# Petition — California v. Whyte

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1093

## Text

— 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0578%3A1. Public record. Not legal advice.