Judge deems Viagra searches unlawful

The federal court has found unlawful the searches conducted by local and federal agents at the apartment of a travel agency employee charged with trafficking 4,000 tablets of fake Viagra.

But the court has deemed lawful the first search conducted in San Francisco, California, at a Customs and Border Protection Mail Facility where the fake Viagra were intercepted.

U.S. District Court Chief Judge Alex R. Munson granted defendant Dai Xiao Jun’s motions to suppress evidence obtained from the second and third searches and seizures at his apartment in Garapan.

Munson, however, denied Dai’s motion to suppress the evidence taken from the first search in California.

Munson determined that the officers lacked probable cause for the second search and that there was no probable cause to issue the warrant.

Dai was charged with trafficking counterfeit goods. He was also charged with possession of a controlled substance with intent to distribute after federal agents seized from his apartment room two pounds of marijuana.

According to court papers filed by the U.S. government, Dai transported 4,000 counterfeit tablets of the prescription drug, Viagra, bearing counterfeit manufacturer’s markings.

Viagra is an oral pill to treat impotence.

The prosecution alleged that on June 12, 2005, a package was intercepted at the CBP Mail Facility in California. The package was addressed to Chen Jian of Saipan. Defendant Xiao Jun Dai and another person were listed as authorized persons to receive mail at that address.

Customs and Border Protection agents, without a warrant, opened the package after an X-ray was conducted and found the alleged fake Viagra.

The prosecution alleged that on June 29, special agents from the U.S. Immigration and Customs Enforcement, U.S. Postal Service, Drug Enforcement Administration, CNMI Customs and Department of Labor, executed a controlled delivery of the express mail package containing sham Viagra tablets to the Saipan U.S. Post Office.

The agents followed Dai and searched his apartment located in Garapan where they allegedly recovered the sham Viagra tablets in the room and prescription bottles.

Dai, through counsel Robert Torres, asked the court to suppress and exclude evidence obtained from the illegal search and seizure at Dai’s apartment in Garapan.

Torres asserted that the entry by the agents was unlawful and the “protective sweep” search prior to the issuance of a warrant was conducted without a warrant; was overly broad in scope; and occurred with full knowledge by the government that a warrant was necessary.

In the U.S. government’s response, Assistant U.S. Attorney Jamie Bowers said the motion is untimely, that the first search did not violate any statute or regulation, and that the second search falls under the exigent circumstances exception to the warrant requirement.

In his ruling, Munson said a search conducted without a warrant is presumed unreasonable. In such a situation, Munson said, it is the government’s burden to prove that the warrantless search is reasonable.

Here, the judge noted, the government claims that exigent circumstances (i.e. that the evidence sought was in imminent danger of destruction) made it reasonable for the government to search defendant’s apartment before obtaining a warrant.

For the government to satisfy its burden by preponderance of the evidence, it has to prove that there was probable cause and that it had a reasonable belief that exigent circumstances existed, he said.

Determining probable cause is a two-prong test.

First, the court must determine the events leading up to the search, Munson said. Second, the judge said, the court must decide “whether these…facts, viewed from the standpoint of an objectively reasonable police officer,” amount to probable cause.

With respect to the first search, Munson said the X-ray scan revealed to a CBP officer that there were pill-shaped items concealed in the package.

The CBP officer, the judge said, understood that concealing such items suggests illegal activity, especially considering that controlled substances in the shape of small pills are often smuggled illegally.

This gave the officer reason to believe that laws were being violated, and, with that belief, he opened the package, Munson said.

On the second search, Munson said, with no other corroborating facts besides the scuffling noise, no reasonable police officer would believe that the room was defendant’s apartment.

With respect to the last search, Munson finds that after purging the tainted portion of the officer’s affidavit in support of the search warrant, there was no probable cause to issue the warrant.

Munson also found that Dai’s motions were timely filed.