Petition for Writ of Certiorari — Erdlen v. United States

}-§ Bice - Supreme Court, U.S, :

84- 1456. aie

No.

MAR 13 1985

, ALEXANWOEK _. STEVAG,

IN THE

Supreme Court of the United States

October Term, 1984

ARTHUR BLAIR ERDLEN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

STANTON D. LEVENSON

1615 Frick Building

Pittsburgh, Pennsylvania 15219

(412) 355-0650

Attorney for Petitioner

Batavia Times Pubiishing Co. : TH

Harold L. Berkoben

Pittsburgh. Pa. (412) 881-7463

i.

Question Presented for Review

Did the court below improperly refuse to apply 19

U.S.C. $482 to the customs search of mail matter which

requires as its standard “reasonable cause to suspect”’ a

violation of the customs laws?

Parties

In the United States Court of Appeals for the Third

Circuit, Leonard Steven Gaza was also an appellant.

TABLE OF CONTENTS.

Page

Question Presented for Review................... i

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Table of Contents............- 600s eee e ee eeee. ii

Citations to Opinion Below...................... 2

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Reagon for Granting the Writ... 0... s.cescccsses 6

Petitioner contends here, as he did in the

Court of Appeals, that the court below

improperly refused to apply 19 U.S.C. §482 to

the customs search of mail matter which

requires as its standard “reasonable cause to

suspect”’ a violation of the customs laws ...... 6

COIN, . oo cic de tcesnsdevads eee eee 10

Appendix A—Judgment Order of Court of Appeals... la

Appendix B—Statutes Involved ................. 23a

Page

TABLE OF CITATIONS.

Cases:

DeVries v. Acree, 1977, 565 F.2d 577............ 6,9,10

U.S. v. Emery, 541 F:2d 887 (1976)............... 6

U.S. v. Odland, 502 F.2d 148 (1974)............... 6

U.S. v. Pringle, 576 F.2d 1114 (1978) ............. 6,8

U.S. v. Ramsey, 1977, 431 U.S. 606, 97 S. Ct.

Se I cece ates esas nessa 6,9,10

Statutes:

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IN THE

Supreme Court of the United States

October Term, 1984

No.

ARTHUR BLAIR ERDLEN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Third Circuit, entered in the above-

entitled case on January 18, 1985.

2

Citations to Opinion Below

The Opinion of the Court of Appeals is reported at 750

F.2d 1197 and is required in Appendix A, infra.

Jurisdiction

The judgment of the Court of Appeals was entered on

January 18, 1985. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1254(1).

Statutes Involved

The statutory provisions involved, 19 U.S.C. §482 and 19

U.S.C. §1582, are set forth in Appendix B, infra.

3

Statement of the Case

On June 1, 1983, Mirta Peebles, a mail technician with

the United States Customs Foreign Mail Division in

Miami, Florida, opened two parcels which had been

mailed into the United States from Jamaica (185a-187a).

Each parcel contained two wooden heads (187a).

One parcel was addressed to Bob Glasser, 24th Street,

Forest Avenue, Ambridge, Pennsylvania (246a) and the

other was addressed to Dan Tomko, R.D. 4, Sewickley,

Pennsylvania (247a).

Ms. Peebles drilled a hole in the back of one head from

each parcel and found that each contained a black oily

substance. The substance in each head tested positively

for hashish oil (188a).

On June 7, the parcels were received in Pittsburgh by

Postal Inspector Kacy McClelland (24a). McClelland then

took them to the office of DEA Agent Richard W. Sye,

where the drugs were removed and mailed to the

Northeast Regional Lab for analysis (369a). The heads

were then reconstructed with electronic alerting devices

installed in each' and the parcels were rewrapped for

delivery (374a).

On June 14 at approximately 10:15 a.m., the parcel

addressed to Glasser was personally delivered to him at

his residence (250a, 25la). At approximately 11:25 a.m.,

Leonard Gaza was observed entering the Glasser

residence. He left approximately five minutes later,

carrying a brown package (276a). Gaza was then arrested

and the package was seized; it contained the wooden

head which had been split open (277a).

‘Pursuant to the government’s written applications, United States

Magistrate Robert C. Mitchell signed Orders on June 13 authorizing

the installation of the electronic alerting device.

4

At approximately 11:50 a.m., the parcel addressed to

Tomko was personally delivered to him at his rural

mailbox across the road from his residence (25la, 252a).

Approximately thirty minutes later, the Petitioner

arrived by car and entered the residence’? (410a).

Approximately ten minutes later Petitioner left the

residence (410a), carrying what appeared to be one of the

heads (406a). Agent Sye stopped the Petitioner's car,

adv’ ed him that he was a federal agent (406a) and that he

was under arrest for violation of the federal narcotics laws

(397a).

Agent Sye then seized the head wth was sitting in

open view on the right front seat of the car (408a). He

testified that the Petitioner made no attempt to conceal

it (408a). The head, unlike the one in Gaza’s possession,

was still intact (376a).

The head in the parcel addressed to Glasser contained

402.62 grams of hashish oil; the head in the parcel

addressed to Tomko contained 236.2 grams of hashish

oil (319a).

On July 8, 1983, the Defendants were indicted and

charged as follows: conspiracy to distribute and possess

with the intent to distribute marijuana in violation of 21

U.S.C. §846 (Count One), conspiracy to unlawfully import

marijuana from Jamaica into the United States in

violation of 21 U.S.C. §963 (Count Four) and unlawful

importation of marijuana from Jamaica into the United

States in violation of 21 U.S.C. §952(a) (Count Five). In

addition, Glasser and Gaza were charged with possession

of marijuana with the intent to distribute in violation of

21 U.S.C. §841i(a)(1) (Count Two) and use of the U. S.

mail to facilitate the importation of marijuana in

2 Tomko is the Petitioner’s brother-in-law (268a). He is married to the

Petitioner’s sister and lives in his mother-in-law’s home (413a).

5

violation of 21 U.S.C. §843(b) (Count Seven). Erdlen and

Tomko were also charged with possession of marijuana

with the intent to distribute in violation of 21 U.S.C.

§841(a)(1) (Count Three) and use of the U.S. mail to

facilitate the importation of marijuana in violation of 21

U.S.C. §843(b) (Count Six) (9a).

The Petitioner thereafter filed, inter alia, a Motion to

Suppress Evidence (16a). A hearing on the Motion was

conducted on September 23, 1983 by the Honorable

District Judge Barron P. McCune. By order dated

October 28 1983, Judge McCune denied the Motion (24a).

Trial before Judge McCune and a jury began on

November 7, 1983. Immediately prior to jury selection,

Glasser pled guilty to Count Four.’ On November 14,

1983, the jury found the Petitioner not guilty of Counts

One and Three, but guilty of Counts Four, Five and Six.

Gaza was found not guilty of Counts One and Two, but

generally of Counts Four, Five and Seven. Tomko was

acquitted of all charges.

On December 20, 1983, the Petitioner was sentenced to

three years’ imprisonment and fined $10,000.00. In

addition, a special parole term of three years was

imposed.

*On January 10, 1984 Glasser was placed on two years’ probation

and Counts One, Two, Five and Seven were dismissed upon the

government’s oral motion.

REASON FOR GRANTING THE WRIT

Petitioner contends here, as he did in the Court of

Appeals, that the court below improperly refused to

apply 19 U.S.C. §482 to the customs search of mail

matter which requires as its standard “reasonable cause

to suspect” a violation of the customs laws.

This Court, in U.S. v. Ramsey, 1977, 431 U.S. 606, 97

S. Ct. 1972, 52 L.Ed.2d 1617, and the Ninth Circuit in

DeVries v. Acree, 1977, 565 F.2d 577, stated that 19

C.F.R. §145.2(b) was a regulation implementing the

authority contained in 19 U.S.C. §482. As such, the

regulation necessarily incorporates the “reasonable cause

to suspect” test adopted by the statute. However, the

Court of Appeals in this case, along with the First

Circuit, U.S. v. Emery, 541 F.2d 887 (1976), the Fifth

Circuit, U.S. v. Pringle, 576 F.2d 1114 (1978) and

Seventh Circuit U.S. v. Odland, 502 F.2d 148 (1974),

have taken the position that $145.2 was a regulation

implementing 19 U.S.C. §1582.

A substantial conflict thus exists as to which statute

the regulation implements. Cases involving these

statutes and the regulation present important Fourth

Amendment questions which recur frequently.

Uniformity is esssential in this area, and only this Court

can resolve the conflict. The Court should, therefore,

grant the writ to settle this conflict.

The parcels in question were mailed into the United

States from Jamaica and were searched by a customs

mail technician in Miami, without a warrant and without

the knowledge or consent of the addressees (185a-187a).

The hashish oil seized from two of the carved heads in

those parcels provided the basis for the instant

indictment. The Petitioner filed a pretrial Motion to

Suppress the fruits of the search.

7

Two statutes purport to govern customs searches of mail

matter:

19 U.S.C. §482 provides:

“Any of the officers or persons authorized to board

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

well without as within their respective districts, any

vehicle, beast, or person, on which or whom he or

they shall suspect there is merchandise which is

subject to duty or shall have been introduced into

the United States in any manner 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 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 suspect 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 uch vehicle, beast, or otherwise, he

shall seize and secure the same for trial.”’

19 U.S.C. §1582 states:

“The Secretary of the Treasury may prescribe

regulations for the search of persons and baggage

and he is authorized to employ 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.”

However, the key provision with regard to this search

is 19 C.F.R. $145.2(b) (1978), which provides that:

“All mail arriving from outside the customs

territory of the United States which is to be

delivered within the customs territory of the United

States ...is subject to customs examination, .

8

The question to be decided here is whether $145.2(b) is

a regulation implementing 19 U.S.C. $482 or $1582. If

the regulation implements $482, then the government

must establish that the customs mail technician who

conducted the search had “reasonable cause to suspect”

that the parcels contained merchandise which had been

imported contrary to iaw. If, however, the regulation

implements §1582, then the customs officer could open

and search the mail without any cause to suspect.

At the hearing on the Motion to Suppress Evidence,

the Court did not require the government to present the

customs officer, but instead took the matter under

advisement in order to make a threshold determination

as to which statute applied (46a). On October 28, the

Court entered the following Order (24a):

“The Motion to suppress the Evidence because the

customs inspectors opened packages during a

routine border search at the port of Miami, and

without articulating ‘reasonable cause’ is denied.

Although the customs inspector did not testify and

explain her reasons for opening the packages, we

conclude that routine opening of packages is

permitted. See U.S. v. Pringle and Elston, 576 F.2d

1114 (5th Cir. 1978).”

In U.S. v. Pringle, supra, a customs mail specialist in

New York City opened a package which had been mailed

into the United States from Thailand. The package

contained heroin. On appeal the defendant argued that

the customs agent did not have the “reasonable cause to

suspect” required by 19 U.S.C. $482 in order to conduct

a warrantless search of incoming international mail.

The lower court, however, did not feel the need to

reach that issue since, in its opinion, the search could be

sustained pursuant to 19 U.S.C. §1582 and its

implementing regulation, 19 C.F.R. $145.2. The Cour* of

Appeals agreed.

9

The Court’s assumption that $145.2 was a regulation

implementing $1582 is erroneous. In U.S. v. Ramsey,

supra, this Court noted that $145.2 was a regulation

implementing the authority contained in §482. 431 U.S.

612, n. 8.

Similarly, in DeVries v. Acree, supra, the Court stated:

“Section 145.2 is a regulation implementing 19

U.S.C. $482, as the Supreme Court points out in

United States v. Ramsey, supra, 431 U.S. at 612 n.

8, 97 S. Ct. 1972. The regulation thus necessarily

incorporates the ‘reasonable cause to suspect’ test

adopted by the statute. Id. at 612, 97 S. Ct. at

1977)’’ (Emphasis added)

In the DeVries case, customs officers had opened and

searched first class letters addressed to the plaintiffs

without a search warrant or probable cause, without

their knowledge or consent and without any cause to

suspect that they contained dutiable merchandise or

contraband. Plaintiffs sought an injunction against

future searches and a declaration that the searches in

question violated, inter alia, 19 U.S.C. §482.

The government argued successfully in the district

court that customs officers could open and search mail

without any cause to suspect. The Court of Appeals

found the government’s position alarming:

“The sweeping power over international mail that

United States v. Ramsey (1977), 431 U.S. 606, 97 S.

Ct. 1972, 52 L.Ed.2d 617, said was not asserted by

the government in that case is sought here. If the

government's argument were sustained, every piece

of first class letters from abroad addressed to any

person or corporation in the United States could be

opened and searched by customs officers at will or

whim. We reject the government’s contentions on

statutory grounds without reaching the

constitutional issues engendered by its claims.” Jd

at 578.

10

In reversing the decision, the Court of Appeals pointed

out that the district court was misled by its erroneous

assumption that §145.2 was a regulation implementing

$1582:

“This unlimited search was not authorized by 19

U.S.C. §1582.... Nothing in either the language or

the legislative history suggests that this statute was

related to searches of international mail.”’ Id. at 579

(Emphasis added)

By contrast, §482 specifically refers to ‘‘envelope[s]”’.

Conclusion

Based upon U.S. v. Ramsey, supra, and DeVries v.

Acree, supra, it is clear that §145.2 is a regulation

implementing 19 U.S.C. §482. And, as the DeVries Court

recognized, ‘““The regulation thus necessarily incorporates

the ‘reasonable cause to suspect’ test adopted by the

statute.” Id. at 578.

The Court of Appeals, therefore, erred when it

concluded that the routine opening of mail parcels

without a showing of “reasonable cause to suspect’’ was

permissible.

Respectfully submitted,

STANTON D. LEVENSON, ESQUIRE

1615 Frick Building

Pittsburgh, Pennsylvania 15219

(412) 355-0650

Attorney for Petitioner

APPENDIX A

Judgment Order of Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 83-5909 and 83-5929

UNITED STATES OF AMERICA

VS.

ROBERT RAY GLASSER

LEONARD STEVEN GAZA

ARTHUR BLAIR ERDLEN

DANIEL LEE TOMKO

Leonard Steven Gaza. Appellant in No. 83-5909

(D.C. Crim. No. 83-00099-02)

UNITED STATES OF AMERICA

vs.

ROBERT RAY GLASSER

LEONARD STEVEN GAZA

ARTHUR BLAIR ERDLEN

DANIEL LEE TOMKO

Arthur Blair Erdlen. Appellant in No. 83-5929

(D.C. Crim. No. 83-00099-03)

Appeal from the United States

District Court for the

Western District of Pennsvlvania

* The Honorable Edward D. Re. Chief Judge of the United States

Court of International Trade. sitting by designation.

2a

Appendix A—Judgment Order of Court of Appeals.

Argued

August 13, 1984

Before: ALDISERT, Chief Judge, WEIS.

Circuit Judge, and RE, Judge*

(Filed December 27, 1984)

G. William Bills, Jr., Esquire (ARGUED)

816 Fifth Avenue, Suite 500

Pittsburgh, Pennsylvania 15219

COUNSEL FOR APPELLANT LEONARD

STEVEN GAZA IN NO. 83-5909

Stanton D. Levenson, Esquire (ARGUED)

1615 Frick Building

Pittsburgh, Pennsylvania 15219

COUNSEL FOR APPELLANT ARTHUR BLAIR

ERDLEN IN NO. 83-5929

J. Alan Johnson, Esquire

United States Attorney

Constance M. Bowden, Esquire (ARGUED)

Assistant U.S. Attorney

Thomas Lieber

Legal Intern

Paul J. Brysh, Esquire

U.S. Attorney's Office

633 U.S. Post Office & Courthouse

Pittsburgh, Pennsylvania 15219

COUNSEL FOR APPELLEE

3a

Appendix A—Judgment Order of Court of Appeals.

OPINION OF THE COURT

RE. Chief Judge:

Appellants. Leonard Steven Gaza and Arthur Blair

Erdlen. appeal from judgments of conviction entered

against them on November 14. 1983. following a jurv

trial in the United States District Court for the Western

District of Pennsylvania. Both appellants were

convicted of conspiracy to import marijuana. in the

form of hashish oil. in violation of 21 U.S.C. § 963.

unlawful importation of marijuana into the United

States. in violation of 21 U.S.C. § 952(a). and of using

the United States mail to facilitate the importation of

marijuana. in violation of 21 U.S.C. § 843(b). Appellant

Gaza was sentenced to two vears imprisonment. and

appellant Erdlen was sentenced to three vears

imprisonment and fined $10.000. Both appellants also

received a special parole term of three vears imposed

pursuant to 21 U.S.C. § 960(b)(1).

The appellants contend that the district judge

erred in denying their pretrial motion to suppress

evidence which. they allege. was illegally obtained.

Initially. appellants argue that Customs was required

to have “reasonable cause to suspect” a violation of the

law before searching two packages mailed from

Jamaica. In addition. appellant Gaza contends that the

district judge improperly concluded that there was

probable cause for his warrantless arrest. Appellant

Gaza also contends that the district judge abused his

discretion by summarizing the contentions of the

parties in his instructions to the jury. Finally.

appellants contend that. since the special parole

provision. 21 U.S.C. § 960(b)(1). neither designates a

maximum term nor restricts a trial judge’s power to

da

Appendix A—Judgment Order of Court of Appeals.

punish parole violations, it is an unconstitutional

denial of due process.

Since we find all contentions of appellants without

merit, we affirm the judgments of conviction as well as

the imposition of the special parole terms ordered by

the district court.

The Facts

On June 1, 1983, two packages containing carved

wooden heads and other items arrived at the Miami,

Florida post office from Jamaica. The packages were

addressed to Robert Glasser and Daniel Tomko, both

Pennsylvania residents. The return addresses

indicated they were sent by a “Devon Reynolds” of

Negril, Jamaica. Both packages were inspected by a

mail technician in the United States Customs Service's

Foreign Mail Division in Miami, Florida. The mail

technician, as part of her inspection, opened the

packages, removed the wooden heads and drilled a

small hole in the back of each head. A black, oily

substance, later determined to be hashish oil, was

found inside. The local Drug Enforcement

Administration (DEA) office in Miami was notified,

took possession of the heads, and arranged for a

controlled delivery of the packages with the aid of the

Pittsburgh postal authorities. Pursuant to a court

order, an electronic transmitter was installed inside

the wooden heads so that DEA officials would be

alerted when the heads were opened.

On June 14, 1983, the package addressed to

Robert Glasser was delivered to his residence. At thai

time, DEA agents, with a warrant to search Glasser’s

home, were conducting surveillance of his home, but

did not have a working receiver to detect the signal

from the transmitter. Shortly after the package was

delivered, appellant Gaza drove to Glasser’s house in

his van and went into the house. Approximately five

5a

Appendix A—Judgment Order of Court of Appeais.

minutes later, a DEA agent observed Gaza leaving

Glasser’s home with a brown package. Since the agent

believed that Gaza was carrying the control package, he

radioed another agent to intercept Gaza in Glasser’s

driveway. As the agent approached Gaza’s van, he saw

a brown bag on the front seat. Gaza was arrested as he

attempted to drive away, and the brown bag which

contained the carved wooden head was seized.

Later that morning, the second parcel was

delivered to the residence of Daniel Tomko. Thereafter,

DEA agents observed appellant Erdlen enter Tomko's

residence. Approximately ten minutes later, Erdlen

departed carrying a carved wooden head. A DEA agent

prevented Erdlen from leaving in his car, arrested him,

and seized the wooden head from the front seat of the

Car.

Four questions are presented on this appeal: 1)

whether a Customs inspector must have “reasonable

cause to suspect” a violation of the law in order to open

a package entering the country through the mails; 2)

whether the district court erred in not suppressing the

evidence which had been seized as a result of appellant

Gaza's warrantless arrest; 3) whether it was an abuse

of discretion for the district judge to summarize the

contentions of the parties in his instructions to the

jury; and 4) whether the imposition of a special parole

term, pursuant to 21 U.S.C. § 960(b)(1), is an

unconstitutional denial of due process.

We hold that the border search and the subsequent

arrest of appellant Gaza were valid. Since we also hold

that the summarizing of the contentions of the parties

was not an abuse of discretion, and that 21 U.S.C.

§ 960(b)(1) does not violate appellants’ due process

rights, we affirm.

As a preliminary matter. we note that there may be

some question as to the standing of the appellants to

challenge the search of the packages since neither

6a

Appendix A—Judgment Order of Court of Appeals.

package was addressed to or sent by either appellant.

Compare United States v. Richards, 638 F.2d 765,

769-70 (5th Cir.), cert. denied, 454 U.S. 1097 (1981),

with United States v. Watson, 551 F. Supp. 1123,

1127 (D.D.C. 1982). This question, however, has not

been raised by the Government, and, since we uphold

the legality of the searches, we need not consider it.

See United States v. Ramsey, 431 U.S. 606, 611 n.7

(1977); United States v. Santana, 427 U.S. 38, 41 n.2

(1976).

Border Search of Mail and Packages

Initially, we must determine whether the Customs

Service must have “reasonable cause to suspect” a

violation of the law in order to open a package at a port

of entry mailed into the United States from abroad.

Since we have determined that, under the Constitution

and the applicable statutes and regulations, Customs

has the authority to search packages without

articulating a “reasonable cause to suspect,” we hold

that the evidence obtained as a result of the search in

Miami was properly admitted.

As a sovereign nation, “the United States is vested

with all the powers of government necessary to

maintain an effective control of international

relations.” United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 318 (1936) (quoting Burnet v.

Brooks, 288 U.S. 378, 396 (1933)). These powers of

external sovereignty predate even the Constitution.

They passed to the United States upon the cessation of

the exercise of sovereignty by Great Britain.

Curtiss-Wright Export Corp., supra, 299 U.S. at

316-17. One of the inherent powers of a sovereign is

the power to restrict or regulate the entry of persons

and property across the border. Indeed, Congress is

specifically authorized in the Constitution to regulate

commerce with foreign nations. U.S. Const. art. I, § 8,

ci. 3.

———

7a

Appendix A—Judgment Order of Court of Appeals.

It cannot be questioned that Congress has plenary

power to police the borders of the United States. See,

e.g.. United States v. 12 200-Ft. Reels of Film. 413

U.S. 123. 126 (1973): Weber v. Freed, 239 U.S. 325.

329 (1915): Buttfield v. Stranahan, 192 U.S. 470, 492

(1904). In the early days of the Republic. Chief Justice

Marshall expounded the fundamental principle of

territorial sovereignty: “The jurisdiction of the nation

within its own territory is necessarily exclusive and

absolute. It is susceptible of no limitation not imposed

by itself.” Schooner Exchange v. MFaddon, 11 U.S. (7

Cranch) 116. 136 (1812). As an inherent right of

sovereignty. the power to protect the border “is

complete in itself. acknowledging no limitation other

than those prescribed in the Constitution.” Brolan v.

United States. 236 U.S. 216. 218 (1915) (quoting

Buttfield. supra. 192 U.S. at 492). As Chief Justice

Burger emphasized in United States v. 12 200-Ft.

Reels of Film. 413 U.S. 123 (1973). “liJmport

restrictions and searches of persons or packages at the

national borders rest on different considerations and

different rules of constitutional law from domestic

regulations. . . . Historically such broad powers have

been necessary to prevent smuggling and to prevent

prohibited articles from entry.” Id. at 125. See United

States v. Ramsey. 431 U.S. 606. 619 (1977): United

States v. Thirty-seven Photographs. 402 U.S. 363.

376-77 (1971).

It is also well established that searches of persons

or property at the border are considered reasonable

within the meaning of the Fourth Amendment simply

by virtue of the fact that thev occur at the border. As

the Supreme Court stated in United States v. Ramsey.

431 U.S. 606 (1977).

Border searches. then. from before the adoption

of the Fourth Amendment. have been considered

to be “reasonable” by the single fact that the

8a

Appendix A—Judgment Order of Court of Appeals.

person or item in question had entered into our

country from outside. There has never

been any additional requirement that the

reasonableness of a border search depended

on the existence of probable cause. This

longstanding recognition that searches at our

borders without probable cause and without a

warrant are nonetheless “reasonable” has a

history as old as the Fourth Amendment itself.

Id. at 619 (footnote omitted)(emphasis added). The

authority of Customs to search persons, baggage, and

merchandise entering this country, the Court

explained, is grounded in the “longstanding right of

the sovereign to protect itself by stopping and

examining persons and property crossing into this

country.” Id. at 616; see also Carroll v. United States,

267 U.S. 132, 154 (1925)(dicta). Th. .efore, neither

probable cause nor a warrant has ever been necessary

to effect a search at the border.

In United States v. Scheer, 600 F.2d 5 (3d Cir.

1979) (per curiam). this court reiterated the right of a

customs officer to search baggage arriving by common

carrier from abroad without articulating any

reasonable cause for suspicion. Id. at 7. Ona

constitutional level, then, it is beyond question that

agents of the federal government may, without cause,

search persons and packages entering the country

without violating the rights guaranteed by the Fourth

Amendment. As in Ramsey, we need not decide when a

border search may be deemed to be “unreasonable”

because it was conducted in a particularly offensive or

outrageous manner. Cf. Ramsey, supra, 431 U.S. at

618 n.12.

It may also be noted that the Universal Postal

Union Convention, to which the United States adheres,

clear'y permits the signatory nations to control,

according to their own domestic laws, importation

through the mails. See Universal Postal Convention,

9a

Appendix A—Judgment Order of Court of Appeals.

done July 5, 1974, arts. 33 & 34, 27 U.S.T. 345, 393,

T.LA.S. No. 8231 (entered into force January 1, 1976).

The Universal Postal Union acknowledges the principle

that “there is no absolute inviolability of the secrecy of

the mails, it is limited by considerations of security

and national policy .. . .” Acts of the Universal Postal

Union, revised at Ottowa (1957), reprinted in 9 M.

Whiteman, Digest of International Law 1046 (1968).

Apparently acknowledging that the search of

packages at the border is constitutionally permissible,

the appellants argue that section 482 of Title 19

requires that all searches of incoming mail. whether

letters or packages, be supported by reasonable cause.

Section 482 in pertinent part provides that:

Any of the officers or persons authorized to

board or search vessels may stop, search, and

examine .. . any vehicle, beast, or person, on

which or whom they 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 .. . and to search

any trunk or envelope, wherever found, in which

he may have reasonable cause to suspect there is

merchandise which was imported contrary to

law

‘

19 U.S.C. § 482 (1982). This section, appellants

contend, mandates that the customs regulations

governing the inspection of mail be interpreted to

permit the opening of packages only upon “reasonable

cause to suspect” an importation contrary to law. This

contention is based upon the assumption that § 482 is

the only basis for a search of incoming mailed packages

at the border.

Customs’ authority to conduct searches at the

border, however, is not limited to section 482. Section

1582 of Title 19 also confers a broad authority to

10a

Appendix A—Judgment Order of Court of Appeals.

conduct discretionary searches at the border. Section

1582 in pertinent part provides that:

The Secretary of the Treasury may prescribe

regulations for the search of persons and

baggage and he is authorized to employ female

inspectors for the examination and search of

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.

19 U.S.C. 8 1582 (1982).

In furtherance of this statutory mandate, the

Secretary of the Treasury has promulgated certain

regulations. Regulation 162.6 of title 19 of the Code of

Federal Regulations provides that “lajll persons,

. 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.” 19 C.F.R. 8 162.6 (1984)(emphasis

added). Also relevant is article 145 of title 19 which

contains regulations dealing specifically with mail

importations. Regulation 145.2(b) in pertinent part

provides:

All mail arriving from outside the Customs

territory of the United States which ts to be

delivered within the Customs territory of the

United States and all mail arriving from outside

the U.S. Virgin Islands which is to be delivered

within the U.S. Virgin Islands, is subject to

Customs examination, except [certain

governmental and diplomatic correspondence).

19 C.F.R. 8 145.2(b)(1984). Article 145 also contains

more stringent regulations dealing with the opening of

sealed letter class mail.

lla

Appendix A—Judgment Order of Court of Appeals.

The appellants contend thai the sole authority for

the examination of mailed packages is 19 U.S.C. 8 482.

and that, therefore, a reasonable cause to suspect is

necessary to open any mailed package. Based on their

assumption that section 482 is the sole statutory

authority for article 145, appellants urge that these

regulations necessarily incorporate a “reasonable

cause to suspect” standard. In support of this

argument, they rely on United States v. Ramsey, 431

U.S. 606 (1977) and DeVries v. Acree, 565 F.2d 577

(9th Cir. 1977). This reliance is misplaced.

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

the Supreme Court examined the statutory authority

and constitutional validity of a border search by

Customs of first-class letters. In Ramsey, a Customs

inspector, while inspecting an incoming sack of mail,

noticed eight similar envelopes from Thailand that

were “rather bulky.” Finding that the envelopes

weighed considerably more than normal air-mail

letters, he opened one and discovered a quantity of

heroin. The other seven also proved to contain heroin.

The defendants challenged the search, and the United

States Court of Appeals for the District of Columbia

Circuit held that probable cause was a necessary

prerequisite to the search of the letters. 538 F.2d 415.

420 (D.C. Cir. 1976). The Supreme Court reversed.

holding that the search was authorized by section 482.

and that the “reasonable cause to suspect” standard

embodied in that section did not violate the Fourth

Amendment. 431 U.S. at 617. Since the existence of

reasonable cause to suspect was conceded, the Court

expressly declined to decide whether some other

statutory grant of authority. such as section 1582,

would also have upheld the search. Id. at 615 n.10.

In DeVries v. Acree, 565 F.2d 577 (9th Cir. 1977),

two American citizens, whose first class letters from

abroad had been opened without cause. brought an

12a

Appendix A—Judgment Order of Court of Appeals.

action against the Customs Service seeking injunctive

relief and a declaratory judgment that the inspections

were illegal. The United States Court of Appeals for the

Ninth Circuit held for the plaintiffs, concluding that

section 482 precluded the opening and search of

first-class letters from abroad absent a showing of

reasonable cause to suspect that the letters contained

contraband or merchandise. Id. at 579.

It must be noted that neither Ramsey nor DeVries

discussed the applicability of section 1582 to the

search of mailed packages. All the courts of appeals

that have considered the entry of packages have held

that, without articulating a reasonable suspicion,

Customs may search packages mailed to the United

States from abroad pursuant to the authority of

section 1582. See United States v. Pringle, 576 F.2d

1114, 1116 (5th Cir. 1978); United States v. Emery,

541 F.2d 887, 889 (lst Cir. 1976); United States v.

Odland, 502 F.2d 148, 150 (7th Cir.), cert. denied,

419 U.S. 1088 (1974). Several other courts of appeals

have held that foreign letter-class mail may also be

examined at the border, without either a warrant or

probable cause. United States v. Milroy, 538 F.2d

1033, 1036-37 (4th Cir.), cert. denied, 426 U.S. 924

(1976); United States v. King, 517 F.2d 350, 352-53

(5th Cir. 1975), cert. denied sub nom., 446 U.S. 966

(1980); United States v. Bolin, 514 F.2d 554, 557 (7th

Cir. 1975). But see DeVries v. Acree, 565 F.2d 577,579

(9th Cir. 1977).

At issue in this case are the searches of packages,

not letters. In United States v. Odland, 502 F.2d 148

(7th Cir.), cert. denied, 419 U.S. 1088 (1974), the

United States Court of Appeals for the Seventh Circuit

upheld the authority of Customs to conduct random

searches of international mail articles at the border.

The court held that section 482 was not the exclusive

grant of statutory authority available to Customs.

l3a

Appendix A—Judgment Order of Court of Appeals.

Specifically, the court held that section 1582 and 19

C.F.R. § 162.6 empowered Customs to open an

“envelope as part of its continuing investigation of

narcotics smuggled from foreign countries into the

United States.” Id. at 150.

In United States v. Emery, 541 F.2d 887 (1st Cir.

1976), Customs agents in Miami searched two

packages addressed to a Massachusetts resident,

which had a return address of Coli, Colombia. Each

package contained a sound speaker and a substance

subsequently identified as cocaine. The defendant

Emery moved to suppress the contents of the package,

contending that the search would have been proper

only if Customs had “reasonable grounds to suspect”

that merchandise was being imported contrary to law.

The district court held that the search was valid since

the Government is free “to spot-check incoming mail”

at the point of entry. The Court of Appeals for the First

Circuit affirmed, and stated that “[wle agree with the

holding in Odland at least insofar as it concerns

packages as ~pposed to first class letters.” Id. at 889.

Similarly, in United States v. Pringle, 576 F.2d

1114 (5th Cir. 1978), a mail search was held to be

authorized under section 1582. In Pringle, a customs

mail specialist in New York opened a package sent from

Thailand. The court concluded that since the search

was authorized by section 1582 and regulation 145.2,

it was not necessary to decide whether reasonable

cause to suspect existed.

In order to understand the relationship between

section 482 and section 1582, an understanding of

their history is essential. Section 1582 directs the

Secretary of the Treasury to prescribe regulations for

the search of persons and baggage coming into the

United States. 19 U.S.C. 8 1582. These regulations

implement section 1581 which authorizes the search

of vessels or vehicles without cause. 19 U.S.C.

l4a

Appendix A—Judgment Order of Court of Appeals.

§ 1581(a). Section 1581 was originally enacted as

section 2 of Chapter 201, 39th Cong., Ist Sess., 14

Stat. 178 (1866)(codified at Rev. Stat. § 3059). Section

482 was originally enacted as section 3 of that same

act. Id. § 3 (codified at Rev. Stat. § 3061). By section 2,

the forerunner of section 1581, an inspector was

authorized to board a vessel and “inspect, search, and

examine the same, and any person, trunk or envelope

on board... .” Section 2, Chapter 201, 39th Cong., Ist

Sess., 14 Stat. 178 (1866). Reasonable cause was not a

prerequisite to this search. Section 3, on the other

hand, authorized an inspector “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;:... ." Id. §3

(emphasis added). This portion of the statute has not

been amended since its original enactment.

As indicated in the dissent in DeVries v. Acree,

section 2 of the 1866 Act. now section 1581, permitted

searches without reasonable suspicion as the

“statutory and historical equivalent of today’s border

search.” 565 F.2d 577, 580 (Kilkenny, J., dissenting).

Section 3 of the original act, now section 482, served a

different purpose. As this court stated in United States

v. Scheer, 600 F.2d 5 (3d Cir. 1979), section 482

(originally section 3) “permits customs officials to

search persons, vehicles, and packages even at some

distance from the border when they have ‘reasonable

cause to suspect that there is merchandise which was

imported contrary to law.’” 600 F.2d at 6 (emphasis

added). This interpretation is clearly consistent with

Congress’ use of the phrase, “wherever found” and the

use of the past tense in “merchandise which was

imported contrary to law,” as well as the requirement of

“reasonable suspicion.” See DeVries, 565 F.2d at

580-81 (Kilkenny, J., dissenting). Thus, we agree with

the conclusion that “the general border search statute

15a

Appendix A—Judgment Order of Court of Appeals.

is 19 U.S.C. § 1581 and that 19 U.S.C. 8 482 is a more

specialized statutory provision designed to combat

smuggled goods already introduced into the United

States.” Id. at 581; see also United States v. King, 517

F.2d 350, 353-54 (5th Cir. 1975), cert. denied sub

nom., 446 U.S. 966 (1980).

The broad statutory grant of authority in section

1582 is clearly sufficient to uphold the customs

regulations permitting the search of packages without

cause. Furthermore, as the foregoing discussion

reveals, there is no indication in the statutes or the

Constitution that packages mailed across the border

should be treated any differently than packages

brought across the border by hand. In Ramsey, the

Supreme Court reiterated in emphatic terms the

principle that the mode of entry into the country is not

constitutionally significant:

Surely no different constitutional standard

should apply simply because the envelopes were

mailed, not carried. The critical fact is that the

envelopes cross the border and enter this

country, nec that they are brought in by one

mode of transportation rather than another. It is

the entry into this country, from without it that

makes a resulting search “reasonable”.

Condemning the unsoundness of any

distinction between entry by mail and entry by

other means, Mr. Justice Miller, on behalf of a

unanimous Court wrote. . . “Of what avail would

it be that every passenger, citizen and foreigner,

without distinction of country or sex, is

compelled to sign a declaration before landing,

either that his trunks and satchels in hand

contain nothing liable to duty, or if they do, to

state what it is, and even the person may be

l6a

Appendix A—Judgment Order of Court of Appeals.

subjected to a rigid examination, if the mail is to

be left unwatched, and all its sealed contents,

even after delivery to the person to whom

addressed, are to be exempt from seizure

though laces, jewels, and other dutiable matter

of great value may thus be introduced from

foreign countries.”

431 U.S. at 620-21 (quoting Cotzhausen v. Nazro, 107

U.S. 215, 218 (1883)).

Other important constitutional concerns that may

be raised by the random search of first-class letters

without any suspicion that they contain other than

correspondence are not presented in this case. Indeed.

in response to Ramsey, the Commissioner of Customs

promulgated new regulations relating to sealed letter

class mail. See 42 Fed. Reg. 38.393 (1977): 19 C.F.R.

§ 145.3 (1984). These regulations. and the

accompanying “Policy Statement” and “Appendix.”

prohibit the opening of sealed letter class mail without

“reasonable cause to suspect the presence of

merchandise or contraband.” 19 C.F.R. § 145.3(a). The

reading cf correspondence or the opening of sealed

letter class mail, which appears to contain only

correspondence, without consent or a search warrant

is prohibited. 19 C.F.R. 8 145.3(b),(c). While the

regulations are not a model of clarity, they nonetheless

reveal the intention of the Commissioner to search and

inspect without cause, any mail other than sealed

letter class mail. Id. § 145.2. Sealed letter class mail

reasonably suspected of containing merchandise or

contraband, i.e., any package, may also be searched at

will. [d. 8 145.3(a). Sealed letter class mail that

contains only correspondence is afforded greater

protection. Id. § 145.3(b).

At issue here is the search of two packages: one,

approximately 7 inches by 13 inches by 13 inches, and

the other, approximately 6 inches by 6 inches by 12

17a

Appendix A—Judgment Order of Court of Appeals.

inches. Both packages bore declaration forms stating

that they contained carved wooden heads and other

items. On the facts presented, we hold that the search

of these packages was valid pursuant to section 1582 of

Title 19, and 19 C.F.R. § 145.2 and 19C.F.R. § 162.6.

Search of Appellant Gaza

Appellant Gaza contends that his warrantless

arrest by DEA agents was not supported by probable

cause, and that, therefore, the district court erred in

denying his motion to suppress the evidence seized.

It is well established that probable cause for a

warrantless arrest exists when, at the time of the

arrest, the facts and circumstances within the officer's

knowledge are “sufficient to warrant a prudent man in

believing that the [suspect] had committed or was

committing an offense.” Beck v. Ohio, 379 U.S. 89. 91

(1964). In Illinois v. Gates, 103 S. Ct. 2317 (1983), the

Supreme Court adopted a “iotality of the

circumstances” approach to evaluating whether

probable cause exists for the issuance of a search

warrant. 103 S. Ct. at 2328-29. In Gates, the Court

identified a “common sense” aspect to the issue of

probable cause, stating that it is a “fluid concept --

turning on the assessment of probabilities in

particular factual contexts -- not readily or even

usefully reduced to a neat set of legal rules.” Id. at

2328. The determination that probable cause exists for

a warrantless arrest is fundamentally a factual analysis

that must be performed by the officers at the scene. It

is the function of the court to determine whether the

objective facts available to the officers at the time of

arrest were sufficient to justify a reasonable belief that

an offense was being committed. See Beck, 379 U.S. at

96.

In support of his contention that probable cause

did not exist for his arrest, Gaza cites Henry v. United

18a

Appendix A—Judgment Order of Court of Appeals.

States. 361 U.S. 98 (1959). for the proposition that

“every man who carries a package [is not] subject to

arrest nor the package subject to seizure. The police

must have reasonable grounds to believe the particular

package . . . [contains] contraband.” Id. at 103. He also

argues that his position is supported by Sibron v. New

York. 392 U.S. 40 (1968). in which the Court struck

down the conviction which was based on evidence

seized in a warrantless search of a defendant. Since the

search was based solely on the fact that the defendant

had been observed conversing with a number of known

narcotics addicts over an eight hour period. the Court

found the evidence obtained in the search

inadmissible. Id. at 62. Significantly. the Court noted

that the arresting officer had seen nothing pass

between the defendant and the addicts. /d.

In this case. the DEA agents knew that the package

was part of a controlled delivery. and that it contained

contraband. The agents were also aware. based on

their experience. that it is common practice for drug

smugglers to have a package delivered to someone

other than the ultimate recipient in an effort to avoid

detection. Indeed. the agents kept the house under

surveillance in the expectation that someone might

come to pick up the package. A little more than an hour

after the package was delivered. Gaza appeared at

Glasser’s home. He entered the home empty-handed.

He left the house five to ten minutes later carrying what

appeared to be a “brown package.” Although. in fact.

Gaza carried the wooden head in a brown bag. not in

the original control package as the DEA agent

mistakenly believed. this understandable error does

not negate the objective facts giving rise to probable

cause. Obviously. Gaza had taken something from the

house. In light of the proximity in time with the

delivery of the hashish oil and the brevity of his stay in

PEED SEIDEN Cea tee

19a

Appendix A—Judgment Order of Court of Appeals.

the house, there was a very strong probability that he

was leaving with the hashish oil. The size, shape and

appearance of the brown bag, factors specifically

mentioned by the Henry Court, 361 U.S. at 104, were

clearly consistent with the belief that it contained the

wooden head. While there existed at the time some

theoretical possibility that Gaza was retrieving some

other innocent item in a brown bag from the Glasser

residence, the probable cause standard “does not deal

with hard certainties, but with probabilities.” Gates,

103 S. Ct. at 2328 (quoting United States v. Cortez,

449 U.S. 411, 418 (1981)). Under the totality of the

circumstances presented in this case, we hold that the

DEA agents had sufficient objective facts to find

probable cause that Gaza was commitiing an offense,

and they were therefore justified in arresting him.

Since there was probable cause to arrest Gaza, the

seizure of the brown bag containing hashish oil was

valid as the result of a search incident to a lawful

arrest.

Summarizing the Contentions of the Parties

Appellant Gaza also contends that the district

judge abused his discretion in summarizing the

contentions of the parties in his instructions to the

jury. Specifically, Gaza argues that since he did not

present any evidence at the trial, it was improper for

the district judge to summarize the contentions of the

parties.

It is true that “extensive comment” on the evidence

should be avoided. See United States v. Cahalane,

560 F.2d 601, 607 (3d Cir. 1977), cert. denied, 434

U.S. 1045 (1978). Nevertheless, it is within the sound

discretion of the trial judge to review the evidence, and

comment on the legal theory of the parties. See United

States v. Levy, 578 F.2d 896, 902 (2d Cir. 1978);

20a

Appendix A—Judgment Order of Court of Appeals.

United States v. Gaines, 450 F.2d 186, 189 (3d Cir.

1971), cert. denied, 405 U.S. 927 (1972).

In the present case, appellant Gaza does not allege,

nor is there any indication in the record, that the

district judge commented extensively on the evidence.

The district judge, by simply and briefly summarizing

the contentions of the parties, did not prejudice any of

Gaza’'s rights. Indeed, Gaza was acquitted of the charge

of possession of hashish oil with intent to distribute.

Therefore. since the district judge neither transgressed

the permissible bounds of comment. nor prejudiced

any of appellant Gaza’s rights, we hold that the district

judge did not abuse his discretion in summarizing the

contentions of the parties.

Constitutionality of 21 U.S.C. § 960(b)(1)

The final contention of appellants Gaza and Erdlen

is that 21 U.S.C. 8 960(b){1). upon which the district

court relied in imposing upon appellants a special

parole term of three years, is an unconstitutional

denial of due process.

The appellants perceive two flaws in the statute.

First. section 960(b)(1) does not expressly designate a

maximum parole term. Second. they contend that the

statute does not limit the sentencing judge's discretion

in imposing sanctions for a violation of the parole. We

find these arguments without merit.

21 U.S.C. § 960(b)(1) provides:

If a sentence under this paragraph provides

for imprisonment, the sentence shall include a

special parole term of not less than three years in

addition to such term of imprisonment.

21 U.S.C. 8 960(b){1)(1982).

This court upheld a substantially similar special

parole provision, 21 U.S.C. § 841(b). in United States

v. Walden, 578 F.2d 966. 972 (3d Cir. 1978). cert.

21a

Appendix A—Judgment Order of Court of Appeals.

denied, 444 U.S. 849 (1979). Our reasoning in that

case controls our interpretation of this statute as well.

We find that 21 U.S.C. 8 960(b)(1) fixes a maximum

special parole term of lifetime parole. The fact that the

statute does not expressly specify a maximum term

violates neither the Fifth nor the Eighth Amendment.

See, e.g., United States v. Rich, 518 F.2d 980, 987

(8th Cir. 1975), cert. denied, 427 U.S. 907 (1976). The

district court imposed on these defendants the

minimum special parole term permissible under the

statute, three years. We perceive no constitutional

infirmity in the sentences imposed.

As to the assertion that the district court has

unconstitutionally limitless discretion in imposing

sanctions for a parole violation, we find that 21 U.S.C.

§ 960(c) provides clear direction to the trial judge in

punishing violations of the special parole. Section

960(c) expressly provides that if the terms and

conditions of the special parole are violated, the parole

may be revoked and the original term of imprisonment

shall be increased by the period of the special parole

term. 21 U.S.C. § 960(c). The violator may be required

to serve all or part of the new term. Id. Thus, at the

time of sentencing, the defendant receives clear notice

of the maximum penalty for violation of parole: it is the

full term of the special parole, in this case three years.

See United States v. Lockley, 590 F. Supp. 1215, 1217

(N.D. Ga. 1984)(interpreting 21 U.S.C., § 841); United

States v. Davi, 588 F. Supp. 91, 91 (E.D.N.Y.

1984)(same). But see United States v. Tehba, 578 F.

Supp. 1398, 1400 (N.D. Cal. 1984), appeal docketed,

No. 84-1029 (9th Cir. Feb. 9, 1984). Thus, we hold the

special parole terms imposed by the district court were

entirely within constitutional limits. See United States

v. Martinez, 481 F.2d 214, 221 (5th Cir.), cert. denied,

415 U.S. 931 (1973).

22a

Appendix A—Judgment Order of Court of Appeals.

Conclusion

In view of the foregoing. it is the holding of this

Court that: (1) the border search of the packages

mailed from Jamaica was authorized by 19 U.S.C.

§ 1582: (2) appellant Gaza’s arrest was based on

probable cause. and the district judge correctly denied

his motion to suppress: (3) the district judge. in his

instructions to the jury. did not abuse his discretion in

summarizing the contentions of the parties: and (4)

the imposition of a special parole term. pursuant to 21

U.S.C. § 960(b)(1). was not an unconstitutional denial

of due process. Finding no error. we will affirm the

judgments of conviction.

A True Copv:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

ery

23a

APPENDIX B

Statutes Involved

19 U.S.C. $482 provides:

‘Any of the officers or persons authorized to board

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

well without as within their respective districts, any

vehicle, beast, or person, on which or whom he or

they shall suspect there is merchandise which is

subject to duty or shall have been introduced into

the United States in any manner 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 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 suspect is subject to duty or te have been

unlawfully introduced into the United States,

whether by the person in possession or charge, or

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

shall seize and secure the same for trial.”

19 U.S.C. §1582 states:

“The Secretary of the Treasury may prescribe

regulations for the search of persons and baggage

and he is authorized to employ 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.”’