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HAASE v. WEBSTER

May 14, 1985

Edward Haase, Plaintiff,
v.
William H. Webster, Director of the Federal Bureau of Investigation, et al., Defendants



The opinion of the court was delivered by: JACKSON

THOMAS PENFIELD JACKSON, U.S. DISTRICT JUDGE

 MEMORANDUM AND ORDER

 This is an action for injunctive and declaratory relief by a traveller returning from abroad to retrieve written matter seized in an allegedly illegal search made of his luggage as he entered the country, and to require the government agencies making the search to refrain from similar adventures in the future.

 Plaintiff Edward Haase is a broadcast engineer and free-lance journalist from Kansas City, Missouri, who, in his latter capacity, possesses a special interest in issues relating to Nicaragua. Defendants are the Director of the Federal Bureau of Investigation ("FBI"), the Commissioner of the U.S. Customs Service ("Customs"), and various of their respective subordinates. The case is presently before the Court on defendants' motion to dismiss the case on mootness and standing grounds. *fn1" For the reasons set forth below, defendants' motion will be granted, and the complaint dismissed with prejudice.

 I.

 From the several declarations and affirmations filed by the parties it appears to be undisputed that on January 16, 1985, Mr. Haase boarded a flight in Managua to return to the United States following a several months' stay in Nicaragua. Upon his arrival at Miami International Airport Haase presented at Customs where he was asked the expected routine questions, such as whether he had anything to declare and how long he had been out of the country. The Customs officer then circled certain information on Haase's declaration card, including the country visited, the length of his stay, and the fact that he was declaring books, magazines and newspapers acquired in Nicaragua, and directed him to a secondary inspection station where a second Customs official (later identified as a student-trainee) conducted a search of Haase's luggage. The official removed several books and magazines from Haase's bags, as well as a piece of paper bearing names and addresses which he discovered behind a picture frame, but being "uncertain" as to the "possible seditious nature" of the materials, he summoned a supervisory Customs inspector who, in turn, decided to contact the FBI for assistance in determining whether the materials might be unimportable under 19 U.S.C. § 1305(a). *fn2"

 Shortly thereafter, Special Agent Jose Miranda of the FBI Miami Field Office arrived at the airport. (In the interim, the Customs official had photocopied the list of names and addresses found behind the picture frame. He turned the copy over to Miranda upon his arrival.) Haase was questioned briefly by Miranda who declared his intention to make his own search of Haase's luggage for subversive materials and then proceeded to do so, extracting Haase's personal address book, a diary, two articles he had written, five sheets of paper containing the names and addresses of organizations concerned with Nicaraguan and Central American affairs, still other papers having to do with the "National Network in Solidarity with the People of Nicaragua," *fn3" and certain additional books and magazines.

 Anxious about missing a connecting flight, Haase requested and received permission to go to a different portion of the terminal to purchase a ticket, and while he was gone Special Agent Miranda, with the assistance of yet another Customs officer, photocopied the items he had removed from Haase's luggage. All the originals were then returned to Haase, and he departed for his ultimate destination, Special Agent Miranda retaining the photocopies at the Miami Field Office. A week or so later Haase's attorney contacted the FBI in an attempt to recover the copies but was unsuccessful, and this lawsuit followed on February 19, 1985. *fn4"

 II.

 Plaintiff claims that defendants' treatment of him on January 16th violated his rights under the First, Fourth, Fifth and Ninth Amendments; that it was also illegal under the Privacy Act, 5 U.S.C. § 552a, and his common law right to privacy; and that defendants acted in excess of their statutory authority. He therefore prays for permanent injunctive relief in the form of an order requiring defendants to destroy or return to him all copies of materials seized; to expunge from the files of the FBI or any other government agencies any information obtained from them; to disclose to plaintiff the nature of any use made of or dissemination given the materials, or any information derived therefrom; and to prohibit any further dissemination, indexing or other use of such information hereafter. Plaintiff also seeks a declaratory adjudication that defendants' actions were in violation of plaintiff's constitutional rights; that FBI agents have no statutory authority to engage in "border searches" without probable cause or a warrant; that 19 U.S.C. § 1305(a) is unconstitutional on its face and as defendants are applying it; and that defendants' "policy" of singling out individuals returning from Nicaragua for special questioning and searches is itself unconstitutional.

 Defendants have moved to dismiss those of plaintiff's claims which look toward injunctive relief from the consequences of the January 16th seizure on the ground that they have become moot. Pursuant to the temporary restraining order entered at the outset of the case, they say, the only copies of the materials seized from Haase were located and sequestered. The supervisory special agent of the Miami Field Office averred in his initial declaration that no information derived from the papers had been disseminated or had made its way into any secondary data repositories by the time he delivered them as ordered on February 22nd to the Chief of the FBI's Civil Litigation Unit in Washington, D.C.

 Plaintiff responded with affirmations of his lawyer and an "expert on F.B.I. recordkeeping," pointing out what the supervisory special agent had not said (or could not say from personal knowledge) about the attention given the materials before he personally collected them. Defendants then filed declarations of each of the several special agents who had handled the documents following their seizure, attesting to the absence of any activity with respect to them while in their custody, and each of the Customs officers has similarly disavowed making any use of the documents other than to have turned them over to the FBI. Finally, the Assistant Director of the FBI who has had charge of them since they arrived in Washington asserts that upon receiving them he ordered that no use be made of them or any information they contain "unless authorized by order of the Court." In summary, therefore, the materials' chain of custody has been established under oath since they were first taken from Haase, and each of the custodians has sworn to have made no investigative use of them whatsoever; they have not been recopied, nor their content disseminated, indexed, filed, entered into computers or otherwise reduced to usable form as intelligence data.

 The FBI now proposes that the documents themselves, i.e., the single extant set of photocopies in the possession of the Assistant Director, be deposited under seal in the Registry of the Court, there to remain, accessible to no one until they have been evaluated for archival purposes and an appropriate final disposition determined for them by the Court. *fn5" It also promises not to derive any information which it might from the documents nor permit anyone else to do so. It suggests that the entire undertaking be accomplished by a "stipulation" which will be approved by the Court. In short, the FBI offers to restore the status quo ante the January 16th seizure, or as much of it as it can, depriving itself of any intelligence benefit it might have acquired from the event.

 Plaintiff is, however, unwilling to let the matter rest there. He still suspects the FBI of being disingenuous about the extent to which it has already made use of his papers, but the only proof he offers is his circumstantial evidence of a "secret policy" of collecting intelligence from and about people who visit Nicaragua, from which, he argues, ...


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