United States v. Ramsey

Mr. Justice Stevens,

with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

The decisive question in this ease is whether Congress has granted customs officials the authority to open and inspect personal letters entering the United States from abroad without the knowledge or consent of the sender or the addressee, and without probable cause to believe the mail contains contraband or dutiable merchandise.

■ In 1971 the Department of the Treasury and the Post Office Department first asserted that Congress had granted such authority in an awkwardly drafted statute enacted in 1866. *626 Under the earlier practice, which had been consistently followed for 105 years, customs officials were not allowed to open foreign mail except in the presence, and with the consent, of the addressees, 1 unless of course a warrant supported by probable cause had been first obtained. There are five reasons why I am convinced that Congress did not authorize the kind of secret searches of private mail that the Executive here conducted.

First, throughout our history Congress has respected the individual’s interest in private communication. The notion that private letters could be opened and inspected without notice to the sender or the addressee is abhorrent to the tradition of privacy and freedom to communicate protected by the Bill of Rights. I cannot believe that any member of the Congress would grant such authority without considering its constitutional implications. 2

*627 Second, the legislative history of the 1866 statute unambiguously discloses that this very concern was voiced during debate by Senator Howe, and that he was assured by the sponsor of the legislation that the bill would not authorize the examination of the United States mails. This colloquy is too plain to be misunderstood:

“Mr. HOWE. The second and third sections of this bill speak of the seizure, search, and examination of all trunks, packages, and envelopes. It seems to me that language is broad enough to cover the United States mails. I suppose it is not the purpose of the bill to authorize the examination of the United States mails.

“Mr. MORRILL [sponsor of the bill]. Of course not.

“Mr. HOWE. I propose to offer an amendment to prevent such a construction.

“Mr. EDMUNDS. There is no danger of such a construction being placed upon this language. It is the language usually employed in these bills.

“Mr. HOWE. If gentlemen are perfectly confident that it will bear no such construction, and will receive no such construction, I do not care to press it.

“The PRESIDING OFFICER. The Senator from Wisconsin withdraws his amendment.” 3

*628 Third, the language of the statute itself, when read in its entirety, quite plainly has reference to packages of the kind normally used to import dutiable merchandise. 4 It is true *629 that buried, deep in the first long sentence in § 3 of the Act to prevent smuggling there is an authorization to “search any trunk or envelope, wherever found.” I do not believe, however, that the word “envelope” as there used was intended to refer to ordinary letters. Contemporary American diction *630 aries emphasize the usage of the word as descriptive of a package or wrapper as well as an ordinary letter. 5 This emphasis is consistent with the text of the bill as originally introduced, which used the phrase “any trunk, or other envelope.” 6 Moreover, in 1866 when the Act was passed, there was no concern expressed in Congress about the smuggling of merchandise that would fit in a letter-size envelope. 7 A legislative decision to authorize the secret search of private mail would surely be expressed in plainer language than is found in the long statutory provision quoted in the margin; at the very least it would be supported by some affirmative evidence in the legislative history rather than the total disclaimer in the colloquy quoted above.

*631 Fourth, the consistent construction of the statutory authorization by a series of changing administrations over a span of 105 years must be accorded great respect. 8 NLRB v. Bell Aerospace Co., 416 U. S. 267, 274-275 ; Helvering v. Reynolds Co., 306 U. S. 110, 114-115 . If the Executive perceives that new conditions and problems justify enlargement of the authority that had been found adequate for over a century, then these matters should be brought to the attention of Congress. Cf. H. K. Porter Co. v. NLRB, 397 U. S. 99, 109 . 9

Finally, the asserted justification for the broad power claimed is so weak that it is difficult to believe that Congress would accept it without the most searching analysis. The fear the new practice is intended to overcome is that the addressee of a suspicious item of mail would withhold consent to open foreign mail, thereby necessitating the return of the item to the sender. But the refusal to accept delivery without disclosing the contents of a suspicious letter would itself be a fact which could be considered — along with whatever indicia caused the inspector to regard the item with suspicion in the first place — in a probable-cause determination. There is no reason to believe that the alternatives of probable cause or consent would lead to the extensive return of contraband that *632 would otherwise be confiscated on the basis of “reasonable cause to suspect.”

If the Government is allowed to exercise the power it claims, the door will be open to the wholesale, secret examination of all incoming international letter mail. No notice would be necessary either before or after the search. Until Congress has made an unambiguous policy decision that such an unprecedented intrusion upon a vital method of personal communication is in the Nation’s interest, this Court should not address the serious constitutional question it decides today. For it is settled that

“when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not ‘the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.’ [Greene v. McElroy, 360 U. S. 474 ,] 507.” Hannah v. Larche, 363 U. S. 420, 430 .

Cf. Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 347-348 (Brandeis, J., concurring). Accordingly, I would affirm the judgment of the Court of Appeals.

This was the procedure followed by the customs officials in Cotzhausen v. Nazro, 107 U. S. 215 , relied upon by the Government here. For 100 years, from 1871 to 1971, Post Office Regulations allowed incoming international letter mail to be opened only in the presence, and with the consent, of the addressee. Brief for United States 20-21, nn. 12a, 14 (citing regulations).

This conviction is bolstered by the history of the defeat of the amendment which would have imposed a specific warrant requirement on the opening of international mails, ante, at 612 n. 8. The amendment was offered during the course of House debate on the Postal Reorganization and Salary Adjustment Act of 1970, Title 39 U. S. C., which created the United States Postal Service. This amendment was but one of more than 35 amendments to the Act offered on the floor of the House that day. 116 Cong. Rec. 20481 (1970). Speaking immediately before the amendment was defeated, Congressman Derwinski said:

“Going beyond the constitutional debate which we do not have the time for this afternoon, if this amendment were to be adopted, the problem of stopping the flow of narcotics and pornography would be greatly compounded.

“I do not believe we want to legislate on such a major issue with just 10 minutes of debate.” Id., at 20483.

Under such circumstances the defeat of this amendment cannot be considered an expression of the will of the House of Representatives on the *627 issue, but it does emphasize the reluctance of Congress to legislate in the area without careful consideration of the constitutional questions. See, e. g., 18 U. S. C. § 2510 (Omnibus Crime Control and Safe Streets Act of 1968) (warrant required to electronically intercept wire or oral communications) ; S. Rep. No. 1097, 90th Cong., 2d Sess., 66-76, 88-108, 161-177, 182-183, 187, 214-218, 224-226, 23A-239 (1968). I do not, of course, imply that this incident is, in itself, sufficient to demonstrate congressional sensitivity to the individual interest in private communication. See ante, at 612 n. 8. I cannot believe, however, that the Court seriously questions the validity of my assumption that Congress (in 1866 as well as today) was indeed concerned about such matters.

Cong. Globe, 39th Cong., 1st Sess., 2596 (1866). After consideration of one more amendment the bill passed the Senate the same day.

The first three sections of the Act,' Further to Prevent Smuggling and for Other Purposes, enacted on July 18,1866, read as follows:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, for the purposes of this act, the term ‘vessel,’ whenever hereinafter used, shall be held to include every description of water-craft, raft, vehicle, and contrivance used or capable of being used as' a means or auxiliary of transportation on or by water; and the term ‘vehicle,’ whenever hereinafter used, shall be held to include every description of carriage, wagon, engine, car, sleigh, sled, sledge, hurdle, cart, and other artificial contrivance, used or capable of being used as a means or auxiliary of transportation on land.

“Sec. 2. And be it further enacted, That it shall be lawful for any •officer of the customs, including inspectors and occasional inspectors, or of a revenue cutter, or authorized agent of the Treasury Department, or other person specially appointed for the purpose in writing by a collector, naval officer, or surveyor of the customs, to go on board of any vessel, as well without as within his district, and to inspect, search, and examine the same, and any person, trunk, or envelope on board, and to this end, to hail and stop such vessel if under way, and to use all necessary force to compel compliance; and if it shall appear that any breach or violation of the laws of the United States has been committed, whereby or in consequence of which, such vessel, or the goods, wares, and .merchandise, or any part thereof, on board of or imported by such vessel, is or axe hable to forfeiture, to make seizure of the same, or either or any part thereof, and to arrest, or in case of escape, or any attempt to escape, to pursue and arrest any person engaged in such breach or violation: Provided, That the original appointment in writing of any person specially appointed as aforesaid shall be filed in the custom-house where such appointment is made.

“Sec. 3. And be it further enacted, That any of the officers or persons authorized by the second section of this act to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person on which or whom he or they shall suspect there are goods, wares, or merchandise which are subject to duty or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or *629 envelope, wherever found, in which he may have a reasonable cause to suspect there are goods which were imported contrary to law; and if any such officer or other person so authorized as aforesaid shall find any goods, wares, or merchandise, on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe are subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial; and every such vehicle and beast, or either, together with teams or other motive-power used in conveying, drawing, or propelling such vehicle, goods, wares, or merchandise, and all other appurtenances, including trunks, envelopes, covers, and all means of concealment, and all the equipage, trappings, and other appurtenances of such beast, team, or vehicle shall be subject to seizure and forfeiture; and if any person who may be driving or conducting, or in charge of any such carriage or vehicle or beast, or any person travelling, shall wilfully refuse to stop and allow search and examination to be made as herein provided, when required so to do by any authorized person, he or she shall, on conviction, be fined in any sum, in the discretion of the court convicting him or her, not exceeding one thousand dollars, nor less than fifty dollars; and the Secretary of the Treasury may from time to time prescribe regulations for the search of persons and baggage, and for the employment of female inspectors for the examination and search of persons of their own sex; and all persons coming into the United States from foreign countries shall be hable to detention and search by authorized officers or agents of the government, under such regulations as the Secretary of the Treasury shall from time to time prescribe: Provided, That no railway car or engine or other vehicle, or team used by any person or corporation, as common carriers in the transaction of their business as such common carriers shall be subject to forfeiture by force of the provisions of this act unless it shall appear that the owners, superintendent, or agent of the owner in charge thereof at the time of such unlawful importation or transportation thereon or thereby, was a consenting party, or privy to such illegal importation or transportation.” 14 Stat. 178 -179.

“A wrapper; an outward covering or case.” J. Worcester, A Dictionary of the English Language (1860).

“That which envelops, wraps up, encases, or surrounds; a wrapper; a cover; especially, the cover or wrapper of a document, as of a letter.” N. Webster, An American Dictionary of the English Language (Goodrich & Porter eds. 1869).

These are the primary definitions given for “envelope.”

The word "other” was deleted by amendment, Cong. Globe, 39th Cong., 1st Sess., 2564 (1866). I recognize that one may argue that the deletion of the word “other” is evidence of an intent to include every kind of envelope rather than just those comparable to a “trunk.” It seems more reasonable to infer, however, that the draftsmen considered the direct comparison to a trunk too restrictive and merely had in mind all containers which performed the same kind of packaging function even though not as large as a trunk. It seems unrealistic to interpret this change as intended to broaden the statute to encompass personal mail.

The stated object of the 1866 Act was to prevent smuggling, especially from Canada along the North and Northwestern frontier:

“It has been found very difficult on our frontier during the last two years to prevent the system of smuggling which has been going on and increasing day by day. The custom-houses are defrauded and the Government is cheated.” Remarks of Congressman Eliot, Cong. Globe, 39th Cong., 1st Sess., 3419 (1866).

See also remarks of Senator Morrill, id., at 2563 ; of Senator Williams, id., at 2567 .

An 1886 opinion of Acting Attorney General Jenks made reference to the practice followed in Cotzhausen v. Nazro, 107 U. S. 215 , a case which involved the opening of package mail with the consent, and in the presence, of the addressee. See 18 Op. Atty. Gen. 457, 458. No opinion of any subsequent Attorney General has construed the statute any more broadly.

In support of its argument in this Court that the 1971 regulations are reasonable within the meaning of the Fourth Amendment, the Government has assembled a plethora of statistical data obtained after the regulations were adopted. Such a post hoc justification cannot, of course, inform us about the actual motivation for the adoption of the regulations. I mention the point only because the Government’s reliance on these data tends to confirm my judgment that if a new rule is to be fashioned, it should be drafted by the Congress.