United States v. Richard Norton Sherwin, Dba Marquis Publishing Corporation

The Government appeals a pretrial order suppressing 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.

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, addressed 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…

dissenting, with whom

I would affirm because I subscribe to the views well expressed in United States v. Kelly (8th Cir. 1976) 529 F.2d 1365 .

(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.

539 F.2d 1 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. John L. Murphy, Atty. (argued), and John E. Harris (argued), both of Crim. Div., Justice Dept., Washington, D. C., for plaintiff-appellant. Gilbert Deitch (argued), Los Angeles, Cal., 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: 1 The Government appeals a pretrial order suppressing 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 2 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, addressed to "Talk of the Town Adult Book Store" in Las Vegas. The…