The opinion of the court was delivered by: DITTER
Defendant, Henry A. Molt, Jr., is charged with participating in a conspiracy to violate customs and wildlife laws in violation of 18 U.S.C. § 371.
He has now moved to suppress all the evidence obtained from him by United States customs agents on January 14, 1975, by a search and seizure without a warrant as well as all items seized on January 22, 1975, pursuant to a search warrant which Molt contends was the unlawful fruit of a poisoned tree.
I agree with him and accordingly will suppress all the evidence secured on those two occasions.
As a result of information received from the New York Customs office and prior visits,
Michael O'Kane and John Friedrich, United States Customs Agents, went to defendant's place of business, the Philadelphia Reptile Exchange (Exchange), Willow Grove, Pennsylvania, on January 14, 1975, for the purpose of examining his importation records. They were accompanied by John P. McGowan, a detective of the local police department. Molt purchases and sells reptiles to zoos, hobbyists, and collectors. In carrying out his business activities, Molt deals not only with reptiles native to the United States but also those from other countries. After initially denying the records were at the Exchange,
Molt asked Agent O'Kane by what authority could United States customs inspect importation records. O'Kane showed him photostatic copies of 19 U.S.C. §§ 1509, 1510, and 1511 which Molt read. Molt then said he had no objection to O'Kane's looking at his records but that he found it hard to believe that they could search without a warrant and that he wished to talk to his attorney. While waiting for the attorney to return his call, Molt asked what would happen if he did not consent to having his records examined. Agent O'Kane testified that he responded as follows:
"Let me make it clear to you. Number one, you are not under arrest. Number two, you are not being detained. You are not under any rule or order to show us your records and you could tell us to get out of your store and we'll have to go." And I said, "But if I do leave," I said, "It will be for the purpose of getting into my car, going down to the city, obtaining a warrant, come (sic) back and examine your Customs importation records." (N.T. 1-29). (Emphasis added)
Thereafter, the lawyer telephoned Molt and spoke to O'Kane who cited to him Sections 1509, 1510 and 1511 of Title 19. O'Kane told the attorney that so far as he knew there was nothing wrong with regard to Molt, and at this point, in fact, O'Kane had no knowledge that Molt had committed any offense. The agent also related that Molt was not under arrest and that if requested to leave, he would do so but that he would get a warrant so that Molt's records could be examined. He stated, "I can leave somebody here to keep this place under surveillance, go back and get the paperwork and come here and do what I have to do" (N.T. 1-160), but that an examination of the records on the premises was authorized without such paperwork. Molt once again spoke with his counsel, and restated that he had nothing to hide. As a result of these conversations, the lawyer advised Molt that he might as well let the agents examine the records. Molt then said that since O'Kane had the right to see his papers he would open his files and did so. O'Kane then examined records in Molt's "foreign" file drawer for well over an hour,
discovering numerous instances of false invoicing, which he interpreted to show violations of the customs laws. These same documents were then compared with entries in Molt's check ledger for at least another half hour. O'Kane also looked at records in Molt's "to be filed" box and others on his desk. Having found what he considered to be evidence of numerous violations, O'Kane told Molt that he would have to take the files with him. Molt protested and asked to call his lawyer once more. O'Kane spoke with the attorney again, assuring him that he had the power to take Molt's records and commenting that he would be remiss if he failed to do so. Thereafter, O'Kane seized the contents of Molt's "foreign" file drawer, taking not only those "numerous" files which showed "obvious" violations but also all of the files (71 in all) in this drawer, together with a notebook from the drawer and certain papers from the "to be filed" box. Molt then asked for permission to remove personal papers from the files, but this request was refused on the basis that Molt had previously stated that the files contained nothing personal in nature. Molt refused to sign a receipt prepared by O'Kane and told Detective McGowan, "I want it known for the record that these records are being taken from my establishment against my wishes" (N.T. 3-81). Molt and his attorney were invited to go to the Customs House when the seal to the box would be broken the next day, at which time Molt could look through the files for any personal correspondence, but neither did so.
As a result of an examination made of these files and additional information gained from speaking with other witnesses, O'Kane went before United States Magistrate Richard A. Powers, III, on January 21, 1975, and obtained a search warrant for Molt's business premises.
This search was carried out on the following day, January 22, 1975, at which time and pursuant to the warrant, additional files, notebooks, mailing lists, and tapes were seized. In addition, a Nile Crocodile was taken and three other reptiles were constructively seized.
After a three-day suppression hearing, I asked defense counsel and the assistant United States attorney to file briefs addressing these issues: 1) do Sections 1509, 1510, and 1511 give customs agents the authority to inspect documents on an importer's premises and if not, what are the consequences if the agents do so nonetheless; 2) did Molt consent to the initial search; 3) would the agents' good faith make any difference; and 4) what was the agent's authority to remove any or all of the documents? I shall address each of these issues separately.
2. Sections 1509, 1510 and 1511 of Title 19 do not authorize customs agents to examine importation documents on the importer's premises.
It is obvious from reading 19 U.S.C. §§ 1509, 1510 and 1511 that Agents O'Kane and Friedrich went far beyond their statutory authority when they told Molt and his attorney that they had the right to inspect importation records at the Exchange. The three sections narrowly prescribe what agents may do when an importer refuses to allow the inspection of his documents.
Clearly, the only section on which the government can rely at all is 1511 since Molt was not cited to appear before customs officers to give testimony or produce documents. The government asserts that Section 1511 is part of the general administrative scheme which has provided customs officers with great discretion in the collection of revenue
and the enforcement of strict and severe statutes governing the seizure, forfeiture, and mitigation of penalties arising out of customs laws violations.
Because of this broad administrative authority, the government argues, Section 1511 looks to the voluntary, consensual disclosure of information by an importer.
While Section 1511 may look to voluntary disclosure and compliance, it is part of a statute which gives agents certain limited enforcement powers. Although customs agents can ask to see records, if they represent that they have the unqualified right to make an inspection, they are wrong. It is evident Congress intended that when an importer refuses to allow an inspection upon an oral request, the investigating officer must first obtain a written request before he can demand anything.
Should the importer thereafter fail to permit the inspection, the remedy is to prohibit any further importation and withhold delivery of already-imported merchandise. Section 1511 does not give agents the power to follow ...