The customs agents were told that the materials were ceramics and domestic in origin. Their trained observation led them to believe the former assertion was a falsehood and that the contents were not ceramics. Therefore, the origin of the cartons was also in doubt. Defendant's lack of knowledge as to the destination of the delivery compounded their suspicions. Defendant, who testified at the hearing, did not contradict the testimony of the customs inspectors with respect to any of the abovementioned series of events. He did not explain where the marijuana was obtained or where it was to be delivered.
The reasonable deduction from this set of facts is that defendant knew the destination and contents of the cartons but did not want to divulge that information. The cartons placed on the van in such a hurried manner were to be taken somewhere. Defendant identified the property as belonging to his "boss". Yet no "boss" was identified, no location of an office was mentioned, and no company name was given.
The Supreme Court has stated that probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. Adams v. Williams, 407 U.S. 143, 149, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Draper v. United States, 358 U.S. 307, 311-12, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). Rather, a court must deal with probabilities. "'[They] are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Adams v. Williams, supra, 407 U.S. at 149, 92 S. Ct. at 1925 (citing Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).
In the context of this case, they are the considerations of the reasonable and prudent customs inspectors which must be evaluated. These facts are unlike those in United States v. Portillo-Reyes, 529 F.2d 844 (9th Cir. 1975), for example, where the requisite probable cause was found not to exist. The court held that the border patrol agents had reasonable grounds for a founded suspicion that defendant's vehicle was connected with the illegal entry of aliens. Id. at 849. However, that suspicion was not converted into probable cause for the arrest made, in that the defendant was cooperative, responsive to the questions asked by the agents and there was no hint of deception. Id. at 850-51.
Under this test the totality of the circumstances indicated probable cause for the inspectors to believe that defendant was transporting articles subject to customs inspection and possibly contraband.
The activities of customs inspectors or any government agents, as distinguished from those of private persons, come within the boundaries of the exclusionary rule if the conduct is violative of the fourth amendment. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921); United States v. Valen, 479 F.2d 467, 469 (3d Cir. 1973), cert. denied, 419 U.S. 901, 95 S. Ct. 185, 42 L. Ed. 2d 147 (1974). In a line of recent cases the Supreme Court has taken a sterner look at the exclusionary rule. While explaining that the prime purpose of the exclusionary rule is to deter future unlawful conduct, it has emphasized that that purpose must be balanced against other interests, for example, the substantial societal costs of applying the rule. See Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976). When they are balanced, the Court has found the furtherance of fourth amendment goals outweighed by the detriment to the criminal justice system. Stone v. Powell, supra, at , 96 S. Ct. 3037; United States v. Janis, supra, at , 96 S. Ct. 3021. The Court in Stone went even further in its argument, asserting that the guilt or innocence should be the central concern in a criminal case. Often the application of the exclusionary rule instead "deflects the truthfinding process and often frees the guilty." At , 96 S. Ct. at 3050. While it may deter unlawful police activity, indiscriminate application of the rule may generate disrespect for the law and the administration of justice. Id.
It is not without significance that the box that was opened was on the ground, moving from the airplane to the van. Obviously, a lesser expectancy of privacy is warranted than were this a house search. See South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).
I find that in light of the facts before me that reasonable suspicion existed for a stop of defendant and that suspicion matured into probable cause to search the cartons defendant was unloading. See United States v. Moffett, supra, at 1381; United States v. Walker, supra, 196; United States v. Rodriguez-Alvarado, supra, at 1064.
I conclude, therefore, that defendant's motion to suppress the marijuana obtained from the search by customs inspectors must be denied and an appropriate order will be entered.
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