UNITED STATES of America, Plaintiff-Appellant, v. Richard Norton SHERWIN, dba Marquis Publishing Corporation, et al., Defendants-Appellees.
No. 73-3124.
United States Court of Appeals, Ninth Circuit.
July 2, 1976.
Gilbert H. Deitch (argued), Atlanta, Ga., James J. Brown (argued), Las Vegas, Nev., for defendants-appellees.
OPINION
Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.
ANTHONY M. KENNEDY, Circuit Judge:
The Government appeals a pretrial order supprеssing from evidence certain allegedly obscene books and ordering their return to the defendants. We hold the district court incorrectly analyzed the first and fourth amendment questions presented to it, and reverse the order to suppress.1
On April 10, 1972, the Milne Truck Lines terminal in Las Vegas received a shipment of seventeen cartons bearing shipping labels from “Marquis Publishing Company” in Van Nuys, California, аddressed to “Talk of the Town Adult Book Store” in Las Vegas. The terminal manager noticed that one carton was damaged and that another had apparently been broken into and pilfered. Pursuant to company regulations, he inventoried the contents of these two cartons and found that one contained copies of a book titled Miscegenation, and the other, copies of a book titled Wife Swapping. The manager then called the Federal Bureau of Investigation, and two of its agents came to the terminal. When the agents arrived, they saw books from the two cartons on the manager‘s desk. The manager gave Agent Murray one copy of each of the two titles to take to the United States Attorney.
On April 11, 1972, the United States Attorney‘s office petitioned a federal magistrate for an order to show cause why a search warrant should not be executed for the entire shipment of seventeen cartons. Attached to the petition were the two books obtained from the trucking terminal and an affidavit prepared by Agent Murray. The magistrate ordered the seventeen cartons brought before him and notice given to the defendants. Copies of the petition and order were served on an employee of the Talk of the Town Book Store at 4:05 that afternoon and reached Marquis Publishing Company in Van Nuys six days later. The seventeen cartons were delivered to the magistrate by Milne Truck Lines at 4:30 p. m. The magistrate ordered the search warrant executed in his presence and the seventeen cartons were opened. That examination yielded the four books which formed the basis for the defendants’ subsequent indictment on charges of using a common carrier for the interstate transpor
On September 6, 1973, the district court held a pretrial hearing.2 The court considered a written stipulation of facts submitted by the parties and the record of proceedings befоre the magistrate. In addition, it heard testimony from Agent Murray and defendant Sherwin. The court thereupon granted the defendants’ motions for return of seized property and suppression of evidence.
The district court held that the magistrate‘s order for seizure of the seventeen cartons was invalid for two reasons.3 First, the two books on which the magistrate based his order were obtained by the FBI from the trucking terminal in violation of the fourth amendment. Second, the magistrate issued his order without first satisfying the first amendment requirement of an adversary hearing, with adequate notice to the parties in interest, on the question of obscenity. On this appeal, we con
I. INITIAL TAKING OF THE TWO BOOKS AS A VIOLATION OF THE FOURTH AMENDMENT
We hold that the FBI agent did not violate the fourth amendment by failing to obtain a warrant before receiving the books in question from the trucking terminal manager.
A. The Search by the Terminal Manager
At the outset we observe that the fourth amendment protects against unreasonable intrusions by the government, but not against the conduct of private individuals. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), cited in Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion); United States v. Ogden, 485 F.2d 536, 538-39 (9th Cir. 1973), cert. denied, 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974). Thus, evidence discovered in a private search is not subject to exclusion for failure to obtain a search war
In defining a private search, the Supreme Court has stated that the fourth amendment applies only if the private party, “in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the state.” Coolidge v. New Hampshire, supra, 403 U.S. at 487, 91 S.Ct. at 2049. Application of this definition will frequently require a careful factual analysis. However, there is little difficulty in holding the fourth аmendment inapplicable to the instant case because prior or contemporaneous governmental involvement in the search was totally absent.
A private person cannot act unilaterally as an agent or instrument of the state; there must be some degree of governmental knowledge and acquiescence. In the absence of such official involvement, a search is not governmental. United States v. Goldstein, 532 F.2d 1305, 1311 (9th Cir. 1976); United States v. Harless, 464 F.2d 953, 956-57 (9th Cir. 1972); Eisentrager v. Hocker, 450 F.2d 490, 492 (9th Cir. 1971); Duran v. United States, 413 F.2d 596, 608 (9th Cir.), cert. denied, 396 U.S. 917, 90 S.Ct. 239, 24 L.Ed.2d 195 (1969). See also United States v. Clegg, 509 F.2d 605, 609 (5th Cir. 1975); United States v. Issod, 508 F.2d 990, 994 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975); United States v. Burton, 475 F.2d 469, 471 (8th Cir.), cert. denied, 414 U.S. 835, 94 S.Ct. 178, 38 L.Ed.2d 70 (1973).5 And once a private search is completed, the subsequent involvement of government agents does not retroactively transform the original intrusion into a governmental search. United States v. Harless, supra, 464 F.2d at 957; Eisentrager v. Hocker, supra, 450 F.2d at 492; Wolf Low v. United States, 391 F.2d 61 (9th Cir. 1968).
In light of the above, we reach the unmistakable conclusion that the truck terminal manager in this case was not acting as an instrument of the government. There was no оfficial involvement until after the terminal manager had completed his search and called the FBI.6 When the
B. Was There a Seizure?
The defendants argue that, in any event, a seizure tо which the fourth amendment is applicable occurred at a later point, when the FBI agents obtained the two books from the terminal manager. This argument is supported by a recent decision of the Eighth Circuit in a case similar to the one before us. United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976). There the court held that a search by a private carrier did not implicate the fourth amendment, but that the government‘s subsequent aсquisition of books discovered in the search constituted a “seizure” in violation of that amendment. Id. at 1371-72. However, we decline to follow Kelly because we do not regard the government‘s acceptance of materials obtained in a private search to be a seizure. In this regard we are guided by Coolidge v. New Hampshire, in which the Supreme Court held that the fourth amendment was not implicated when articles discovered in a private seаrch were voluntarily turned over to the government. 403 U.S. at 488-89, 91 S.Ct. 2022.7
The defendants contend that the terminal manager in this case was without authority to consent to a governmental taking of the two books. For the purpose of determining if a seizure has taken place, however, only the fact of consent is relevant, not whether it was properly authorized. The appellee‘s argument is mistakеn because it confuses the question of third party consent as a justification for a governmental search with the problem of when the government‘s acquisition of property constitutes a seizure.
In the former case, the search concededly falls within the scope of the fourth amendment because it is conducted by government agents. For such a search to be reasonable, it must ordinarily be made pursuant to a warrant; an exception is made where one with proper authority consents to the search. See United States v. Matlock, 415 U.S. 164, 171 & n.7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) and cases cited therein. Such consent makes the search reasonable, but it is still a search within the meaning of the fourth amendment.
In the latter situation, the question is whether the governmental activity falls within the scope of the fourth amеndment at all. A consensual transfer is by definition not a seizure. See Caldwell v. United States, 338 F.2d 385, 388 (8th Cir. 1964), cert. denied, 380 U.S. 984, 85 S.Ct. 1354, 14 L.Ed.2d 277 (1965). The private person‘s legal authority to approve a transfer of objects found in a private search has no bearing on whether his relinquishment of those objects to the government is coerced or voluntary. In Coolidge, for example, there was no indication the wife had any authority over the objects turned over, nоr were the police required to determine
Thus we conclude that there is no seizure within the meaning of the fourth amendment when objects discovered in a private search are voluntarily relinquished to the government.10 We are, moreover, satisfied that such a vоluntary relinquishment occurred in this case when the terminal manager gave the two books to the FBI agent. There was no evidence that the terminal manager‘s actions were in any way coerced. We recognize that in this sort of situation there are always forces encouraging a private party to cooperate with law enforcement agents, but such forces alone do not make the individual‘s actions involuntary. Coolidge v. New Hampshire, supra, 403 U.S. at 487-88, 91 S.Ct. 2022. Moreover, there are additional indications of voluntary action in this case, particularly the fact that the terminal manager first called the FBI on his own initiative. Thus we conclude that in this case there was no seizure so as to make the fourth amendment applicable.
II. SEIZURE OF THE SEVENTEEN CARTONS WITHOUT AN ADVERSARY HEARING ON THE QUESTION OF OBSCENITY
The district court also held that the magistrate‘s order to seizе the seventeen cartons of books was invalid on the ground that the first amendment requires an adversary hearing, with proper notice to the parties, prior to the seizure of allegedly obscene materials. Certainly the notice given the parties in the instant case was totally inadequate for the purpose of satisfying such a standard. However, we do not agree that an adversary hearing prior to the seizure in this case was required by the first amendment.11
The Supreme Court has made clear that there is no absolute right to an adversary hearing prior to the seizure of allegedly obscene material. Heller v. New York, 413 U.S. 483, 488, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 504 n.5, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In the instant case a neutral magistrate personally examined the books and independently determined probable cause for obscenity. This is all that is rеquired under the first amendment for a valid warrant, as long as a prompt adver
The proper means for requesting an adversary hearing on the question of obscenity is by moving for the return of seized property, as made by the defendants in the instant case. The delays in consideration of these motions were made without objection by the defendants. See note 2 supra. Thus we hold they have not been denied the prompt adversary hearing required under the first amendment.
However, Heller held that a court should grant the request of a party for return of copies not needed for evidentiary purposes, pending an adversary hearing on the question of obscenity. 413 U.S. at 492-93, 93 S.Ct. 2789. Therefore, we affirm the district court‘s order for the return of seized property to the extent it has been carried out. The remaining copies of the books may be retained by the government for evidentiary purposes, and the order for suppression of the books as evidence is reversed. The case is remanded for further proceedings consistent with this opinion.
CHAMBERS, Circuit Judge (concurring):
I concur in the judgment of the majority. I would find that the search in this case was private because the police were not significantly involved either prior to or during the search. United States v. Harless, 464 F.2d 953 (9th Cir. 1972); Eisentrager v. Hocker, 450 F.2d 490 (9th Cir. 1971). Absent police involvement prior to or during a search conducted by a private person, subsequent police acceptance of evidence found does not eliminate the private character of the search.
Similarly, I find no action by the government that would constitute a seizure. Under the facts in this case, the police action in accepting the privately discovered evidence from the person who found it does not appear to be a seizure within the meaning of the fourth amendment. Cf. United States v. Wilson, 492 F.2d 1160 (5th Cir. 1974). Therefore, because there was no police action amounting to either a search or a seizure, the fourth amendment does not require the exclusion of the books.
KOELSCH and BROWNING, Circuit Judges, join CHAMBERS, Circuit Judge‘s opinion and part II of KENNEDY, Circuit Judge‘s opinion.
HUFSTEDLER, Circuit Judge, dissenting, with whom Judge ELY, concurs.
I would affirm because I subscribe to the views well expressed in United States v. Kelly (8th Cir. 1976) 529 F.2d 1365.