Jurisdictional Statement — Reimer v. California

88 3 1356 Office - Supreme Court, U.S

FILED

JAN 25 1984

ALEXANDER L. STEVAS.

CLERK

No. ..-....

IN THE

Supreme Court of the United States

October Term, 1984

HENNING REIMER,

Appellant,

vs.

THE STATE OF CALIFORNIA,

Appellee.

ON APPEAL FROM THE COURT OF APPEAL

FOR THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT.

JURISDICTIONAL STATEMENT.

Kim H. PEARMAN,

A Law Corporation,

7080 Hollywood Boulevard,

Suite 307,

Hollywood, Calif. 90028,

(213) 466-4525,

Counsel for Appellant,

Henning Reimer.

Parker & Son, inc.. Law Printers, Los Angeles. Phone 724-6622

Pay,

Question Presented.

Probable cause or at least a reasonable suspicion under

19 U.S.C. § 482 is required by customs officials to search

a person or his personal belongings at an international border

or its functional equivalent.

Oo

ii

TABLE OF CONTENTS

Page

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Constitutional Provisions and Rules ...................... 2

Raising the Federal Question .......................0cc0008 2

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The Question Is Substantial ........................20c00008 4

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INDEX TO APPENDICES

Appendix A. Opinion of the Court of Appeal, State

of California, Second Appellate District ..... App.p. |

Appendix B. Notice of Appeal to the Supreme Court

of the United States. (Court of Appeal of the State of

California, Second Appellate District.) ...............

Appendix C. Notice of Appeal to the Supreme Court

of the United States. (Supreme Court of the State of

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CITATIONS

UNITED STATES SUPREME COURT CASES:

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

Boyd v. United States, 116 U.S. 616 (1886) ........... 6

Carroll v. United States, 276 U.S. 132 (1924) ..... 4, 13

Delaware v. Prouse, 440 U.S. 648 (1979) .............. 11

Florida v. Royer, __. U.S. —— (1983) .................. 14

United States v. Brignoni-Ponce, 422 U.S. 873 (1975)

sel biapweth <odietqgunlittidossdiapiinecncacesdpsbs vedas 11, 14

United States v. Ortiz, 422 U.S. 891 (1975) ........... 11

United States v. Place, __. U.S. —_ (1983) ........... 14

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

ipckpaahinisbehes peakieettdigemascial 4, 6, 10, 11, 12, 13, 15

CEGNEED nvvecodsccnasasevvbonsakpudeusentabdsoteensentes 10, 11

OTHER FEDERAL CASES:

GONE: -egudickas corns csdédaate teovsciesabevensepavcengiphanwas 12

Ee a A. I RT RE! ON ORE EO ON RS Mae oe eee

iv

Page

United States v. Glaziou, 402 F.2d 8, cert. demied 393

U.S. 1121, 22 L.Ed.2d 126, 89 S.Ct. 999 ........... 13

United States v. Sheer, 600 F.2d 6 (3d Cir. 1979) .... 13

United States v. Steinkoenig, 487 F.2d 255 (Sth Cir.

EPROD : cccchichéuhetisarunes dickhead tbs satcdastotiedeustvstes 12

Witt v. United States, 287 F.2d 389, cert. denied 366

U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242 ........... 13

CONSTITUTION:

United States Constitution Amendment IV ....... 2, 6, 14

CODES AND STATUTES:

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sedinhénibasientanticnuheal evaaster 6, 9, 10, 11, 12, 13, 15

ee ee BIND snncnckdersudtniccns cod cles tees 11

Tide 19 U.S.C. § 1582 ................ 5, 6, 9, 10, 12, 13

i; f Cie 2 a 8 -. : | AOR eRgnmeDt SnemeeeE 2, 11

19 Code of Federal Regulations § 162.6 ............ 5, 13

19 Code of Federal Regulations § 162.7 ............ a

LEGISLATIVE HISTORY:

Act to Regulate the Collection of Duties, 1 STAT 29,

SF Aas BORN TOOD kn ehncinciehncsvWisiaversvivwinks 6,7, 10

Act of August 4, 1790, Ch. 35, § 73 1 STAT 145 (1790)

dghapuliiane dn cepoocthpusavensbianeesul dackiiasanieamee aaah 7

Report of the Commission, 42nd Congress, 2nd Sess.,

Misc. Doc. no. 3, Vol. 1, Dec. 4, 1871 ............. 9

BOOS Kee ck

Supreme Court of the United States

October Term, 1984

HENNING REIMER,

Appellant,

vs.

THE STATE OF CALIFORNIA,

Appellee.

JURISDICTIONAL STATEMENT.

Henning Reimer, the Appellant, appeals from the judg-

ment of the Court of Appeal of the State of California,

Second Appellant District dated September 28, 1983 hold-

ing that the trial court erred in granting the Appellant's

motion to suppress evidence and further ruling that ‘‘it is

settled that reasonable grounds to search a person or inspect

his personal effects at an international port of entry is es-

tablished solely by reason of entry into the United States

from a foreign country.”’

Opinion.

The opinion of the Court of Appeal of the State of Cal-

ifornia, Second Appellate District, Division | which was

**not to be published’’ appears in the appendix hereto as

Appendix **A’’.

iohaliins

Jurisdiction.

The judgment of the Court of Appeal of the State of

California, Second Appellate District was entered on Sep-

tember 28, 1983 reversing the Superior Court for the County

of Los Angeles which had suppressed evidence and dis-

missed the case against Appellant on the basis that said

search and seizure were illegal.

Thereafter, the Supreme Court of the State of California

on November 28, 1983 denied a hearing in the instant case.

The jurisdiction of this court is invoked under 28 U.S.C.

§ 1257(1).

Constitutional Provisions and Rules.

Fourth Amendment, United States Constitution:

**the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated * * *.”’

19 U.S.C. § 482:

**Any of the officers or persons authorized to board

or search and examine, as well without as within their

respective districts, any vehicle, beast, or person, on

which or whom he or they shall suspect there is mer-

chandise which is subject to duty, or shall have been

introduced into the United States in any manner con-

trary to law * * *.”’

Raising the Federal Question.

From the inception of this casc, Appellant has raised the

application of the Fourth Amend.nent of the United States

Constitution to Appellant's case and/or the application of

19 U.S.C. § 482 requiring at the very minimum, a ‘‘rea-

sonable suspicion to suspect’’.

These constituticnal issues were first raised in the Mu-

nicipal Court of the Los Angeles Judicial District, County

he

rx

of Los Angeles on March 16, 1982. Thereafter, the con-

stitutional question was again raised in the Superior Court

for the County of Los Angeles resulting in the suppression

of all evidence against Appellant and the dismissal of crim-

inal charges against Appellant on October |, 1982. Appel-

lant continued to raise the constitutional challenges and/or

the applicability of 19 U.S.C. § 482 in the Court of Appeal,

Second Appellate District which reversed the Los Angeles

Superior Court on September 28, 1983 and thereafter in the

Supreme Court of the State of California which court refused

to grant Appellant a hearing on November 28, 1983.

Statement of the Case.

On December 31, 1981 at approximately 8:30 a.m. Ap-

pellant, Henning Reimer and Robert Carlton Enright came

through customs at the U.S. Customs Office, Los Angeles

International Airport, on flight number 832 from Lima, Peru

on Varig Airlines.

There was nothing suspicious about either man; they did

not act nervous nor give any reason to believe that they

were doing anything illegal.

In the primary inspection line, their hand carried baggage

was checked with negative results.

Because a computer check on the TECS machine [which

is a United States Treasury Computer], showed both men’s

names on the computer, they were separated from the other

50 or 60 passengers in primary and sent to a secondary

inspection station approximately 100 yards away, out a door

and down some stairs.

An *‘M"’ was marked at the top of their declarations

meaning that there was information in the TECS on these

At secondary, the two men’s bags were further searched ,

and in a photo album found in Appellant's bag, was a white %

, rae

iy peek, “Sad Be eee Lo DO at i dh alls Lee est as

—

powdery substance inside the front and back covers which

tested positive for cocaine.

Of the approximately 6 people referred from primary to

secondary on the date in question, only Appellant and En-

right came to secondary because of something that was on

the computer.

The office of the District Attorney for the County of Los

Angeles, State of California refused to reveal the source of

the TECS computer information and the Judge of the Su-

perior Court for the County of Los Angeles suppressed the

evidence and dismissed the case against Appellant and En-

right. The motion to suppress the evidence was granted

because the computer information was insufficient to war-

rant the search of the luggage. It was stipulated that there

was no search warrant obtained for the search.

The Question Is Substantial.

The right of customs officers to search a person and his

belongings for contraband at an international border or its

functional equivalent without probable cause or at the very

least a ‘‘reasonable suspicion to suspect’’ has never been

treated before by this court other than in dicta.

_ Carroll v. United States, 276°U.S. 132 (1924).

This high court in United States v. Ramsey, 431 U.S.

606 (1977) upheld 19 U.S.C. § 482 and implementing postal

regulations authorizing customs officials to inspect incom-

ing international mail when they have a ‘‘reasonable cause

to suspect’’ that the mail contains illegally imported

merchandise.

It is urged that Ramsey, supports Appellant's position that

19 U.S.C. § 482 also applies with equal force in this case.

In the case at hand there are two federal statutes which

had their origin in 1866. The first statute, 19 U.S.C. § 482

requires officers or persons authorized ‘to board or search

igen

and examine vehicles, beasts, or persons to have ‘‘reason-

able cause to suspect there is merchandise imported contrary

to law’’ (Emphasis supplied.)

The second statute, 19 U.S.C. § 1582, allows the Sec-

retary of the Treasury to prescribe regulations for the search

of persons and baggage and authorizes employment of fe-

male inspectors for the examination and search of persons

of their own sex; and all persons coming into the United

States from foreign countries are liable to detention and

search by authorized officers or agents of the government

under such regulations. (Emphasis supplied.)

Under 19 U.S.C. § 1582, two regulations were enacted

which apply here

19 C.F.R. § 162.6 Search of persons, baggage and

merchandise.

All persons, baggage, and merchandise arriving

in the Customs territory of the United States from

places outside thereof are liable to inspection and

search by a Customs officer. District directors and

special agents in charge are authorized to cause in-

spections, examinations, and search to be made un-

der section 467, Tariff Act of 1930, as amended (19

U.S.C. § 1467), of persons, baggage, or merchan-

dise even though such persons, baggage, or mer-

chandise were inspected, examined, searched or taken

on board the vessel at another part or place in the

United States or in the Virgin Islands, if such action

is deemed necessary or appropriate.

19 C.F.R. § 162.7 Search of vehicles, persons, or

beasts.

A customs officer may stop, search and examine

any vehicle, person, or beast, or search any trunk

or envelope wherever found, in accordance with sec-

tion 3061 of the Revised Statute (/9 U.S.C. § 482).

(Emphasis supplied.)

lealiStens

It is more interesting to note that Section 162.7 specifi-

cally cites /9 U.S.C. 482 which requires ‘‘reasonable cause

to suspect."’

The legislative history of 19 U.S.C. § 482 and 19 U.S.C.

§ 1582 clearly teaches that these two sections must be read

and considered together.

Border searches have long been recognized as an excep-

tion to the Fourth Amendment requirement that searches be

based on probable cause. Boyd v. United States, 116 U.S.

616 (1886). The exception is based on two historical events:

the passage of an Act to regulate the Collection of Duties,

1 STAT 29, by the first congress and the proposal of the

Fourth Amendment, | STAT 97, two months later by the

same congress. United States v. Ramsey, 431 U.S. 606,

(1977). In Boyd v. United States, 116 U.S. 616 (1886) the

court states the following:

**The first statute passed by congress to regulate the

collection of duties, the act of July 31, 1789, (1 St.

43,). . . As this act was passed by the same congress

which proposed for adoption the original amendments

to the constitution, it is clear that the members of that

body did not regard searches and seizures of this kind

as ‘unreasonable’ and they are not embraced within

the prohibition of the amendment’’.

The original customs act contained forty sections. Section

23 of this Act provided in pertinent part:

**(Dt shall be lawful for this collector, or other officer

of the customs, after entry made of any goods, wares,

or merchandise, on suspicion of fraud, to open and

examine, in the presence of two or more reputable

merchants, any package or packages thereof. . .””

Section 24 provided in pertinent part:

**(E)very collector, naval'officer and surveyor, or other

person specially appointed by either of them for that

4

nifens

purpose, shall have full power and authority to enter

any ship or vessel, in which they shall have reason to

suspect any goods, wares, or merchandise subject to

duty shall be concealed; and therein to search for, seize,

and secure any such goods, wares or merchandise; and

if they shall have cause to suspect a concealment thereof,

in any particular dwelling-house, store, building, or

other place, they or either of them shall, upon appli-

cation of oath or affirmation to any justice of the peace

be entitled to a warrant to enter such house, store, or

other place (in the day time only) and thereto search

for such goods, and if any shall be found to seize and

secure same for trial. . ."" | STAT 29, 43. (Emphasis

supplied.

The Act was amended the following year by the second

session of the same congress, Act of August 4, 1790, chap.

35, sec. 73, | STAT 145 in response to an address to

congress by then Secretary of the Treasury, Alexander Ham-

ilton. See, ‘‘Operations of the Act Laying Duties on Im-

ports’’, State Papers, Finance, Vol. I, 45-51, April 22,

1790.

The Act was amended by the Fifth Congress, | STAT

627, Ch. 22, statute III, March 2, 1799. The language of

the original act was retained as reflected in sections 67 and

68 of the Act.

In 1866, the Act was substantially amended. It was pre-

sented as Senate Bill 222, An Act to Prevent Smuggling.

The bill was prepared at the Treasury Department. New

**These new provisions apply chiefly to the northern,

northeastern, and northwestern frontiers, and are sug-

gested by the relations which have sprung up in a few

years past between the British Provinces on this con-

tinent and that region of our country.’’ Colloquy of

he »F a

MRE oe MET SO SE ee .

lan

Mr. MORRILL, Cong. Globe, 39th Cong. Ist Sess.,

2563, 1866.

Section 2 of the Act to Prevent Smuggling read in per-

tinent part:

**. . . (Dt shall be lawful for any officer of the customs

. . « to go on board any vessel . . . and to inspect,

search, and examine the same and any person, trunk,

or envelope on board . . . and if it shall appear that

any breach or violation of the laws of the United States

has been committed .. . such vessel, or goods on

board . . . is or are liable to forfeiture . . .’" 14 STAT

178. (Emphasis supplied. )

It was moved by Mr. HUMPHREY to amend section 2

to insert the words ‘when he or they shall suspect’. Cong.

Globe, supra, 3420. That motion was defeated. Section 2

pertained only to vessels and to goods, merchandise, and

wares on board.

Section 3 of the Act provided in pertinent part:

**That any of the officers or persons authorized by the

second section of this act to board or search vessels

may stop, search, and examine, any vehicle, beast, or

person on which or on whom he or they shall suspect

there are goods, wares, or merchandise which are sub-

ject to duty or shall have been introduced into the

United States in any manner contrary to law, . . . and

to search any trunk or envelope, wherever found, in

which he may have a reasonable cause to suspect there

are goods which were imported contrary to law; . . .

and the Secretary of the Treasury may from time to

time prescribe regulations for the search of persons and

baggage, and for the employment of female inspectors

for the examination and search of persons of their own

sex; and all persons coming into the United States from

foreign countries shall be liable to detention and search

by authorized officers or agents of the government,

under such regulations as the Secretary of the Treasury

a

shall from time to time prescribe . . .’’ 14 STAT 178.

Section 3 was discussed in debate on the floor of the

senate.

Mr. HUMPHREY:

**. . , under the third section these men are authorized

to arrest any person and examine his trunks and vehicle

for the purpose of seeing whether there is any property

which has been smuggled. But the officer can do this

only where he has reason to believe the person or

carriage has goods liable to duty. / think that is at least

an amount of caution which ought to be placed in this

bill when we are to put such immense powers into the

hands of such men as will doubtlessly have the privilege

of exercising them.’’ Cong. Globe, 39th Cong., Ist

Sess., 2563 (1886).

Section 3 of the act retained the ‘‘reason to suspect"’

language. This section was in response to persons entering

the country on foot, horseback, or carriage who may have

concealed contraband on themselves or on their horse or in

a vehicle.

It was clearly the intent of the 39th Congress not to grant

unlimited authority to customs officers. The ‘‘reasonable

suspicion’’ language which originated in 1789 remained

even though smuggling had become a serious problem. Cong.

Globe 39th Cong., ist Sess. 2564-71 (1886).

It is obvious from a careful reading of section 3 that both

19 U.S.C. 482 and 19 U.S.C. 1582 originated from this

section. Section 3 was divided into subsections in 1871 by

a commission appointed to revise the statutes of the United

States. See Report of the Commission, 42nd Congress, 2nd

Sess., Misc., Doc. no. 3. Vol. 1, December 4, 1871. The

revised and renumbered statutes were adopted by the 43rd

Congress in 1873. 18 STAT, Part, 588.

os

Both 19 U.S.C. 482 and 19 U.S.C. 1582 originated in

the same section, (3) of the same act. It is clear that that

legislators contemplated that section 3 would be read as a

whole.

Both 19 U.S.C. 482 and 19 U.S.C. 1582 apply in the

instant case. They are not in conflict. The only instance

where congress has expressly extended authority of customs

officers without reasonable suspicion is when boarding ships

on the open sea. United States v. Villamonte-Marquez, —

U.S. —— (1983). Authority to search persons crossing United

States borders has always been based on reasonable

The Act of 1789 expressly provides searches to be con-

ducted under circumstances ‘‘in which they shall have rea-

son to suspect.’’ First Congress, Sess. 1, Chap. 5, section

23, 1789, 1 STAT 29, 43. Nowhere else in the 1789 act is

there mention of a search except (1), packages could be

opened in the presence of two reputable merchants, | STAT

29, 43 § 23 and (2), a customs officer could obtain a warrant

to search a house. | STAT 29, 43 § 24. Suspicion was

required in both of these latter situations.

It is significant that in almost two hundred years since

the Act to Regulate the Collection of Duties, | STAT 29,

was deemed to create the border search exception to the

Fourth Amendment, the express language requiring a rea-

sonable cause to suspect has been retained.

The Trial Court in this case applied the provisions of 19

U.S.C. § 482 to the facts and suppressed the evidence find-

ing that there was no ‘‘reasonable cause to suspect’’.

The Court of Appeal for the Second Appellate District in

reversing the Trial Court surprisingly relied on United States

v. Ramsey, 431 U.S. 606 (1977). (See Appendix ‘*A*’.)

ree

Ramsey held that a search of the incoming international

mail under 19 U.S.C. § 482 required a ‘‘reasonable cause

to suspect’’.

The California Court of Appeal in its decision completely

ignored the clear provisions and expressed wording of the

statute and ignored its validity. 28 U.S.C. § 1257(1).

The following United States Supreme Court cases hold

with respect to border searches that any stop or search re-

quires probable cause, reasonable suspicion, or other dis-

cretion-limiting features.

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

(1973);

United States v. Brignoni-Ponce, 422 U.S. 873

(1975);

United States v. Ortiz, 422 U.S. 891 (1975);

United States v. Martinez-Fuerte, 428 U.S. 543

(1976);

Delaware v. Prouse, 440 U.S. 648 (1979).

The most recent United States Supreme Court case, United

States v. Villamonte-Marquez, —— U.S. —— (1983), up-

held 19 U.S.C. § 1581(a) which allowed customs officials,

without any suspicions of wrongdoing, to ‘‘board for in

spection of documents’’ a vessel that is located in waters

providing ready access to the open sea. (Emphasis supplied.)

The Court’s emphasis in Villamonte, was on factual dif-

ferences between vessels located in waters offering ready

access to the open sea and automobiles on principal

thoroughfares in the border area. The Court also considered

the historical origin of Section 1581(a).

Other than Villamonte, which deals with a different stat-

ute, no case by the United States Supreme Court has ruled

that 19 U.S.C. § 482 is not the applicable standard for

searching persons and their belongings at the border based

a, on

on ‘‘reasonable cause to suspect’’. As a matter of fact, this

court in United States v. Ramsey, supra, reflects that Title

19 U.S.C. § 482 is ‘‘alive and well’’.

The Circuit Courts of Appeals are in conflict over the

application of 19 U.S.C. § 482 and 19 U.S.C. § 1582, as

noted by the following representative cases.

United States v. Chavarria (Sth Cir. 1974) 493 F.2d 935,

937 applied 19 U.S.C. Section 1582 as stated:

**The Courts have long recognized the government's

right to search and detain travelers at our international

boundries on the basis of reasonable suspicion . . .”’

(Citations omitted. )

United States v. Steinkoenig (Sth Cir. 1973) 487 F.2d

255 required reasonable suspicion under 19 U.S.C. Section

482 in the nature of an informer’s tip and surveillance.

United States v. Diemler (Sth Cir. 1974) 498 F.2d 1070,

1072 reversed the district court because the government did

not meet its burden and show the existence of ‘‘reasonable

suspicion’’ of a customs or immigration violation.

The Fifth Circuit Court of Appeals as seen supra requires

**reasonable suspicion’’ under both statutes. This interpre-

tation and construction appear to be correct on the basis of

the sections’ legislative history. See, also, Stassi v. United

States (Sth Cir. 1969) 410 F.2d 946.

In Alexander v. United States (9th Cir. 1966) 362 F.2d

379, 382 the Court in considering both statutes stated that

**unsupported or mere suspicion alone is sufficient to justify

a search for purposes of customs law enforcement.’’ In

Alexander, the suspicion was from a tip and surveillance.

In United States v. Diamond (9h Cir. 1973) 471 F.2d

771, 773 the Court applied 19 U.S.C. § 482 and reviewed

the evidence for a ‘‘founded suspicion that a violation of

the customs law or laws relating to narcotic drugs was

occurring.”’

eh Ge.

In Klein v. United States (9th Cir. 1973) 472 F.2d 847,

849 the Court stated that a border search of a vehicle was

subject to a general test of reasonableness but could be made

with or without cause or on unsupported or mere suspicion

alone. The court further held that mere entry alone into the

United States from a foreign country was sufficient reason

for a border search.

Witt v. United States (9th Cir. 1961) 287 F.2d 389, 391,

cert. denied 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242,

holds ‘‘mere suspicion has been held enough cause for a

search at the border’’. In Witt there was a description of the

car and information to the border guards as one possibly

bearing heroin.

In United States v. Sheer (3d Cir. 1979) 600 F.2d 6, 7,

the Court applied 19 U.S.C. Section 1582 and only one

implementing regulation (C.F.R. § 162.6) and held the bor-

der search valid ‘‘notwithstanding the absence of probable

cause or even a quantum of individualized suspicion.’’ 19

U.S.C. 482 was held not to apply.

United States v. Glaziou (2d Cir. 1968) 402 F.2d 8, cert.

denied 393 U.S. 1121, 22 L.Ed.2d 126, 89 S.Ct. 999 re-

quired ‘‘reasonable suspicion’’ to justify the search. In Gla-

ziou there was a nervousness and a ‘‘bulge around Glaziou’s

waist.”’

In summary, some circuits have applied 19 U.S.C. § 1582

while others have applied 19 U.S.C. § 482. Still other cir-

cuits have cited to the dicta in Carroll v. United States, 276

U.S. 132 (1924) as controlling. The confusion is further

magnified by the express holding in United States v. Ram-

sey, 431 U.S. 606 (1977).

It is urged that this Court should make a decision in this

area which will once and for all settle the question. The

eles 4

—4—

issue presented by this Appeal appears to be the only border

search issue which has not been decided by the United States

Supreme Court.

It is also urged that the court consider additionally the

fact that in this case the Appellant was removed from the

other passengers and taken to a Secondary station approx-

imately 100 yards away, out a door and down some stairs.

At the time that Appellant was removed from the other 50

to 69 passengers, there should at that time have been prob-

able cause to conduct any search.

United States v. Place, ___ U.S. —— (1983); Florida

v. Royer, __ U.S. —— (1983).

**.-. . in short, we hold that the detention of Respon-

dent’s luggage in this case went beyond the narrow

authority possessed by police to detain briefly luggage

reasonably suspected to contain narcotics.’’ (See Place

supra.)

Royer, supra, held that the police had exceeded the limits

of an investigative stop where they asked the defendant to

accompany them to a small police room and retained his

ticket and drivers’ license and indicated in no way that he

was free to depart.

It is submitted that once there is a separation of the person

under investigation from other members of the general pub-

lic that such a further detention or search must be based

upon consent or probable cause. See, United States v.

Brignoni-Ponce, 422 U.S. 873 (1975).

Conclusion.

The legislative history confirms the premise that the con-

gress that enacted the Fourth Amendment never intended to

allow customs officials freedom to search indiscriminately

merely because a border had been crossed. To conclude

otherwise is to treat individuals today by a different standard —

— =

without the same protections granted by the First Congress.

The intent of the legislature is clear from an examination

of the history of the two federal statutes in question. To

give force to one statute while ignoring the other is to select

terms from an act of congress that conveniently justify acts

of government officials and to dismiss the expressed pro-

tections gtanted by the same act.

Other than in dicta, the United States Supreme Court

decisions have supported the fact that absent a ‘‘reason to

suspect,”’ a search will not be permitted. The conflict within

the Circuit Courts of Appeals and the uneven application

of federal law cannot be totally rationalized.

Due to the fact that there is no United States Supreme

Court case in point and the further fact that the Circuit Courts

of Appeals are divided and also because 19 U.S.C. § 482

has been applied as recently as Ramsey, this court should

note probable jurisdiction of this Appeal.

DATED: February 10, 1984.

Respectfully submitted,

Kim H. PEARMAN,

A Law Corporation,

Counsel for Appellant,

Henning Reimer.

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APPENDIX A.

Opinion.

In the Court of Appeal of the State of California, Second

Appellate District, Division One.

The People, Plaintiff and Appellant, v. Robert Carlton

Enright and Henning Reimer, Defendants and Respondents.

2 CRIM. NO. 43532. (Super. Ct. No. A-900448).

Filed: September 28, 1983.

APPEALS from an order of the Superior Court of Los

Angeles County. Edward A. Hinz, Jr., Judge. Reversed.

Robert H. Philibosian, District Attorney (Los Angeles

County), Donald J. Kaplan and George M. Palmer, Deputy

District Attorneys, for Plaintiff and Appellant.

John P. Kenosian under appointment by the Court of

Appeal, for Defendant and Respondent Robert Carlton

Enright.

Kim H. Pearman, for Defendant and Respondent Henning

Reimer.

The People appeal the order dismissing an information

which charged respondents with the illegal importation of

cocaine entered after the court granted respondents’ motion

to suppress evidence. (Health & Saf. Code, § 11352; Pen.

Code, § 1538.5.) Appellant contends: ‘The trial court erred

in suppressing the evidence. Customs officers at an inter-

national border (or its functional equivalent) may search a

person and the person's effects without any cause whatso-

ever, solely on the basis that the person is entering the United

States from a foreign country. Moreover, the evidence shows

there was ‘reasonable cause’ to search defendants and their

personal effects.’’

The motion to suppress was submitted upon the prelim-

inary examination transcript. The record establishes that on

foliions

December 31, 1981, respondents Robert Enright and Hen-

ning Reimer arrived at Los Angeles International Airport

by means of an international flight from Lima, Peru. As

they proceeded through Customs, the Treasury Enforcement

Computer System (TECS) revealed that respondents were

each suspected to be in possession of cocaine. An inspection

of the contents of respondent Reimer’s handluggage un-

covered 807 grams of cocaine contained within the covers

of an ‘‘extremely heavy’’ photograph album that smelled

of fresh glue, and 1.34 grams of the substance within En-

right’s handluggage. The trial court granted the motion to

suppress the evidence because the computer information was

insufficient to warrant the search of the luggage.

Appellant's contention that the trial court erred in granting

the motion to suppress is well taken. It is settled that rea-

sonable grounds to search a person or inspect his personal

effects at an international port of entry is established solely

by reason of the entry into the United States from a foreign

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

616-617; United States v. Sandler (Sth Cir. 1981) 644 F.2d

1163; People v. Duncan (1974).40 Cal.App.3d 940, 945;

see, 19 U.S.C. §§ 482, 1582.)

The justification for inspection of respondents’ handlug-

gage was not dependent upon the information obtained by

the customs inspectors from the Treasury Enforcement

Computer System. (Cf. United States v. Gallagher (4th Cir.

1977) 557 F.2d 1041, 1043, cert. den. Gallagher v. United

States (1977) 434 U.S. 870.) The reasonableness of the

inspection of the contents of respondents’ handluggage was

established solely by the undisputed evidence that respon-

dents had arrived in the United States from a foreign country

at an established port of entry, and were subjected to a

permissible, reasonable search of the luggage. (United States

v. Sandler, supra, 644 F.2d at 1165-1168; of. People v.

et, OM

otis

Leyba (1981) 29 Cal.3d 591, 597.)'

The order granting the motion to suppress evidence is

reversed.

NOT TO BE PUBLISHED.

HANSON (Thaxton), J.

We concur:

SPENCER, P.J.

LILLIE, J.

oe

APPENDIX B.

Notice of App»al to the Supreme Court

of the United States.

In the Court of Appeal of the State of California, Second

Appellate District.

Henning Reimer, Appellant v. State of California, Ap-

pellee. 2 Crim. No. 43532.

Notice is hereby given that HENNING REIMER, the

Appellant above-named, hereby appeals to the Supreme

Court of the United States from the final order of the Court

of Appeal of the State of California, Second Appellate Dis-

trict dated November 23, 1983.

This appeal is taken pursuant to 28 U.S.C. § 1257(1).

[Stamp] KIM H. PEARMAN

KIM H. PEARMAN, Attorney for Appellant

tel

APPENDIX C.

Notice of Appeal to the Supreme Court

of the United States.

In the Supreme Court of the State of California.

Henning Reimer, Appellant v. State of California, Ap-

pellee. No. 2 Crim #43532.

Notice is hereby given that HENNING REIMER, the

Appellant above-named, hereby appeals to the Supreme

Court of the United States from the final order of the Su-

preme Court of California, denying a hearing in this case

on November 23, 1983 and affirming the judgment of con-

viction entered herein on September 28, 1983 by the Court

of Appeal of the State of California, Second Appellate

District.

This appeal is taken pursuant to 28 U.S.C. § 1257(1).

[Stamp] KIM H. PEARMAN

KIM H. PEARMAN, Attorney for Appellant