Appeal from a judgment of the United States District Court for the Eastern District of New York convicting appellant after a jury trial before Judge Sifton of importing, possessing and conspiring to distribute substantial quantities of heroin and hashish. Affirmed.
Before: VAN GRAAFEILAND, KEARSE and MINER, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
Braj Nandan Singh appeals from a judgment of the United States District Court for the Eastern District of New York convicting him after a jury trial before Judges Sifton of importing, possessing and conspiring to distribute substantial quantities of heroin and hashish. Appellant contends that the district court committed reversible error in denying his motion to suppress evidence concerning seized narcotics and also made several erroneous procedural and evidentiary rulings. Finding no merit in these contentions, we affirm.
This litigation centers on a twenty-foot shipping container consigned to appellant's company, Little India of Queens, which arrived aboard ship at Port Newark, New Jersey in May 1985. The Customs Inspector who checked the contents of the container found that they consisted of burlap bags and crates wrapped in burlap. Although the shipping documents indicated that the container held 258 packages of foodstuffs, inspection of a bag selected at random disclosed that it was filled with hashish.
Because the customs officials were not then in a position to arrest anyone as the possessor or owner of the illegal shipment, see United States v. Issod, 508 F.2d 990, 993 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S. Ct. 1578, 43 L. Ed. 2d 783 (1975), they decided to attempt a "controlled delivery" of the shipment to the named consignee or whoever purported to act as such. The purpose and mechanics of a controlled delivery are described in Illinois v. Andreas, 463 U.S. 765, 77 L. Ed. 2d 1003, 103 S. Ct. 3319 (1983) as follows:
The lawful discovery by common carriers or customs officers of contraband in transit presents law enforcement authorities with an opportunity to identify and prosecute the person or persons responsible for the movement of the contraband. To accomplish this, the police, rather than simply seizing the contraband and destroying it, make a so-called controlled delivery of the container to its consignee, allowing the container to continue its journey to the destination contemplated by the parties. The person dealing in the contraband can then be identified upon taking possession of and asserting dominion over the container.
Id. at 769 (footnotes omitted).
In keeping with the concept of what is in effect a quasi or restricted delivery, the customs officials turned over the container to the trucking company hired by appellant, and then, with the assistance of Drug Enforcement Administration (DEA) agents, kept the container under close surveillance until it arrived in front of a small storeroom maintained by appellant in a building in Queens, New York. Appellant and four workmen under his supervision then began to unload the packages from the container, placing some of them in a van owned by appellant and some in the storeroom. Although the street-level storeroom occupied only about 600 square feet, the entrance into it from the street was sufficiently wide that ten people could stand shoulder to shoulder inside it. The doors of the entranceway remained wide open during the unloading process. The unloaded packages were placed just inside the doors and remained visible to the customs and DEA agents at all times. After approximately 85 percent of the cargo had been unloaded, the agents moved in and arrested appellant.
Appellant's arrest halted the unloading. As of that time, thirty-nine packages of hashish and one package of heroin remained in the container, and one package of hashish was inside appellant's van. In checking several of the packages, the agents discovered that the ones which contained the narcotics had metal bands around them. The agents proceeded to examine the banded crates that were "right at the doorway", "right in the door", "intermingled right at the doorway", "right in the doorway" of the storeroom, and found seventy-five of them to contain hashish. All of the contraband packages were replaced in the container so that they could be removed the following day. In all, about 125 of the 258 consigned packages were searched, and 115 of these contained narcotics. Appellant now contends that the district court committed prejudicial error in admitting testimony concerning the seventy-five packages of contraband that were searched after they had reached the sanctuary of the warehouse doorway and that he therefore was entitled to a new trial. We disagree.
In United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973), a leading Second Circuit case dealing with controlled deliveries, law enforcement officers were called to an air terminal in Los Angeles because a freight agent there had discovered that a suitcase en route to New York contained marijuana. After verifying the presence of the drugs, the officers closed the suitcase and sent it on its way to New York. Officers in New York, who carefully surveilled the unloading and storage of the satchel, also watched as one of the defendants claimed it and placed it in his car. Relying on Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971), the defendants argued that the subsequent, warrantless seizure of the drugs from the car was unlawful. Rejecting this contention, we pointed out that the drugs were lawfully seized in California, and continued:
Even though the suitcase was then in transit, later in the luggage bin, and later still in the freight room, it remained legally "seized" just as much as if it were under the actual physical control of the police. In fact, except for the time that it was actually in the airplane's belly, it was under the close surveillance of the police. Thus, when the agents and police in New York removed the bag from the back seat of the car appellants were in, they were not making an initial seizure, but rather were merely reasserting control of the suitcase which had already been seized for legal purposes and which was merely being used as bait. Accordingly, no warrant was required.
Id. at 451 (footnotes omitted).
DeBerry teaches that in a typical "controlled delivery" case, the validity of the seizure is determined as of the time the drugs are first seized, not as of time they are retaken. Having taken proper dominion over the drugs and kept them under close surveillance, the government is deemed to be in constructive possession of them, even though, for purpose of identification, they are delivered to another. Other Circuits are in accord. See, e.g., United States v. Bulgier, 618 F.2d 472, 478 (7th Cir.), cert. denied, 449 U.S. 843, 101 S. Ct. 125, 66 L. Ed. 2d 51 (1980); United States v. Andrews, 618 F.2d 646, 654 (10th Cir.), cert. denied, 449 U.S. 824, 66 L. Ed. 2d 26, 101 S. Ct. 84 , (1980); United States v. Ford, 525 F.2d 1308, 1312-13 (10th Cir. 1975); United States v. Issod, supra, 508 F.2d at 993; see also United States v. Emery, 541 F.2d 887, 890 (1st Cir. 1976). This means, says the Supreme Court, that "no protected privacy interest remains in contraband in a container once government officers lawfully have opened that container and identified its contents as illegal." Illinois v. Andreas, supra, 463 U.S. at 771.
Of course, in order for a controlled delivery to accomplish its intended purpose, there must be an actual delivery to a defendant and sufficient exercise of dominion by him to demonstrate his participation in the unlawful importation of the narcotics in question. It would be strange indeed it the very acts upon which the government relied to establish the defendant's dominion over the contraband in the instant case would deprive the government of its constructive possession of the contraband. This does not mean that the government should have the general right to make a warrantless search of a private warehouse or dwelling for the purpose of terminating a controlled delivery. We are not confronted here with an unlimited search of appellant's storeroom, but with the retaking of contraband located just inside the open storeroom doors, under direct governmental surveillance and constructively in the government's possession. See United States v. Santana, 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976); United v. Mason, 661 F.2d 45, 46-47 (5th Cir. 1981). In view of the minimal nature of the government agents' intrusion and the need for continued surveillance, or an effective substitute therefor, if the controlled delivery of the narcotics was to be effective, see Illinois v. Andreas, supra, 463 U.S. at 773, id. at 781-82 (Brennan, J., dissenting), a reasonable argument might have been made that, under the peculiar facts of this case, there was an "'urgent need' that 'justified' a warrantless entry." United States v. Martinez-Gonzalez, 686 F.2d 93, 100 (2d Cir. 1982); see United States v. Martino, 664 F.2d 860, 869-70 (2d Cir. 1981), cert. denied, 458 U.S. 1110, 73 L. Ed. 2d 1373, 102 S. Ct. 3493 (1982).
However, because this troublesome argument was not made below, we do not consider it. We look instead to the Government's contention that its retaking of the warehoused narcotics yielded nothing of evidentiary value that was not already in its possession. When the government agents began their inspection of the suspected packages, they quickly discovered that the ones which contained narcotics had metal bands around them. Without entering appellant's storeroom at all, the agents could have made a reasonable accurate approximation of how many banded crates had been removed to the storeroom. Moreover, many of the banded packages that were "right in the doorway" were readily observable from outside the storeroom. Both the agents and the jury, which had photographs of the warehoused narcotics, reasonably could conclude that these banded packages contained narcotics.
Finally, assuming for the argument that evidence of the contents of the packages in the warehouse should not have been admitted, we are convinced beyond a reasonable doubt that its admission was harmless error. As already pointed out, forty of the packages containing hashish, with a wholesale value of over $4 million, and a package of heroin, with a street value of $10-12 million, had not been removed to appellant's storeroom when they were retaken by the government agents. Under the controlled delivery rule, this retaking cannot be challenged. A reasonable jury undoubtedly would correctly conclude that the contents of the packages removed to the storeroom would be as incriminating as the contents of those that were outside the building. It is simply inconceivable that the jury in this case, or any other jury in similar circumstances, would have ...