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UNITED STATES v. NADER

November 14, 1985

UNITED STATES OF AMERICA
v.
GEORGE NADER



The opinion of the court was delivered by: PENN

 The defendant is charged in a two count indictment with using or causing use of the mails for the mailing, carriage and delivery of obscene material, (18 U.S.C. § 1461), importation of obscene material into the United States (18 U.S.C. § 1462), and aiding and abetting (18 U.S.C. § 2). The case is now before the Court on one part of the defendant's motion to suppress evidence.

 In his motion to suppress evidence, the defendant contends that; (1) the search of his room was conducted pursuant to a general warrant in violation of the his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, (2) Custom officials lacked "reasonable cause" for the initial search of the envelope addressed to the defendant as required by 19 U.S.C. § 482, (3) the subsequent delivery of the envelope to the defendant's home was in violation of federal law, 19 U.S.C. § 1305, (4) the statements allegedly made by the defendant were a direct result of the unlawful search and seizure of material from the defendant's home and, (5) the statements allegedly made by the defendant were obtained in violation of his Fifth and Fourteenth Amendment rights because they were induced by material misrepresentations by government agents. The government opposes all aspects of the defendant's motion. At the time of the hearing, the defendant withdrew the second and third parts of his motion and the parties elected to address only the first part of the motion which raises the question whether the search warrant issued in this case was a general warrant, and whether, in any event, the Court should decline to apply the exclusionary rule on the facts of this case. *fn1" The parties agreed not to go forward on the fourth and fifth parts of the motion until after a ruling on the third part since consideration of the last two parts of the motion would require a factual hearing, and because a ruling granting the third part of the motion would render the remaining parts moot. *fn2"

 I

 The underlying facts are as follows: On or about March 27, 1984, Andrew Taylor, a Customs Inspector, United States Customs Service, who was then assigned to make border searches of incoming mail, performed a customs inspection on a first-class letter, in the form of a brown mailing pouch type envelope, addressed to "Mr. J. Nader c/o International Insight, 2019 Connecticut Avenue, N.W., Washington, D.C. 20008, U.S.A." The customs declaration disclosed that the package contained "books". The return address given on the envelope was "Ralf Zonatz, 1012 LA Amsterdam, DOMRAK 42-43 Holland." The package was opened by the Customs Inspector because he felt he had reasonable grounds to suspect that the material enclosed therein was being imported into the United States contrary to law. See 19 U.S.C. § 482. Inside he found an eight -mm movie film, four magazines and one advertisement for another film. For the purposes of the instant motion, the Court assumes that the film and the magazines are obscene. *fn3" Also reviewed at the same time were two other magazines found in the package, "Boy No. 53" and "Sweet Little Sixteen, Volume 3, No. 8" and two pictures. The magazines and the pictures depict nude boys. This latter group of material differs from the earlier described material in that, while the latter group of material consisted only of pictures of nude boys, the earlier described material depicted nude boys engaged in a variety of sexual acts. *fn4"

 The material was reenclosed in the original package and mailed by registered mail to the Office of Investigations, United States Custom Service, Reston, Virginia. The package was then personally opened by Special Agent Don Bludworth. The material is described in the affidavit in support of the search warrant. See Bludworth Affidavit at 2.

 On April 10, 1984, the "obscene" items were shown to a United States Magistrate, United States District Court for the District of Columbia. Prior to this time, Special Agent Bludworth interviewed Special Agent Hekala of the United States Custom Service, who had conducted, during the period 1975 to 1980, approximately 150 investigations of illegal importation of pornography, particularly pedophilia. Special Agent Hekala advised Agent Bludworth that in his experience, persons who order pedophilia material from overseas retain copies of order blanks and catalogues for such material and also retain evidence of payment. He further advised that pedophiles keep records of all purchases to keep tract of the reliability of suppliers and that generally, pedophiles have large quantities of pornographic material which is usually of foreign origin. All of the above is set forth in the affidavit submitted in support of the search warrant. A warrant and a supporting affidavit were submitted to the magistrate but the magistrate withheld signing the warrant until delivery to the defendant had been effected.

 Thereafter, the agents twice attempted to deliver the material to the defendant. The package was finally delivered on April 12, 1984, and was signed for by the defendant's landlord. *fn5" Once the package was delivered, the agents advised another agent, who in turn presented the application for a warrant to the magistrate who then signed the warrant authorizing the agents to deliver and search defendant's house. The government states that the magistrate informed Bludworth that it was his belief "that once the package was delivered to the addressee's premises, probable cause existed to search the premises for the contents of the package as well as other related items." *fn6" Opposition to Motion to Suppress Evidence at 3.

 When the warrant was signed, the agents returned to the defendant's home and executed the warrant. They found the package on a table in the hallway. The package was seized and then the agents conducted a general search of the defendant's room. They seized similar material, which can be described as obscene, and other material depicting material similar to the second group of materials described in the affidavit in support of the warrant. This latter group is not considered as obscene since it depicts only nude boys who are not engaged in any type of sexual or suggestive acts. In addition, the agents seized newspaper clippings, toys, stuffed animals and photo albums. This last group of materials relates to the personal life of the defendant and appears to have no relevance to the charges pending before the Court, except perhaps to identify the room as that of the defendant. The photo albums are nothing more than pictures of the defendant, and apparently families he has visited on his many trips overseas in the conduct of his business. Presumably, this group of material was seized to identify the defendant and to establish that the room searched was indeed his room.

 The defendant, and his then counsel, met with the government agents four days after the search, but that meeting is not relevant to the part of the motion now under consideration.

 II

 The warrant issued in this case provided that, "there is now being concealed certain property, namely [description of the original items intercepted in the mails on March 27, 1984] in addition to other photographs, magazines, writings and documents which are evidence of violations of Title 18 U.S. Code Section 1461 and 1462". The government agents were directed to seize the material. The defendant argues that the above is in the nature of a general warrant.

 The Supreme Court in addressing the issue of general warrants observed:

 
General warrants of course, are prohibited by the Fourth Amendment. "The problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings.. . . [The Fourth Amendment addresses the problem] by requiring a 'particular description' of the things to be seized". . . . This requirement "'makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing ...

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