultimate reseizure of the goods in-

volved the cooperation of Drug Enforcement Administra-

tion Agents (hereinafter DEA) and local authorities. DEA

agents are specifically empowered under 5 USC, Appendix

II, section 1, to search for and seize imported contraband.

Though this Court has not yet decided the question of

whether there are geographical limits to border searches

for items entering the country,’ various federal circuits

have found that it is permissible for federal agents to

arrange for controlled deliveries of contraband articles im-

ported from abroad, United States v. Davis (7th Cir. 1959)

272 F.2d 149, 153.

“... To require immediate seizure of the contraband

upon discovery would deprive federal officers of a most

*See Appendix E for the text of 5 USC, Appendix II which

grants the Teeeioen of Justice, through DEA, the authorization

to conduct customs searches and seizures for imported illicit

narcotics, dangerous drugs and marihuana. See also 19 Code of

Federal Regulations 162.

"In United States v. Ramsey, 431 U.S. 606, supra, n.11 at 615,

this Court specially reserved this question.

10

effective method of obtaining evidence against ultimate

consignees, clearly a result contrary to Congressional

intent.” Id., 153. See also, United States v. One 1974

Jeep (9th Cir. 1976) 536 F.2d 1285, 1286-1287; Untted

States v. King (5th Cir. 1975) 517 F.2d 350, 354.

Even though the delivery of the imported articles may

take place some distance from the border, it is permissible

for federal agents to follow the suspected contraband to

its ultimate destination and then to seize it. United States

v. Fogelman (5th Cir. 1978) 586 F.2d 337, 334; Alexander v.

United States (9th Cir. 1966) 362 F.2d 379, 382, cert. denied

385 U.S. 977.

The rationale for these extended border searches in

controlled delivery cases was articulated in United States

v. Martinez (5th Cir. 1973) 481 F.2d 214, cert. denied 415

US. 931:

“In order to enforce the customs laws, particularly

those dealing with the illegal importation of drugs,

law enforcement officials must do more than arrest the

street level operative; they must, if all possible, appre-

hend the ringleaders as well. This objective would not

be easily attainable of the authority of customs agents

to search was strictly limited to the physical border.

By following the truck inland, the customs agents

obviously -hoped to apprehend others involved in the

smuggling of a large quantity of marijuana. In view

of their purpose we think they used a legitimate law

enforcement technique which did not undermine their

authority.” Id. at 218.

Here, agents had probable cause to believe that the

imported articles contained contraband. The bales were

searched and, in fact, seized at the airport (RT 12-13, 23).

11

They allowed the articles to be delivered pursuant to

respondent’s specific instructions (RT 25-26, 28).”Mean-

while, the articles were under their constant surveillance

(RT 32-36, 43, 57).*

The California Court of Appeal found, however, that

when a third party dragged the articles from the sidewalk

into a bookstore the respondent was “entitled to protection

from unreasonable government intrusion” because “home

and offices fall within this category of maximum protec-

tion” (90 Cal.App.3d 235, 244, 152 Cal.Rptr. 280, 285).

First the record shows that: (1) the bookstore was a

business establishment open to the public (RT 27) ; (2) that

the bales were dragged into this store (RT 52) ;° (3) that

respondent had left specific instructions that the articles

be left outside on the sidewalk (RT 50-51, 52) and (4) that

a third party intermeddler disregarded this instruction by

moving the articles (RT 52). It was at this moment that

the agents retrieved the articles to prevent interference

with the controlled delivery (RT 53, 61). This, we submit,

was a constitutionally permissible action. The bales, which

had already been searched and seized, could properly be

taken without a warrant at any point while in transit to the

consignee. United States v. Davis, swpra, 272 F.2d 149, 153.

Even if it be assumed that the third party, with knowledge

of the contents of the bales, deliberately attempted to move

®Under Alexander v. United States, = 362 F.2d at 382, it

F ngproe to be a federal requirement that the prosecution show that

e contraband searched or seized is the same as that observed at

the time of entry into the country.

*Though respondent rented space from this business establish-

ment, there is no evidence that the office or space he rented was

the area where the articles were placed.

12

the contraband in order to conceal it, the same rule would

be true. When they have witnessed the offenses, officers

may properly seize the evidence and arrest the person for

concealing or destroying evidence. California Penal Code

section 185; see People v. Edgar 60 Cal.2d 171, 175-176,

32 Cal.Rptr. 41, 383 P.2d 449 (1963).

Though offices as well as homes are entitled to maximum

constitutional protection, there was no “office” possessed

by respondent which was subject to governmental intru-

sion, In each of the cases relied upon by the Court of

Appeal, (90 Cal.App.3d 235, 244, 152 Cal.Rptr, 280, 285),

the room, home or office belonged to the defendant. In Sil-

verman v, United States, 365 U.S. 505 (1961) the protected

premise was a house used by defendants as a gambling

headquarters. Jd. at 512, In Stoner v. California, 376 U.S.

483 (1964) the protected area was a hotel room rented by

the defendant. Jd. at 489, In United States v. Nelson (6th

Cir, 1972) 459 F.2d 884, the area at issue was a motel room

rented by the defendant, Here, the area did not belong to

respondent and was not a private office.

In any event, this Court had repeatedly held “. . . the

Fourth Amendment protects people—and not simply ‘areas’

—against unreasonable searches and seizures.” Kate v.

United States, 389 U.S. 347, 353 (1967). It cannot be said

here that respondent entertained any expectation of

privacy in bales imported from abroad and subject to

Customs inspection which he ordered to be left on a public

sidewalk. Neither the third party intermeddler nor any

other person had any Fourth Amendment rights in the

bales. The Court has stated that Fourth Amendment rights,

unlike some ether constitution rights, are personal and

13

may not be vicariously asserted. Brown v, United States

411 U.S. 223 (1973). In Brown, the court found that the

defendant had no standing to asseft a Fourth Amendment

violation because he had no proprietary or possessory

interest in a retail store or goods therein which had been

subject to search under a defective warrant when he was

not on the premises. /d. at 230. Accord, Simmons v. United

States 390 U.S. 377, 390-891 (1968) ; Jones v. United States

362 U.S. 257, 265-267 (1960); Combs v. United States 408

U.S. 224, 227 (1972).° The bales were not addressed to

them or to the bookstore," but to respondent who specif-

ically directed they be left outside. The place where the

bales were moved was not respondent’s office but another

person’s business establishment in which respondent could

not and did not have any expectation of privacy. Here, the

agents acted promptly to prevent disruption of the con-

trolled delivery. Their conduct did not, in fact, constitute

a search and seizure, but was a recapture of the goods

properly under their dominion and control. There was, in

short, nothing constitutionally impermissible in attempting

to prevent a clerk from inadvertently or purposefully inter-

fering with the controlled delivery of the imported contra-

band. The Court of Appeal has mistakenly restricted the

Moreover, even in California, which does have a vicarious

exclusionary rule (People v. Martin, 45 Cal.2d 755, 759-761, 290

P.2d 855, [1955]), respondent would not have oo Fourth Amend-

ment rights in either the store or the goods by virtue of the

clerk’s action. Under California law, intermeddlers, uninvited guests,

burglars or trespassers have no standing to object. See, People v.

Solario 19 Cal.3d 760, 764, 139 Cal.Rptr. 725, P.2d 627 (1977);

People v. gupetier Court (Cleaver) (1979) 24 Cal.3d 297, 306, 155

Cal. Rptr. 559, 594 P.2d 984,

“The bales were not addressed to the Abraxas bookstore but to

“John Michael Whyte, c/o the Asiatic Galleries, 335 San Anselmo

Avenue, San Anselmo, California” (RT 25).

14

authority of federal agents to enforce the United States

customs laws in the several states.

Moreover, the California Court of Appeal mistakenly

applied the exclusionary rule to a perfectly proper search.

The purpose of the rule excluding evidence is to deter

illegal police conduct. Mapp v. Ohio, 367 U.S. 6438, 656

(1961).

“ . . to deter—to compel respect for the constitu-

tional guaranty in the only effectively available way—

by removing the incentive to disregard it.” Elkins v.

United States, 364 U.S. 206, 217 (1960).

Under Federal law, which governs this case, the search,

seizure and recovery of the hashish was proper as a

customs search accomplished by authorized Customs and

DEA agents. There was no “unreasonable government in-

trusion” and no violation of anyone’s Fourth Amendment

rights by the Agent’s seizure of the contraband which had

been moved by an intermeddler. There was, in short, no

illegal police conduct and thus there is no basis for apply-

ing the exclusionary rule,

Because of the vast border and of the extensive import

operations in California, the Court of Appeal decision will

have a considerable impact on the authority of federal

officers in California to carry out their proper duties for

searches and seizures of imported articles. There is yet

another important consideration at stake. The decision

creates a direct conflict with the federal law which has no

warrant requirement for customs searches. Cases hitherto

sent to the state courts for prosecution to relieve an already

15

overburdened federal court system will now have to be

charged and tried in the federal district courts. Moreover,

the California appellate decision clearly portends what

other states might well feel free to do. That is to impose

restrictions on the authority of federal agents to conduct

warrantless searches and seizures and thus to curtail their

power to inspect imported articles. The effect of such action

by state courts would be the imposition of restrictions on

Customs searches by fifty different jurisdictions. This

would not only create a bewildering array of different

interpretations as to the proper scope of Customs actions,

but would undermine the very authority and power of

Customs. This Court should act in this case to prevent such

a result.

CONCLUSION

The search and seizure of the imported bales was a

proper search by Customs agents. The subsequent con-

trolled delivery was a proper and accepted practice by

authorized Customs and DEA agents. Recovery was proper,

without a warrant, at any time while the contraband was

in transit to the ultimate consignee. The movement of the

contraband by a third party intermeddler from a sidewalk

into a business open to the public did not give any indi-

vidual a Fourth Amendment expectation of privacy in the

contraband. There is no deterrent value in exclusion of the

evidence as there was no illegal police conduct.

Because of the far reaching impact the erroneous Court

of Appeal decision has on the authority and conduct of

g =?

16

federal agents in their duties to search and seize imported

articles, appellant respectfully submits that the petition

for writ of certiorari should be granted.

Dated: July 17, 1979

POI ETI Te

Grorce DrvKMEJIAN

Attorney General of the State

of California r

Rosert H. PxHrrBosian | rae ee

Chief Assistant Attorney General— Appendices

Criminal Division

Epwarp P. O’Brien

Assistant Attorney General

Wim D. Stem

Deputy Attorney General ;

Linpa LupLow

Deputy Attorney General

Attorneys for Petitioner

NPN SOR oe

(Appendices Follow)

APPENDIX A

Certified for Publication

In the Court of Appeal

of the

State of California

First Appellate District

Division Two

1 Crim. 17661

(Sup. Ct. No. 6460)

People of the State of California,

Plaintiff and Appellant,

Vv.

John Michael Whyte,

Defendant and Respondent.

J

[Filed Jan. 31, 1979]

OPINION

The People appeal from an order of Marin County

Superior Court granting a motion to suppress and dis-

missing an information for the import and transport of

hashish in the State of California in violation of section

11360(a) of the Health and Safety Code.

Uncontroverted evidence produced at a preliminary

examination and made part of the record at the hearing

A-2

de novo revealed that on April 9, 1977, Douglas Ross, a

United States Customs agent, was working with a specially

trained dog at the foreign import section of the San Fran-

cisco Airport cargo shed when the dog began scratching

at six large bales of burlap. Ross notified Inspector Kauf-

man and they opened one bale. They found approximately

30 ounces of hashish in a laminated board in the center of

the bale. All bales were taken to the Customs Office for

security.

The shipping document for the burlap indicated that the

shipper was “John Michael Whyte, c/o the Taj Mahal Hotel,

Bombay, India,” and the. recipient was “John Michael

Whyte, c/o the Asiatic Galleries, 335 San Anselmo Avenue,

San Anselmo, California.” Respondent rented space at the

San Anselmo address.

On April 12, 1977, respondent contacted the Frank Dow

Brokerage Company and requested that the shipment be

delivered by Bolan Trucking Company on the following

day, April 13, 1977.

Agent Clinton Cook of the Drug Enforcement Adminis-

tration (hereinafter DEA) of the United States Depart-

ment of Justice was contacted by Customs and assigned

to accompany the truck and help deliver the bales. No

search warrant was issued or applied for. Cook believed

no warrant was necessary, since the bales were being de-

livered to a book store, and not a residence. He arrived

at the Abraxas Book Store, 335 San Anselmo Avenue, in

San Anselmo, at 11:30 a.m., and contacted the clerk, Carla

Cunningham, regarding the bales.

ee

A-3

Ms. Cunningham had been telephoned by respondent

approximately a week previously. He told her some “art

goods” would be delivered and that she should accept them

when they came. On April 13, 1977, respondent came into

the store and told Ms. Cunningham that the “art goods”

would arrive that day. She was instructed to give the

delivery persons a check which he left. He then said to put

the bales, which would be big, in front of the store, and

that he would pick them up later.

When agent Cook notified Ms. Cunningham that the

goods had arrived, she gave him a certified check for

$268.38. Ms. Cunningham told Cook that respondent had

given her the check for payment of the goods and instructed

Cook to put the six bales on the sidewalk outside the store,

which he did. About an hour after Cook and the other

deliverymen left, respondent came into the store and told

Ms. Cunningham that he needed to get a truck to pick

up the bales. About4:30 p.m., respondent called Ms. Cun-

ningham and said he did not yet have the truck, that she

should close the store and he would pick up the bales later.

At about 5:45 p.m., another clerk in the store said that

the bales shouldn’t be left outside as they were “expensive.”

He proceeded to drag the bales into the store. Federal

agents, assisted by San Anselmo police, came in and ar-

rested Ms. Cunningham. The bales were put back outside

in front of the store.

Throughout the day, federal agents and local police had

kept the store under surveillance. At about 1:20 p.m.,

respondent was observed entering the store and then leav-

ing after a few minutes. Later, he was observed sitting

A4

in a vehicle near the post office about 200 yards from and

facing the book store. Respondent was later seen driving

past the book store.

Agents continued the surveillance until 11:15 p.m., at

which time they took the bales into custody at the San

Anselmo Police Station. There were 43 pounds, 10 ounces

of hashish inside the bales of cloth.

Pursuant to section 1538.5 of the Penal Code, defense

counsel moved to suppress the evidence on the grounds

that the warrantless seizure of the bales inside respond-

ent’s office was unlawful. Counsel also moved to set aside

the information under section 995 of the Penal Code based

on the grounds that (1) the offense was not committed in

the County of Marin and (2) the state importation statute

was perempted by federal importation statutes. Relying on

United States v. Chadwick (1977) 433 U.S. 1, the trial court

granted both motions.

The People contend that the evidence was properly

searched and seized and the court erred in suppressing evi-

dence on the basis of Chadwick.

Before proceeding to the merits of the People’s argu-

ment, we must first consider respondent’s contention that

the search warrant issue is not properly before this court.

The People appeal from the granting of the motion to set

aside the information pursuant to section 995 of the Penal

Code. However, the issues raised by appellant concern the

validity of the warrantless search which was the basis for

granting the motion to suppress pursuant to section 1538.5

of the Penal Code. Respondent contends that the trial

+ eee weet eens:

ee

_ a ane =

A-5

court dismissed the information under section 995 of the

Penal Code, which was supported by separate and inde-

pendent grounds. We disagree.

The sole grounds stated by the trial court for granting

both the 995 and 1538.5 motions was “the compulsion of

United States v. Chadwick.” While respondent’s 995 motion

may have been based on jurisdiction and/or peremption

arguments, it is evident that the court set aside the in-

formation on a different theory; namely, that the evidence

supporting the information was obtained illegally.

When the only substantial evidence supporting the com-

mitment has been obtained in violation of the Fourth

Amendment, a defendant is held to answer without reason-

able or probable cause within the meaning of section 995

of the Penal Code. (People v. Scoma (1969) 71 Cal. 2d 332,

335.)

Respondent cites People v. Minervint (1971) 20 Cal.

App. 3d 832, 836 for the proposition that if the trial court

undertakes to dismiss an information contemporaneously

with the granting of a motion to suppress, such action

should be taken under Penal Code section 1358, rather than

section 995, to permit an orderly review on appeal. (See

Pen. Code, § 1238(a)(7).)

However, “Section 1538.5 of the Penal Code, which deals

in general with motions to suppress as evidence properly

obtained in violation of the Fourth Amendment, provides

in subdivision (n) that ‘ “Nothing in this section shall be

construed as altering ... (v) the procedure and law re-

lating to a motion made pursuant to Section 995 or the

procedures which may be initiated after the granted or

A-6

denial of such a motion.”’ It therefore appears that Sec-

tion 995 remains a proper remedy when the evidence al-

leged to have been obtained through illegal means is the

only substantial evidence supporting the commitment.”

(People v. Scoma, supra, at p. 335, fn. 2.)

In Mimervini, as in the instant action, respondents moved

to suppress evidence and to set aside the information pur-

suant to sections 1538.5 and 995 of the Penal Code. After

discussing the consternation that results from the making

of simultaneous, undifferentiated orders suppressing evi-

dence and setting aside an information, the court concluded

that where the defendants have successfully contended that

the evidence should be suppressed because of its incom-

petency under the Fourth Amendment and also have suc-

cessfully argued that the evidence before the judge was

inadequate, the appropriate procedure is to entertain an

appeal from the order setting aside the information and

treat the dismissal as having stemmed from the suppres-

sion order. (People v. Minervini, supra, at p. 836.)

Therefore, it is our conclusion that an order to set aside

an information pursuant to section 995 of the Penal Code

may be based on a determination that evidence to support

the information was illegally searched and seized. (Cf.

People v. Superior Court (Kusano) (1969) 276 Cal. App.

2d 581, 586, fn. 4.) Accordingly, the grounds for granting

the motion to suppress are reviewable on appeal from the

granting of the Section 995 motion.

Respondent next contends that since prior to this appeal

appellant never put forth the theory that the instant search

A-7

was a Customs search, the issue is not properly before this

court. This contention must also be rejected.

At the preliminary examination, the prosecution princi-

pally contended that a warrant was not needed because it

was a business and not a residence. In its response to

respondent’s motion to suppress, the prosecution argued

that the search was incident to the arrest of Ms. Cunning-

ham. However, at the time of the preliminary examination,

the prosecutor, during his final argument, asked the court

to take into consideration the agent’s area involving Cus-

toms. He argued that Customs agents need not show

probable cause before searching evidence coming through

international trade and that the Customs agent is in con-

structive possession of the evidence up until the time of

delivery. While it is preferable for the prosecution to set

forth its justification for a warrantless search and/or

seizure in its response to the defendant’s motion to sup-

press evidence, the People’s theory or justification can be

determined from the evidence and argument offered.

(People v. Manning (1973) 33 Cal. App. 3d 586, 601.)

Since, in the present case, the preliminary examination

transcript was made part of respondent’s motion to sup-

press, appellant is not precluded from raising this issue

on appeal.

Appellant’s single contention on appeal is that the sub-

ject warrantless search and seizure of the evidence in San

Anselmo was proper, since the search was undertaken by

United States Customs Officials acting under the aegis of

A-8

19 U.S.C. 482." The People argue that no warrant is neces-

sary in cases where customs officials search pursuant to

their powers under this and related sections.*

The People cite United States v. King (5th, Cir. 1975)

517 F.2d 350 for the proposition that items still in transit

properly can be searched and seized by Customs officials,

and Chapman v. United States (10th Cir. 1971) 443 F.2d

917 and United States v. Davis (7th Cir. 1959) 272 F.2d

149 for the proposition that it is proper for Customs agents

to arrange for a “controlled delivery” where there is con-

traband discovered in imported articles, Consequently, they

conclude that it was proper for Customs to contact the

DEA to arrange for an agent to deliver the shipment and

subsequently seize and search the bales of burlap. We

cannot agree,

It is unreasonable to characterize this search and seizure

as a Customs search when the bales had been searched by

19 vee bry gates:

“Any of the officers or persons authorized to board or

vessels may stop, search, and examine, as well be Bag

within their respective districts, an vehicle, beast, or person

on which or whom he or they shall suspect there is merchan-

dise which is subject to duty, or shall have been introduced

into the United States in any manner contrary to law, whether

by the person in possession or char e, or by, in, or upon such

vehicle or beast, or otherwise, and to search any trunk or

envelope, wherever found, in which he ma have a reasonable

cause to suspect there is merchandise 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 shail have reasonable cause to believe is subject to

duty, or to have been unlawfully introduced into the United

States, whether by the a in possession or charge, or by

in, or upon such vehicle, beast, or otherwise, he shall seize

and secure the same for trial.”

2

ae = USC 1499 also authorizes examination of imported merchan-

A-9

Customs four days earlier at San Francisco International

Airport and the seizure was carried out by DEA and police

agents at a bookstore after the goods were in the possession

of federal agents for the entire four-day period prior to

the “controlled delivery.”

We find few “controlled delivery” cases where a court

characterized the search as a Customs search. In every

California case, a judicially-authorized warrant was

obtained because the agents realized they were not carrying

out a Customs search. (See People v. Duncan (1974) 40

Cal.App.3d 940; People v. Shapiro (1974) 37 Cal.App.3d

1038; People v. Kosoff (1973) 34 Cal.App.3d 920; People

v. Sloss (1973) 34 Cal.App.3d 74; Weber v. Superior Court

(1973) 30 Cal.App.38d 810; People v. Superior Court

(Marcil) (1972) 27 Cal.App.3d 404; Alvides v. Superior

Court (1970) 172 Cal.App.3d 575). Similarly, in Chapman,

a search warrant was issued after Customs searched the

contraband.

Reliance on the authority of the Customs service is

particularly misplaced in the case at bench. Appellent

asserts that the bales of burlap were still in transit to the

ultimate consignee, the respondent. On the contrary, we

find that the bales were deliver to respondent’s place of

business. While they were out on the sidewalk, under sur-

veillance of federal agents, it conceivably could be argued

that they remained in transit and under the control of the

Customs Service. However, once the bales were placed

inside of the Abraxas Book Store where respondent rented

space for his business, and absent exigent circumstances,

a warrantless seizure and subsequent search of the bales

became unreasonable under any theory.

WW \

A-10

Clearly, they were no longer in transit or under the

dominion of Customs. Nor, as the trial court determined,

is this a case where the search was incident to a lawful

arrest. Such a search could not extend beyond Ms. Cunning-

ham or the area within her immediate reach, since the

justification of this type of search is only to protect the

arresting officers or prevent destruction of evidence.

(Chimel v. California 395 U.S, 752.) Those concerns were

not present or alleged to be present in the present case.

The most probable explanation of what occurred was

offered by the testimony of Agent Cook. Agent Cook

neither applied for nor obtained a warrant, since he mis-

takenly believed that a warrant was only necessary in

cases where evidence was to be seized from a residence. The

law, as articulated in Chadwick, and relied on by the trial

court, is that the Fourth Amendment Warrant Clause is

not limited to protection of only dwellings and other

specifically designated locales, Although respondent did not

actually instruct that the bales be placed in the store, once

this had been done on his behalf he was entitled to protec-

tion from unreasonable government intrusion.

Chadwick, however, is not necessary for a determination

of this matter. As our Supreme Court stated in People v.

Dumas (1973) 9 Cal.3d 871, 881-882: “The pattern of prior

decisions suggests that one of the most crucial determinants

of the validity of warrantless searches is the nature of the

place subjected to search. This pattern has been created

by the interweaving of constitutional concepts with funda-

mental human needs and expectations. The courts have

implicitly recognized that man requires some sanctuary

in which his freedom to escape the intrusions of society

A-11

is all but absolute. [Fn. omitted.] Such places have been

held inviolate from warrantless search except in emer-

gencies of overriding magnitude, such as pursuit of a

fleeing felon (Warden v. Hayden (1967) 387 U.S 294 .. .)

or the necessity of action for the preservation of life or

property (People v. Roberts (1956) 47 Cal.2d 374, 377 ...;

People v. Sirhan (1972) 7 Cal.3d 710, 735-741 . . .; ef.

Chimel v. California (1969) supra, 395 U.S. 752.)°”

In that ease, footnote 8 provides: “Homes and offices

clearly fall within this category of maxinram protection

(Vale v. Louisiana (1970) 399 U.S. 30. . .; Silverman v.

United States (1961) 365 U.S. 505, 511-512...) as do hotel

rooms (Stoner v. California (1964) 376 U.S. 483 ...; venee

States v. Nelson (6th Cir. 1972) 459 F.2d 884).” (Emphasis

added.)

Once the bales of burlap were placed inside the book-

store, control by the Customs Service ended. In the anaense

of any emergency, any subsequent government intrusion

without a warrant was unreasonable.

We, therefore, affirm the order granting the motion to

suppress and dismissing the information.

CERTIFIED FOR PUBLICATION.

Miller, J.

WE CONCUR:

Taylor, P.J.

Rouse, J.

A

APPENDIX B

In the Court of Appeal

of the

State of California

First Appellate District

Division Two

1/Crim. No. 17661

People of the State of California,

Plaintiff and Appellant,

vs.

John Michael Whyte,

Defendant and Respondent.

[Filed Mar. 2, 1979]

BY THE COURT:

The petition for rehearing filed in the above entitled

cause is hereby denied.

Dated Mar. 2, 1979

Taylor, P. J.

APPENDIX C

Order Due

April 30, 1979

ORDER DENYING HEARING

After Judgment by the Court of Appeal

1st District, Division 2, Crim. No. 17661

In the Supreme Court of the State of California

In Bank

People

Vv

Whyte

[Filed Apr. 19, 1979]

Appellant’s petition for hearing DENIED.

Bird

Chief Justice

APPENDIX D

California Health and Safety Code:

Section 11360. Transportation, sale, import, give away,

etc.; punishment

(a) Except as otherwise provided by this section or

as authorized by law, every person who transports,

imports into this state, sells, furnishes, administers,

or gives away, or offers to transport, import into this

state, sell, furnish, administer, or give away, or

attempts to import into this state or transport any

marijuana shall be punished by imprisonment in the

state prison for a period of two, three or four years.

Except as authorized by law, every person who gives

away, offers to give away, transports, offers to trans-

port, or attempts to transport not more than one

avoirdupois ounce of marijuana, other than concen-

trated cannabis, is guilty of a misdemeanor and shall

be punished by a fine of not more than one hundred

dollars ($100). In any case in which a person is

arrested for a violation of this subdivision and does

not demand to be taken before a magistrate, such

person shall be released by the arresting officer upon

presentation of satisfactory evidence of identity and

giving his written promise to appear in court, as pro-

vided in Section 853.6 of the Penal Code, and shall not

be subjected to booking.

(Added by Stats.1972, c. 1407, § 3. Amended by Stats.

1973, ce. 1078, § 11; Stats.1975, c. 248, §3; Stats.1976,

c. 1139, § 74.)

ea Ce TS

APPENDIX E

U.S.C. TITLE 5—APPENDIX II

REORGANIZATION PLAN NO. 2 OF 1973

Eff. July 1, 1973, 38 F.R. 15932, 87 Stat. 1091, as amended

Mar. 16, 1974, Pub.L. 93—253, § 1, 88 Stat. 50.

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

of Title 5 of the United States Code [chapter 9 of this

title].

LAW ENFORCEMENT IN ILLICIT DRUG ACTIVITIES

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

Attorney General all intelligence, investigative, and law

enforcement functions, vested hy 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

continue 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 deten-

tion of persons in connection therewith, at regular inspec-

tion locations at ports of entry or anywhere along the land

or water borders of the United States: Provided, that any

illicit narcotics, dangerous drugs, marihuana, or related

evidence seized, and any person apprehended or detained

by the Secretary or any officer 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

E-2

jurisdiction 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 the Treasury, the Department of the Treasury, or any

other officer or any agency of that Department on the

effective date of this Plan with respect to contraband other

than illicit narcotics, dangerous drugs and marihuana; and

Provided further, that nothing in this section shall be con-

strued as limiting in any way any authority the Attorney

General, the Department of J ustice, or any other officer or

any agency of that Department may otherwise have to make

investigations or engage in law 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 water borders of the

United States.

Sec. 2. [Repealed. Pub.L 93-253, §1(a)(1), (b), Mar.

16, 1974, 88 Stat. 50, eff. July 1, 1973. Section had pro-

vided for transfer to Secretary of Treasury of functions

vested in Attorney General, Department of J ustice, or any

other officer of such Department respecting inspection at

ports of entry of persons, and documents of persons, enter-

ing or leaving the United States. ]

Sec. 3. Abolition. The Bureau of Narcotics and

Dangerous Drugs, including the Office of Director thereof,

is hereby abolished, and section 3(a) of Reorganization

Plan No. 1 of 1968 is hereby repealed. The Attorney Gen-

eral shall make such provision as he may deem necessary

with respect to terminating those affairs of the Bureau of

Narcotics and Dangerous Drugs not otherwise provided

for in this Reorganization Plan.

H-3

Sec. 4. Drug Enforcement Administration. There is

established in the Department of Justice an agency which

shall be known as the Drug Enforcement Administration,

hereinafter referred to as “the Administration.”

Sec. 5. Officers of the Administration. (a) There shall

be at the head of the Administration the Administrator of

Drug Enforcement, hereinafter referred to as “the Admin-

istrator.” The Administrator shall be appointed by the

President by and with the advice and consent of the Senate,

and shall receive compensation at the rate now or here-

after prescribed by law for positions of level III of the

Executive Schedule Pay Rates (5 U.S.C. 5314) [section

5314 of this title]. He shall perform such functions as the

Attorney General shall from time to time direct.

(b) There shall be in the Administration a Deputy

Administrator of the Drug Enforcement Administration,

hereinafter referred to as “the Deputy Administrator,” who

shall be appointed by the President by and with the advice

and consent of the Senate, shall perform such functions as

the Attorney General may from time to time direct, and

shall receive compensation at the rate now or hereafter

prescribed by law for positions of level V of the Executive

Schedule Pay Rates (5 U.S.C. 5316) [section 5316 of this

title].

(c) The Deputy Administrator or such other official of

the Department of Justice as the Attorney General shall

from time to time designate shall act as Administrator

during the absence or disability of the Administrator or in

the event of a vacancy in the office of Administrator. }

Sec. 6. Performance of transferred functions. The Attor-

ney General may from time to time make such provisions

E-4

as he shall deem appropriate authorizing the performance

of any of the functions transferred to him by the provisions

of this Reorganization Plan by any officer, employee, or

agency of the Department of Justice. [Section, formerly

subsec. (a), so designated and former subsec. (b) providing

for performance of functions transferred to Secretary of

Treasury by any officer, employee, or agency of Treasury

Department, repealed by Pub.L. 93-253, $1(a)(2), (b),

Mar. 16, 1974, 88 Stat. 50, eff. July 1, 1973.]

Sec. 7. Coordination. The Attorney General, acting

through the Administrator and such other officials of the

Department of Justice as he may designate, shall provide

for the coordination of all drug law enforcement functions

vested in the Attorney General so as to assure maximum

cooperation between and among the Administration, the

Federal Bureau of Investigation, and other units of the

Department involved in the performance of these and

related functions.

Sec. 8. Incidental Transfers. (a) So much of the per-

sonnel, property records, and unexpended balances of ap-

propriations, allocations, and other funds employed, used,

held, available or to be made available in connection with

the functions transferred to the Attorney General and to

the Secretary of the Treasury by this Reorganization Plan

as the Director of the Office of Management and Budget

shall determine shall be transferred to the Department of

Justice and to the Department of the Treasury, respectively,

at such time or times as the Director shall direct.

(b) Such further measures and dispositions as the Di-

rector of the Office of Management and Budget shall deem

to be necessary in order to effectuate transfers referred to

SA a eae ie

IPCC ee net ae re ©

E-5

in subsection (a) of this section shall be carried out in such

manner as he shall direct and by such Federal agencies as

he shall designate.

Sec. 9. Interim Officers. (a) The President may au-

thorize any person who, immediately prior to the effective

date of this Reorganization Plan, held a position in the

Executive Branch of the Government to act as Adminis-

trator until the office of Administrator is for the first time

filled pursuant to the provisions of this Reorganization

Plan or by recess appointment as the case may be.

(b) The President may similarly authorize any such per-

son to act as Deputy Administrator.

(c) The President may authorize any person who serves

in an acting capacity under the foregoing provisions of this

section to receive the compensation attached to the office

in respect to which he so serves. Such compensation, if au-

thorized, shall be in lieu of, but not in addition to, other

compensation from the United States to which such person

may be entitled.