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United States v. Ewain

filed: March 12, 1996.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RANDY LEE EWAIN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR-94-00648-NAJ. Napoleon A. Jones, District Judge, Presiding. Original Opinion Previously Reported at:,.

Before: Procter Hug, Jr., Chief Judge, Robert R. Beezer, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld.

Author: Kleinfeld

Order AND AMENDED OPINION

KLEINFELD, Circuit Judge:

This appeal raises issues involving search and seizure, and construction of a provision in the mail theft statute.

I. FACTS

Ewain, the husband of a former postal employee, came under suspicion by a postal inspector for mail theft and by a state narcotics detective for selling methamphetamine. Both lines of suspicion arose as a consequence of a fistfight Ewain had with his roommate. The roommate moved out and told a postal inspector Ewain was making counterfeit mailbox keys and trading them for methamphetamine. The postal inspector told a state narcotics detective, who successfully arranged a controlled buy of methamphetamine at Ewain's house.

The state narcotics detective obtained a search warrant for drugs, drug paraphernalia, and documents relating to narcotics dealing, and invited the postal inspector along on the search. The postal inspector had not obtained a search warrant because he felt that the roommate's story was insufficient probable cause. Both suspected Ewain was counterfeiting keys, based on the roommate's story, and the narcotics detective wanted the benefit of the postal inspector's more educated eye.

The search turned up a number of plastic baggies, at least two of which appeared to contain methamphetamine. In addition, a cornucopia of postal theft evidence was found: other people's mail hidden under the mattress; credit cards that had been mailed to other people but never received; hand written notes containing biographical information about the people whose credit cards were found; checks made out to people who did not live in the house; a metal box containing a disassembled postal lock and rubber mold of an "arrow key;" a partly carved counterfeit arrow key still attached to the bare metal from which it was being made; a toolbox containing a postal arrow lock; a counterfeit arrow key; an apartment house key keeper; and a clay mold with the impression of postal arrow keys hidden under the mattress.

An "arrow key" is used by mail carriers to access a bank of mailboxes or a collection box that is locked by an "arrow lock." They are called "arrow" keys and locks because of the arrow conspicuously stamped on them. They are manufactured by the Postal Service in Washington D.C. and are distributed through controlled channels. Arrow keys are "accountable property." That means a mail carrier must check out an arrow key at the beginning of each delivery day and return it at the end. A "key keeper" is a kind of key safe often used in apartment houses. A postal employee has a key to the key keeper. The key keeper contains a key or a button unlocking the mailboxes in the apartment house.

Several months after the search of Ewain's house, Ewain's wife was arrested wearing a postal worker's uniform and rummaging through an apartment house mailbox. She called Ewain on the tapped jail phone. He was not home, so she talked to another person there. Asked what she'd been arrested for, Mrs. Ewain said:

He'll know.

You know, mail theft. I was in my uniform, the whole shebang.

Tell him to make sure he's got his place totally clean. . . . I wanted to let him know that I did put down his address as my address.

Mrs. Ewain actually lived at a different address. Based on her false statement when she was arrested that she lived at Mr. Ewain's address, another search warrant was obtained, and this turned up more postal theft evidence: more mail addressed to other people, personal information on credit card applicants, a broken arrow key in Ewain's dresser, and more arrow keys.

II. ANALYSIS

A. The Search.

Ewain challenges the denial of his motion to suppress the postal theft evidence from the first search of his house. He argues that the search warrant was for evidence of narcotics dealing, not postal theft; that bringing the postal inspector along was a means of expanding the search beyond its lawful purpose; and that the postal theft evidence was not in plain view because an untrained observer, unlike a locksmith or postal inspector, could not recognize arrow keys and the like and understand their significance. The lawfulness of a ...


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