[Federal Register Volume 60, Number 133 (Wednesday, July 12, 1995)]
[Proposed Rules]
[Page 35881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17063]
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DEPARTMENT OF THE TREASURY
19 CFR Part 162
RIN 1515-AB72
Search Warrants
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes to amend the Customs Regulations by
removing a regulation limiting the authority of Customs officers to
whom search warrants are issued. The current regulation restricts such
officers from removing letters, documents and other records in certain
circumstances. The regulation is inconsistent with the current state of
the law.
DATES: Comments must be received on or before September 11, 1995.
ADDRESSES: Written comments (preferably in triplicate) may be submitted
to the Regulations Branch, Office of Regulations and Rulings, U.S.
Customs Service, 1301 Constitution Avenue NW., Washington, DC 20229.
Comments submitted may be inspected at the Regulations Branch, Office
of Regulations and Rulings, 1099 14th Street NW., Suite 4000,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Lars-Erik Hjelm, Office of the Chief
Counsel (202-927-6900).
SUPPLEMENTARY INFORMATION:
Background
Section 162.14, Customs Regulations (19 CFR 162.14) provides that
Customs officers to whom a search warrant is issued may not remove
letters, other documents and records, unless such letters, other
documents and records are instruments of crime which are seized
pursuant to a lawful arrest. The authority for this regulation, which
has been in effect since at least 1915, is 19 U.S.C. 1595. Until 1986,
section 1595 only authorized Customs to obtain warrants for
merchandise.
In 1986, section 1595 was expanded to allow Customs to seize ``* *
* any document * * * which is evidence of a violation of * * * any law
enforced or administered by the United States Customs Service.'' Public
Law 99-570, October 27, 1986.
Another statute indicating that the authority of Customs officers
with warrants to seize documents has expanded is 19 U.S.C. 1589a(2).
This statute makes it clear that Customs officers have authority for
any warrant, including a Federal Rules of Criminal Procedure Rule 41
warrant. A Rule 41 warrant can be issued for documents constituting
evidence of crimes. See Public Law 98-573, October 30, 1984; Fed. R.
Crim. Proc. Rule 41. The sources cited clearly indicate Congress'
intent to provide Customs with the authority to search for and seize
documentary evidence.
The Supreme Court has made it clear that officers may seize
incriminating evidence in plain view during the course of a lawful
search. See United States v. Thompson, 495 F. 2d 165 (D.C. Cir. 1974);
United States v. Michaelian, 803 F. 2d 1042 (9th Cir. 1986). Also see
Horton v. California, 496 U.S. 128 (1990), in which the Supreme Court
held that the Fourth Amendment does not prohibit the warrantless
seizure of evidence in plain view even though the discovery of the
evidence was not inadvertent. Although inadvertence is a characteristic
of most legitimate plain-view searches, it is not a necessary
condition.
Proposal
Inasmuch as Sec. 162.14, Customs Regulations, no longer reflects
the state of the law regarding the search and seizure authority of
Customs officers, Customs intends to delete Sec. 162.14 from the
Customs Regulations.
Comments
Before adopting this proposal, consideration will be given to any
written comments timely submitted to Customs. Comments submitted will
be available for public inspection in accordance with the Freedom of
Information Act (5 U.S.C. 552), Sec. 1.4, Treasury Department
Regulations (31 CFR 1.4), and Sec. 103.11(b), Customs Regulations (19
CFR 103.11(b)), on regular business days between the hours of 9:00 a.m.
and 4:30 p.m. at the Regulations Branch, Suite 4000, 1099 14th Street
NW., Washington, DC.
Authority: This change is proposed under the authority of 5
U.S.C. 301 and 19 U.S.C. 66, 1624.
The Regulatory Flexibility Act and Executive Order 12866
Pursuant to the provisions of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) and based upon the information set forth above, it
is certified that the proposed change in the regulations will not have
a significant economic impact on a substantial number of small
entities. Accordingly, the proposed change is not subject to the
regulatory analysis or other requirements of 5 U.S.C. 603 and 604.
This document does meet the criteria for a ``significant regulatory
action'' as specified in Executive Order 12866.
Drafting Information
The principal author of this document was Janet L. Johnson,
Regulations Branch. However, personnel from other offices participated
in its development.
George J. Weise,
Commissioner of Customs.
Approved: June 20, 1995.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 95-17063 Filed 7-11-95; 8:45 am]
BILLING CODE 4820-02-P
