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United States v. Menke

decided: October 4, 1972.

UNITED STATES OF AMERICA, APPELLANT,
v.
TIMOTHY W. MENKE



Kalodner, Van Dusen and Aldisert, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

This appeal by the government from a district court order, 339 F. Supp. 1023, suppressing evidence of the seizure of a supply of marihuana presents the question whether the trial court erred in either or both of its conclusions that there was neither a consensual search nor probable cause for a warrantless search of an automobile. We hold that the court erred in each of its conclusions and reverse.

The circumstances which gave rise to this case reveal a marihuana shipper from Korea who, depending upon one's point of view, must be regarded as either unusually sophisticated or extremely naive, for he shipped a parcel containing ten pounds of marihuana through the Korean and U.S. postal services. The parcel bore Korean Postal Registry No. 62, the return name and address of one Kim Yijum, and was addressed to the appellee at a rural New Castle, Pennsylvania, address. The package was initially intercepted in Seattle, Washington, by U.S. Customs officials who, after consulting other customs and postal authorities, made arrangements for a "controlled delivery" at appellee's premises. Such a plan called for a delivery of the contraband at a specific time, with appropriate law enforcement officers in attendance. Delivery at the addressee's mailbox was set for 11 a.m., February 12, 1970. On that date, agents arrived at appellee's premises, and witnessed the following events: (1) at 4:12 p.m., Menke drove his vehicle to a mailbox situated approximately 200 yards from the house in which he resided with his parents and a sister; (2) he removed the parcel from the mailbox; (3) he placed it in the trunk of his car; (4) he drove the car into the driveway; (5) he removed "a like appearing" package from the trunk, and (6) he entered the house with the package.

After this sequence of events, a warrant to search the premises was duly executed. Unquestionably, there was probable cause to issue the warrant. Thereafter, as related by the district court in its memorandum opinion, the following took place:

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. [384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694] (1966)] 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 of the parcel which the defendant had been seen removing from the mailbox 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 easier 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.

I.

Granted the existence of probable cause for the issuance of a warrant to search the real estate and the automobile, the problem arises because the area for search set forth in the warrant was limited to the house and did not include the automobile. It thus became essential for the government to establish either a consensual search or to demonstrate probable cause to make a warrantless search of the automobile. Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). The district court was persuaded that a permissible search in the latter category was limited to those circumstances "where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Coolidge v. New Hampshire, 403 U.S. 443, 460, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), quoting Carroll, supra, 267 U.S. at 153, 45 S. Ct. at 285. It found that the "agents were not confronted with 'exigent circumstances'. . . . and there were surely enough law enforcement officials involved in the operation to make one expendable for the purpose of securing a search warrant covering the automobile."

The fallacy of this approach lay in the assumption that after 5:00 p.m., a United States magistrate or district judge or other warrant-issuing authority was immediately available in this rural area of Western Pennsylvania to issue the warrant. The approach also minimizes the reality of the circumstances. The agents knew, from their Seattle experience, that the package did contain marihuana. The agents were eye witnesses to the defendant's acts of removing the package from the mailbox and placing it in his car. The combination of these two factors makes especially appropriate the pronouncement of the Supreme Court in Carroll, supra, reiterated in Chambers, 399 U.S. 42 at 49, 90 S. Ct. 1975 at 1980, 26 L. Ed. 2d 419: "The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband . . . therein which is being illegally transported."

Where an automobile is the subject of the search, the possibility of its movement and the concomitant disappearance of the contraband is a more critical factor than a count of the number of agents present who could be dispatched to a warrant-issuing authority. Even the plurality opinion in Coolidge, heavily relied upon by the district court, disclosed: "There was no way in which he could conceivably have gained access to the automobile after the police arrived on his property." 403 U.S. at 460, 91 S. Ct. at 2035. Justice Stewart then explained that after Coolidge was placed under arrest, his wife and child were driven to a relative in another town, "and they stayed with her there until around midnight, long after the police had had the Pontiac towed to the station house." Moreover, Justice Stewart emphasized: "Surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States . . . no contraband or stolen goods or weapons, no confederates waiting to move the evidence." 403 U.S. at 462, 91 S. Ct. at 2036. In contrast, here there was contraband. Here, there were three other persons in the residence -- the defendant's father, mother and sister. The Korean registry slip was found in the house they occupied. The agents could not have known whether these persons were confederates. And, if they had been, there was nothing to have prevented their moving the car, for they were neither in custody nor under arrest.

The district court overlooked the unassailable logic espoused in Chambers, a case also arising out of the ...


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