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March 1, 1972

Timothy W. MENKE

Teitelbaum, District Judge.

The opinion of the court was delivered by: TEITELBAUM

The defendant in this criminal action, Timothy W. Menke, is under indictment on two counts: (1) knowingly receiving and concealing marihuana, after it had been unlawfully imported, knowing it to have been unlawfully imported, in violation of 21 U.S.C. § 176a, and (2) transporting and concealing marihuana obtained without the payment of the tax imposed by 26 U.S.C. § 4741(a), in violation of 26 U.S.C. § 4744(a)(2). Alleging various violations of various of his constitutional rights, he has filed a "Motion To Dismiss Indictment" and a "Motion To Suppress Evidence". A hearing has been held on the motions.

 The motion to dismiss the indictment is based on the inordinately lengthy lapse of time between his arrest on February 12, 1970, his indictment on August 11, 1971, and at least December 17, 1971, when his motion was filed, at which time he had not been tried. At the hearing, the only evidence introduced with respect to this motion was by the defendant to establish that the delay was one for which he was in no way responsible. He testified that he was at all times available to be tried. His testimony was totally uncontroverted by the Government; neither rebuttal testimony nor testimony to offer a reason or justification for the delay was presented.

 The motion to suppress is designed to suppress all the evidence seized in the course of a search of the defendant's bedroom and automobile. Much evidence was adduced with respect to the searches. It seems that on February 12, 1970, two agents of the United States Treasury Department, Bureau of Customs and Enforcement Division, acting on information received from their Seattle, Washington office, proceeded to a post office in New Castle, Pennsylvania, to inspect a parcel addressed to the defendant. The parcel was from one Kim Yijum of Korea and bore Korean mailing registry number 62. At the post office, the agents, along with a postal inspector, opened the parcel, and after examination determined it to contain marihuana. Subsequently, the marihuana was repacked, the parcel rewrapped, and one of the agents effected a "controlled mail delivery" of it to the defendant by placing it at the mail box of the residence of his parents, with whom he lived. As his parents' residence was in the country, the mail box was located about 200 yards from the house.

 Meantime, while the parcel was being delivered, the other agent went to the office of the local United States Commissioner to obtain a search warrant. The search warrant which was obtained authorized a search of the "premises" of the residence of the defendant's parents for "a quantity of marihuana". Thereafter, at approximately 4:12 P.M., the defendant drove to the mail box in an automobile which the agents knew to be owned by him, removed the parcel from the mail box, placed it in the trunk of his automobile, and proceeded to drive to the farmhouse. All of this was observed by the agent who, after effecting the delivery of the parcel, stationed himself so as to be able to survey the mail box and the house without detection. At approximately 5:00 P.M., the two reunited agents and the postal inspector, together with four state law enforcement officers, approached the house and identified themselves. Presently, the warrant was read to the occupants -- the defendant, his father, mother and sister -- the agents, inspector and officers were admitted to the house, and the defendant was given his Miranda warnings. *fn1" The agents and the postal inspector then searched the defendant's bedroom for the parcel. In the course of the search of the bedroom, the searchers found a Korean mailing registry slip which bore the number 62, a personal telephone book which contained the name and address of Kim Yijum and a list of prices of opium, hashish, marihuana and other narcotics. The search, which lasted approximately 15 minutes, failed however to uncover the parcel.

 At this point, there is a substantial dispute as to what happened. The defendant testified that after the agents completed the unfruitful search of his bedroom, they took him outside and made him open the trunk of his automobile. He testified that he was not advised that he didn't have to open the trunk and that he opened it not knowing at the time whether or not he had a right to refuse to open it. On the other hand, one of the customs agents testified that during the course of the search of the defendant's bedroom, the defendant was invited by the other agent to disclose the whereabouts or the parcel which the defendant had been seen removing from the mail box and that in response to that invitation, the defendant volunteered that the parcel was in the trunk of his automobile and that he was willing to get it if the agents wanted it. Further, the agent testified that the defendant advised the agents that it would be easiest for him to open his trunk because it had a tricky lock. The parcel containing the marihuana was, by either account, found in the trunk.

 The agents and the defendant are also in agreement on two other matters: (1) that the defendant was under arrest from the time the agents entered the farmhouse, and (2) that the defendant was not advised by the agents that he was not legally obligated to open the trunk of his automobile in the absence of a search warrant covering the automobile.

 In determining whether or not the defendant's right to a speedy trial has been abridged, it must be borne in mind that, "[The] essential ingredient [of the right] is orderly expedition and not mere speed." Smith v. United States, 360 U.S. 1, 10, 79 S. Ct. 991, 997, 3 L. Ed. 2d 1041 (1959). The factors commonly relevant to an application of the right are the length of the delay, the reason for it, the prejudice by it and the waiver of it. See Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970) (concurring opinion of Mr. Justice Brennan) and United States v. Varga, 3rd Cir., 449 F.2d 1280 (1971). Of these factors, prejudice is apparently the most important. Dickey v. Florida, supra, and United States v. Booz, 3rd Cir., 451 F.2d 719 (1971). And prejudice means actual prejudice to a defendant's ability to present an effective defense. *fn2" In Dickey it was held that a delay of more than seven years between the occurrence of the crime and the filing of the information was an unconstitutional delay. But the holding was based primarily and indispensably on the "abundant evidence of actual prejudice" rather than on the sheer length of the delay. In Booz after noting the divergent approaches to the issue of "whether a showing of actual prejudice is required", *fn3" it was held that a defendant should be required to show actual prejudice, i.e., prejudice to his ability to present an effective defense, in order to establish a violation of his Sixth Amendment right. Thus, in this case, the void of evidence of prejudice to the defendant by the delay dictates the denial of his motion to dismiss the indictment.

 In determining whether or not the defendant's Fourth Amendment rights have been violated, an important case is Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In Coolidge, as in this case, the principal concern was with the legality of a search of an automobile. *fn4" There, the police after an intensive and open investigation of the accused concluded that they had probable cause to arrest him and make a search of his automobile, and therefore prudently obtained a separate warrant for the arrest and the search. Pursuant to the warrants the accused was arrested at his home and his automobile, which was parked in his driveway, was impounded and subsequently searched. At the trial, evidence obtained from the search of the automobile was admitted into evidence and the accused was convicted. The Supreme Court, ruling that the evidence obtained from the search of the automobile was inadmissible, overturned the conviction.

 Preliminarily the Court determined the search warrant to have been invalidly issued. The Court then proceeded to consider whether or not the search was lawful notwithstanding the absence of a warrant and in the process comprehensively reviewed and restated the law of search and seizure. The review and restatement was bottomed on "the most basic constitutional rule in this area" viz., quoting Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), that,

 In this case, the Government does not contend that the search of the automobile was conducted pursuant to a valid search warrant. The warrant to search the premises of the house of the defendant's parents made no mention of any automobiles. The Government contends, however, that the search of the automobile was lawful as within either of two of the "specifically established and well-delineated exceptions". The Government argues (1) that the agents had probable cause to search the defendant's automobile and, alternatively, (2) that they had the defendant's consent to search the automobile. *fn5"

 In support of its first contention, the Government relies on Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) and Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) for the proposition that a warrantless search of an automobile is lawful if it is made with probable cause. As stated in Coolidge, however,

"[The] word 'automobile' is not a talisman in whose presence the Fourth Amendment ...

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