The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
The defendant is charged in a three-count indictment with knowingly and willfully acquiring and possessing gold coins without a license (12 U.S.C. § 95a) and concealing and facilitating the transportation and concealment of gold coins with knowledge that they had been illegally imported into the United States (18 U.S.C. § 545). Evidence was obtained through pre-delivery inspection at New York City customs headquarters of defendant's mail from abroad and a search of his apartment at the time of his arrest.
The legality of the search and inspection has been challenged by a pre-trial suppression motion pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. The government concedes that it had no warrants and that the mail was opened in violation of postal regulations. For the reasons noted below, evidence obtained as a result of the search of the apartment is suppressed, but evidence resulting from opening defendant's mail may be introduced at the trial.
Customs Agent George F. Neilson, without obtaining a search warrant, opened a sealed package containing twelve gold coins which had been mailed to the defendant from Switzerland. The package had been referred to Neilson for examination by the Mail Entry Section of the Customs Department, a procedure which was followed whenever there was a suspicion that a package might contain dutiable or prohibited matter. In this instance, the weight and feel of the package were unusual and it did not bear a required label stating that it could be opened for customs inspection. 19 C.F.R. § 9.5(a); 39 C.F.R. §§ 221.4, 261.3(a). After a spectroscopic examination revealed that it contained twelve disc-shaped objects, each about the size of an American silver dollar, the package was opened.
This search of the defendant's mail - and the subsequent search described below - was contrary to postal regulations. They provide that "[if] there is reason to believe that prohibited matter is contained in a sealed letter" a notice is to be sent "to the addressee requesting authorization to open the letter and examine its contents"; if authorization is not given the letter is to be returned "unopened, to its origin." 39 C.F.R. § 262.1. See also 39 C.F.R. §§ 261.1, 261.3(a). Whether customs regulations were also violated is not clear. See 19 C.F.R. §§ 9.5(b), 9.12(d).
When the opened package was found to contain gold coins, Neilson checked the "Fine Book," a customs record listing all notices requesting permission to open sent to addressees of foreign mail. He discovered that the defendant had recently been sent several packages from abroad addressed to three different New York City post office boxes. In each instance, the defendant had failed to give his consent to the opening of the package and it was returned to the sender.
On the basis of this information and after consultation with an Assistant United States Attorney, Neilson placed an alert on all foreign mail sent to the defendant and examined it prior to delivery. A watch was put on defendant's post office boxes and Neilson and other agents observed the defendant picking up his foreign mail on several occasions. Defendant was followed. Although he visted several coin dealers, he was never observed leaving anything behind.
Four weeks after opening the first package Neilson opened - again without a search warrant - another sealed package mailed to defendant from abroad. It contained fifteen gold coins. It was resealed and forwarded to the defendant's post office box where Neilson and two other agents waited. Fully observed, defendant, after picking up the package, met his wife about a block from the post office and drove off.
By the time Neilson and his fellow agents reached their own car, defendant was out of sight. The agents drove directly to defendant's home, and, as they pulled up they saw defendant and his wife entering their apartment house.
The agents immediately went to the defendant's apartment and, when the defendant came to the door, placed him under arrest and advised him of his constitutional rights. Neilson then told the defendant that they would search the entire apartment unless he revealed where his coins were kept. The defendant showed the agents a small room which, he said, he used as an office. He handed Neilson the package he had just picked up at the post office. The room was searched. Seized were a large quantity of gold coins and a looseleaf book containing records of gold coin transactions with foreign firms and receipts for sales of gold coins to domestic dealers. After completing their search, the agents left the defendant but took his gold and records.
SEARCH OF DEFENDANT'S MAIL
The determination of whether an administrative search is "reasonable" within the meaning of the Fourth Amendment involves the striking of a balance between the government's need to know and to inspect in our complex, highly regulated society and the individual's right to the privacy of his person, thoughts and possessions. In the present case, we are faced with a conflict between the government's efforts to protect the nation without hindering the smooth flow of international mail and the individual's interest in the privacy of his mail. Based ...