Melvin Corngold v. United States

367 F.2d 1 Melvin CORNGOLD, Appellant, v. UNITED STATES of America, Appellee. No. 19613. United States Court of Appeals Ninth Circuit. September 29, 1966. Jess Whitehill, Fred Okrand, Los Angeles, Cal., for appellant. Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., John A. Mitchell, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges. BROWNING, Circuit Judge: 1 Melvin Corngold was convicted of receiving and concealing smuggled watches in violation of 18 U.S.C.A. § 545 , and of conspiring to commit that offense in violation of 18 U.S.C.A. § 371 . He appeals, contending that evidence introduced against him was obtained in violation of the Fourth Amendment. We reverse. 2 Customs agents saw appellant carrying packages into his apartment house. They detected the presence of radioactive material in appellant's apartment by means of a "scintillator," an instrument sensitive to radiation. They observed appellant and two other men carry packages from the apartment to appellant's…

Melvin Corngold was convicted of receiving and concealing smuggled watches in violation of 18 U.S.C.A. § 545 , and of conspiring to commit that offense in violation of 18 U.S.C.A. § 371 . He appeals, contending that evidence introduced against him was obtained in violation of the Fourth Amendment. We reverse.

Customs agents saw appellant carrying packages into his apartment house. They detected the presence of radioactive material in appellant’s apartment by means of a “scintillator,” an instrument sensitive to radiation. They observed appellant and two other men carry packages from the apartment to appellant’s car, and followed appellant as he drove to the Los Angeles International Airport. En route the scintillator indicated the presence of radioactive material in appellant’s car. At the airport the customs agents observed appellant and the two others carry the packages to the Trans World Airlines’ cargo loading platform. After arranging for shipment of the packages to New York City, appellant and his companions left. The customs agents tested the packages with the scintillator and obtained a positive reaction. One of the packages was opened and found to contain a large…

I concur only in that portion of the majority opinion which holds the appeltent’s Fourth Amendment constitutional rights were not violated by the scintillator examination of his apartment house. (Part I of majority opinion, supra.)

I

I respectfully dissent from the majority conclusion that this record discloses an unconstitutional search of two packages left for shipment to New York at the Los Angeles International Airport by the appellant on September 30, 1962.

The majority opinion rests upon the alleged violation of the Fourth Amendment prohibiting unreasonable searches and seizures. Concededly, the officers had no search warrant, and no arrest took place to which the search might have been incident. But I cannot agree with the conclusion that without a warrant or an arrest, “there were no circumstances which might have justified a search * * «• >»

As Mr. Justice Tom Clark said in his dissent in Chapman v. United States, 365 U.S. 610, 620 , 81 S.Ct. 776, 782 , 5 L.Ed. 2d 828 (1961): “For the life of me I cannot see why this * * * search without a warrant was ‘unreasonable.’ ”

In his Cardozo Lecture before The Association of the Bar of the City of New York, Chief Justice…

concurs in the dissent of Judge BARNES.

(dissenting) :

Like my Brother BARNES, I concur in Part I of the majority opinion. I also agree with Part IV of the opinion of Judge BARNES. I think that when the parcels were left with the airline under an agreement which empowered the airline to open them, appellant surrendered his right of privacy as to those parcels, and that it was perfectly proper for government agents to ask airline employees to exercise their authority in aid of the government’s law enforcement activities. I would affirm.