CHURCH OF SCIENTOLOGY OF CALIFORNIA, on its own behalf and on behalf of its
members, et al., Plaintiffs,
v.
William SIMON, Secretary of the Treasury, et al., Defendants.
No. CV 76-2160-WPG.
United States District Court, C. D. California.
Oct. 13, 1978.
Plaintiffs brought suit to enjoin the enforcement of a statute and to prohibit
customs officers from searching documents without obtaining a search warrant.
The Three-Judge District Court, William P. Gray, District Judge, held that: (1)
statute prohibiting importation of matter advocating or urging treason or
insurrection against United States will be construed to apply only to items in
which such advocacy is directed to inciting or producing imminent lawless
action and as thus construed, statute is not unconstitutional on grounds of
overbreadth, as a prior restraint on speech or as void for vagueness; (2)
customs officer's real suspicion concerning the importability of documents
fulfilled the additional cause requirement and provided basis for the more
intrusive search that subsequently took place, so that actions of customs
officers were proper and enforcement of the border search was valid, even
without a warrant, and (3) where customs agents examined documents in good
faith and determined them importable and not within statute, customs officers
could continue searching, detaining and copying documents under a right to
inspect and seize any evidence of another crime under plain view doctrine,
without first obtaining a search warrant.
Relief denied.
[1] CONSTITUTIONAL LAW
Under the Custom Service's broad powers to restrict imports and conduct a
search of materials entering the country from abroad, a temporary delay in
retention of documents does not constitute an unconstitutional prior restraint
of speech. U.S.C.A.Const. Amend. 1.
[2] CONSTITUTIONAL LAW
Statute prohibiting importation of matter advocating or urging treason or
insurrection against United States will be construed to apply only to items in
which such advocacy is directed to inciting or producing imminent lawless
action and, as thus construed, statute is not unconstitutional on grounds of
overbreadth, as a prior restraint on speech or as void for vagueness. Tariff
Act of 1930, s 305, 19 U.S.C.A. s 1305; U.S.C.A.Const. Amend. 1.
[2] CUSTOMS DUTIES
Statute prohibiting importation of matter advocating or urging treason or
insurrection against United States will be construed to apply only to items in
which such advocacy is directed to inciting or producing imminent lawless
action and, as thus construed, statute is not unconstitutional on grounds of
overbreadth, as a prior restraint on speech or as void for vagueness. Tariff
Act of 1930, s 305, 19 U.S.C.A. s 1305; U.S.C.A.Const. Amend. 1.
[3] CUSTOMS DUTIES
The government possesses an inherent right to protect itself by stopping and
examining persons and property entering the country from abroad.
[4] CUSTOMS DUTIES
Customs officer's real suspicion concerning the importability of documents
fulfilled the additional cause requirement and provided basis for the
more intrusive search that subsequently took place, so that actions of customs
officers were proper and enforcement of the border search was valid, even
without a warrant.
[5] CUSTOMS DUTIES
Where customs agents examined documents in good faith and determined them
importable and not within statute prohibiting the importation into the United
States of matter advocating or urging treason or insurrection against the
United States, customs officers could continue searching, detaining and copying
documents under a right to inspect and seize any evidence of another crime
under the plain view doctrine, without first obtaining a search warrant.
*57 H. Peter Young, Santa Monica, Cal., for plaintiffs.
Andrea Sheridan Ordin, U. S. Atty., Frederick M. Brosio, Jr., Chief, Civ.
Div., Michael E. Wolfson, Asst. U. S. Attys., Los Angeles, Cal., for
defendants.
Before BARNES, Circuit Judge, and GRAY and FERGUSON, District Judges.
MEMORANDUM OF DECISION
WILLIAM P. GRAY, District Judge.
This three-judge court was convened to consider the constitutionality of 19
U.S.C. s 1305,[FN1] which prohibits the importation into the United States of
several categories of documents and articles, including any writing or document
that is obscene or contains:
FN1. A three-judge court was convened because the plaintiffs seek to
restrain certain customs searches and seizures permitted by that statute.
In all actions filed prior to August 12, 1976, that seek to enjoin
enforcement of a statute, adjudication by a three-judge court is proper.
28 U.S.C. ss 2281 Et seq. The instant suit was filed on July 7, 1976.
" . . . any matter advocating or urging treason or insurrection against the
United States, or forcible resistance to any law of the United States, or
containing any threat to take the life or inflict bodily harm upon any person
in the United States . . .."
Under the authority of this statute, the United States Customs Service
searches materials entering this country from abroad. The plaintiffs filed suit
to enjoin the enforcement of this statute and to prohibit the customs officers
from searching documents without obtaining a search warrant.
The relevant facts in the instant case are fairly straightforward. Four
cartons of papers and documents were shipped from England, via international
air cargo, to Church of Scientology employees in Los Angeles County. On July 3,
1976, the Customs Inspector on duty at Los Angeles International Airport opened
the cartons, briefly scanned the documents, expressed uncertainty regarding the
importability of the materials, and detained the cartons for further review of
their contents.
Subsequently, special customs agents more carefully reviewed the documents
and, on July 7, 1976, the District Director of Customs concluded that the
contents were importable. On that same day, the Church of Scientology filed
suit for damages and injunctive relief. On July 13, 1976, the cartons of
documents were released to the plaintiffs.
A temporary restraining order issued in this case enjoined the Customs Service
from copying or disseminating copies of any of the documents contained in the
cartons. The Customs Service was permitted, however, to disclose the materials
to the United States Attorney, who could make one copy of documents he found
appropriate for criminal evidentiary purposes or for defense of any damage
claims that the plaintiffs might assert.
The plaintiffs raise several arguments in support of their claims for
injunctive relief. First, they contend that Section 1305 is facially
unconstitutional. Second, the plaintiffs urge that even if the statute is
deemed constitutional, the method of enforcement *58 in the instant case was
improper. The plaintiffs take the position that a warrant was required
initially to read the private, noncommercial documents shipped from abroad.
Finally, the plaintiffs contend that once the Customs Service deemed the
documents to be importable under Section 1305, its agents could not continue
to read, detain, copy or disseminate copies of their documents without a
warrant. We are unpersuaded by these arguments within the context of the facts
of this case and we accordingly deny the request for an injunction.
CONSTITUTIONALITY OF 19 U.S.C. s 1305
The Church of Scientology asserts that Section 1305 is overbroad, a prior
restraint on speech, and void for vagueness. We disagree with these arguments,
and hold that the statute is constitutional when properly construed and
applied.
The plaintiffs insist that the statute is unconstitutionally overbroad, for it
prohibits the importation of written materials that discuss violence as an
abstract doctrine, as well as "action now" materials. It is obvious that the
statute does not incorporate specifically the restrictions set forth in
Brandenberg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969),
which held that a state cannot proscribe advocacy of the use of force
" . . . except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action." 395
U.S. at 447, 89 S.Ct. at 1829. Nonetheless, we read such standards into
Section 1305 in order to uphold its constitutionality. In doing so, we
follow the example set by the Supreme Court in United States v. Thirty-Seven
Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971) and in
United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d
500 (1972).
In Thirty-Seven Photographs, the Supreme Court applied constitutional
standards to uphold the statute's validity. The plaintiffs in that case had
argued that Section 1305 was unconstitutional in that it failed to specify
procedural time limits for judicial determination of obscenity as required by
the First Amendment. Rather than invalidate the statute based on this lack of
an express standard, the Court adhered to the " . . . cardinal principle that
this Court will first ascertain whether a construction of the statute is fairly
possible by which the question may be avoided." 402 U.S. at 369, 91 S.Ct. at
1404. Similarly, in 12 200-Ft. Reels, supra, the Court foreclosed an
overbreadth attack, although the statute prohibited the importation of obscene
materials both for private use and possession, as well as for commercial use.
In accordance with these decisions upholding the constitutionality of 19
U.S.C. s 1305, we interpret the "advocacy" section of that statute in a manner
consistent with the Constitution. Thus, we will "read in" the standards set
forth in Brandenberg v. Ohio, supra, and construe the statute to avoid the
overbreadth attack.
[1] We also reject the plaintiffs' argument that the statute permits an
unconstitutional prior restraint of speech through the detention of imported
materials. In this case, the Church of Scientology's papers, which consisted of
many thousands of pages, were detained for a very short period by the Customs
Service before the Service determined the papers to be importable. Under the
Customs Service's broad powers to restrict imports and conduct a search of
materials entering the country from abroad, this temporary delay and retention
of documents do not constitute a constitutional deprivation.
[2] Finally, the plaintiffs' argument that the statute is void for vagueness
must also fail. This contention relates to the scope of discretion afforded the
Secretary of the Treasury to admit books of recognized literary or scientific
merit. The question of an improper exercise of this discretionary power is not
presented by the facts of this case, and so we need not resolve it within this
decision. Thus, we hold that the statute is constitutional as applied to
advocacy issues, just as it previously has been *59 held constitutional as
applied to obscenity issues.
ENFORCEMENT OF 19 U.S.C. s 1305
We also hold that the search pursuant to the statute was conducted in a
constitutionally valid manner. The plaintiffs argue unsuccessfully that
warrantless reading of materials entering the United States from abroad is
suspect. We disagree with their contentions that a warrant was needed for the
original inspection and that a warrant was required once the documents were
deemed importable pursuant to s 1305.[FN2]
FN2. Complaints regarding allegedly unlawful operation or administration
of a statute normally are not the proper subject of adjudication by a
three-judge court under the standards set forth in 28 U.S.C. ss 2281 Et
seq. However, in the interests of judicial economy, we may exercise our
discretion to resolve pendent statutory claims, and we do so here. See,
Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).
[3] It is indisputable that the instant case involves a border search. The
Customs Service has the statutory authority to examine materials coming into
the United States, and the Supreme Court has enunciated clearly the position
that the government possesses an inherent right to protect itself by stopping
and examining persons and property entering the country from abroad. United
States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 612 (1977).
In addition, the Constitution has given Congress broad, comprehensive powers
to regulate commerce with foreign nations, and under this power "(i)mport
restrictions and searches of persons or packages at the national borders" are
justified by different "considerations and different rules of constitutional
law from domestic regulations." United States v. 12 200-Ft. Reels, 413 U.S.
123, 125, 93 S.Ct. 2665, 2667, 37 L.Ed.2d 500 (1972).
Under its general powers in setting import restrictions, Congress may
promulgate regulations regarding the importability of obscene material and
material advocating the overthrow of the government. To enforce these
regulations, the Customs Service has the right to search luggage and persons at
our national borders. This search necessarily involves the examination or
review of the materials in question, for the customs officers must scan or
peruse and perhaps even read the materials to determine whether or not they are
importable.
The Supreme Court recently reconsidered the standards and requirements for
border searches in United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972,
52 L.Ed.2d 612 (1977). The Court reaffirmed the policy that border searches
without probable cause and without a warrant are reasonable. In that case, the
customs officials opened letter size envelopes arriving airmail from Thailand
which they reasonably suspected contained illegally imported narcotics. The
Court concluded that mail entering the country from overseas was not entitled
to any greater privacy than material coming from abroad by any other mode of
entry.
In line with the reasoning set forth in Ramsey, the search involved here
must be measured against the normal border search standards. The Court did
leave open the question, however, of when a border search might be unreasonable
and "particularly offensive." 431 U.S. at 618, 97 S.Ct. at 1980. However, it
would be inappropriate and unnecessary for this court to determine what is
reasonable under all circumstances, or what type of search would be
unreasonable. It is sufficient that in this case the search was reasonable and
complied with the more stringent border search test promulgated by the Ninth
Circuit, in United States v. Wilmot, 563 F.2d 1298 (9th Cir. 1977). In that
decision, the opinion cites Ramsey for the well-established principle that
routine border searches "are reasonable simply by virtue of the fact that they
occur at the border." It then stated that in order to justify an intrusive
search, additional cause is necessary, and held that for a strip search "there
must be 'real suspicion' directed specifically to the person searched." 563
F.2d at 1300.
*60 [4] The instant case withstands analysis under the Ninth Circuit's
"real suspicion" test. The initial search, simply as a border search, was
reasonable. It appears that the customs officer developed a "real suspicion" as
to the importability of the contents of the cartons as a result of this initial
search. We conclude that the customs officer's real suspicion concerning the
importability of the documents fulfilled the additional cause requirement, and
provided the basis for the more intrusive search that subsequently took place.
Thus, the actions of the customs officers were proper and the effectuation of
the border search was valid.
Finally, we reject the plaintiffs' argument that the government had to obtain
a search warrant to continue searching, detaining and copying the documents.
The "plain view" doctrine provides that an officer may seize evidence without a
warrant if that officer has a proper justification for being coincidentally in
a position to come upon the incriminating evidence. Harris v. United States,
390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
The plaintiffs have neither argued nor presented any credible evidence in this
case that the original inspection of the documents was conducted in bad faith
or that the initial Section 1305 search was used as a guise for obtaining
incriminating evidence for use against the Church of Scientology in other
proceedings. Accordingly, we must conclude that the initial search was
conducted in good faith and a proper inspection occurred.
[5] The customs officers had a right to inspect the shipments and could
seize any evidence of another crime, under the "plain view" doctrine, without
first obtaining a search warrant. This conclusion regarding the permissible
absence of a search warrant is buttressed by the Supreme Court's comment in
Ramsey, supra. In Ramsey, the customs officials opened the airmail
envelopes, discovered the heroin, resealed the envelopes and sent them to the
Drug Enforcement Administration for further action. The Drug Enforcement
Administration obtained search warrants after it received the envelopes. The
Supreme Court treated the search warrants as an unnecessary and insignificant
step, for the original opening and inspection of the envelopes had been legal.
We hold, similarly, that a search warrant would be unnecessary, for the customs
officers already were examining the documents in good faith and therefore the
"plain view" doctrine is controlling.
For the foregoing reasons, the plaintiffs' application for a preliminary
injunction will be denied and the action dismissed. This opinion shall
constitute findings of fact and conclusions of law, as authorized by Rule
52(a) of the Federal Rules of Civil Procedure.