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Filed 9/11/98

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. MAURO MIGUEL BLARDONY, Defendant and Appellant. (San Mateo County Super. Ct. No. SC40769) A081271

If a customs agent violates an administrative regulation by conducting a random search of mail from a foreign country, does the exclusionary rule require suppression of contraband found in the package? No; the United States Constitution does not prohibit random border searches of incoming international mail, nor is there any legislative provision for the exclusion of evidence recovered by customs agents in this manner. Therefore, such evidence is admissible in California courts. After his motion to suppress evidence was denied, Mauro Miguel Blardony pleaded no contest to a charge of possessing methamphetamine for sale, while personally armed with a firearm. On appeal, he renews his claims that the evidence against him was illegally obtained and should have been suppressed. We affirm the judgment.

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 2 and 3.

BACKGROUND On March 26, 1997, a customs inspector randomly opened and searched a Federal Express package from the Philippines addressed to Miguel Blardony at an apartment in Daly City. The commercial invoice stated the package contained a karaoke tape of children and family pictures. However, the inspector discovered a crystalline substance inside. A presumptive test on the substance yielded a positive result for methamphetamine. The substance was sent to a customs forensic laboratory for further analysis, which verified that it was methamphetamine, weighing about 30 grams. On March 27, a customs agent turned the package over to Daly City Police Detective Julian Agustin. Agustin went to the address written on the package and saw the name Blardony next to the doorbell for the apartment number on the package. He ran a Department of Motor Vehicles check on the name Miguel Blardony without finding a match. On two occasions, Agustin tried to deliver the package to Blardonys apartment, but no one answered the doorbell. On March 31, Agustin applied for a search warrant, stating his training and experience led him to believe the crystal methamphetamine in the package was a bulk shipment that a dealer would break up into smaller packets for sale. He stated that other controlled substances, transaction records, cash, and firearms are typically kept in dealers residences, and he believed Blardony was involved in a conspiracy to sell methamphetamine. The magistrate issued a search warrant, and officers found drugs, drug paraphernalia, and firearms in Blardonys apartment on March 31, 1997. After waiving a preliminary hearing, Blardony was charged by information with various drug and weapons violations. He moved to suppress the evidence seized from his apartment, contending (1) the customs inspectors random search of the package addressed to Blardony was unlawful; (2) the chemical analysis of the packages contents was unlawful because it was performed without a warrant; (3) Detective Agustins warrant application was insufficient to establish probable cause; and (4) the warrant could not be saved by the good faith exception to the exclusionary rule. The court denied the

motion. In a negotiated plea agreement, Blardony pleaded nolo contendere to count one of the information and admitted a firearm enhancement, in return for dismissal of the other counts. DISCUSSION When the superior court sits as the finder of fact on a motion to suppress brought in the first instance in superior court, we must uphold the courts factual findings if they are supported by substantial evidence. However, we independently determine whether the facts establish probable cause, and whether suppression of evidence is required under federal constitutional standards. (People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.) 1. A Random Border Search of Incoming Mail Does Not Violate the Fourth Amendment Blardony relies on U.S. v. Taghizadeh (9th Cir. 1996) 87 F.3d 287, 288-289, which holds that customs searches of incoming international mail packages are governed by 19 United States Code section 1582 and its implementing regulations. Among those regulations is 19 Code of Federal Regulations section 145.3(a), which requires reasonable cause to suspect the presence of merchandise or contraband for agents to open and examine letter class mail that appears to contain matter other than correspondence. Blardony contends the random search of his package violated the reasonable cause requirement, rendering the search unlawful and requiring suppression of the packages contents. We assume for purposes of argument that Blardonys Federal Express package met the definition of letter class mail provided in 19 Code of Federal Regulations section 145.1(b) any mail article, including packages . . . mailed at the letter rate or equivalent class or category of postage. Nevertheless, the customs inspectors presumptive violation of regulatory requirements provided no basis for application of the exclusionary rule. Border searches of incoming international mail are per se reasonable

under the Fourth Amendment, without any need to show probable cause. (United States v. Ramsey (1977) 431 U.S. 606, 619-622; U.S. v. Ani (9th Cir. 1998) 138 F.3d 390, 392.) Absent a constitutional violation or a congressionally created remedy, violation of an agency regulation does not require suppression of evidence. (U.S. v. Ani, supra, 138 F.3d at p. 392, citing among other cases United States v. Caceres (1979) 440 U.S. 741, 744 [no suppression of evidence obtained in violation of IRS regulations]; United States v. Benevento (2d Cir. 1987) 836 F.2d 60, 69-70 [no suppression of evidence obtained in violation of customs regulations].) There is nothing to indicate that Congress or the United States Customs Service intended the exclusionary rule to be a remedy for violation of 19 U.S.C. 1582 or 19 C.F.R. 145.1 et seq. (U.S. v. Ani, supra, 138 F.3d at p. 392, italics in original.) Accordingly, the random search of Blardonys package was not a ground for suppression of the evidence yielded by the search. 2. No Warrant Was Needed for Laboratory Testing Blardonys next claim is that customs agents should have obtained a search warrant before sending the contents of the package to a laboratory for testing. There is no such requirement. When the authorities obtain suspected contraband during a constitutionally permissible search, they not only may but should move quickly to test it, and no Fourth Amendment rights are violated by conducting such a test without a search warrant. (United States v. Jacobsen (1984) 466 U.S. 109, 122-124 [chemical drug testing compromises no legitimate expectations of privacy]; People v. Teale (1969) 70 Cal.2d 497, 508 [scientific testing and examination do not implicate Fourth Amendment rights]; People v. Coston (1990) 221 Cal.App.3d 898, 905-906 [requiring a warrant for every drug test could only serve to trivialize our citizens constitutional rights].) Blardony relies on People v. Leichty (1988) 205 Cal.App.3d 914, 922-924, in which the court held that a warrant was required before conducting laboratory testing on suspected drugs discovered by airline employees, and inconclusively tested in the field by the police. We agree with the Attorney General that even if Leichty was correctly

decided it is not controlling, because it involved further testing after an inconclusive field test. There is no legitimate privacy interest in illicit drugs discovered by the police in a manner consistent with the Constitution. Once a field test shows the presence of such drugs, further laboratory analysis without a search warrant does not violate any constitutional right. (People v. Warren (1990) 219 Cal.App.3d 619, 624.) 3. The Warrant Application Provided Probable Cause for a Search The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed. [Citation.] (Illinois v. Gates (1983) 462 U.S. 213, 238-239.) The warrant application in this case related the following: (1) Detective Agustins substantial training and experience as a narcotics investigator; (2) his familiarity with methods of packaging and selling controlled substances in the Bay Area; (3) the customs agents discovery and testing of the methamphetamine in the package addressed to Blardony; (4) Agustins inability to find any information on Blardony from a Department of Motor Vehicles computer check; (5) Agustins belief that the 30 grams of methamphetamine in the package was a typical bulk shipment that would be broken up
1

We share the Coston courts most serious reservations regarding the conclusions reached in Leichty, but as in Coston we need not resolve our doubts because Leichty is distinguishable on its facts. (People v. Coston, supra, 221 Cal.App.3d at p. 905.) The holding in United States v. Mulder (9th Cir. 1987) 808 F.2d 1346, 1348, upon which the Leichty court relied, is equally questionable and equally distinguishable. Mulder involved evidence seized in a search by private parties, and laboratory tested several days later with no intervening field test. (808 F.2d at pp. 1347-1348; see People v. Coston, supra, 221 Cal.App.3d at p. 905 [casting doubt on Mulder]; U.S. v. Snyder (9th Cir. 1988) 852 F.2d 471, 473, fn. 1 [restricting Mulder to private search context, and noting conflict with United States Supreme Court precedent].)

for sale in smaller packages by a dealer; and (6) his belief that he would find evidence of narcotics dealing in Blardonys apartment. Blardony contends the search of his package by customs agents was illegal and therefore could not be used to establish probable cause. However, we have determined there was no constitutional violation in the search, seizure, and testing of the package and its contents. Therefore, there was no impediment to its consideration by the magistrate. (Compare People v. Machupa (1994) 7 Cal.4th 614, 628.) Blardony also relies on cases in which a search warrant was made conditional on the suspects acceptance of contraband. Agustin, however, neither requested nor received such an anticipatory search warrant. (See People v. Sousa (1993) 18 Cal.App.4th 549, 558 [anticipatory warrant may issue on clear showing that right to search will exist within reasonable time in future].) Probable cause in this case was premised on the fact that a bulk quantity of methamphetamine was sent to Blardony personally at his residence, and on Agustins expert opinions that the shipment was a typical component of a drug dealing operation and that further evidence could be found in the apartment. These facts and opinions, provided by reliable law enforcement sources, were sufficient to establish a fair probability that contraband or evidence of a crime would be located in Blardonys apartment. (See, e.g., People v. Deutsch (1996) 44 Cal.App.4th 1224, 1234 [opinions of experienced officer are properly considered in probable cause determination]; People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784 [experienced officers interpretation of facts may provide probable cause despite possible innocent interpretation]; People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315 [magistrate is entitled to rely on conclusions of experienced officer in weighing evidence supporting request for warrant].) We cannot say the magistrate lacked a substantial basis for issuing the warrant.
2

We agree with the Attorney Generals alternative argument that even if the warrant application were deemed insufficient the good faith exception to the exclusionary rule would apply. (United States v. Leon (1984) 468 U.S. 897, 923; People v. Camarella (1991) 54 Cal.3d 592, 596; U.S. v. Moore (2d Cir. 1992) 968 F.2d 216, 223 [dealer-size packages of drugs sent to defendants address, but not delivered, provided sufficient grounds for officers to rely on

DISPOSITION The judgment is affirmed.

_________________________ Parrilli, J.

We concur:

_________________________ Phelan, P. J.

_________________________ Walker, J.

People v. Blardony, A081271

warrant].) We reject Blardonys contention that Agustins failure to tell the magistrate about the two unsuccessful attempts to deliver the package militates against a finding of good faith on the officers part. The fact that no one was home at Blardonys apartment on two occasions had no bearing on the likelihood that evidence of drug dealing would be found there.

Trial Court:

San Mateo County Superior Court

Trial Judge:

Honorable Barbara J. Mallach

Counsel for Defendant and Appellant:

James Robert Courshon, Esq.

Counsel for Plaintiff and Respondent:

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Christopher W. Grove, Deputy Attorney General

People v. Blardony, A081271