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UNITED STATES v. AVERELL

February 11, 1969

UNITED STATES of America
v.
Alfred Borton AVERELL, Jr., and Bernard Aguinaldo, also known as Bernardino Cariago Aguinaldo, Defendants



The opinion of the court was delivered by: JUDD

OPINION AND FINDINGS ON MOTIONS TO SUPPRESS AND TO DISMISS INDICTMENT

 JUDD, District Judge.

 Lengthy hearings have been held on motions by both defendants to suppress certain evidence and for other relief in advance of trial. Alfred Averell and Bernard Aguinaldo were indicted for interstate transportation of stolen wigs (18 U.S.C. §§ 2314 and 2) and for conspiring to commit the substantive offense (18 U.S.C. § 371).

 The indictment charges that the wigs in question were part of a shipment from New Century, Ltd., Hong Kong, to Sylvester & Sons, Inc. in Cherry Hill, New Jersey, which was hijacked in Weehawken, New Jersey, while in transit from Kennedy Airport in New York to the Cherry Hill address; and that, after being returned from New Jersey to New York, the wigs were shipped by the defendants via Trans Caribbean Airlines to San Juan, Puerto Rico, with knowledge that they were stolen.

 The issues originally raised by the motions to suppress may be grouped under four main headings:

 
(1) The Kennedy Airport inspections.
 
(2) The T.C.A. search warrant.
 
(3) The San Jorge search warrant.
 
(4) The Aguinaldo handcuffing and questioning.

 In addition, motions to dismiss the indictment were made orally, on the basis of facts disclosed during the hearings concerning the government's release of most of the allegedly stolen wigs to Sylvester & Sons without notice to the defendants. The facts relating to this oral motion were not developed as fully as the facts concerning the motions to suppress. For the reasons set forth later in this opinion, the court does not deem it necessary to receive any further evidence concerning the release of the wigs.

 Part of the attack on the two search warrants is that they are the fruit of an allegedly illegal inspection of wigs at the Kennedy Airport. The facts will be stated as found by this court, with discussion of the supporting evidence only when there is substantial conflict, and with a reference to the applicable law where appropriate.

 Preliminary -- The Hijacking

 The scenario begins in November, 1965, when New Century, Ltd. of Hong Kong was making large shipments of wigs to its American sales representative, Sylvester & Sons, Inc., in anticipation of an embargo on the shipment of Oriental wigs. Philip Chen, a graduate student at Polytechnic Institute in Brooklyn, was an officer and stockholder of Sylvester & Sons, Inc., a family corporation. His father, who controlled the Hong Kong firm and was also a stockholder in the New Jersey corporation, had sent notice that four shipments of wigs and wiglets had been forwarded from Hong Kong by air freight on about November 4, 1965.

 The shipments, totaling 38 cartons, had been cleared through United States Customs by Penson & Co., customs brokers. On the basis of information from Penson & Co., Philip Chen obtained a certified check from his sister for $10,468 to pay the customs charges and brokerage commissions. Chen asked Averell, who was a principal of one of his New York City customers, Hollywood Secret Wigs, to rent a truck and meet him on November 18, 1965. They went together to Penson & Co., where they obtained delivery orders for the wigs in exchange for the check. (The check apparently covered another shipment beside those here in question, but that fact is not material.) The shipments covered by the delivery orders included 3,000 wigs and 1,800 wiglets, with a wholesale value of about $67,000, and a retail value in excess of $100,000.

 After picking up 36 cartons (two had been lost in the airport) at several airlines, Chen and Averell set off for Cherry Hill, New Jersey. At Averell's suggestion, Chen stopped at a bar in Weehawken, where Averell made several 'phone calls. When they came out of the bar, after dark, and got into the truck, they were ordered out by two armed men, who blindfolded Chen and forced him into the back of an accompanying automobile, which they compelled Averell to drive. Averell and Chen were released, shoeless, later in the evening near Teterboro Airport, from where they reported the theft to the Weehawken police.

 Later in 1965, Averell arranged a meeting in San Juan, Puerto Rico, with Lorenzo Cruz Rodriguez, a sewing supply salesman who represented American manufacturers in Puerto Rico. They discussed the possibilities of establishing a wig business in Puerto Rico, which Cruz investigated and reported could be lucrative. Cruz rented an apartment for Averell at 363 Calle San Jorge, Santurce, P.R., during January, 1966, and thereafter accompanied Averell to the San Juan Airport to pick up shipments of wigs. Averell, Cruz, and Averell's father-in-law, R. L. Lewis, set up a partnership called Don Rod Wigs, which operated out of the San Jorge apartment.

 (1) The Kennedy Airport Inspections

 On the evening of Wednesday, February 16, 1966, Francis Romero, the night supervisor at the Trans Caribbean Airlines cargo agency (hereinafter referred to as T.C.A.) at John F. Kennedy Airport, reported to the cargo manager, Ernest Urrutia, by telephone to his home, that he had just received a shipment of four trunks under circumstances that seemed strange. The circumstances which were reported to Urrutia were that the persons who brought the shipment had sat in the parking lot until after Urrutia and the director of cargo sales and service, James McQuade, had left for the day; and that they had refused to give a New York address for the shipment, whereas cargo handlers had been instructed to obtain a local address from all shippers. Urrutia asked that the shipment be set aside until the morning.

 On the morning of Thursday, February 17, Urrutia and McQuade looked at the four trunks, which were consigned from "Rodriguez Sewing Supply, J.F.K. Airport, Jamaica, N.Y." to "Rodriguez Sewing Supply, P.O. Box 10353, Caparra Heights, San Juan." The airway bill described the contents as sewing machine parts. Reddish hair was visible below the cover at the side of one trunk;* McQuade observed also that the heft did not seem to be that of sewing machine parts, and thought that it was uncommon to ship machine parts in new steamer trunks.

 Opening the First Trunk

 The Port of New York Authority Police and the Federal Bureau of Investigation (which maintains an office at Kennedy Airport) were then summoned by 'phone. T.C.A. maintained close relations with both agencies, because of the security requirements of the Airport, where pilferage and smuggling of contraband were extensive. High value air shipments, including wigs, were a major subject of theft. T.C.A.'s own losses by pilferage approximated $100,000 a year.

 Both the F.B.I. and the P.N.Y.A. Police disclaimed authority to open the trunks, although one of the law enforcement officers mentioned that they might contain "a stiff ". Urrutia called the T.C.A. attorney, and obtained his assurance that the T.C.A. tariffs gave the airline the right to open the trunks.

 The tariff provision reads in full:

 
"Shipments shall be subject to inspection by the carrier."

 A T.C.A. employee thereupon broke open the padlock on one trunk with a hammer blow, and pried open the center lock. When the trunk was opened, it was seen to be full of wigs, crammed in so tightly that they overflowed the trunk when the pressure of the lid was released. On seeing the wigs pour out, McQuade exclaimed that they must be stolen.

 While the physical opening of the trunk was done by a T.C.A. employee, it is clear that law enforcement officers were present. McQuade stated that, for the airline's protection, he wanted to have a law enforcement officer present at the opening. He stated that the freight rate for wigs was higher than for sewing machine parts, but that the rate difference, two cents a pound, or about $6.00 for the entire shipment, was not the determining factor, and that the suspicious circumstances might have led him to open the trunk even if the rates for both commodities were the same.

 McQuade asked his staff to check prior shipments, and found manifests for three other shipments of "sewing machine parts" from Rodriguez Sewing Supply Co., with no New York City address, to Rodriguez Sewing Supply Co. at the same San Juan post office box.

 McQuade let F.B.I. Agent Datz take five wigs for more detailed inspection. Datz reported that customs officials recognized them as wigs of Oriental origin, and that there had been a major theft of wigs a few months before. It was observed at the time that many of the wigs were without linings, labels, or tags.

 McQuade gave orders to have the trunks set aside in safekeeping overnight, and asked the F.B.I. to bring a locksmith the next day, who could open the other trunks without damage to the locks.

 Opening the Remaining Trunks

 On Friday morning, February 18, F.B.I. agents returned to the T.C.A. cargo office at Kennedy, with a detective from the New York City police. In the presence of the T.C.A. supervisors, one of the F.B.I. agents opened the locks on the three trunks that had not been opened the day before. All the trunks were packed full of wigs. The New York City detective quickly determined that these were not the wigs he was seeking, and departed.

 T.C.A. and the F.B.I. counted the wigs and wiglets in the four trunks, and reached a total of 452. Chen testified that the wigs were worth from $10.00 for wiglets to $300 for handmade wigs. Even at the customs estimate of from $9.00 to $36.00 apiece, the F.B.I. and T.C.A. reasonably assumed that the shipment was very valuable.

 In a step which gives rise to part of Averell's attack on the Kennedy Airport inspections, McQuade let an F.B.I. agent take 10 wigs from each trunk to the F.B.I. office at the airport, where Chen inspected them. Chen identified them as manufactured by his father's company, by the material and the workmanship, and by the square-type plain bags and rectangular tags on some of the wigs. Chen said that the description of the men who delivered the wigs to the airport fitted Averell and Aguinaldo, and that he had not sold any wigs in square bags to Averell. The hijacked shipment, according to information previously sent by his father, was the first one to contain rectangular tags or to use bags which did not bear the firm symbol, the "Liberty Statue." The F.B.I. agent did not consider this to be "positive" identification, and asked Chen to obtain further information. Both recorded the factory numbers and workmen's numbers from eight wigs. Meanwhile, F.B.I. Agent Datz asked McQuade to accompany the shipment to Puerto Rico.

 The investigation of the wigs had delayed the departure of the shipment, although its despatch on Friday evening was within the usual time for air cargo.

 The extent of T.C.A.'s right to inspect is crucial both for the validity of the Kennedy Airport inspections and for the validity of the Puerto Rican search warrants, because the decisive identification of the wigs as part of the hijacked shipment did not come from the single trunk that was opened on February 17th.

 The Legality of the Inspections

 Defendants attack the Kennedy Airport inspections as being a federal search without a warrant, citing Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), which described a search by another air carrier as being "solely in aid of the enforcement of a federal statute."

 Defendants' reliance on the Corngold case seems to be misplaced. That case was subsequently limited in Gold v. United States, 378 F.2d 588 (9th Cir. 1967). In any event, Corngold does not appear to be the law in this Circuit. United States v. Blum, 329 F.2d 49 (2d Cir. 1964), cert. denied, 377 U.S. 993, 84 S. Ct. 1920, 12 L. Ed. 2d 1045 (1964).

 In Corngold, the customs agents followed the shipper to the airport, and requested the carrier to open the packages after the shipper had left. In this case, T.C.A.'s agents first suspected that the shipment was not as described on the airway bill. Rather than the government agents prompting the inspection or even first suggesting it, T.C.A. called in all law enforcement agencies which might be concerned. I find, as the court found in Gold, that the search was not so connected with government participation or influence as to be characterized, as was the search in Corngold, as a "federal search, cast in the form of a carrier inspection." Of course, the F.B.I. agents were interested to discover if a federal crime had been committed, but their presence was initially in the carrier's interest. The airline had the right, and perhaps the duty, to discover if its facilities were being used for the commission of crime. "It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement." Miranda v. Arizona, 384 U.S. 436, 477-478, 86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694 (1966). See United States v. Cowan, 396 F.2d 83, 87 (2d Cir. 1968).

 After the first trunk was opened, F.B.I. involvement in the inspection became more intensified. Nevertheless, I find that the airline employees requested the F.B.I. to determine if the wigs had been stolen. It was at McQuade's request that an F.B.I. locksmith opened the remaining trunks. Clearly, it was in the carrier's interest that the trunks not be damaged. It was also of concern to the carrier to ascertain whether it might incur liability for transporting stolen goods without the acquiescence of law enforcement personnel. The carrier's interest and concern did not end after the opening of the first trunk.

 Defendants contend that the removal of the wigs by the F.B.I. goes beyond the right of inspection and confirms that the inspections were primarily for police purposes. I believe that the right to inspect includes the right to examine in such a way as to assure that its facilities were not being used for commission of a crime. In Blum, the customs agents removed, inspected, and counted unlawfully imported watch movements. In Gold, pornographic films were viewed by police officers on a projector. The fact that in the present case Chen examined the wigs in a different part of the airport is not a material difference from those cases.

 The inspection clause in the T.C.A. tariff does not limit the purposes of inspection or the extent of inspection, as did the inspection clause in Corngold, 367 F.2d at 4, n. 3. In addition, the tariff rule which immediately follows the inspection clause is a requirement that the shipper comply with "all applicable laws, customs and other government regulations." When an authorized inspection discloses evidence of possible violation of the law against transporting stolen goods, the inspection need not terminate before the facts concerning the applicable laws are developed.

 Defendants point to T.C.A.'s failure to bill the shipper for the difference in tariff rates, asserting that this impeaches the fiscal basis for the inspection. They overlook the fact that the charges were "collect," and that the wigs were seized before delivery was completed. In fact, the T.C.A. accounting department was later instructed to write off the charges completely because the "shipment was taken for evidence by F.B.I. agents."

 Defendants also assert that there was no difference in rates, because the same tariff schedule covers both machine parts and "hair." Wigs, however, are quite different from raw hair and of much greater value. McQuade's testimony that the tariff rate for wigs is greater than that for machine parts should therefore be accepted as correct.

 It is true that "the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of 'apparent authority.'" Stoner v. California, 376 U.S. 483, 488, 84 S. Ct. 889, 892, 11 L. Ed. 2d 856 (1964). But the agency here is not strained or unrealistic, being based on an express authorization to the carrier, confirmed by the carrier's attorney. The Fourth Amendment protects the right of privacy, rather than any interest in the property seized. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 303-306, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). It is not unreasonable to require one who ships property by public carrier to waive his right to privacy to the extent of permitting inspection for carrier purposes. Carrier interest should not be limited to safety or tariff violations.

 The consent to inspect contained in the tariff is therefore considerably broader than the consent given a hotel clerk or landlord to enter a dwelling. Thus, analogy to cases which disapproved of mere "apparent" consent to search a dwelling seems inappropriate. See Stoner v. California, supra; Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961); Cunningham v. Heinze, 352 F.2d 1 (9th Cir. 1965). Cf. United States v. Cowan, 396 F.2d 83 (2d Cir. 1968).

 Finally, the defendants may not successfully distinguish the Blum case on the basis of the special search powers of customs agents (19 U.S.C. § 482). Not only was Blum decided on the basis of the carrier's right of inspection, but the special authority of customs agents is available only in "border searches." United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968). In Blum, the shipment of ...


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