Wolf Low v. United States

391 F.2d 61 WOLF LOW, Appellant, v. UNITED STATES of America, Appellee. No. 21499. United States Court of Appeals Ninth Circuit. March 6, 1968, Rehearing Denied April 22, 1968. Robert Cohen, Las Vegas, Nev., Brody, Grayson & Green, Bernard Lauer, Los Angeles, Cal., for appellant. Robert S. Linnell (argued), Asst. U.S. Atty., Joseph L. Ward, U.S. Atty., Las Vegas, Nev., for appellee. Before MADDEN, Judge of the United States Court of Claims, and JERTBERG and DUNIWAY, Circuit Judges. MADDEN, Judge: 1 The appellant, hereinafter called the defendant, was convicted in the United States District Court for the District of Nevada of violation of 545 of Title 18, United States Code. The section makes criminal the receiving, concealment and facilitation of the transportation and concealment of merchandise-- in this case watch movements-- unlawfully imported into the United States. The trial was by court sitting without a jury. 2 In anticipation of the trial, the defendant made a motion to suppress the watch movements, which the prosecution had in its possession and intended to introduce in evidence at the trial. The court set the motion for hearing, and at the hearing witnesses were…

The appellant, hereinafter called the defendant, was convicted in the United States District Court for the District of Nevada of violation of § 545 of Title 18, United States Code. The section makes criminal the receiving, concealment and facilitation of the transportation and concealment of merchandise — in this case watch movements — unlawfully imported into the United States. The trial was by court sitting without a jury.

*62 In anticipation of the trial, the defendant made a motion to suppress the watch movements, which the prosecution had in its possession and intended to introduce in evidence at the trial. The court set the motion for hearing, and at the hearing witnesses were heard and other evidence was received. The following is a summary of the evidence received at that hearing.

On March 28, 1965, a Mr. Hansen was employed as an operations agent for Bonanza Airlines at the Los Angeles International Airport. The defendant, Wolf Low, purchased from Hansen at the ticket counter, a one way ticket to Las Vegas, Nevada, paying cash for the ticket. The defendant had two suitcases, and they exceeded the 45 pound limit for free transportation of baggage. The defendant paid for…

(dissenting):

The holding of the majority opinion is that the arrest of the defendant at Las Vegas was lawful because the defendant was committing a crime in the presence of the arresting officer, and that the seizure of the contraband from the person of the defendant was lawful because incident to a lawful arrest.

The majority reaches such conclusion by stating that the search made by the arresting officer at Los Angeles, the night before the arrest of defendant at Las Vegas, was no search at all “in the constitutional sense.” I cannot agree. When Falbaum, the Customs Agent and *64 the arresting officer, arrived at the Los Angeles airport for his inspection, the suitcases were closed. The majority-opinion states:

My reading of the record convinces me that Falbaum opened the suitcases. If, as suggested in the majority opinion, some airport employee may have opened or assisted Falbaum in opening the suitcases, this was done after the arrival at the airport of Falbaum, and in his presence as a Customs Agent of the United States, and at his tacit direction. In my view, Falbaum must be charged with the opening of the lids to the suitcases.

After the suitcases were opened, Falbaum…