Petition — California v. Riegler

-

es

Office -Supreme Court, U.S.

FiEL:E Dp

80-1421 FEB211981_—r

No. 80-

ALEXANDER L. STEVAS,

IN THE SUPREME COUEF F_THR:**

UNITED STATES

October Term, 1980

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Ve

ROBERT LAWRENCE RIEGLER,

Respondent.

——————

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

FIFTH APPELLATE DISTRICT

EE eee

GEORGE DEUKMEJIAN, Attorney

General of the State of

California

ROBERT H,. PHILIBOSIAN, Chief

Assistant Attorney General -—

Criminal Division

ARNOLD 0. OVEROYE

Assistant Attorney General

EDDIE T. KELLER |

Deputy Attorney General

RAMON M. de la GUARDIA

Deputy Attorney General

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 445-4784

Attorneys for Petitioner

eo r

——

QUESTIONS PRESENTED

1. Do recipients of packages sent

through the international mails have

a constitutionally protected expectation

of privacy in the unlawful contents of tne

packages after the packages have been

subjected to a lawful customs search and

then delivered to the addressee by the

police under controlled conditions and

constant surveillance?

2. After a search warrant has issued to

search a residence for a particular pack-

age known to coutedn contraband, does the

Fourth Amendment obligate the police to

obtain a second search warrant to open thie

package when the package is lawfully seized

at a place other than the residence de-

scribed in the warrant?

3. Assuming for the sake of argument

that a second search warrant was required

in this case, is the exclusionary rule

i

applicable when government agents act

under a good faith belief that an addi-

tional warrant was unnecessary because of

a prior customs search of the packages

and the existence of a warrant authorizing

them to search for and seize the contents

of the packages?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

A.

B.

Proceedings in the State Court

Statement of the Facts

ARGUMENT :

I.

Il.

AFTER A CUSTOMS SEARCH OF

PARCELS SENT THROUGH THE

INTERNATIONAL MAILS THE

RECIPIENTS OF THE PACK-

AGES HAVE NO CONSTITUTIONAL

PROTECTED EXPECTATION OF

PRIVACY IN THE CONTENTS OF

THE PACKAGES

ONLY ONE SEARCH WARRANT IS

CONSTITUTIONALLY REQUIRED

TO OPEN CONTRABAND EVEN

THOUGH THE EVIDENCE IS LAW-

FULLY SEIZED AT A DIFFERENT

LOCALE THAN THAT DESCRIBED

IN THE WARRANT

iii

17

TABLE OF CONTENTS

$ continue

Page

III. ASSUMING THE SEARCH WARRANT

DID NOT AUTHORIZE THE OFFI-

CERS TO REOPEN THE PACKAGES,

THE EXCLUSIONARY RULE SHOULD

NOT BE APPLIED BECAUSE OF

THE OFFICERS' GOOD-FAITH BE-

LIEF THEY WERE AUTHORIZED TO

OPEN THE PACKAGES 21

CONCLUSION 25-26

iv

Po

TABLE OF AUTHORITIES CITED

Cases

Arkansas v. Sanders

(1979) 442 U.S. 753

Chambers v. Maroney

(1970) 399 U.S. 42

Coolidge v. New Hampshire

(1971) 403 U.S. 443

Dalia v. United States

(1979) 441 U.S. 238

Elkins v. United States

(1960) 364 U.S. 206

Harris v. United States

(1968) 390 U.S. 234

Linkletter v. Walker

(1965) 381 U.S. 618

McConnell v. State

(1979) Alaska, 595 P.2d 147

People v. Matthews

(1980) 112 Cal.App.3d 11

People v. Whyte

(1979) 90 Cal.App.3d 235

Rakas v. Illinois

(1978) 439 U.S. 128

State v. Edwards

(1977) 248 N.W.2d 775

Vv

15,17

14,15

ee ee te

TABLE OF AUTHORITIES CITED

(continued )

Page

United States v. Abrahams

(S.D.N.Y. 1980) 493 F.Supp. 310 18

United States v. Andrews

(10th Cir. 1980) 618 F.2d 646 11

United States v. Bilir

(4th Cir. 1979) 592 F.2d 735 11

United States v. Bulgier

(7th Cir. 1980) 618 F.2d 472 10,11

United States v. Calandra

(1974) 414 U.S. 338 22

United States v. Callison

(8th Cir. 1978) 577 F.2d 53 18

United States v. Chadwick

(1977) 433 U.S. 1 9,13

United States v. DeBerry

(2d Cir. 1973) 487 F.2d 448 11

United States v. Kralik

(10th Cir. 1979) 611 F.2d 343 18

United States v. Lowe

(6th Cir. 1978) 575 F.2d 1193 11

United States v. Martinez

(Sth Cir. 1973) 481 F.2d 214 10,11

United States v. Morris

(S.D. Georgia 1980) 491 F.Supp.222 18

vi

TABLE OF AUTHORITIES CITED

(continued )

United States v. Ramsey

(1977) 431 U.S. 606

United States v. Smith

(9th Cir. 1980) 629 F.2d 1301

United States v. Williams

(5th Cir. 1980) 622 F.2d 830

—

Walter v. United States

(1980) Dui.

100 S.Ct. 2395, L.Ed.2d 410

Constitutions

United States Constitution

First Amendment

Fourth Amendment

vii

10,11

9,12,13

32,13

Passim

No. 80-

. IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

ROBERT LAWRENCE RIEGLER,

Respondent,

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

FIFTH APPELLATE DISTRICT

OPINION BELOW

The opinion of the California Court

of Appeal, Fifth Appellate District, which

may be found at 111 Cal.App.3d 580, 168

Cal.Rptr. 816 (1980), appears as Appendix

"A" to this petition.

vw

JURISDICTION

The petitioner, the People of the

State of California, respectfully prays

that a writ of certiorari issue to review

the judgment of the California Court of

Appeal, Fifth Appellate District, which

was entered in this proceeding on

October 30, 1980. The Court of Appeal

denied petitioner's petition for rehearing

on November 25, 1980 (Appendix 'B"'), and

the decision became final as to that court

on November 29, 1980. (Rules 24(a) and 28,

California Rules of Court.) The California

Supreme Court denied the People's petition

for hearing on December 24, 1980 (Appendix

"c''). The remittitur issued on December

29, 1980.

This Court's jurisdiction is invoked

under 28 U.S.C. § 1257(3).

ss

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amend-

ment IV:

"The right of the people to

t be secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall not be vio-

lated, and no warrants shall

issue, but upon beg cause,

supported by oath or affirma-

tion, and particularly describ-

ing the place to be searched,

and the persons or things to

be seized."

United States Constitution, Amend-

ment XIV:

. « nor shall any State

deprive any person of life,

iberty, or property, without

ia process of law; .. .'

STATEMENT OF THE CASE

A. Proceedings in the State Court

Respondent Riegler was charged in the

Superior Court of the State of California,

in and for the County of Merced, with

possession of marijuana for sale and trans-

portation of marijuana (CT 423). He pled

3.

7S

not guilty and moved to suppress the evi-

dence (CT 424-448). After a hearing, the

superior court denied the motion to sup-

press. Thereafter, respondent pled

guilty to possession of marijuana for

sale (California Health and Safety Code,

§ 11359) and the additional charge was

dropped (Cl 450-452).

On appeal, respondent challenged

the denial of his motion to suppress

the drugs. The Court of Appeal of the

State of California, Fifth Appellate

District, by published decision filed

October 30, 1980, reversed appellant's

conviction on the grounds that the

suppression motion should have been

granted (Appendix yok

The People of the State of California

petitioned for rehearing on November 14,

/

/

1980, but rehearing was denied on

November 25, 1980 (Justice Andreen was of

the opinion rehearing should have been

granted) (Appendix "B").

The petition for hearing was timely

filed in the California Supreme Court on

December 8, 1980, and denied on December 24,

1980 (Justices Mosk, Clark and Richardson

voted to grant a hearing) (Appendix "C").

B. Statement of the Facts

On November 8, 1977, specially trained

police dogs alerted U.S. Customs officials

to the possible presence of marijuana in

two packages mailed from Germany to Merced,

California. Pursuant to customs laws,

officials of the post office and the Drug

Enforcement Administration opened the pack-

ages and confirmed that they contained

hashish. The packages were then resealed

and sent to authorities in California

(CT 287-292).

Working together, postal authorities

and local Merced officials arranged for a

controlled delivery of the packages to the

addressee, and obtained a search warrant

authorizing them to enter that residence

and, inter alia, search for and seize the

packages and their contents (CT 85-87, 148,

319-320, 375-376). In order to allow the

occupants of the residence time to open the

packages and exercise dominion over the

contents, the police did not immediately

execute the search warrant after the de-

livery of the packages (CT 85-89, 148, 157-

160, 249, 277, 319-320, 375-376).

Approximately 15 minutes after the

packages were delivered, respondent Riegler

and two companions arrived at the residence,

and, after a short interval, left with the

packages in a Volkswagen (CT 325-326, 336-

340). While some police remained at the

Fortner residence and executed the search

6.

warrant, other officers followed Riegler

and his companions for two hours in the

hope that they would lead them to other

suspects. Finally, as the suspects ap-

proached the San Francisco Bay Area during

the rush hour, the police, fearful they

would lose the suspects in the heavy traf-

fic, stopped the Volkswagen and arrested

Riegler and his companions. The packages,

which were in plain view in the back seat

of the Volkswagen, were seized at the time

of the arrest. The packages were in the

same condition as they were before the

delivery (CT 93, 131, 214-218, 227, 231-

237, 322-325).

The packages were transported to

Merced that evening where they were photo-

graphed and then opened and inventoried.

A second search warrant was not obtained

before the packages were reopened. The

hashish was still in the packages. The

7.

street value of the hashish was $100,000.

It was stipulated that the suspect

substance was concentrated cannabis or

hashish (CT 348-349).

= 4

— ge

ARGUMENT

I

AFTER A CUSTOMS SEARCH OF PARCELS

SENT THROUGH THE INTERNATIONAL

MAILS THE RECIPIENTS OF THE PACK-

AGES HAVE NO CONSTITUTIONAL PRO-

TECTED EXPECTATION OF PRIVACY IN

THE CONTENTS OF THE PACKAGES

On the basis of this Court's opinions

in United States v. Chadwick (1977) 433

U.S. 1, Arkansas v. Sanders (1979) 442 U.S.

753, and Walter v. United States (1980)

U.S. § 100 8,Ce. 2395; 65 L.Ed. 28 AiG,

the California Court of Appeal has errone-

ously concluded that the recipients of

packages which have been subjected to a

lawful warrantless customs search retain

an expectation of privacy in the contents

of the packages.

The Court of Appeal's misinterpreta-

tion of Chadwick, Sanders and Walter, in-

volves substantial questions of a recurring

nature involving the Fourth Amendment and

9.

federal customs searches.

This Court recently upheld

the constitutionality of customs

searches of letters and parcels sent

through the international mails.

(United States v. Ramsey (1977)

431 U.S. 606.) When contraband is

discovered during the course of a

customs search, government agents

frequently defer seizure of the

contraband until by means of sur-

veillance and a controlled delivery

they identify those responsible

for its unlawful importation.

(United States v. Martinez (5th

Cir. 1973) 481 F.2d 214, 218;

United States v. Smith (9th Cir.

1980) 629 F.2d 1301; United States v.

Bulgier (7th Cir. 1980) 618 F.2d 472.)

In this controlled delivery situa-

tion several federal circuits have held

10.

that a search warrant is unnecessary

to reopen the containers either because

the contraband remains "constructively

seized" (United States v. DeBerry (2d Cir.

1973) 487 ¥.2d 448, 451; United States v.

Andrews (10th Cir. 1980) 618 F.2d 646), or

because the reopening of the containers is

part of a continuous transaction or ex-

tended border search. (United States v.

Bulgier, supra, 618 F.2d at 478; United

States v. Smith, supra 629 F.2d 1301; United

States v. Martinez, supra, 481 F.2d at 218;

United States v. Bilir (4th Cir. 1979) 592

F.2d 735; United States v. Lowe (6th Cir.

1978) 575 F.2d 1193; see also State v.

Edwards (1977) 197 Neb. 354, 248 N.W.2d

775; McConnell v. State (1979) Alaska, 595

P.2d 147, 153-155.)

In this case, the Court of Appeal

held the packages were no longer subject

to a warrantless search because they had

ll.

been delivered to the addressee and they ©

were seized a considerable distance from

the delivery site. In so ruling, the Court

of Appeal was directly in conflict with

the federal cases cited which iohoid

extended border searches where constant

surveillance and controlled delivery in-

sure that the contraband remains with the

suspects.

The Court of Appeal's erroneous ruling is

in part a result of its misinterpretation of

Walter v. United States, supra, U.S.__;

100 S.Ct. 2395, 65 L.Ed.2d 410. In Walter

the majority, on First and Fourth Amendment

grounds, held that a limited search of film

parcels vy private parties did not authorize

government agents to screen the films with-

out first obtaining a search warrant. The

warrantless screening of the films was held

to constitute a more intensive search of

an exploratory or general nature.

12.

-

yt oo

This case differs from Walter in

several respects. There was no screening

of films or reading of messages that would

introduce First Amendment considerations

into the case. The initial search was

lawfully conducted by government agents and

it acted to deprive the recipients of the

packages of any vestigial privacy interest

in their contents. The second search did

not exceed the scope of the initial search

and merely constituted an inventory search

rather than a general exploratory search.

Nothing in Walter or United States v.

Chadwick (1977) 433 U.S. 1, supports the

Court of Appeal's conclusion that citizens

have an expectation of privacy in the con-

tents of containers which have already been

subjected to a lawful warrantless search by

government agents.

The Court of Appeal's erroneous

ruling is partially a result of its mis-

13.

—

interpretation of People v. Whyte (1979)

90 Cal.App.5d 235, 152 Cal.Rptr. 280,

cert. den. 444 U.S. 818. Whyte involved

a customs search and a controlled delivery

of contraband to the outside of a building

housing several businesses. After the

parcels were moved inside the business, the

officers entered the business without a

warrant, reseized the parcels and later re-

opened them. The evidence was ordered

suppressed in Whyte because the officers

needed a search warrant to authorize them

to infringe on the privacy interests of the

owners of the various businesses. (See

People v. Matthews (1980) 112 Cal.App.3d 11,

24, 169 Cal.Rptr. 263.)

Petitioner does not contest the ap-

parent rationale of Whyte that the police

may not use a controlled delivery as a pre-

text for the warrantless invasion of the

homes or businesses of third persons. How-

be 14,

a ee

ever, that situation is not present in this

case where the police had complied with

Whyte by obtaining a search warrant for the

Fortner residence. As events unfolded here-

in however, the packages were lawfully

seized in appellant's automobile. (Harris

v. United States (1968) 390 U.S. 234, 235.)

Since the packages were in their original

wrappings and had not been reopened, and

since this was a continuous transaction

with the contraband” remaining in the con-

structive possession of the agents, there

was no need to obtain a search warrant to

authorize the officers to reopen the pack-

ages. |

An additional basis for the warrant-

less reopening of these parcels is that

the prior search of the packages had

created a situation analogous to "plain

view'. Since the officers knew from the

outward appearance of the packages that

15.

they were the ones which contained the

contraband, a search warrant was un-

necessary. (Arkansas v. Sanders, supra,442

U.S. 753, at 764-765, fn. 13.)

16.

Il

ONLY ONE SEARCH WARRANT IS

CONSTITUTIONALLY REQUIRED

TO OPEN CONTRABAND EVEN

THOUGH THE EVIDENCE IS LAW-

FULLY SEIZED AT A DIFFERENT

LOCALE THAN THAT DESCRIBED

IN THE WARRANT

Assuming for argument's sake that a

search warrant was necessary to authorize

the police to reopen the packages, peti-

tioner submits the Court of Appeal erred

in concluding the original search warrant

was not adequate authorization for the

police to reopen the sealed packages.

It is indisputable that the police

lawfully seized the packages in plain view

at the time of respondent's felony arrest

in his automobile. (See Harris v. United

States, supra, 390 U.S. 234, 235; Chambers

v. Maroney (1970) 399 U.S. 42, 52.)

The police had a search warrant autho-

rizing them to search the Fortner residence.

for the packages and to seize the packages,

17.

their wrappers and contents. It is only

reasonable to infer that this search warrant

authorized the officers to open the packages.

It is absurd to conclude this warrant

somehow expired because by chance the pack-

ages were not seized at the Fortner resi-

dence but in respondent's automobile at the

time of the arrest.

Respondent's contention that a sec-

ond search warrant is required is analo-

gous to saying a separate search warrant is

required for each container within a larger

container. The federal courts have had no

trouble dismissing such contentions as mere

pedantry. (United States v. Callison (8th

Cir. 1978) 577 F.2d 53, 55, cert. den.,

439 U.S. 873; United States v. Kralik

(10th Cir. 1979) 611 F.2d 343, 345; United

States v. Morris (S.D. Georgia 1980) 491

F.Supp. 222; United States v. Abrahams

(S.D.N.Y. 1980) 493 F.Supp. 310.)

18.

Petitioner submits that as long as

the police lawfully seized the packages,

then the search warrant they had obtained

authorized them to open the packages. The

Constitution and this Court's decisions

leave to the discretion of the executing

officers to determine the details of how

best to proceed with the performance of

a search authorized by a warrant--subject,

of course, to the general Fourth Amendment

protection "against unreasonable searches

and seizures." (Dalia v. United States

(1979) 441 U.S. at 257.)

Petitioner submits the decision of

the police to delay execution of the search

warrant was a commendable exercise of dis-

cretion. The police acted reasonably then

and throughout the subsequent events.

In this case, to require the police

to obtain a second search warrant based on

the same probable cause as the first warrant

19,

will not enhance any of the rights of pri-

vacy or personal freedom that the Fourth

Amendment seeks to protect. It will only

create needless repetitious work for courts

and magistrates and strain our already over-

burdened legal system. It will also most

assuredly confuse the police as to their

obligations in regard to securing search

warrants and needlessly require them to

cope with legal refinements that strain

credulity and defy reason.

20.

IIl

ASSUMING THE SEARCH WARRANT

DID NOT AUTHORIZE THE OFFI-

CERS TO REOPEN THE PACKAGES,

THE EXCLUSIONARY RULE SHOULD

NOT BE APPLIED BECAUSE OF

THE OFFICERS' GOOD-FAITH BE-

LIEF THEY WERE AUTHORIZED TO

OPEN THE PACKAGES

Assuming for the purpose of argument

that the officers were not authorized to

open the packages in spite of the prior

government search of the packages and the

existence of a warrant authorizing the

officers to search for and seize the pack-

ages and their contents, the evidence is

uncontroverted the officers acted in the

good-faith belief they were authorized to

open the packages. Petitioner submits that

in this rather unique situation, the appli-

cation of the exclusionary rule is un-

warranted.

The bulwark of the Fourth Amendment

is the warrant clause. The fundamental

21.

thrust of this requirement is that a

search or seizure be conducted within the

judicial process, i.e. with the prior ap-

proval of a judge or magistrate. (Coolidge

v. New Hampshire (1971) 403 U.S. 443, 454-

455.) The rule excluding evidence obtained

without a warrant (subject to a few speci-

fically established and well-delineated

exceptions) is simply an attempt to effec-

tuate this requirement (Rakas v. Illinois

(1978) 439 U.S. 128, 134; United States v.

Calandra (1974) 414 U.S. 338, 347; Elkins v.

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

or, as has otherwise been stated, to deter

unlawful police conduct. (Linkletter v.

Walker (1965) 381 U.S. 618, 636.)

In the instant case, the officers

made every effort to reasonably comply with

the requirements of the law in effect at

the time.

The officers obtained a search

22.

warrant for the packages and their con-

tents. Since there were no prior cases

holding a second warrant was necessary

and since the officers already knew, from

a prior legal search, the contents of the

packages, the officers cannot be faulted

for believing, in good faith, that a

second warrant was unnecessary.

The officers in this case work in

the field. They are not and should not

have to be legal scholars attuned to every

nuance and development in the law. The

application of the exclusionary rule in

this situation would serve no useful pur-

pose and would only add to the confusion

which surrounds the law in this area. If

this decision is allowed to stand, there

is no foreseeable limit for the number of

search warrants which will be required of

the police to search the same item of

contraband.

23

In view of the fact the officers had

applied for and obtained a warrant and had

acted in the good-faith belief this warrant

authorized them to reopen the packages, no

useful purpose would be served in this case

_by applying the exclusionary rule. (United

States v. Williams (5th Cir. 1980) 622 F.2d

830, 840 et. seq.)

24.

CONCLUSION

The decision of the California Court

of Appeal is a serious erosion of the bul-

warks of the interpretation and application

of the Fourth Amendment: reasonableness

and the avoidance of hypertechnical rules.

The obsessive formalism of the decision im-

poses an impossible burden on law enforce-

ment. It serves no legitimate privacy

interests and should not be allowed to

i

ee eh ie gg. gg. SR i

No

uw

s

stand.

We respectfully submit that a writ

of certiorari should issue to review the

decision of the Court of Appeal.

RMG:mls

81USO001

2-17-81

Respectfully submitted,

GEORGE DEUKMEJIAN

Attorney General

ROBERT H. PHILIBOSIAN

Chief Assistant Attorney General

Criminal Division

ARNOLD 0. OVEROYE

Assistant Attorney General

EDDIE T. KELLER

Deputy Attorney General

RAMON M. de la GUARDIA

Deputy Attorney General

Attorneys for Petitioner

26.

APPENDIX A

si Fijcdeds ia ceands apbaamacdbaadiamemia baa

COPY

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

5 Crim. No. 4230

Plaintiff and

Appellant, (Super. Ct.

V.

Bee SEs |

ROBERT LAWRENCE RIEGLER,

Defendant and |

Respondent.

)

)

No. 9648)

)

)

)

)

APPEAL from a judgment of the Superior

Court of Merced County. Donald R. Fretz,

Judge. Reversed.

Eugene Seltzer, Attorney for

Appellant.

George Deukmejian, Attorney General,

Robert H. Philibosian, Chief Assistant

Attorney General, Arnold 0. Overoye,

Assistant Attorney General, Roger E.

Venturi and Ramon M. de la Guardia,

Deputy Attorneys General, for Plaintiff

ee

and Respondent,

--00000--

SEE CONCURRING OPINION

In this case we consider the appli-

cability of the container decisions to

wrapped and sealed packages arriving by

overseas mail which are opened by customs

officials, resealed, delivered in a con-

trolled delivery with a search warrant for

the residence of the addressee, seized in

a vehicle approximately 100 miles from

that residence, returned to the city of

the addressee, and subsequently opened by

law enforcement officers without first ob-

taining a search warrant to open the pack-

ages. We conclude that while the seizure

was proper, the warrantless search was

not.

In the instant case Riegler pled

guilty to a charge of possession of mari-

juana for sale after his motion to suppress

2.

was denied. He appeals asserting error in

denial of the suppression motion.

The facts are these:

On November 8, 1977, a customs in-

spector at JFK Airport in New York City

notified John Huber, a special agent with

the Drug Enforcement Administration, that

a detector dog had alerted the inspector

to two packages sent from Germany and when

the inspector opened them up he observed

what he believed to be hashish.

Chemical analysis confirmed that

the substance was hashish.

The packages were addressed to

Selma and Mike Fortner, 1130 W Street,

Merced, California.

The packages were resealed by the

customs agent and Huber sent the packages

to Patrick Dorn, a United States postal

inspector in Fresno who received them on

3.

November 21, 1977.

Dorn brought the packages to Merced

and contacted a Lieutenant Moore who was

in charge of specialized manpower assigned

to crime control (SMACC) in Merced County.

Huber also had contacted Moore on November

21, 1977, and told him about the packages.

The plan was to have a controlled

delivery and Agent Atkins with SMACC ob-

tained a search warrant on November 22,

1977, for the premises at 1130 W Street.

On November 22nd, Lieutenant Moore

and other agents took up surveillance at

the Fortner residence. At approximately

1:30 Dorn gave the parcels to the regular

mail carrier who delivered the parcels at

approximately 1:40 and Michael Fortner

took them.

About ten to fifteen minutes after

the delivery of the packages a red Volks-

4.

wagen pulled into the driveway at the

Fortner residence.

Lieutenant Moore testified that be-

tween 1:40 and 2:11, when Riegler drove

the Volkswagen away with the packages,

nothing prevented Moore from going into

the residence to execute the warrant. He

did not immediately serve the warrant be-

cause he wanted to wait for the occupants

to have time to open the package. He was

also interested in where the hashish was

going if it left the residence. He wanted

to ascertain who else was involved in the

case and whether he could arrest more

people. He would follow suspects wherever

they went, including on a plane.

Before the vehicle left, the pack-

ages were placed in the Volkswagen but a

SMACC agent could not tell if both pack-

ages were put in.

After the Volkswagen left, the war-

5.

rant was executed and served on Mike Fortner

at 2:30, and the house searched, but noth-

ing incriminating was found. Agent Austin

overheard Michael Fornter on the phone say

that a couple of packages came for Bob

and "I gave them both to Bob."

The search warrant was apparently

restricted to the premises, structures,

rooms and receptacles of the Fortner resi-

dence at 1130 W Street, Merced, and did

not provide for the search of any vehicle

or persons.

When the vehicle left the Fortner

residence SMACC agents including Moore,

along with postal inspector Dorn, followed.

Although several opportunities existed to

detain the occupants, the officers chose

not to do so until approximately 4:05 p.m.,

at which time the vehicle was stopped in

Contra Costa County approximately 100 miles

from the Fortner residence. The reason

6.

for the stop then was the fear of losing

surveillance in East Bay traffic.

Riegler and a codefendant (Bannister)

exited the vehicle and were arfested.

Moore observed two packages in the back

seat of the Volkswagen. The packages

were identified as being the same ones

previously seized, opened, rewrapped and

delivered. The packages did not appear

to have been opened after delivery to the

Fortner residence. The seized packages

were taken to the SMACC office in Merced

where they were photographed and opened

and found to contain hashish valued at

approximately $100,000. No search warrant

was obtained before the opening. Moore

testified that when he took the packages

back to the Merced office, he had no fear

that something would happen to the packages.

Relying on United States v. Chadwick

(1977) 433 U.S. 1, People v. Minjares

7.

(1979) 24 Cal.3d 410, and their progeny of

container cases, Riegler asserts that a

search warrant for the packages should

have been obtained before the packages

were opened in Merced. We agree.

We reject the contention that Riegler

had a lesser expectation of privacy in the

packages on the theory that the packages

were initially subject to customs search.

The packages were securely wrapped and

sealed with no labels or markings to in-

dicate the character of their contents.

As the United States Supreme Court said

in Walter v. United States ( U.S. os

100 S.Ct. 2395, 2402, footnote 12 (lead

1

opinion) :~

1/ Walter was a 5-4 opinion. In Walter

there had been an interstate shipment of

several secured sealed packages contain-

ing eight-millimeter films apparently de-

picting homosexual activities. This

shipment was mistakenly delivered by a

(continued)

8.

". . . it is difficult to

understand how peti-

tioner's subjective ex-

pectation of privacy

could have been altered

in any way by the sub-

sequent events of which

they were obviously un-

aware."

At the very least in this case there

Footnote 1 continued.

private carrier to a third party rather

than the consignee. Employees of the third

party opened each of the packages. Inside

were individual film boxes on one side

of which were suggestive drawings and on

the other explicit descriptions of the con-

tents. The Federal Bureau of Investigation

was notified and picked up the packages.

The films were viewed with a projector

without first obtaining a warrant. Mr.

Justice Stevens joined by Mr. Justice

Stewart concluded that the government's

unauthorized screening of the films with-

out a warrant violated the Fourth Amend-

ment. Mr. Justice White joined by Mr.

Justice Brennan concurred but also held ..

that the eubgequent screening by the gov-

ernment was an independent governmental

search without regard to the previous

private serge and agreed that even if

the private parties had projected the

films before turning them over to the

government, the government still would

have been required to obtain a warrant for

its subsequent screening of them. (See

conc. opn. __ U.S. ___, 100 S.Ct. 2404.)

9.

was an expectation that when the packages

arrived at the Merced address the contents

would remain private. The partial in-

vasion of privacy by customs did not auto-

matically justify a total invasion. In

the words of Walter ( U.S. ; ;

100 S.Ct. 2395, 2403):

"It did not simply strip the

remaining unfrustrated por-

tion of fthe] expectation of

all Fourth Amendment protec-

tion." (Fn. omitted.

Of course, the expectation of pri-

vacy means more than a subjective expecta-

tion. The expectation must be reasonable.

Under the present standards enunciated in

Chadwick, Sanders, Minjares, Dalton

(United States v. Chadwick, supra, 433

U.S. 1; Arkansas v. Sanders (1979) 442 U.S.

753; People v. Minjares, supra, 24 Cal.3d

410; People v. Dalton (1979) 24 Cal.3d 850)

and their respective progeny, we cannot

say that the expectation here was un-

10.

reasonable. Under the factual circum-

stances present in this case, we conclude

there was a justifiable expectation of

privacy against unwarranted intrusion.

Essentially an important element in these

cases is foreseeability which is implicit

in an analysis of subjective expectations.

Here, the government should have antici-

pated a reasonable claim of privacy.

(See United States v. Rivera (N.D. Tex.

1980) 486 F.Supp. 1025, 1034.)

Rather than placing on the law en-

forcement officer on the street the diffi-

cult, if not impossible burden, of carrying

' we believe

a list of "searchable parcels,’

that the standard to be followed by the

officer is the one which was succinctly

stated by Federal Judge Higginbotham in

Rivera, supra, idem as follows:

". . . If the contents of a

sealed package or parcel

are not revealed by the

11.

package and you have ex-

clusive control with no

fear of harm from its con-

tents -- obtain a warrant."

(Emphasis added.

The packages were no longer subject

to a warrantless search once%they were de-

livered. (See People v. Whyte (1979) 90

Cal.App.3d 235; but see United States v.

Bulgier (7th Cir. 1980) 618 F.2d 472.)

This is particularly true when as here con-

siderable time had passed and the packages

had been transported such a distance by

the recipients or others. Not only had a

considerable period passed from the time

the vehicle left Merced and was finally

stopped and the packages seized, but addi-

tional time (some four to five hours) also

passed after the seizure of the packages

and their subsequent opening at Merced.

The Attorney General argues that the

warrant obtained for the house should be

adequate to authorize the opening of the

12.

sealed packages. We are not persuaded.

The warrant which was obtained did not

authorize (and properly could not so autho-

rize under the Fourth Amendment) seizure

of the packages at any place where found.

Nor do we believe that the police

were entitled to search the seized pack-

ages without a warrant because "their con-

tents could be inferred from their outward

appearance." (Arkansas v. Sanders, supra,

U.S, __, 99 S.Ct. at 2593, fn. 13.2/)

2] The footnote reads:

"Not all containers in packages

found by police during the course of

a search will deserve the full pro-

tection of the Fourth Amendment. Thus,

some containers for example a kit of

contents can be xr

t e e. S§S ar

n some cases the contents of a pac age

will be open to ‘plain view’ thereb

obviating the need for a warrant. tcita-

tion.] There will be difficulties in

deteriming which parcels taken from an

automobile require a warrant and which

do not." (Emphasis added.)

13.

The fact that the police had ample prob-

able cause to believe and perhaps even

knew that the packages contained contra-

band does not mean their contents were

apparent from the outside.

3/

The meaning of the somewhat cryptic—

footnote in Sanders need not concern us in

this case. This is factually not a situa-

tion where the packages "by their very

nature cannot support any reasonable ex-

pectation of privacy because their contents

can be inferred from their outward ap-

pearance."

The vehicle here was properly stopped

and the packages were cioperks seized.

However, the fact that the packages were

3/ It is not clear from the Sanders

footnote whether or not the United States

Supreme Court in the italicized sentence

(see fn. 2, supra) is really making an ex-

ception to the requirement of a warrant

substantially different from the “plain

view' exception. Perhaps, it is merely

an extension of the "plain view" exception.

14,

lawfully seized does not validate a

warrantless search of the contents. While

there was ample probable cause for the

police officer's belief that the packages

contained contraband, there were no exigent

circumstances justifying the failure to

secure a warrant for the search of those

packages.

Some may consider the warrant re-

quirement to be unnecessary surplusage in

this situation. However, "a warrantless

search must be ‘strictly circumscribed by

_ the exigencies which justify its initia-

tion, '"' (Mincey v. Arizona (1978) 437 U.S.

385, 393.) As the California Supreme Court

said in People v. Minjares, supra, 24 Cal.

3d 410, 420-421:

"When those circumstances cease

to exist the exception also ceases

to exist and a warrant must be ob-

tained. This is the rationale of

Chadwick: 'Even though on this

record the issuance of a warrant

by a judicial officer was reason-

15.

ably predictable, a line must

be drawn. In our view, when

no exigency is shown to support

the need for an immediate search

the Warrant ause aces the

line at the point mae the

property to be searched comes

under the exclusive dominion

of police authority.” ([Citation],

italics added.) To hold other-

wise would exalt the exceptions

above the rule." (Fn. omitted.)

The same viewpoint is set forth by

our Supreme Court in People v. Dalton,

supra, 24 Cal.3d 850, 860:

"The warrant requirement is

not an empty formality. It is

the cornerstone of the Fourth

Amendment's guarantee of the

right to privacy. The assur-

ance that a determination of

probable cause will be made by

a neutral and detached magistrate,

rather than an officer under stress

in the field is not a minor r-

antee, [Citation.] The author-

ity of the executing officer and

his need to search are carefully

reviewed. [Citation.] Limits

are imposed on the search

through the requirement of

particularity. [Citation.]

And the factual basis on which

the affiant is justifying the

search is made in advance of

the search itself. This en-

sures that a search will not

16.

be impermissibly justified

by what it turns up. [Cita-

tion.] These important

protections would be under-

mined by the adoption of a

rule that would encourage

officers to conduct a search

at the time of the seizure of

personal effects, rather than

requiring them to obtain a

warrant. [Citations.]"4/

Z7 One of the citations in Dalton is to

the United States Supreme Court opinion in

Johnson v. United States (1948) 333 U.S.

10, 13-14. While that quote has been often

set forth in full (see, for example,

Chapman Oy ra merc (1961) 365 U.S.

» 614-615), the statement written by

Mr. Justice Jackson over 32 years ago still

bears repeating in full. It reads:

"The point of the Fourth Amend-

ment, which often is not grasped by

zealous officers, is not that it

denies law enforcement the support

of the usual inferences which

reasonable men draw from evidence.

Its protection consists in requir-

ing that those inferences be drawn

by a neutral and detached magis-

trate instead of being judged by

the officer engaged in the often

competitive enterprise of ferreting

out crime... Any assumption that evi-

dence sufficient to support a magis-

trate's disinterested determination

to issue a search warrant will justi-

fy the officers in making a search

without a warrant would reduce the

(continued)

17.

In examining the record in this case,

we find no exigent circumstances that

would authorize a warrantless search of

the packages. The motion to suppress

should have been granted. Whether or not

there remains sufficient evidence to re-

try Riegler is a matter initially for the

prosecution, and we express no opinion

Footnote 4 continued.

Amendment to a nullity and

leave the people's homes

secure only in the discretion of

police officers. Crime, even in

the privacy of one's own quarters,

is, of course, of grave concern

to society, and the law allows

such crime to be reached on

proper showing. The right of

officers to thrust themselves

into a home is also a grave

concern, not only to the in- |

dividual but to a society which

chooses to dwell in reasonable

security and freedom from sur-

veillance. When the right of

privacy must reasonably yield

to the right of search is, as

.o-,,rule, to be decided by a judi-

“cial officer;—not by a policeman

or Government enforcement agent."

(Fn. omitted.)

18.

=)

thereon at this time.

The Attorney General argues that the

suggested procedure in People v. Haybron

(1980) 108 Cal.App.3d 31, footnote 2,

should be applied here and the container

could be brought into court and then

opened under judicial authorization. That

suggested procedure was completely un-

necessary to the decision in Haybron. Addi-

tionally Haybron arose in a Penal Code

section 995 setting and the court con-.

cluded at page 40 that even in the ab-

sence of the evidence obtained via the

warrantless search there was probable

cause to hold the defendants to answer.

Furthermore, the suggested procedure does

not consider the facts of the Fourth

Amendment violation. The thrust of the

container cases is to prevent warrantless

searches. The Haybron procedure, in effect,

would turn the rule on its head and cir-

19.

cumvent the Fourth Amendment violation.

We reject the use of such a procedure in

this case.

In light of our conclusion we need

not consider any other contention of eror

made by Riegler.

‘The judgment is reversed.

HOPPER, J.

I CONCUR:

BROWN (GEO. A.), P.J.

SEE CONCURRING OPINION

20.

THE PEOPLE v. ROBERT LAWRENCE RIEGLER

5 Crim. No. 4230

CONCURRING OPINION BY ANDREEN, J.

I concur because of the authority of

People v. Whyte (1979) 90 Cal.App.3d 235,

but write to express a question as to the

wisdom of the law stated therein.

The majority in this case holds that

the seizure of the packages was proper,

but that a subsequent search of the con-

tents could only follow the issuance of

an additional warrant. The People's argu-

ment that defendant had a lesser expecta-

tion of privacy because the packages were

subject to a customs search is rejected.

It is difficult to understand why. Once

it was determined that the material was _

contraband, the packages could move

through the U.S. Mail only by virtue of

governmental authorization.

1.

If it were not for Whyte, I would

argue that the packages were in the con-

structive possession of law enforcement

from the time of the opening of them at

JFK Airport until the stop in Contra Costa

County. For an example of this approach,

see United States v. DeBerry (2d Cir. 1973)

487 F.2d 448. It is recognized that the

argument for constructive possession is

weakened once there was a delivery of the

material to the Fortner residence in

Merced. The problem is not insurmount-

able, however, if one remembers that the

authorities had a right to immediate

seizure of the packages. They delayed

that act in a commendable attempt to in-

crease the size of their catch, but their

immediate right to possession gave them

continued constructive control.

I think that the approach in DeBerry

would simplify the task of law enforce-

Ee

3

ment without derogating from the values

protected by the Fourth Amendment's pro-

hibition of unreasonable searches and

seizures.1/

ANDREEN, J.

1/ "'"My basic premise is that Fourth

Amendment doctrine, given force and

effect by the dca tuelinaek rule, is

primarily intended to regulate the

police in their gy igre. activities

and thus ought to be expressed in

terms that are readily applicable by

the police in the context of the law

enforcement activities in which they

are necessarily engaged. A highly

sophisticated set of rules, qualified

by all sorts of ifs, ands, and buts

and requiring the drawing of subtle

nuances and hairline distinctions,

may be the sort of heady stuff upon

which the facile minds cf lawyers and

judges eagerly feed, but they may be

literally impossible of application

by the officer in the field."" LaFave,

"Case-by-Case Adjudication" versus

"Standardized Procedures": The

Robinson Dilemma, 1974 Sup.Ct.Rev. 127,

141 (footnotes omitted), quotirg :

United States v. Robinson, 153 U.S.

(continued)

3.

_ Footnote 1 continued.

App.D.C. 114, 154, 471 F.2d 1082,

1122 (1972) (dissentin

opinion)

rev'd, 414 U.S. 218, 94 S.Ct. 467,

38 L.Ed.2d 427 (1973).'" (United

States v. Chadwick (1977) 433 U.S. 1

22, %n.3 (dis.opn. of Blackmun, i

4.

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

FIFTH APPELLATE DISTRICT

COURT OF APPEAL

FIFTH APPELLATE DISTRICT

FILED

NOV 25 1980

KEVIN A. SWANSON, Clerk

By

Deputy

THE PEOPLE,

Plaintiff and Respondent,

vs. 5 CR No. 4230

ROBERT LAWRENCE RIEGLER,

Defendant and Appellant.

SS a a a

BY THE COURT:

The Petition for Rehearing is denied.

(Andreen, J. would grant the petition.)

Dated NOV 25 1980

BROWN (GEO. A.) Pade

‘

Cay)

aes

ORDER DENYING HEARING

AFTER JUDGMENT BY THE COURT OF APPEAL

5th District, Division__, Crim. No. 4230

IN THE

SUPREME COURT OF THE STATE OF CALIFORNIA

PEOPLE SUPREME COURT

FILED

a DEC 24 1980

LAURENCE P. GILL,

RLIEGLER Clerk

R. Nicco, Deputy

DENIED.

Mosk, J., Clark, J., and Richardson,

J., are of the opinion that the petition

should be granted.

BIRD Chief Justice

I, LAURENCE P, GILL, Clerk

of the State of California,

do hereby certify that the

preceding is a true copy of

an order of this Court, as

shown by the records of my

office.

Witness my hand and the

seal of the Court this

day of JAN 23 1981

Clerk

By R. NICCO

Deputy Clerk