United States v. Arthur Randall Sanders, Jr., Gulf Coast News Agency, Inc., Trans World America, Inc., A/K/A Twa, Inc., and William Walter

WISDOM, Before AINSWORTH and CLARK, Judges. Circuit AINSWORTH, Judge: Circuit Sanders, Walter, Arthur William Gulf Agency, (“Gulf Inc. Coast News Coast America, News”) and Trans World Inc. (“TWA”) appeal their convictions under 18 knowingly to The conspiring packages 371 for had a § U.S.C. nonexistent return ad- ship carrier obscene mate- use common dress and named a corporation, fictitious “D interstate, Distributors,” in violation of 18 L shipper. rials U.S.C. Described transport knowingly printed matter, obscene as containing § purpose sent on a Inc.,” matter interstate sale “will call” to “Leggs, basis distribution, in violation of U.S.C. company. another fictitious “Legs” § Sanders, Walter and Coast News also Gulf the nickname of a employee female at ap- challenge for their convictions substantive pellant TWA’s headquarters. Atlanta and Ap- violations of sections 1462 1465.1 When the Atlanta, cartons reached Grey- allege pellants all an unconstitutional hound forwarded them ato branch station search and seizure and attack the district located L’Eggs Products, near Inc. jury obscenity; ap- court’s instructions on (“L’Eggs”), a manufacturer of women’s ho- pellant Walter further contends that he siery and regular of Greyhound customer not to possess requisite “was shown Package Express. Greyhound After in- scienter.” We find to these assertions be L’Eggs shipment, formed of the Michael without merit con- and therefore affirm the Horton, a L’Eggs Products employee, came victions. terminal, opened to of one the cartons and discovered sexually contained I. Facts explicit movies. Horton returned to the trial, testimony According L’Eggs office and described the package’s Larson, September Richard contents superior, to a William Con- Fox. manager News, appellant of Gulf Coast lo- cerned that company might his be implicat- Florida, in Petersburg, cated St. ordered an in transportation ed of pornographic cartons, films, employee containing to deliver 12 Fox Greyhound drove to the station of 8 mm. series films entitled “David’s brought and the 12 cartons to L’Eggs Boys,”2 Express to Greyhound Package Bus office. He and several other employees Petersburg in St. for shipment opened to Atlanta. all packages and found individu- knowingly 1. Under 18 transports § U.S.C. Whoever in inter- foreign state or purpose for commerce of persons conspire If two or more either any obscene, lewd, sale or distribution lasciv- any against commit offense the United ious, filthy book, pamphlet, picture, film, or States, States, or defraud United or letter, paper, writing, print, silhouette, draw- any agency any any thereof in manner or for ing, figure, image, cast, phonograph record- purpose, persons one or more such do ing, transcription electrical or other article any object conspiracy, act to effect the capable producing any sound or other mat- $10,000 each shall be fined not more than or character, ter of indecent or immoral shall be imprisoned years, not more than five or both. $5,000 imprisoned fined not more than or not provides pertinent part 18 U.S.C. § 1462 years, more than five or both. States, brings Whoever into the United or transportation The as aforesaid of two or any thereof, place subject jurisdiction copies any publication more or or two any express knowingly company or uses or any more of article of the character described carrier, carriage other common for in inter- above, publi- or a combined total of five such foreign or state commerce— articles, presump- cations and shall create a (a) obscene, any lewd, lascivious, filthy or publications tion that such intended for sale or or articles are book, picture, film, pamphlet, motion-picture distribution, such but paper, letter, writing, print, or other matter presumption shall be rebuttable. character; of indecent or any person When is convicted of a viola- knowingly Whoever takes such ex- Act, judgment tion of this court its press company or other common carrier may, penalty conviction prescribed, addition thing carriage matter or of which here- dispos- order the confiscation and in made unlawful— al of such items described herein which were $5,000 Shall be fined not more than or possession found in the under or the immedi- imprisoned years, both, more five not than or person ate control of such at the time his for first such and shall fined offense be arrest. $10,000 imprisoned not more than or both, years, Boys” more than ten or such each 2. The series “David’s included 25 indi- offense thereafter. vidual movie titles. The 12 cartons contained provides U.S.C. § 871 reels of film. to determine at the outset whether sought each film box top film. al boxes standing challenge the constitu- and a had Boys” the name “David’s showed seizure. To es- tionality of the search and embracing and nude drawing of two males standing such under traditional tablish were the title the back of each kissing; on Amendment a defendant analysis, Fourth movie a detailed de- individual presence either show searched must terms, explicit of the bizarre scription, in search, premises allege the time depicted film. Pox acts in the homosexual possessory or interest in the proprietary FBI, explained the na- telephoned then objects charged premises searched or be “them to come the films asked ture of an offense that an essential includes as away.” and take materials out evidence at possession element the seized on October procured FBI time sei- contested search and on a subsequently viewed them States, Brown v. zure. See warrant was at its offices. No projector 1565, 1569, 93 208 S.Ct. 36 L.Ed.2d obtained. (1973); Hunt, Cir., United States 5 v. Sanders, who Walter and Appellants “Generally, 505 F.2d 939-40. a defend- appellants and Gulf operated TWA jointly standing requirement ant satisfies the if he News, along with both were indicted Coast adequate has an interest in the possessory 18 371 on one under U.S.C. corporations § object or rise to a place give searched to com- knowingly to use a conspiring count expectation privacy.” reasonable inter- ship to materials carrier obscene mon Hunt, supra, v. at 938. 505 F.2d 1462, and state, of 18 in violation U.S.C. § denying appellants’ suppression In mo matter in- transport obscene knowingly tion, judge “shipping the district held that and distri- purpose for the of sale terstate causing suffering shipped by or or to be bution, in violation of 18 U.S.C. § common carrier . with a fictitious News, and Coast Walter Sanders Gulf given name for the as well as the shipper with five counts of substantive charged also given consignee fictitious name or 1462 and five substan- of section violations addressee, relinquishment amounts jury 1465.3 The violations section tive any expectation abandonment reasonable conspiracy and returned TWA convicted Or, it privacy. way, stated another Walter, toas and guilty verdicts Sanders reasonably to me that it foresee seems was on eleven counts. The Coast News all Gulf that what occurred would oc actually able $10,000, court fined TWA Gulf district say, That is to was substan cur. that there $33,000 both and sentenced Coast News tial likelihood that the material would be years prison to three in and Sanders Walter and fall the hands of some misdelivered into count, concurrently. to run each party, happened in this actually third case, and its opened where would be Constitutionality of Search II. The any, if it had There is privacy, invaded.” and Seizure merit the district court’s conclusion. in urge that the dis Appellants first However, recently Court has error in committed reversible trict court standing “dispens[ed] the rubric the five films admitted failing suppress frankly recognizing . this appellants at trial. TWA evidence Since analysis belongs proper more aspect pretrial sup made no motion and Gulf heading ly of substantive Fourth under appeal. issue on doctrine,” Illinois, cannot raise this press, v. Amendment Rakas Bush, Cir., 1978, 582 F.2d - U.S. -, 421, 429, United States S.Ct. 1016, 1018. Though (1978) we will extent of appellants Sanders so focus “on the sup under the timely particular rights made a motion defendant’s each Walter Amendment, films, court Fourth than on return the the district rather press Birdie,” Up,” and the “Look at “The Clean “Black five counts under section 1462 3. The Massage,” “Loving Rape,” “The Hands.” the same 1465 counts enumerated five section Boys” series: movies from “David’s five films, invariably theoretically separate, accepting but inter them from the Id., concept standing.” L’Eggs employees twined without obtaining a war- - U.S. at -, assertion, rant. making at 428. they rely S.Ct.

principally Eighth Circuit’s decision United States v. by L’Eggs Kelly, A. The Search Products Em- There, an employee of a ployees common carrier discovered that a ripped-open carton Appellants and Walter Sanders goods sexually contained explicit books argue L’Eggs employees, that the Products FBI, and magazines and called the which opening examining cartons and agent sent an who examined several of the warrant, their without contents conducted magazines samples, retained an unconstitutional search. The Fourth obtaining warrant. Although Kelly requirement, Amendment’s warrant court said that the common carrier’s search course, is solely intended “as a restraint private, it held that the Government’s upon sovereign authority,” the activities of subsequent acceptance of the fruits consti- McDowell, Burdeau v. warrant, tuted a seizure requiring a “unless (1921), L.Ed. and “a special are circumstances which ex- . . a private conducted compliance cuse with the war- purely private reasons, individual for requirement,” rant decided that no excep- protective does not fall within the ambit of tion to that requirement applied and con- the Fourth Amendment.” United States v. cluded that the warrantless “seizure” was Lamar, Cir., 1977, 488, 489-90; 5 545 F.2d “so unreasonable as to necessitate the oper- Jones, Cir., v. 1972, United States 5 457 ation of exclusionary the rule.” Id. at 1371. 697, 699; States, F.2d v. Barnes United 5 Cir., 1967, 517, result However, Kelly F.2d 373 518. if conflicts with the reasoning implicit in long under the of private circumstances of the case the line search private party decisions the “acted as an or Court and ‘instrument’ ‘agent’ every case, circuit. government,” such ostensibly introducing the the “private” fruits of a private search the search must meet amend- as evidence was impossible private unless party ment’s the standards. United States v. Bomen- had 1978, at some go, Cir., 173, point 5 surrendered the 580 F.2d 175. See articles to the States, 79, v. Government. Yet Lustig 74, United 338 neither we nor 69 the U.S. Supreme Court have ever held (1949). govern- S.Ct. 93 L.Ed. 1819 Be- acceptance ment fore the those L’Eggs employees Products articles consti- ever tutes a FBI, seizure requiring compliance contacted the they had on their own the warrant requirement, initiative taken the even in shipment of films from cases terminal, where cartons, exception the no to that opened requirement bus the exam- would have ined covered the the individual film boxes Government’s and as- ac- See, g., McDowell, tion. e. certained the nature Burdeau v. of the films. 256 Since 465, 41 65 (1921); “there is no indication in the L.Ed. 1048 record” that Lamar, United doing Cir., so States v. L’Eggs employees at “acted 488; F.2d Blanton, Cir., v. suggestion, aid, the behest or United States with the ad- 327; encouragement, vice 479 F.2d or or Barnes v. under the di- States, Cir., 1967, F.B.I.,” Thus, 373 F.2d rection influence of the we con- we accept decline to the Kelly pri- analysis. clude that these activities constituted court’s search, beyond scope vate of the Fourth Sherwin, Cir., In United States v. Amendment. United States v. Clegg, Circuit, 539 F.2d sitting Ninth Cir., 1975, banc, en also rejected the Kelly rationale. also Sherwin involved a common carrier Acceptance B. FBI of the Films employee who examined the contents of Nevertheless, damaged Sanders and Walter con- packages, discovered sexually ex tend that the unconstitutionally FBI seized plicit FBI, books and called the which sent sexually explicit films two books removed from contacted the agents who FBI, which Kelly, agents sent two with a Citing a warrant. movie shipment, office, argued appeal projector the common carrier’s on defendants the Sherwin where films were the fourth amend- screened without first to which that “a seizure obtaining a Declaring warrant. when “the occurred is applicable ment must inquiry government” be whether the books” agents obtained two the F.B.I. “any thereby undertook new or different carrier, id. but the common from searches,” Eighth Circuit said that the regard govern- Circuit did “not Ninth viewing Government’s films of materials obtained acceptance ment’s “changed search,” the nature of the because con- to be a seizure” and private search private had involved no such not fourth amendment that “the cluded [is] screening, and held search was pri- in a implicated when articles discovered illegal, since exception no to the warrant voluntarily turned over vate search [are] requirement applied. Id. at 773-74. agree We with the government.” Id. reasoning. Under the cir- Ninth Circuit’s Haes, however, Unlike where the cumstances, accept- we hold that FBI’s party “had not viewed the films and had Boys” “David’s ance attempted to make a decision as to not a seizure within L’Eggs employees was obscene,” whether or not id. meaning of Fourth Amendment. 771, the L’Eggs employees were able to make “a of possible obscenity determination Viewing of the Films C. prior turning the films over to the FBI,” and Walter fur Sanders id. at Appellants by examining the individ- assert, an basing argument their containing ther ual boxes the films. In this case, United Eighth case, legend Circuit Boys” other “David’s and a car- Haes, 1977, the Govern kissing toon of two nude males and embrac- box; additional unconstitu ing appeared ment conducted on one side each film by viewing the films on tional search the other carried side the title indi- a war projector obtaining description, film a movie vidual and detailed Haes, employee language the a common of the utmost explicitness, rant. In of the carrier, the seeking identify consignee depicted to bizarre homosexual in the acts circumstances, these shipment, opened package, a discovered movie.5 Under since a issue, happens announcing holding the In its on this movie when Corbett mastur- 4. -— emphasized majority and the factual circum- bates on Rich’s face! This is a Haes flick you forget. will not stances noted that would feel other- “[w]e and Up (3 white)” any private “The if had sort Clean boxes read that wise search included Lenny turn viewing and Eric each other on and a determination of and films you good looking you’ll obscenity prior when possible turning see these films studs why!!! gets heavy know The action and F.2d at 771-72. Under over the F.B.I.” 551 picture. galore here, however, Les then enters the and Les the factual circumstances — up you’ve it cleans like seen. actually never Great L’Eggs employees need did not close-ups! screen films to make that determination. (1 wht.) Rape” The “Black blk. boxes Eighth that Haes “was not Circuit stressed stated that employee private had where “the case” -— Big but it Lance an 11" Black has upon tangible which believe evidence long doesn’t the small slender take before being illegally transported in the material the___! Larry taking right up it all here, Good commerce,” n.l, id. at 772 but interstate tongue you surprise action and a won’t contrast, amply the individual film boxes close-up believe. will You love the action. L’Eggs employees supported the belief of the containing Massage” The boxes “The ex- illegal transportation had occurred. that such plained that five of the 25 “David’s The indictment listed Angelo gets 5. masseur turned on as he shipment. Boys” in the gives Tommy Angelo’s expert titles included a rubdown. containing “Look the Bird- tongue boxes at Tommy’s___hard individual & hands soon have way ie” said that he & excited. But wants it the Greek he____beautiful Angie really complies. gets on Rich and Then turned when Corbett Tommy’s photo the a— face! This is one of best for a session. In comes over close-ups you you highlight close-ups of french love will ever won’t believe! The see!! McDaniel, United States v. fully ing so ascertained a warrant. L’Eggs employees Cir., 1978, 1226-27; contacting before the nature of F.2d Blanton, Cir., 1973, authorities, States v. the FBI’s sub- we find that 479 F.2d viewing the movies on a sequent support 328. These decisions our conclusion “change issue, view, the nature of the on this projector did for in our “much less reopening was not an additional search than reinspection search” and and of the box We subject requirement.6 to the warrant and its contents activity was the FBI” here.7 United States v. Pryba, reopening reinspec- and have held that bag by government a authorities 163 U.S.App.D.C. tion of 502 F.2d also Ford, 401.8 See United States v. following not consti- private a search does Cir., separate, independent requir- search tute a 1312.9 supervisor Finally, “Loving up sex.” The Hands” boxes said held to the two films light and saw both and hetero- homosexual Murray and Carl are well into their love couples “engaging nude in sexual acts.” He Ben enters the room. He will session when FBI, agent called the which sent an with a you loving he show with right up his hands as shoves them projector freight movie carrier’s office. (just elbows!) his arms of his short watching movies, After two more with the FBI a_. h____!! his friends’ While agent present, supervisor repackaged still masterpiece It is a true masturbate! avid connoisseur!! replaced the films and the boxes in transit to Washington. U.S.App.D.C. at (Certain particularly salacious words have been Spottswood Judge at Robinson first by opinion, the writer of this as indi- deleted concluded that the activities of the clerk and cated.) employer brought his projector before the FBI the movie question posed 6. We note as well the then private a constituted search and then Judge Haes Webster in his dissent: perceive declared that “we are unable to in the seriously argued agent subsequent Can be that an events new or different search receiving suspected magazine book or agent respect- after the F.B.I. arrived. There freight employee could carrier not reason- authority holding reopen- able ing that not even a ably open publication peruse its reinspection package of a federal pages to its determine whether contents of- officers, opening inspection after the initial government agent law? fended the Would personnel own, entirely airline on their con- magnifying glass who used chanical aid to other me- separate subject stitutes a or additional search identify object an be vulnera- requirements. to Fourth Amendment We need ble a claim of unreasonable search far, nearly not venture so for much less than independent of the lawful reopening reinspection of the box and its object? produced clearly which not. I think activity contents was the of the FBI in the U.S.App.D.C. 399, instant case.” Id. 163 at at The film in this case was not a means concealing something looking else. through projector, agents film did no Ford, Pryba, shipper, 9. In as in a nervous pictures more than view the motion manner in which in the unwilling identify first package, wrap the contents of a they were intended to be freight supervisor an led air to un- viewed. 551 F.2d at 772-73. eight pro- the box. He discovered “about 7. The Court’s decision in United phylactics, long, containing six or seven inches Chadwick, States v. substance,” powdered a police. and called the local (1977) L.Ed.2d 53 come agents does not affect the out- arrived, they When the officers con- Chadwick, this case. In the federal “on-the-spot ducted an field test” which gained custody property exclusive “showed that the substance was heroin.” 525 searched, here, still to be whereas FBI took Rejecting F.2d 1308. the assertion that the property already control of searched that been had agents thereby illegal, conducted an warrant- private party and did not con- search, less the Tenth Circuit said that the any requiring its duct additional search of own “government agents appeared only after the Johnson, See also United States warrant. v. suspicion possible presence of contra- Cir., 1979, 588 F.2d 147. by discovery pro- band was confirmed phylactics. point, Pryba, shipper, province At this 8. In a nervous it was the reluctant dis- box, duty suspi- and indeed the close the contents of cions aroused the officers further investigate box, freight open they an air clerk in San Francisco. which did with- supervisor opened protected rights privacy, The clerk’s the box and out invasion of “unpackaged suspicious found reels 8-millimeter color to determine whether the substance bearing unsubtly suggesting plain titles movie film view was in fact contraband .... their supply opera- established Florida III. Walter’s Scienter addition, tions. Catoe stated that Wal- that Walter contends Appellant expense money him gave ter and ordered evidence to sustain was insufficient there him to follow the directions of Richard Lar- conviction, the Government because his son, News, manager of Gulf Coast between a “close nexus” establish failed to whom Catoe had met at TWA when Larson proved specific shipment and “a him Bowman, being trained. Ronald was no there and because matter” obscene employee Gulf Coast News who delivered assertion is This as to scienter. evidence Boys” Greyhound’s the “David’s films to St. ample evidence meritless, there was as terminal, Petersburg testified that on one Walter finding that jury’s support visit to the Gulf Coast News warehouse ship carrier to a common knowingly used was introduced the man “[y]ou Sanders as interstate, knowingly materials obscene working will be for” and that on another interstate for matter transported obscene occasion Walter was introduced as Sanders’ and knew of sale or distribution purpose partner. Bowman also recalled that Rich- shipped of the films nature obscene partners ard Larson described the two as interstate. and identified as theirs the desks in the trial, Wal- testimony According to the Finally, back of the warehouse. Carol Max- exten- jointly operated an and ter Sanders friend, ey, girl Sanders’ former testified cinemas, bookstores adult network of sive that Sanders told her that he and Walter warehouses, included which and distribution businesses, number in- jointly owned a Er- News. TWA and Gulf Coast appellants cluding Gulf Coast News. Golden, as accountant who had served nest foregoing testimony Given the describing enterpris- these various bookkeeper for management Walter’s central role instructions he received es, that testified TWA, compa Gulf Coast News and other keep- when and Sanders both Walter nies involved in the distribution and sale of tax returns preparing ing accounts pornography, hardcore we do not believe including TWA corporations, a number Boshell, jury necessarily “the must have that had William Coast News. and Gulf accountant, possessed that reasonable doubt” he testi- Golden who succeeded Warner, scienter, requisite supplied both that Walter Sanders fied denied, cert. Cir., 1971, various records of the the business him Walter, 30 L.Ed.2d 58 Sanders He said corporations. (1971). Accordingly, we conclude had their offices corporations and all support with a was sufficient evidence to Walter’s paid he was added that TWA and conviction. rendered to the services TWA check for

other businesses. Instructions on III. The District Court’s Catoe, employee of Walter John Community Contemporary Standards men told

Sanders, at trial that both related Finally, appellants challenge the dis a new planning in 1973 him regarding the explicit jury trict court’s instructions sexually to distribute corporation element of the defini community standards later stated and that Sanders materials obscenity. They contend that Pin According to tion of TWA. corporation was States, kus v. United employees S.Ct. Catoe, all other TWA he and (1978) and our subse both Wal- 56 L.Ed.2d instructions from work received Bush, decision in quent also said that when Catoe ter and Sanders. supra, required judge expressly the trial manage him to Florida two men sent the in jury not to consider children they charge ex- the in June new bookstore a standards of determining contemporary had been the News that Gulf Coast plained suspicion, developed dispel the first the agents Id. at 1312. Sim- government arrived.” L’Eggs employees, here, viewing ilarly, agents the films that the films had been in the FBI transported illegally. attempting projector, to confirm or a on community a the average person prurient as “the interest the average person expansive reject appellants’ whole, community whole.” We the a pru- as or the Bush and find reading of Pinkus and no rient interest of a deviant sexual group, as court’s instructions. be, the district might error in the case and is so patently offen- utterly sive that redeeming without Pinkus, judge charged trial had In (emphasis added) social value.” judge that, ascertaining community in jury “ further explained that pre- “[w]hether standards, are to consider com- ‘you dominant theme purpose or of the material whole, old, young and educated munity as appeal is an prurient interest of the uneducated, religious and irreli- and ‘average person of the community as a children, men, from all women and gious, whole’ is judgment which must be made States, life’.” Pinkus v. United walks of light in of contemporary standards as would at at 1811 supra, 436 U.S. applied by be average person with an added). Court (emphasis average toward, and normal attitude and “to this occasion to make clear elected take in, average interest sex.” (emphasis are not to be included for that children added) This instruction adequately direct- part ‘community’ as purposes these jury ed consideration to the contemporary that term relates” to definition of standards thereby of adults and avoided the therefore held that “it was obscenity and danger emphasized in Pinkus and Bush. jury error to instruct that part were a relevant com- [children] We have carefully appel examined munity.” Similarly, Id. at 1812. in Bush remaining lants’ assertions10 and conclude jury court had told the that the district are meritless. Accordingly, we “you community are to consider the as a judgments affirm the of conviction toas all whole, old, young and educated and unedu- appellants. cated, religious (em- the irreligious.” AFFIRMED. added) holding that this phasis charge WISDOM, Judge, Circuit dissenting: error, constituted reversible we reasoned phrase ‘young inclusion of “[t]he respectfully I Today dissent. the Court ample provides jury old’ . free- holds that may take posses- children, and dom to consider thus does not films, sion containing cartons view completely danger, emphasized avoid in later, the films two months retain them for Pinkus, population that ‘the adult be [will yet another two months—without obtaining reading only what is fit for reduced] any point warrant at the films are the —if ” (citation omitted) children.’ fruit of a search. The majority 1021-22. reaches the conclusion that acqui- the FBI’s

Here, sition the films however, in this case unlike the instructions in falls short of Bush, a “seizure” judge’s considering charge Pinkus and trial the first prescribe jury did not consideration of interest expres- “chil- stake when “young people” or in sive matter is determining dren” taken out of circulation by community government. standards. The district court “The Fourth Amendment jurors judge obscenity told the must not be read in a vacuum”. their “predominant appeal films whether Kentucky, 1973, Roaden v. in entirety,

. viewed is to my [their] 757. In contend, Appellants individually judge’s rulings also pretrial trial other and trial unison, by accepting holding jury motions and in his instructions to the shipment argue whole gaged amendment, of films the Government en- that the voir dire conducted the court prior Finally, restraint in violation of the first urges was insufficient. Walter that the judge prosecution that the guilty trial should have prejudicial miscon- venue, granted change duct, juror that he erred in prejudiced ap- misconduct also refusing comparison to admit pellants, evidence and that denying that the district court erred in compelled the district court should have his motion for severance and that the films prosecution present expert witnesses. were not obscene. addition, they assert numerous errors in the provide FBI he did not view, Eighth Circuit the defendants with approach Instead, Kelly, this information. he told the Appeals in United States FBI Court of 1365, 1976, represents proper inquirers. about The defendants also too, L’Eggs They, the first and fourth called the office. accommodation of denied they shipment. I would reverse the defend- had the amendments. ground convictions on the ants’ FBI, days Five after Fox called the two in violation of the fourth

films were seized agents L’Eggs arrived at the office and and, therefore, illegally were possession packages took of the and their into evidence. admitted entire contents. later Agent Two months Mandyk screened each of the 871 films on I. projector. an office There twenty- were majority presents the facts accurate- films; remaining five title 846 films ly completely. longer but not A look at the copies. were elapsed Another two months employees events that occurred once the FBI before turned the films over to the Products, L’Eggs Inc. notified the FBI of Attorney’s United States office. Over a shipment leads receipt of films year later the indictments were returned. the conclusion that the defendants me to films, the twenty-five govern- Of title constitutionally protectible inter- retained charged ment that five were obscene. impermissibly that was in- est in the films government. upon truded II. Horton, September major Michael teaching

On manager L’Eggs, pried upon one of obscenity area Court’s decisions in the area is unusually judicial which were so that some form packages, procedure twelve “de- securely wrapped they signed searchingly question and reinforced that to focus on the him. obscenity” precede governmental did not look “normal” to He discover- of must arguably ed that the carton contained film boxes interference with material within protection sexual scenarios with various described of the first amendment. See York,1973, 483, 489, passed the covers. Horton on this informa- Heller v. New 413 U.S. 745; manager, tion to his branch William Fox. 93 Quantity 37 L.Ed.2d A terminus, Greyhound Kansas, 1964, then went to the Fox Books v. 378 U.S. 809; Greyhound employee informed the in 84 S.Ct. Marcus v. charge belong the boxes Property, did not Warrant of Search L’Eggs, anyway, but took them with him 6 L.Ed.2d 1127. without, however, paying the collect Because the FBI apply magis- did not to a Later, charges. agent Fox informed FBI trate for a warrant at point, only Mandyk Mandyk judicial of the incident. told Fox determination of obscenity was put the cartons aside until he made arrived. at the trial on October 1977—over L’Eggs employees years He also asked the to ob- two after the 871 films were taken anyone tain the name of who out called to of circulation government. Yet inquire packages. about the the majority relegates to a footnote the defendants’ contention that there was an Meanwhile, the defendants made several illegal prior restraint. See note 10 of the attempts shipment. to find their One majority opinion. Greyhound report the defendants called put I packages missing. that the He must assume majority’s from the dis- missal, shipment, leaving discussion, tracer on the his name of the issue of telephone Greyhound. prior number with restraint agrees with the During days the next few several of the that there is no first amend- Greyhound defendants visited station. ment interest at stake in this case. Before Court, Although manager the assistant terminal government argued that the packages knew that the had been taken to films were protection not entitled to the office, L’Eggs on the instructions of the the first amendment because were fur- 798 taken, the public the films interest in When free

tively distributed. circulation of the attenuated, being exhibited to the films is stringent procedur- sold nor less were neither hence, government governmental al the rea limitations on general public; may action sons, right justified. mean, however, be public’s first amendment This does not the not matter was in furtively access to nonobscene that films distributed a small contention that fringed. support To its cadre of customers lose all constitutional status enjoy no constitutional special protection may be treated general they to the unless are available government if they as contraband language public, government relies on ordinary instruments of a pro- crime. The Circuit Court of in a decision of the Second tection of the first amendment cannot turn was Appeals. strictly “This an under on solely the size of the audience that ex- ground operation in core pornography hard pressive matter will History reach. teaches storage facilities not in with clandestine first amendment is concerned not public be to the tended to available with only public’s right of access but ‘setting’ hardly pre is such as to then right also with unpopular and small protec first sumptively invoke express minorities their views. Nor Cangiano, 2 tion.” United v. Cir. States protection should first amendment hinge on 1974, 906, 913, denied, cert. 419 dissemination, the method of unpopular for 904, 188, 42 95 L.Ed.2d 149. U.S. S.Ct. minority are likely views most to be dissem- in inated a furtive and clandestine fashion. course, is, procedural It true that Alexander, 1970, See United v. 8 Cir. safeguards required by first amend 1175; 1169, Note, Right 428 to an vary ment “the nature of the materi Adversary Hearing on the Issue Obsceni- setting in als seized which are ty Prior to of Furtively the Seizure Distrib- 1973, v. Kentucky, taken”. Roaden 413 Films, 913, uted 69 Mich.L.Rev. 926-40 503, 93 2796, 2801, U.S. 37 L.Ed.2d S.Ct. (1971). prior adversary hearing 757. A must be large quantity expressive held a before Indeed, question before Second government material seized Appeals Cangiano Circuit Court of in was of destruction. A purpose Quantity See not whether the films were presumptively Kansas, 1964, v. of Books 378 84 U.S. protection under the of the first amend- 809; 1723, 12 L.Ed.2d Marcus S.Ct. v. The FBI ment. obtained warrant before Property, 1961, 367 Search Warrant U.S. seizing the material and an adversary hear- 1127; Lee L.Ed.2d Art S.Ct. ing upon request by was available de- Virginia, Theatre v. U.S. fendant. The Court merely held that (per S.Ct. L.Ed.2d 1313 cu “setting” not such as was to invoke the riam). “[Sjeizing destroy films to them or requirements prior adversary hearing to block their distribution or exhibition is a cases, before I seizure. do not know very single seizing different matter from certainly Circuit, holding not copy purpose of a film for bona fide taking furtively distributed films pro in a preserving as evidence criminal no raises first amendment concerns all. York, ceeding.” Heller New a proposition Such would be startling 483, 492, 93 2789, 2794, 37 U.S. S.Ct. L.Ed.2d light Court’s decision if a permissible Such seizure neu York, 1973, Heller v. New magistrate issuing tral the warrant deter There, single is probable mines that cause to be copy a film was seized. Because other lieve that the is obscene and an adver film copies screening were available for sary hearing after promptly is available public, there no pub- restriction seizure. right Yet, lic’s of access. the Court held subject to absolute copy When films are could be seized evidence destruction, suppression, only pro- in the sense of if the observed strict necessity “The for a safeguards.1 III. cedural probable judicial determination prior special Given the constitutional character abuses, against gross protect cause will FBI, of the by items taken I see two judicial availability prompt of a while the mutually supporting compel reasons that adversary proceeding in an determination application exclusionary remedy of the assures that difficult following the seizure this case. light will be considered in marginal cases place, In the first the first amendment is 413 guarantees”. Amendment U.S. at First independent an restrictions upon source of 493, at 2795. 93 S.Ct. power police expressive to take on decisions in the area I have elaborated example, material. For because of first obscenity prior restraints demon- concerns, amendment a film cannot be legitimate had a strate that the defendants seized as an incident to a lawful arrest. amendment interest in the films at the first 1973, 497, Kentucky, Roaden v. 413 93 U.S. they by were taken the FBI. I do not time though 2796. This is true even S.Ct. imposed in this decide whether the restraint generally fourth amendment is understood adversary extensive that an case was so permit the seizure items during a hearing should have been held before California, 1969, lawful arrest. Chimel unnecessary were taken. It is to de- films 752, 2034, 395 89 23 U.S. S.Ct. L.Ed.2d 685. question because the cide explained Roaden, As the Court the sei- the minimum procedural did not observe officer, copy “by police zure of a of a film a safeguards Supreme demanded the authority constitutionally of a out, however, I point Court in Heller. warrant, plainly sufficient a prior form of Heller the material unlike amount of taken 504, restraint”. 413 U.S. at 93 at S.Ct. by the FBI in this case must be termed proceeded solely 2801. “The seizure on the copies “massive”. The retention of 846 far police officer’s conclusions that the film was requirements exceeds the of officers seek- obscene; there was no warrant. Nothing Moreover, criminal ing pursue charges. prior magistrate seizure afforded we do not know whether the films were searchingly opportunity to ‘focus storage in a earmarked warehouse or ” 506, obscenity.’ 413 at 93 question U.S. whether were on the threshold of dis- Thus, necessary supply S.Ct. 2802. assume, therefore, semination. One cannot judicial obscenity, the determination of Su- the FBI’s actions did not block the preme harnessed the fourth amend- Court orderly distribution of films. And in guarantee ment of a neutral procedural circumstance, Supreme Court has magistrate.2 Quanti- implied requirements that the of A ty Functionally, government’s accept- of Books must be met. Heller v. New York, 1973, 492, U.S. ance of the this case resembles a S.Ct. films in any inquiry by justice 1. The first articulation of the view that officer without furtive- ly distributed films are peace entitled to no first into the factual basis for the officer’s protection was in a Theatre, district court Virginia, Inc. v. conclusions.” Lee Art opinion, D.D.C.1970, Pryba, United States v. 636, 637, 2103, 2104, There, too, F.Supp. a warrant was (per curiam); L.Ed.2d 1313 Marcus v. Search obtained before seizure of the films. The deci- Property, Warrant of 367 U.S. 731- upheld sion of the district court was 81 S.Ct. 6 L.Ed.2d 1127. Further- Appeals District of Columbia Court of on the more, seized, heightened where books are theory requirements alternative that the of Hel- degree specificity in a search warrant’s de- Pryba, ler were satisfied. United States v. scription “things required. to be seized” is 389, 412-13, U.S.App.D.C. Texas, 1965, Stanford v. 379 U.S. 85 S.Ct. 391, 404-05. special 431. “But where the problems associated with the First Amendment 2. The Court has also held that are not involved ... a more ‘reasonable own, imposes first amendment its more strin- permissible”. Berger particularity’ ... gent obtaining executing limitations on 41, 98, York, 1967, v. New 388 U.S. judicial search warrant. A warrant for the J., (Harlan, 18 L.Ed.2d 1040. dis- may “solely seizure of a film not be issued senting). upon conclusory police assertions of the restraint. It films until their resulting prior delivery right “seizure” into the imposed nonjudicially suppression is a of hands. “pro- Like seizure

expressive matter. The initial search of these films was ceedpng] solely police officer’s con- private was, therefore, parties and outside clusions”, acceptance and retention of scope fourth amendment. Bur wholly the exercise frustrated McDowell, 1921, deau v. rights without search- first amendment search, A L.Ed. 1048. how by a ing inquiry magistrate into the merits ever, is merely step the first in an invasion impera- It of the first amendment claim. is of privacy ends with the introduction therefore, tive, acquisition to view the of in incriminating court of evidence. When by these films the FBI as a “seizure” sub- by the initial search is private conducted ject procedural guarantees of the parties, question gov remains whether fourth amendment.3 ernmental point conduct after that amounts suppression The of the films as evidence independent an of right invasion of justified is also under traditional fourth privacy by controlled the standards of the amendment doctrine. fourth generally Note, amendment. See premise I start from the that the defend- Seizures, Private Searches 90 Harv.L. ants had a constitutionally protectible pri- (1976). Rev. 463 vacy in packages interest before majority The also does not hold that by were discovered employees of fourth amendment issues were automatical- L’Eggs. The district court held that ship- ly exhausted private once initial search ping by material means of a common carri- completed. was The Court sepa- scrutinizes er a consignee fictitious amounted to a rately government’s whether the viewing of relinquishment or abandonment of rea- private films discovered in the expectation privacy. sonable major- of The search, was an additional “different” con- ity agrees with this conclusion. page See cluding that when the agent FBI screened majority opinion. 791 of the The in- films, the obscene content of which had creased likelihood that the parcel would be already been by ascertained the employees misdelivered be equated cannot with an L’Eggs, ‘change of he not “did the nature of abandonment of all expectations reasonable ’ refuses, the search4 ”. The majority how- privacy. packages Misdelivered are usu- ever, to government’s test the acquisition of returned; ally indeed, they usually are re- against the films the same standard. With- unopened. turned The careful manner in examining out the nature of the FBI’s ac- which the films were wrapped in individual- taking in retaining tions fruits ly sealed as containers well as the use of a search, private the Court holds that it fictitious cover name for the addressee “seizure”; was not a it was no more than a demonstrates, instead, strong a desire to acceptance passive of an accomplished fact. maintain the defendants’ priva- interest in n cy, government’s to avoid the getting acquisition contents into the hands, wrong ownership private to continue fruits of the be search must termed the films or a possessory interest in the a “seizure” because interfered with the suggests analy- judicial inquiry damage Professor Monahan a similar the barest before the Monahan, respect sis with arrests. done.” First warrantless View- Amendment “Due Process”, ing (1970). the first amendment as a source of restric- 83 Harv.L.Rev. upon power police tions to seize persons things, argues Although well as he I believe that the FBI’s examination police prohibited arresting should be from L’Eggs’ of the films at the office was an presence committing those offenses their independent subject in “search” to the fourth amendment, when the distribu- agree offenders are exhibitors or majority’s I cannot arguably protected tors of first screening conclusion the later of the films “Functionally, matter. resembles a arrest merely office of the FBI a continua- injunction against nonjudicially imposed cer- tion pp. search. See text 803- here, conduct; not even tain 804 infra. appropriation was, in a new tions. The interest in the films of the films defendants’ therefore, depri way. “It constituted “seizure”. different inter property the defendants’ vation contends, majority nevertheless, Note, Private and Sei Searches See ests”. Eighth characterization, Circuit’s had zures, supra at 469. The defendants government’s Kelly, of the acceptance of the films possessory interest legitimate the films as a “seizure” long contradicts a jury, or judge, the FBI until a acquired by the Supreme line of decisions Court and estab magistrate issuing warrant neutral this Circuit. None cases cited had, there probable obscenity. They lished majority, States, except Sherwin v. United freedom fore, expectation a reasonable Cir. addresses the taking interference with these governmental of material presumptively protected by the “Legitimation expectations pri films. first And it is amendment. worth noting must have outside of by law a source vacy that, Sherwin, the FBI immediately Amendment, reference either the Fourth shipment obtained warrant to seize a law concepts personal of real or property to accepted books after it two copies print- of recognized understandings that are or to private ed material discoveredin the search. by society. the main One of permitted Furthermore, none of the by cases cited right to attaching property to is the rights majority separate undertakes a fourth Blackstone, others, see W. Com exclude analysis amendment of the government’s II, I, mentaries, who book Ch. and one owns acquisition the items of discovered in the property . . . lawfully possesses private search. all have a ex legitimate likelihood will Over fifty years ago Court right privacy by of virtue of pectation McDowell,supra, held in v. Burdeau over a - Illinois, Rakas v. to exclude.” Holmes, by dissent Justices Brandéis and U.S. -, papers by stolen a thief and turned by the expectation protected This n. 12. over to government could be used as amendment. fourth evidence at trial. Court did not explic employees true that when the of It itly government’s consider whether the ac packages the common took from L’Eggs ceptance papers was a seizure. Com them, opened the defendants’ carrier cast mentators have doubt on the continued ordinary privacy interest in the packages, vitality Burdeau rule in its broadest their desire to insulate the sense government sense. It permits to ac packages eyes from the contents complish circuitously what it could not ac others, infringed. That interest was was words, complish directly. In other it is the way new the FBI’s by affected twin of platter” the “silver doctrine that packages of the contents of the observance prosecutors allowed federal to use illegal But L’Eggs office.5 the defendants’ at the evidence independently by obtained state the films possessory interest in retained Baade, and local See generally officers. themselves, reasonable because had a Illegally Obtained Evidence in Criminal and be re- packages that the would expectation Comparative Civil Study Cases: A of a misdelivery by the after or returned Mismatch, II, trieved Classic 52 Tex.L.Rev. parties to the carrier. common private (1974); Note, The Fourth Amendment expectation also had a reasonable They Right Privacy: Mapping Future, by the 1314, 1336-59 would be returned to them (1969). the films Va.L.Rev. The “silver pending judicial determina- government platter” was nearly doctrine abandoned Thus, right obscenity. they had thirty years tion of after Burdeau was decided. taking pos- States, 1960, Elkins v. United exclude Moreover, appro- the films. When the FBI 4 L.Ed.2d 1669. session films, decided, complete- when abruptly Burdeau were few priated justifications expecta- for warrantless legitimate with these seizures. ly interfered supra. 5. See note 4 bag night, he subject later that was arrested. The of Burdeau

“The failure privately possession into bag dis- could have been taken acceptance government’s analy- to fourth amendment as an to a objects police covered incident lawful freedom of police a desirable gave sis arrest.6 current fourth action. Under case, In this the warrantless seizure can- the warrant re-

doctrine, exceptions to existing under justified exceptions not be police permit quirement employees clause. The warrant protec- their action where take immediate authority no consent L’Eggs had enforcement duties most de- tive and law government’s appropriation of the presump- Note, Private Sei- mand it.” Searches tively package. lawful contents of the zures, supra, justified be under plain seizure cannot by the cases cited ma- The Fifth Circuit view doctrine. See United States v. Kelly, concerned whether jority primarily are 8 Cir. 529 F.2d at 1372-73. There ” search “separate there was a or additional exigent were no circumstances necessitat- United v. government. See States FBI ing immediate action. The had ample Blanton, (em- Cir. to secure a opportunity warrant on the ba- added); Lamar, phasis sis of an affidavit either the FBI agents majority ar- Cir. 488. The or the employees L’Eggs. The seizure however, into gues, the introduction was, therefore, unreasonable. evidence of the fruits of the impossible been in each of these would have IV. the government’s acceptance cases unless When evidence is seized in violation of private par- the articles turned over the by amendment, the fourth the constitutional implicitly ties was immunized from the remedy suppression is the of the illegally fourth amendment. Yet in each of the obtained evidence. The exclusion of the the cases the actual seizure of items can be evidence, rather the as than return of justified exceptions under traditional for owners, the films to the proper is the reme- example, warrantless seizures. For in La- dy mar, in this case. This is true even though airport an official discovered heroin in characterizing government the source for bag by a a at the passenger airport. left bag primarily He showed the the action a seizure is contents of the first police. passenger though When the reclaimed and even the principal the amendment7 3047, acceptance bag 1023, remand, Cir., containing 6. The FBI’s S.Ct. 37 a L.Ed.2d on 2 silencer, 905, private denied, 1974, 934, discovered in a search at the 491 F.2d cert. 418 U.S. Blanton, 1973, airport, 3223, 1171; in United States 5 Tyrone, v. Cir. S.Ct. L.Ed.2d Inc. v. 327, 479 F.2d was Wilkinson, 1969, also “reasonable” because it 639, 641; 4 Cir. 410 F.2d to a incident lawful arrest and because Pearcy, 1968, Metzger 202, v. 7 Cir. 393 F.2d exigent justified circumstances the warrantless 204. These cases are concerned with the sei Thus, seizure. 479 F.2d at other 328. circuits expressive pursuant zure of matter to a war govern have scrutinized the reasonableness of prior adversary hearing. rant but without takings objects private mental in a exclusionary The courts have reasoned the that directly See, under fourth amendment. e. apply rule does not where a seizure is defective 1973, g., Ogden, United v. 9 Cir. 485 F.2d adversary hearing lack of because “the 536, 1972, 540; Tripp, United States v. 9 Cir. primary public’s right involved is the First 569, 570, denied, 1973, 468 F.2d cert. 410 U.S. right access, Amendment rather than the 965, 910, 272. 35 L.Ed.2d immunity Fourth defendant’s Amendment search and unreasonable seizure”. Huffman v. Circuit, courts, Many including panel of this 7. States, 1972, 238, U.S.App.D.C. 244, “ ‘[wjhen are seized in have held that materials 386, 470 F.2d amendment, appropri- violation of first recognized, however, At least one court has property, remedy but ate is return of the seized Supreme suppression Court’s decisions in ”. Heller at trial’ its as evidence may 1978, Bush, and Roaden obliterate distinction be- v. 5 Cir. 582 F.2d United States Sherwin, 1016, tween violations of the first and fourth States v. amend- See also United 11; 1, expressive 1976, ments when seizure of 539 F.2d United States v. matter 9 Cir. n. 1972, proba- Cangiano, lack of a vacat- defective for determination of 2 Cir. 464 F.2d 1973, 913, obscenity by grounds, magistrate. ble a neutral ed on other See possesso- case is a V. infringed interest government obtains ry one.8 When I also would reverse the convictions of private in a search and films discovered ground defendants on the that the FBI them, knowledge without the retains search, an independent conducted prohibit- owner, time, period of by amendment, for a considerable ed the fourth after acquir- ing the films. remedy return too late. The comes know the films owners did not where were. Relying language in United States v. Indeed, took government pains en- Haes, 8 Cir. the majority that the would not be able sure defendants holds the screening of the films on a projector locate the films. The defendants could at office of the FBI was not a separate, independent search because the government not ask the return the films L’Eggs employees, unlike the govern- that the until were informed Haes, searches in had already ascertained possession pack- had taken of their ment nature the films from the box covers conveyed, This information was at ages. and were able to make “a determination of earliest, year than a more after possible obscenity prior to turning the films acquired films were FBI.9 More- over to the FBI.” 551 F.2d at 772. The over, has rec- implicitly Court “sense impressions legal conclusions” of Roaden, that ognized, exclusionary employees L’Eggs have no place in is the effective deterrent to rule most un- determining agents whether the FBI con- affecting government action free- lawful ducted a new or different search. See Observing expression. dom of Haes, United States v. 551 F.2d at 773 “ power ‘use J., (Webster, dissenting). question adjunct a sys- search and seizure as an whether the films were only obscene bears suppression objectionable tem for the of probable issue cause to search and publications not new. films; seize the and that determination citing 93 S.Ct. Marcus U.S. must be made a neutral magistrate issu- Property, ing Warrant of warrant. Search agree Nor can I majority the Court reversed a conviction based on the viewing FBI’s a screen into of the admission evidence films seized merely a continuation of the private Therefore, a lawful I incident to arrest. parties’ of observation the box covers be- the would reverse convictions of the defend- cause, out, as it turned the covers accurate- ly in this ease. ants reflected their contents. The two-month 1974, Pryba, U.S.App.D.C. United States exclusion evidence at trial based aon 389, 402, 391, possessory n. 502 F.2d 97. mistaken view that interests have delineating expectations no role in reasonable Sherwin, Ap- the of 8. In Ninth Circuit Court privacy. contrary, of Supreme On the recent peals suggested objects that “when found in a emphasized Court decisions have there govern- private are over search turned to the concept privacy no abstract of and that the ment, then, only property the interests concept legitimate property interests can implicated. are A owner motion for return of concretely scope define more of the fourth objects proper asserting is a means these See, g. 1978, Illinois, amendment. e. Rakas v. 8, Because, n. interests”. 539 F.2d at 10. ac- “ - -, 421, 387, U.S. 99 S.Ct. court, L.Ed.2d cording principal Sherwin ‘the to the text, 801, quoted p. supra. object pro- Fourth Amendment is the ” privacy property,’ tection of rather than objects may ap 9. Return the have been an Hayden, 1967, 294, 304, Warden v. 387 U.S. propriate remedy in the circumstances of Sher 1642, 1648, 782, L.Ed.2d . . 87 S.Ct. . case, win. In that the owners were immediate seizure, governmental when there is a “[e]ven ly government informed that had taken may suppression proper evidence be the possession copies of two of obscene material. remedy property only rights if are affected and Moreover, applied when the FBI for a warrant governmental invasion has been no following day, to seize the remainder of the 8, privacy.” 539 F.2d at n. 10. shipment, magistrate ordered notice be preference Sherwin court’s for the reme- given to the defendants. dy objects of return of rather than their the private judicial hiatus between search and the warrant must be obtained before governmental screening negates any as- containers can be searched. sumption that one continuous search took place. Coolidge Hampshire, Cf. v. New VI. 1971, 443, 458, 464, 2022, 91 S.Ct. The Burdeau rule spawned has much crit- 29 L.Ed.2d 564. Each of the cases cited ical literature.10 Today, the Court extends deal, instead, the majority governmen- that rule into an area where the constitu- viewing tal of material immediately after tional requirements of the fourth amend- being called private to the scene of the ment are to be “accorded the most scrupu- parties. See United lous exactitude”. Texas, 1965, Stanford v. McDaniel, 1978, States v. 5 Cir. 574 F.2d 506, U.S. 13 L.Ed.2d 1224; Blanton, 1973, United States v. 5 Cir. Placing government’s acceptance 327; 479 F.2d v. Pryba, expressive materials outside the scope of 163 U.S.App.D.C. amendment, the fourth by “casting] 401; Ford, United States v. 10 Cir. government in the role of passive receiver Second, Haes, as in of any absolve[s] the FBI’s actions in viewing the films two first responsibilities or restric- months later must be characterized as “ini- tions . allows for possibili- [It] tiating carrying out their inspec- own ty government-sanctioned private censor- tion of the films for their own purposes.” ship judicial supervision.” Note, 551 F.2d at descriptions 771. If the Seizures, Private Searches and supra at 467.

box guide covers are an infallible short, In majority rule frustrates the contents of the films there would have been Supreme Court’s efforts to utilize the no need to retain the films for two months fourth amendment as a source procedur- making before them available to the United guarantees al aimed at controlling govern- States Attorney’s office. mental action that affects freedom of ex- pression. The approach of Eighth Cir- Contrary to the majority, I see no basis cuit Court of Appeals in Kelly, which sub- for distinguishing Court’s de- jects government’s taking expressive cision in United Chadwick, 1977, States v. materials discovered in a private search to scrutiny of the fourth amendment, from the instant case. note See 7 of the properly guards both the first amendment majority opinion. Chadwick, the Su- rights privacy and the interests of absent preme Court held that the FBI could not parties. third search the contents of a footlocker after it Therefore, I respectfully took dissent. custody exclusive of the item without obtaining a warrant. Before the FBI took possession

exclusive of the items in this

case, the L’Eggs employees had viewed the

film boxes opened but had not the boxes or True,

viewed their contents. there was

probable cause to believe that the boxes Chadwick,

contained obscene films. But in believe,

too, probable cause to

that the footlocker contained contraband—

and the search assumption. validated this case, therefore, Chadwick,

In this as in See, Black, g., e. Burdeau v. McDowell—A (1967); Note, The Fourth Amend- L.Rev. 608 Milepost Absolution, Right Judicial Privacy: Road to ment Mapping Future, Note, (1932); Seizures Private B.U.L.Rev. 32 (1969). Va.L.Rev. 1336-59 Cases, Parties: Exclusion Criminal 19 Stan.

Case Details

Case Name: United States v. Arthur Randall Sanders, Jr., Gulf Coast News Agency, Inc., Trans World America, Inc., A/K/A Twa, Inc., and William Walter

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 2, 1979

Citation: 592 F.2d 788

Docket Number: 77-5715

Court Abbreviation: 5th Cir.