Petition — United States v. Ramsey

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MICHAEL RODAK, JR.CLER

Inu the Supreme Court of the Wunited States i.

OCTOBER TERM, 1976

UNITED STATES OF AMERICA, PETITIONER

Vv.

CHARLES W. RAMSEY and JAMES W. KELLY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS.FOR THE

DISTRICT OF COLUMBIA CIRCUIT

‘

ROBERT H. Bork,

Soliciter General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

FRANK H. EASTERBROOK,

Assistant to the Solicitor General,

JEROME M, FEIT,

ANN T. WALLACE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Page

Opinion below ._—-__. hE SAMS SL TO 1

Jurisdiction _.______ sali clad Slaca hasan ciabiasa has 1

ETE LE LOTR LT 2

Constitutional provision, statutes and regula-

EIS chacaabatiatle

FE Se ae a eee inion 2

Reasons for granting the petition ==... 7

a alates 16

SAE ETE Mic OO A Ik Se la

Appeaaxx 3 aie aes saaumaiehaiaas 2la

[EEE SCARE ES SOO AEE

CITATIONS

Cases: |

Almeida-Sanchez v. United States, 413

I oa eS EIST 11

Boyd v. United States, 116 U.S. 616. 9,11

Brolan v. United States, 236 U.S. 216_ 10

Carroll v. United States, 267 U.S. 132 _. 11

Galvan v. Press, 347 U.S. 522... 13

New York Trust Co. v. Eisner, 256 U.S.

345 - Rh SAS SA IOs ea 13

United States \ v. . Barclift, 514 F.2d 1073,

certiorari denied, 423 U.S. 842 _. 8

United States v. Beckley, 335 F.2d 86,

certiorari denied sub nom. Stone v.

United States, 380 U.S. 922...

United States v. Bolin, 514 F.2d 554

CO CO

Cases—Continued Page | Constitution, statutes and regulations: Page

United States v. Brignoni-Ponce, 422 United States Constitution:

US. 873 ogee eee a ea 11 Article I, Section 8, clauses 1 and 3. 10

United States Vv. Di Re, 332 U.S. 581 —_— 10 Fourth Amendment Sete ah tek +} 5, 8, 13, 16

United States v. Doe, 472 F.2d 982, cer-

tiorari denied sub nom. Rodriquez v. 18 U.S.C. App. ewer! seneeceecnecnceenonas 5

United States, 411 U.S. 969 _ : 7,8 iO ap leg: A TT a

United States v. Harris, 390 U.S. 234 - 12 19 U.S.C. 1582. B10

United States v. Henritze, 522 F.2d 1279, eo : | os Vee, O08) 4-5

certiorari denied, March 22, 1976 _ : St USL. S88) ____._. 5

75-913) en ih 8 21 U.S.C. 952 (a) ER pears atone et en Re te oe 5

United States v. King, 517 F.2d 350. Tan - 8 22 D. C. Code 3203 5

United States v. Martinez-Fuerte, No. en ee OO.

74-1560, decided July 6, 1976 14 19 C.P.R. 145.8

United States v. Milroy, C.A. 4, No. 15- eee wee | 7

1675, decided March 2, 1976, certiorari ae eee 7

denied, June 7, 1976 (No. 75-6479). 8 39 C.F.R. Part 61+ 2, 10

United States v. Odland, 502 F.2d 148, 39 C.F.R. 61.3 wadennenwnennnnwennnneanennenwn~s 9

certiorari denied, 419 U.S. 1088 _. 8

United States v. Robinson, 414 U.S. 218_ 12

United States v. Santana, No. 75-19, de-

I TN iii sctetnieemen 4

United States v. Swede, 326 F. Supp.

eR EASES i Ee ene Se ee 7

United States v. Thirty-seven Photo-

MN, GI CET, TID accctcessssctnnenne 11 |

United States v. 12 200-ft. Reels of Super |

8mm. Film, 413 U.S. 123 10, 11

United States v. Watson, 423 U.S. 411 10, 12,

Weber v. Freed, 239 U.S. 325 10

Wolff v. McDonnell, 418 U.S. 539... 15

Iu the Supreme Court of the United States:

OCTOBER TERM, 1976

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

CHARLES W. RAMSEY and JAMES W. KELLY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra,

pp. la-20a) is not. yet reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 21a) was entered on June 10, 1976. On

July 1, 1976, the Chief Justice extended the time

(1)

within which to file a petition for a writ of certio-

rari to and including August 9, 1976. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254

(1).

QUESTION PRESENTED

Whether probable cause and a search warrant are

required before customs officials may open an enve-

lope entering the United States from abroad, when ~

they suspect that the envelope contains smuggled

goods.

CONSTITUTIONAL PROVISION, STATUTES

AND REGULATIONS INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

19 U.S.C. 482, 19 U.S.C. 1582, and the pertinent

portions of 19 C.F.R. Part 145 and 39 C.F.R. Part

61 are set out in App. C, infra, pp. 22a-27a.

STATEMENT

From November 1973 until January 1974, Sylvia

Bailey and William Ward were principals in an in-

ternational narcotics trafficking ring (App. A, infra,

pp. 2a-3a). West German agents investigating

Baiiey and Ward intercepted trans-Atlantic tele-

phone conversations between Bailey and respondent

Ramsey during which narcotics were discussed (id.

at 3a).

In late January 1974 Bailey and Ward moved the

base of their operation to Thailand. Thai officials,

alerted by West Germany, saw them mailing numer-

ous envelopes. Five envelopes were inspected by

Thai officials; one of the addresses was later linked

to respondents. On February 2, 1974, Thai officials

arrested Bailey and Ward and seized numerous sealed

envelopes containing heroin.’ Eleven of the envelopes

bore Washington, D.C. addresses connected to re-

spondents (ibid.).

Two days later, George Kallnischkies, a customs

inspector in New York City who was unaware of

these events, detected undeclared matter in eight en-

velopes en route from Thailand to four addresses in

Washington, D.C. (App. A, infra, pp. 3a-4a). These

envelopes were “rather bulky,” and Inspector Kall-

nischkies believed that they contained merchandise

rather than letters (Tr. 3-7, 25, 32).* He weighed

one of them and found that it was three times the

ordinary weight of an airmail letter (Tr. 8-9, 27).

He opened this envelope and found, between two

1 Bailey and Ward have never been available in the United

States for trial. App. A, infra, p. 2a n. 1.

2“Tr.” and “2 Tr.” refer to volumes one and two of the

transcript of the suppression hearing on October 25, 1974.

pieces of cardboard, a plastic bag containing a white

substance that he believed to be heroin. Based upon

this discovery, he opened the other seven bulky enve-

lopes, which appeared to have been addressed on the

’ same typewriter as was the first envelope (Tr. 25).

Inspector Kallnischkies resealed the envelopes. Six

of them were delivered to three addresses. Federal

agents saw respondent Kelly collect the envelopes,

rendezvous with respondent Ramsey, and give Ram-

sey a brown paper bag (App. A, infra, p. 4a). Re-

spondents were arrested. The bag contained the six

envelopes, $1,100 in cash, and material with which to

dilute the heroin (ibid.).

Respondents were indicted for numerous offenses

arising out of this transaction. They moved to sup-

press the heroin that had been discovered by Inspec-

tor Kallnischkies.* After an evidentiary hearing, the

district court denied the motion from the bench (2

Tr. 43). Respondents then waived their right to a

jury trial. The case was submitted on the basis of

stipulated facts and exhibits. On December 20, 1974,

the district court found respondents guilty of un-

lawful importation of heroin and of possession of

heroin with intent to distribute it, in violation of 21

*It is not clear why respondents have standing to object to

Inspector Kallnischkies’ opening of the envelopes. The enve-

lopes were not addressed to them and contained no corres-

pondence. The government did not contend below that re-

spondents lack standing, however, and we therefore have not

presented. it as a question for resolution by this Court. See

United States v. Santana, No. 75-19, decided June 24, 1976,

slip op. 3 n. 2.

U.S.C. 841(a) and 952(a). The court also found re- —

spondent Kelly guilty on one count, and respondent

Ramsey guilty on three counts, of the unlawful use

of a communication facility, in violation of 21 U.S.C.

843(b). Finally, the court found respondent Ramsey

guilty of two firearms offenses. Respondent Ramsey

was sentenced to concurrent terms of imprisonment,

the longest of which was 10 to 30 years. Respondent

Kelly was sentenced to partially concurrent and par-

tially consecutive terms aggregating 10 to 30 years’

imprisonment.

A divided panel of the court of appeals reversed.

Although it found Inspector Kallnischkies’ seizure of

the envelopes reasonable, it held that the envelopes

could not be opened without probable cause and a

warrant. The court acknowledged that border

searches have traditionally been recognized as an ex-

ception to the warrant requirement of the Fourth

Amendment (App. A, infra, pp. 5a-7a). It thought,

however, that this exception was justified only by

the exigencies attendant upon most border searches

(id. at 7a); finding no exigencies compelling Inspec-

tor Kallnischkies to act without a warrant, the court

concluded that he could not do so.

*These offenses—receiving and possessing a firearm as a

convicted felon, in violation of 18 U.S.C. App. 1202(a) (1),

and receiving and possessing a pistol, in violation of 22 D.C.

Code 3203—were the subject of a separate indictment. The

weapons were found as a result of respondents’ arrests and

so are “fruit” of the discovery of the heroin. The convictions

consequently must stand or fall with the heroin offenses.

6 °

The court distinguished between envelopes and

larger containers, indicating that. warrantless

searches of the latter would be allowed with or with-

out exigent circumstances. The court advanced four

reasons for this distinction. First, only “limited

kinds of contraband * * * can be concealed within a

letter-sized envelope,” so that it is less likely that an

envelope, “rather than an automobile or a suitcase,

contains contraband” (App. A, infra, p. 8a). Second,

the court thought that officials using metal detectors,

X-rays, and trained dogs could detect items smuggled

in envelopes more readily than those concealed else-

where (ibid.). Third, envelopes can be detained more

readily than travellers while a warrant is being ob-

tained (id. at 10a). Finally, the court thought that

warrantless openings of envelopes would inhibit free-

dom of expression (id. at lla-13a).

Judge Robb dissented. He would have followed the

decisions of other courts of appeals that have allowed

warrantless inspections of envelopes at the border

(App. A, infra, pp. 19a-20a). In his view, the his-

torical justification for border searches is sufficient

to allow the opening of an envelope. He also ques-

tioned the consistency of the majority’s position: ob-

serving that the majority would allow searches of

people and packages, he argued that a package should

not acquire greater security against inspection sim-

ply because it is smaller or is not carried by a per-

son.

Sees

REASONS FOR GRANTING THE PETITION

Millions of envelopes enter the United States from

overseas each year. Many of these envelopes are

large, stiff or bulky, and they conceal their contents

as well as does a cardboard box.’ Unless customs

officers have authority to inspect these envelopes, thev

will become hiding places for smuggled goods of a!

sorts. The court of appeals, by requiring probabil:

cause and a warrant as a precondition to such an

inspection, has created just such a possibility. We

submit that its decision places unreasonable restraints

upon customs searches. Moreover, this is a matter

as to which uniform national rules are imperative,

and there is thus a need for this Court to resolve

the conflict among the circuits created by the deci-

sion below.

1. Inspector Kallnischkies inspects mail entering

in New York City. His predicament illustrates the

problems caused by the decision below. Under at

least two cases decided by courts with jurisdiction

over his place of employment, he may open envelopes

without probable cause or a warrant. United States

v. Doe, 472 F. 2d 982, 984-985 (C.A. 2) (dictum),

certiorari denied sub nom. Rodriquez v. United

States, 411 U.S. 969; United States v. Swede, 326

I’. Supp. 533, 536 (S.D. N.Y.). Moreover, Inspector

° The court of appeals’ holding applies to all “international

letter class mail” (App. A, infra, pp. 9a-10a and n.6), a

category that includes packages weighing as much as 60

pounds for which the requisite amount of postage is paid.

See 39 C.F.R. 22.1(b) and (c).

Kallnischkies once opened an envelope bound from

Columbia to Woodhull, Illinois, and found that it

contained cocaine. The court of appeals held that

he acted properly. United States v. Bolin, 514 F. 2d

554 (C.A. 7).°

In this case he followed an identical procedure

with envelopes bound from Thailand to the District

of Columbia. The court of appeals held that his ac-

tions violated the Fourth Amendment because he

lacked probable cause and a warrant. If the enve-

lopes had been delivered in the Virginia or Maryland

suburbs of the District, however, the search would

have been upheld. United States v. Milroy, C.A. 4,

No. 75-1675, decided March 2, 1976, certiorari de-

nied, June 7, 1976 (No. 75-6479). Courts in many

other destinations also would have upheld the In-

spector’s procedure. See United States v. King, 517

F. 2d 350, 352-353 (C.A. 5);*° United States v. Bar-

clift, 514 F, 2d 1073, 1074-1075 (C.A. 9), certio-

rari denied, 423 U.S. 842; United States v. Beckley,

335 F. 2d 86, 88-89 (C.A. 6) (dictum), certiorari

denied sub nom. Stone v. United States, 380 U.S.

922.°

®°See also United States v. Odland, 502 F. 2d 148, 151

(C.A. 7), certiorari denied, 419 U.S. 1088.

* See also United States v. Henritze, 522 F. 2d 1279 (C.A.

5), certiorari denied, March 22, 1976 (No. 75-913).

* All of the cases cited except Doe and Beckley approve a

warrantless opening of an envelope; Doe and Beckley ap-

prove the warrantless opening of packages, but both indicate

that the opening of envelopes should be governed by the

same standards.

The court of appeals acknowledged that it was

creating a conflict among the circuits (App. A, infra,

p. 6a). This conflict is undesirable. There is no rea-

son why Inspector Kallnischkies should be required

to vary his inspection procedures depending upon

the destination of the envelope. Custom officials in-

spect incoming items at 136 ports of entry (39

C.F.R. 61.3), and each port may receive items bound

for any destination in the United States. The pro-

cedures used by these inspectors, and by the Postal

Service, should be uniform. A disparity of practices

may substantially weaken the customs inspection sys-

tem by permitting smugglers to send their goods

freely to destinations where probable cause and a

warrant are: required, bypassing destinations where

courts have approved present procedures.’ The con-

flict among the circuits therefore requires resolution

by this Court.

2. Congress has explicitly endowed the Customs

Service with the power it exercised here. A statute

first enacted by the same Congress that proposed the

Bill of Rights (see Boyd v. United States, 116 U.S.

616, 623) provides that a customs officer may search

“any trunk or envelope * * * in which he may have

®* The Postal Service has notified the Customs Service that

it will not turn over for customs inspection mail bound for the

District of Columbia unless the Bureau complies with the

procedures required by the court below. The Customs Serv-

ice informs us that compliance with the required procedures

is impossible with current personnel (62 inspectors in 26

major customs offices) and would be impractical even with

an expanded staff.

reasonable cause to suspect there is merchandise

which was imported contrary to law” (19 U.S.C.

482). See also 19 U.S.C. 1582. Pertinent regulations

provide that mail originating outside the United

States is subject to customs inspection and that a

warrant is required only if an inspector believes it

necessary to read particular correspondence. See 19

C.F.R. Part 145 and 39 C.F.R. Part 61. (These stat-

utes and regulations are set forth at App. C, infra.)

Although the judgment of Congress is entitled to

a “strong presumption of constitutionality,” espe-

cially when it turns upon what is “reasonable”

(United States v. Watson, 423 U.S. 411, 416; United

States v. Di Re, 332 U.S. 581, 585), the court of

appeals dismissed the statutes as “of no consequence”

(App. A, infra, p. 13a n. 7). We believe that the

statutes are entitled to deference. If two statutes

and an entire set of regulations are to be struck

down as unconstitutional, this Court should make that

judgment.

3. Article I, Section 8, clauses 1 and 3 of the

Constitution grant Congress the power to regulate

commerce with foreign nations and to lay and collect

duties. United States v. 12 200-ft. Reels of Super

8mm. Film, 413 U.S. 123, 125-126. Because the

power thus granted includes the power to “exclude

merchandise at [Congress’] discretion” (Brolan v.

United States, 236 U.S. 216, 219; Weber v. Freed,

239 U.S. 325, 329), it also includes the power to

condition the entry of all things into the country

upon exposure to the routine, suspicionless inspec-

tions necessary to prevent the importation of pro-

hibited things. Almeida-Sanchez v. United States,

413 U.S. 266, 272. “Travellers may be * * * stopped

in crossing an international boundary because of

national self protection reasonably requiring one en-

tering the country to identify himself as entitled to

come in, and his belongings as effects which may be

lawfully brought in.” Carroll v. United States, 267

U.S. 182, 154.

The right to inspect is not diminished simply be-

cause a person and his goods enter this country by

separate routes. Searches of containers at the border

for smuggled goods “are totally different things” from

inland searches. Carroll, supra, 267 U.S. at 149 (quot-

ing from Boyd v. United States, supra, 116 U.S. at

623). This Court has made it clear many times that

there is no need for a warrant or even suspicion for .

a border search. United States v. Brignoni-Ponce,

422 U.S. 873, 878-884 (opinion of the Court), id. at

887 (Rehnquist, J., concurring) ; Almeida-Sanchez v.

United States, supra, 413 U.S. at 273; United States

v. 12 200-ft. Reels, supra, 413 U.S. at 125; United

States v. Thirty-seven Photographs, 402 U.S. 363,

376; Carroll vy. United States, supra, 267 U.S. at 153-

154; Boyd v. United States, supra, 116 U.S. at 623.

Such searches are justified by force of circum-

stance. Inspections at random, or on suspicion not

amounting to probable cause, are necessary imple-

ments of the enforcement of the customs laws. Bulky

envelopes and packages arriving from abroad rarely

announce that they contain contraband,. and customs

officers rarely know enough about them to have even

a fair idea of their contents. To require probable

cause as a condition of inspection would be, in most

instances, to guarantee success to smugglers. And,

because “no Warrants shall issue, but upon prob-

able cause,” no warrant could be obtained to author-

ize an ordinary border search.”

The searches are also justified by force of history.”

1 Although the court of appeals held that an envelope can-

not be inspected without probable cause, it also indicated

that it would take a flexible view of probable cause (App. A,

infra, pp. 18a-14a n. 8). It is difficult to know what to make

of this. Is it enough that the inspectors have probable cause

to believe that the envelope contains something other than a

letter? If so, the requirement is practically meaningless,

since only those kinds of envelopes are presently opened by

Customs. But if something more is necessary, then the

chances of successful smuggling are dramatically increased.

™ As this discussion indicates, we disagree with the court

of appeals’ belief that only exigent circumstances justify

warrantless inspections, and that border searches are permis-

sible only insofar as they are required by exigencies. The

border search rules stand on their own practical and his-

torical footing, as do the rule allowing seizure of things

found in plain view (United States v. Harris, 390 U.S. 234,

236) and the rule allowing warrantless arrests (United

States v. Watson, supra). Neither turns upon exigent cir-

cumstances. Indeed, the court of appeals disregarded its own

reasoning by indicating that it would uphold warrantless

inspections of packages, even in the absence of exigent cir-

cumstances.

Moreover, this Court has recognized (United States v.

Robinson, 414 U.S. 218) that searches falling within an ex-

ception to the Warrant Clause can be conducted whether

or not they satisfy the rationale that originally justified the

exception. If it were otherwise, officials would not have the

certainty that is necessary in carrying out their duties. The

court of appeals’ approach, which requires essentially a

Border searches of envelopes, trunks, and people were

accepted practices at the time of the adoption of the

Constitution and the propriety of the practice has

remained virtually unquestioned to this day. Mr.

Justice Holmes has reminded us that “a page of

history is worth a volume of logic” (New York

Trust Co. v. Eisner, 256 U.S. 345, 349). Here,

in Mr. Justice Frankfurter’s words, “there is not

merely ‘a page of history,’ * * * but a whole volume”

(Galvan v. Press, 347 U.S. 522, 531). That history

may not fix the meaning of the Fourth Amendment,

but it shapes its interpretation, and courts are not

free to disregard its claims.”

4. The rationales for border searches apply with

equal force to inspections of envelopes. As Judge

Robb observed (App. A, infra, p. 19a), “that the

contents to be inspected are enclosed in an envelope,

rather than by wrapping paper and twine, cannot

be of critical significance.” The search of a person

crossing the border involves an intrusion far greater

than the brief inspection of an envelope; it would be

ironic if the less intrusive search required both prob-

able cause and a warrant, while the more intrusive

search required neither.

case-by-case analysis to determine whether a particular

border search “really” was necessary under the rationale for

border searches as a class, would deprive officials of this

necessary certainty.

12 The court of appeals wrote that the argument from his-

tory has been “squarely rejected” by this Court (App. A,

infra, p. 7a n. 5). It has not. See United States v. Watson,

supra (relying upon history to approve felony arrests with-

out a warrant).

The fact that many envelopes contain letters adds

nothing to the analysis. Letters also may be enclosed

in packages or carried on the person, yet the court

of appeals would allow inspection of packages and

people. Conversely, envelopes may and often do carry

only merchandise. That was so here; the six enve-

lopes delivered to respondents contained only card-

board and heroin.

The court of appeals’ concern for personal corre-

spondence is a legitimate one. The Customs Service

regulations provide (19 C.F.R. 145.3) that no corre-

spondence can be read without a warrant. But there

has been no showing in this case that customs inspec-

tors read or censor mail. The Postal Service refers

an incoming envelope to the Customs Service for in-

spection only if the envelope appears to contain things

other than, or in addition to, written matter. The

Customs Service has informed us that between July

1975 and February 1976 its inspectors opened less

than one percent of envelopes so referred. This regu-

lar administrative procedure is susceptible of judi-

cial scrutiny after the fact; there is no need for a

warrant to ensure that the administrative conduct

is reasonable. Cf. United States v. Martinez-Fuerte,

No. 74-1560, decided July 6, 1976.

We further note in this connection that the court

of appeals has significantly mischaracterized the is-

sue presented by this case. The court speaks of “the

practice of routinely opening mail” (App. A, infra,

p. lla) and, again, of “[rJoutine opening of inter-

national mail” (id. at 13a), as though it is regular

practice to open international letter-class mail. In

fact, the statute authorizes warrantless openings of

incoming envelopes only when there is “reasonable

cause to suspect” that the envelope may contain mer-

chandise being improperly imported, as there was in

this case. There is no practice of “routine” opening

without a warrant of envelopes that outwardly ap-

pear to contain only written matter. The important

question that we ask this Court to decide in a man-

ner reaffirming virtually unanimous prior judicial

precedent concerns the right to open without a war-

rant, for purposes of customs inspection, incoming

envelopes reasonably believed to contain merchandise

of some sort.

In any event, respondents have not argued that

their correspondence was read, nor could they, for

the envelopes contained no correspondence. Whatever

inhibitory effect customs inspections may have on

others, respondents were not exposed to it. Nor is

such an effect different in kind from that attending

the inspection of all envelopes coming into a prison.

“The possibility that contraband will be enclosed in

letters” is sufficient to allow prison officials to open

all envelopes. Wolff v. McDonnell, 418 U.S. 539, 577.

The possibility that smuggled items will be enclosed

in envelopes therefore should be sufficient to allow

customs inspectors to open a carefully-selected group

of envelopes that appear to contain things other than

letters.

Finally, the search in the instant case was not of

a wafer-thin aerogramme incapable of enclosing a

foreign substance. The envelope here was bulky and

stiff; it, no less than a cardboard box, could disguise

its contents unless opened for inspection. To the ex-

tent that different standards should be applied to

packages and envelopes, these envelopes, partaking

of the concealing characteristics of packages, should

be judged by the package standards.

The decision of the court of appeals would increase

the complexity and diminish the effectiveness of the

process of detecting smuggled goods at the border.

The court was not entitled to substitute its judgment

for that of Congress and the responsible executive

officials unless the Fourth Amendment left it no al-

ternative. We submit that the Fourth Amendment

does not require either probable cause or a warrant

for an inspection of envelopes at the border.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ROBERT H. BoRK,

Solicitor General.

RICHARD L., THORNBURGH,

Assistant Attorney General.

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

JEROME M. FEIT,

ANN T. WALLACE,

AUGUST 1976. Attorneys.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1275

No. 75-1276

UNITED STATES OF AMERICA

Vv.

CHARLES W. RAMSEY, APPELLANT

No. 75-1691

UNITED STATES OF AMERICA

Vv.

JAMES W. KELLY, APPELLANT

Appeals from the United States District Court

for the District of Columbia

(Crim. 74-623)

Argued December 10, 1975

Decided June 10, 1976

Before: MCGOWAN, TAMM and Ross, Circuit

Judges.

Opinion for the court filed by Circuit Judge Mc-

GOWAN.

Dissenting opinion filed by Circuit Judge Ross.

McGowaN, Circuit Judge: Appellant Ramsey was

convicted in the District Court on one count of un-

lawful importation of heroin (21 U.S.C. § 952(a)

(1970) ) ; three counts of unlawful use of a communi-

cation facility (21 U.S.C. § 843(b) (1970)); one

count of possession of heroin with intent to distribute

(21 U.S.C. § 841(a) (1970) ); one count of unlawful

receipt and possession of a firearm (18 U.S.C. § 1202

(a) (1) (1970) ) and one count of unlawful possession

of a pistol (22 D.C. Code § 3203 (1973)). Appel-

lant Kelly was convicted on one count of unlawful

importation, one count of unlawful use of a communi-

cation facility, and one count of possession with in-

tent to distribute. On appeal, a number of allegations

of error are made, one of which we find to be of

merit, and we therefore reverse the convictions.

The case was tried to the District Judge on the

basis of a lengthy stipulated record which we need

summarize only in broad outline. In November of

1973, Sylvia Bailey and William Ward,’ who resided

? Bailey and Ward were indicted with appellants, but have

never been available in the United States for trial.

in West Germany, were engaged in international

narcotics trafficking. They were subjected to elec-

tronic surveillance pursuant to a West German court

order, and the wiretap led to a search of Ward at

the Munich Airport in December of 1973, which

turned up no drugs but $10,000 in cash. The wire-

tap was reactivated in January of 1974, and among

the calls intercepted were incriminating trans-Atlan-

tic conversations concerning narcotics between Bailey

and appellant Ramsey.

Ward and Bailey travelled to Thailand in late

January of 1974, and Thai officials were alerted to

their presence by West German agents. The Thai

officials placed them under surveillance, and observed

Ward mailing letter-sized envelopes in six different

mail boxes. Five of these envelopes were recovered,

and among the addresses they bore was a mail drop

in Washington, D.C. later linked to appellants. On

February 2, 1974, Bailey and Ward were arrested

in their hotel room in Thailand, and seized in the

raid were all the ingredients for the narcotics im-

portation scheme. Among the items so obtained were

numerous sealed, heroin-filled envelopes, eleven of

which bore Washington, D.C. addresses with which

appellants were later found to have a connection.

Two days later in New York—independently and

without any knowledge of the foregoing—Customs

Inspector George Kallnischkies seized and, proceeding

without a warrant, opened eight envelopes found to

contain heroin. The envelopes had been mailed from

Thailand and were destined for four addresses in the

Washington area. These envelopes were resealed and

forwarded to Washington, and six were delivered to

three addresses. Federal agents witnessed Kelly re-

trieve all six envelopes, rendezvous with Ramsey at

the latter’s residence, and transfer to Ramsey a

brown paper bag. The agents moved in and arrested

both men. The paper bag was found to contain six

letters, $1,100 in cash, and cutting material. Also

seized from Ramsey was a notepad with Bailey’s

phone numbers and addresses. The next day, in ex-

ecuting a search warrant on Ramsey’s residence, the

agents recovered, inter alia, the two pistols for whose

unlawful possession Ramsey stands convicted and a

cardboard sheet with Sylvia Bailey’s phone numbers.

The critical issue in this case, in our view, is the

warrantless search of the eight envelopes at the New

York Post Office. Those envelopes, and a great deal

of evidence deriving from their seizure, were pre-

sented before the trier, and no attempt is or could

fairly be made by the Government to argue that, if

the seizure was illegal under the Fourth Amendment,

the error was harmless as to any of the counts. As

we proceed to develop, we believe that the opening of

these letters without resort to a warrant procedure

was a constitutional violation, and the use at trial,

over the objection of appellants, of evidence obtained

thereby requires overturning the convictions.’

* The Government remains free, of course, to retry appel-

lants if there exists sufficient evidence, aside from the illegally

Inspector Kallnischkies was a supervisor of Cus-

toms Service Inspectors dealing with international let-

ter class mail (the category closest to domestic first

class mail). He testified that foreign airmail mail

coming to the New York General Post Office is placed

on a conveyor belt for sorting, and during that process

he would remove any items that looked “suspicious.”

Tr. of October 25, 1974 Hearing, at 6. In this in-

stance, he removed eight envelopes from the belt be-

cause they were from Thailand—a known source of

heroin—and were bulky.’ Jd. at 7. He weighed one

of the envelopes and found it to weigh 42 grams,

roughly three times the weight of a normal letter.

Id. at 8-9. The envelope also “felt like there was

something in there... .” Jd. at 9. He then opened

one envelope and found a plastic bag containing

white powder between some pieces of cardboard. Up-

on testing, the powder was found to be heroin. The

other envelopes also were found to contain heroin.

The Government would place this search within the

border search exception to the warrant requirement.

The view that packages moving through international

mail fall within the border search exception has been

seized envelopes and fruits of that seizure, to warrant such

a course.

* Kallnischkies testified that often he could feel cardboard

inside an envelope, and that if there is a bag of heroin con-

cealed inside, shaking the envelope will cause the bag to fall

into one particular spot. Tr. at 33. He could not specifically say

in the case in question that he felt anything other than the

bulkiness of the envelope. Jd. at 34.

uniformly adopted by courts confronting that ques-

tion. E.g., United States v. Doe, 472 F.2d 982, 984

(2d Cir.), cert. denied, 411 U.S. 969 (1973); United

States v. Galvez, 465 F.2d 681, 687 (10th Cir. 1972) ;

United States v. Beckley, 335 F.2d 86, 88-89 (6th

Cir. 1964), cert. denied, 380 U.S. 922 (1965) ; Uniled

States v. Swede, 326 F. Supp. 533, 535-36 (S.D.N.Y.

1971) ; United States v. Sohnen, 298 F. Supp. 51, 54-

55 (E.D.N.Y. 1969). The last-mentioned court,

(Weinstein, D.J.), indicated that it might reach a

different result where letters, rather than packages,

were involved. United States v. Sohnen, supra, at 55.

However, two circuits have squarely ruled that in-

ternational letter mail, like international package

mail, does fall within the border search exception.

United States v. Bolin, 514 F.2d 554, 557 (7th Cir.

1975), citing United States v. Odland, 502 F.2d 148,

151 (7th Cir.), cert. denied, 419 U.S. 1088 (1974);

United States v. Barclift, 514 F.2d 1073, 1074-75

(9th Cir.) (per curiam), cert. denied, 423 U.S. 842

(1975). See also United States v. Francis, 487 F.2d

968 (5th Cir. 1973), cert. denied, 416 U.S. 908

(1974).* Both of these circuits rested their analysis

*At page 9 of its brief, the Government notes that the

Supreme Court has refused to limit the power to search inter-

national mail upheld in Odland, Francis, and Doe. The infer-

ence that we are unmistakably invited to draw is that the

Supreme Court’s denial of certiorari should be viewed as an

endorsement of the result and perhaps the reasoning of these

cases. That is an invitation which, as we ought not to have to

remind the Government, conflicts with the elementary theory

of certiorari review.

on nothing more than the assertion that no meaning-

ful difference could be drawn between the entry of

mail into the United States and the entry of auto-

mobiles, baggage, individuals, or packages.

In our view, that assertion is sustainable only by

embracing the most sweeping concept that the “in-

tegrity of our borders” requires that all objects cross-

ing them may be searched at the whim of the Gov-

ernment. If, in fact, we look to the rationale of the

border search exception, we find that it is based

upon (1) the impracticability of requiring a war-

rant given the huge volume of items moving across

the border likely to contain contraband, e.g., United

States v. Doe, supra, at 982-83; Morales v. United

States, 378 F.2d 187, 190 (5th Cir. 1967), and (2)

the difficulty of obtaining a warrant when the sub-

ject of the search is mobile, as a car or person,

Carroll v. United States, 267 U.S. 132, 153 (1925).°

>Other rationales for this longstanding exception have

been suggested. One, the theory that a well-established his-

tory of warrantless searches can exempt the practice in ques-

tion from the ordinary requirement of a warrant, was squarely

rejected in Camara v. Municipal Court, 387 U.S. 523 (1967),

in which the Court ignored the argument based on history

on which it had relied eight years earlier in Frank v. Mary-

land, 359 U.S. 360 (1959). A second suggestion, that travelers

have a less strong expectation of privacy and hence warrant-

less searches are acceptable, see, e.g., United States v. Sohnen,

supra, at 55; Note, Border Searches and the Fourth Amend-

ment, 77 YALE L. J. 1007, 1012 (1968), is largely circular,

assuming the existence of such searches as part of the justi-

fication for them; and, in any event, the rationale would not

apply to searches of letter class mail, see pp. [1la-13a] infra.

When we compare letters to persons or automobiles

it becomes apparent how little force this rationale

carries when applied to letters. There are limited

kinds of contraband that can be concealed within a

letter-sized envelope; the decided cases appear to in-

volve almost exclusively narcotics, although it is per-

haps conceivable that small pieces of jewelry, small

quantities of precious metals, or currency might also

be concealed. There is, therefore, a smaller likeli-

hood in the first instance that a letter, rather than

an automobile or a suitcase, contains contraband.

Moreover, as far as the central problem of narcotics

is concerned, the Customs Service can effectively use

trained dogs who can detect the smell of contraband

drugs. See, e.g., United States v. Mitchell, 525 F.2d

1275, 1277 (5th Cir. 1976) ; United States v. Fulero,

498 F.2d 748 (D.C. Cir. 1974) (per curiam) ; United

States v. Feldman, 366 F. Supp. 356, 358 (D. Hawaii

1973). Similarly, X-ray examination, or metal de-

tectors like those currently in use at airports, could

detect precious metals or jewelry. See, e.g., United

States v. Chiarito, 507 F.2d 1098, 1099 (5th Cir.)

(per curiam), cert. denied, 423 U.S. 824 (1975);

United States v. Sohnen, supra, at 53. These tech-

niques could screen out a large percentage of other-

wise suspicious mail that, under current practice, is

routinely opened The dimensions of the remaining

problem of smuggling in letter-sized envelopes are of

a different order than those of other kinds of traffic

across the border.‘

* There is, of course, no ready line available to distinguish

letters from packages; the distinction is one of degree. We

are satisfied that the envelopes in this case, five of which

measured roughly seven by five inches and a sixth of which

measured nine by four and one-half inches, Government Exhs.

35-40, were in size and appearance closer to the letter end of

the spectrum and fell outside of the border search exception.

The Postal Regulations currently limit international letter

class mail to pieces not in excess of four pounds (except that

for Canada there is a sixty pound limit) and with a maximum

length of 24 inches and a maximum length, breadth and

thickness, combined, of 36 inches. 39 C.F.R. §§ 22.1(b), (c) (1)

(1975). In our view, the Government could be sure of com-

plying with the Fourth Amendment by treating all inter-

national letter class mail as outside the border search excep-

tion. It might be objected that many pieces within that class

are much more like “packages” than “letters,” and that there-

fore a narrower class of items outside the exception must be

defined. That point surely carries force, but the difficulty is

most easily solved in the first instance by governmental at-

tempts to formulate a dividing line that more appropriately

separates “packages” and “letters.” To be sure, even the most

acceptable definition will be arbitrary at the margin, as is

true of most difficult line-drawing problems. But that presents

no reason for drawing no line at all and thereby giving no

weight whatsover to the important privacy and expressive

interests. See Haddock v. Haddock, 201 U.S. 562, 631-32

(1906) (Holmes, J., dissenting) (“I have heard it suggested

that the difference is one of degree. I am the last man in the

world to quarrel with a distinction simply because it is one of

degree. Most distinctions, in my opinion, are of that sort, and

are none the worst for it. But the line which is drawn must be

justified by the fact that it is a little nearer than the nearest

opposing case to one pole of an admitted antithesis.”) And in

most cases, a piece of mail will clearly fall on one side of a

common sense dividing line between “letters” and “packages.”

See, e.g., Tr. of Oct. 25, 1974 Hearing, at 23.

[Footnote continued on page 10a]

10a

Furthermore, suspicious-looking letters (and, to be

sure, packages as well), unlike more mobile auto-

mobiles or travellers, can easily be detained to per-

mit further examination (as with dogs, magneto-

meters, or X-rays) or to obtain a warrant. In United

States v. Van Leeuwen, 397 U.S. 249 (1970), the

Supreme Court unanimously upheld the authority of

officials to detain first class mail for a period of 29

hours while they investigated suspicious circum-

stances and obtained a search warrant. Given this

holding, it would appear to be an a fortiori case for

Customs Inspectors to detain international letter mail

for a reasonable period in which to investigate and,

if appropriate, to obtain a warrant.

It thus seems that searches of international letter

mail at best strain the rationale of the border search

exception. Like all exceptions to the warrant re-

quirement, see generally, e.g., United States v. United

States District Court, 407 U.S. 297, 318 (1972);

Coolidge v. New Hampshire, 403 U.S. 448, 454-55

(1971); Jones v. United States, 357 U.S. 4938, 499

(1958), the border search exception must be care-

fully and narrowly drawn. The Supreme Court has

in recent years twice declined to take an expansive

view of the border search exception or the authority

* [Continued]

We believe that a careful attempt to define subclasses of

international mail by the Government, so as to clearly sep-

arate “packages” from “letters,” can provide sufficient cer-

tainty; and in cases where uncertainty persists, the Govern-

ment can deal with it by avoiding brinksmanship and instead

taking the preferred course of seeking a warrant.

lla

of the Border Patrol. See United States v. Brignoni-

Ponce, 422 U.S. 873 (1975); Almeida-Sanchez v.

United States, 413 U.S. 266 (1973). And as in the

Court’s most recent decision, in the instant case we

are “not convinced that the legitimate needs of law

enforcement require this degree of interference with

lawful traffic.” United States v. Brignoni-Ponce,

supra, at 883.

Finally, and probably most important, letter mail

is a vital means of communication in our society.

Letters express the most important and sensitive of

our personal, familial, political, professional, and fi-

nancial affairs. They implicate both our deepest pri-

vacy and our interest in free expression, far more

than packages or suiteas:s or automobiles. In the

words of Justice Holmes, “the use of the mails is

almost as much a part of free speech as the right

to use our tongues.” United States ex rel. Milwaukee

Social Democratic Pub. Co. v. Burleson, 255 U.S. 407,

437 (1921) (Holmes, J., dissenting), quoted with

approval in Blount v. Rizzi, 400 U.S. 410, 416 (1971),

and United States v. Van Leeuwen, supra, at 251.

Even if the ordinary practice of the Customs Serv-

ice is not to read the mail that is opened, see note 9

infra, mere knowledge on the part of individuals of

the practice of routinely opening mail inhibits the

exercise of free speech. See Procunier v. Martinez,

416 U.S. 396, 423 (1972) (Marshall, J., concurring) ;

cf. Talley v. California, 362 U.S. 60, 65 (1960) ;

NAACP v. Alabama, 357 U.S. 449, 462 (1958). And

the Supreme Court has indicated that limits on search

12a

and seizure must be especially strong where First

and Fourth Amendment values converge. See, e.g.,

United States v. United States District Court, supra,

at 313-14; Stanford v. Texas, 379 U.S. 476, 485

(1965).

The Court has also noted, with reference to the

need to enforce Fourth Amendment protections, that

“Chjistory abundantly documents the tendency of

Government—however benevolent and benign its mo-

tives—to view with suspicion those who most fervently

dispute its policies.” 407 U.S. at 314. The recent

disclosures about the widespread illegal searches of

mail by United States intelligence agencies, see, ¢.g.,

REPORT TO THE PRESIDENT BY THE COMMISSION ON

CIA ACTIVITIES WITHIN THE UNITED STATES [THE

ROCKEFELLER COMMISSION], June 1975, at 101-15,

168; S. Rep. No. 755, 94th Cong., 2d Sess., Book II,

at 12, 17, 38, 62, 107-08 (1976); id., Book 3, at

559-677; Hearings before the Senate Select Comm. to

Study Governmental Operations with Respect to In-

telligence Activities, 94th Cong., 1st Sess., Vol. 2, at

1-2, 15-16, 51-63, 66, 76 (1975); id., Vol. 4, at 2, 4,

6-7, 10-11, 21-22, 31-35, 38, 48, 148, 150, 163; id., Vol.

6, at 202-06, 367, highlight the importance of the Su-

preme Court’s observation. The Supreme Court has

also stated, as one reason supporting its requirement

that warrants be obtained for electronic surveillance

related to the domestic aspects of national security,

that “[b]y no means of least importance will be the

reassurance of the public generally that indiscrimi-

nate wiretapping and bugging of law-abiding citizens

13a

cannot occur.” United States v. United States Dis-

trict Court, supra, at 321. Routine opening of interna-

tional mail presents the same threat to First Amend-

ment interests, and enforcing the protections of the

Fourth Amendment can provide law-abiding citizens

with the same important assurance.

It thus appears that there is not a sufficient need,

and there is too great a risk to personal privacy, to

extend the border search exception to permit unre-

strained opening of international mail.’ We believe

that the values protected by the First and Fourth

Amendments demand that, before international letter

mail is opened, a showing of probable cause * be made

* The fact that the search in this case might be authorized

by 19 U.S.C. § 482 (1970) is of no consequence, for it is well

established that “‘no Act of Congress can authorize a viola-

tion of the Constitution.’” United States v. Brignoni-Ponce,

supra, at 877, quoting Almeida-Sanchez v. United States,

supra, at 272.

* Adherence to a probable cause s’andard should not ham-

string the Government; indeed, we believe that the facts in this

case are such that, had they been presented to a magistrate,

issuance of a search warrant permitting opening of the enve-

lopes would have been appropriate. Here, as elsewhere, “[i]n

dealing with probable cause, . . . as the very name implies,

we deal with probabilities. These are not technical; they are

the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians, act.”

Brinegar v. United States, 338 U.S. 160, 175 (1949) ; accord,

e.g., Spinelli v. United States, 393 U.S. 410, 419 (1969) :

... we do not retreat from the established propositions

that only the probability, and not a prima facie showing,

of criminal activity is the standard of probable cause,

Beck v. Ohio, 379 U.S. 89, 96 (1964); ... that in judging

probable cause issuing magistrates are not to be con-

l4a

to and a warrant’ secured from a neutral magistrate.

Any suggestion that adherence to the warrant re-

quirement would serve no purpose in a case like the

one at bar cannot be sustained. If the suggestion is

directed merely against the clear recognition of the

independent force of the Fourth Amendment’s war-

rant clause, it cannot be persuasive. And there are

at least three distinct functions that a warrant pro-

cedure would serve. First, by requiring that the in-

ferences to which law enforcement officials are entitled

be drawn by neutral magistrates rather than by offi-

cers in the heat of duty, see Johnson v. United States,

supra, at 13-14, it helps to limit unjustified intrusions

upon the private and communicative material con-

fined by niggardly limitations or by restrictions on the

use of their common sense, United States v. Ventresca,

380 U.S. 102, 108 (1965) ....

A by no means exclusive list of facts that tend to establish

probable cause would be: the size of the letter; whether in-

spection by X-ray or sniffing by a trained dog corroborates

any suspicion; whether feeling the package from the out-

side gives reason to suspect contraband; the country of origin;

an unusual and suspicious address or return address; an

unusual number of letters sent from and/or to the same

address within a short period of time; a reasonable basis to

believe that the sender or recipient is engaged in smuggling;

and so forth.

*Such warrants would, of course, almost always be limited

to inspecting the mail for contraband and would not authorize

the reading of any communication contained inside. 19 C.F.R.

§ 145.3 (1975) currently prohibits the reading of corres-

pondence in sealed letter mai] absent a warrant specifically

authorizing that action, although it appears that there is no

sanction accompanying that prohibition.

lda

tained in letter mail. Second, it creates a record of

the circumstances justifying an opening before the

search occurs; this record minimizes the burden of

post facto judicial review, United States v. United

States District Court, swpra, at 321, and sharply lim-

its the possibility that officials will attempt to justify

a search by what it turns up rather than what was

known beforehand, see, e.g., United States v. Di Re,

332 U.S. 581, 595 (1948). Inspector Kallnischkie’s

inability to remember precisely the basis upon which

he determined to open the letters in question, see note

3 supra, illustrates the importance of this purpose.

Finally, establishment of a warrant machinery is a

bulwark against the enlistment of mail openings not

on behalf of responsible law enforcement, but rather

to serve other, less commendable purposes. In Al-

meida-Sanchez, the Supreme Court reminded us of

Justice Jackson’s words shortly after returning from

the Nuremberg trials:

These [Fourth Amendment rights], I protest,

are not mere second-class rights but belong in

the catalog of indispensable freedoms. Among

deprivations of rights, none is so effective in

cowing a population, crushing the spirit of the

individual and putting terror in every heart.

Uncontrolled search and seizure is one of the

first and most effective weapons in the arsenal

of every arbitrary government.

413 U.S. at 274, quoting Brinegar v. United States,

338 U.S. 180 (1949) (Jackson, J., dissenting). To

advert again to the documented abuses by American

16a

intelligence agencies in conducting mail searches does

not reflect an obsession with current headlines, but

rather highlights the importance of our duty to en-

force the Fourth Amendment’s protection of individ-

ual privacy and security.”

The Government has suggested that a warrant re-

quirement would be impracticable, but there is abso-

lutely nothing in the record to support this assertion.

No proof has been adduced to show, and we have no

reason to believe, that using X-ray inspection, metal

detectors, specially trained dogs, and the like to dispel

suspicion, raised by external appearance, that a letter

contains narcotics, the remaining number of pieces

of suspicious-looking letter mail is overwhelming.

Moreover, a warrant procedure need not be unduly

burdensome. A Customs Inspector could each mor-

ning display to a magistrate letters from the previous

day’s mail that he wished to open and indicate his

reasons for so wishing; conceivably, the warrant pro-

cedure could be conducted entirely orally so long as

a complete record was maintained; the Government

could station a magistrate on a regular full or part-

time basis at such centers as the New York Post

%” As Judge Prettyman noted many years ago,

“We are dealing with doctrines and not with the pre-

sumable taste and sense of individual officials. Maybe

none of these examples would ever occur. But the ques-

tion before us is not whether they would happen but

whether they legally could.”

District of Columbia v. Little,.178 F.2d 13, 18-19 (D.C. Cir.

1949), aff'd on other grounds, 339 U.S. 1 (1950).

17a

Office, where the volume of mail is heaviest. Other

techniques both to facilitate examination of letters

short of opening them and to streamline the warrant

process might be devised.

In light of all of these seemingly feasible alterna-

tives, we are unpersuaded by the Government’s argu-

ment. Indeed, that argument is seriously compromised

by the fact that, after the seizure in New York of

the eight envelopes, officials at the Washington, D.C.

Post Office were alerted; and when they intercepted

three similar envelopes, they sought and obtained a

search warrant. The course they chose to take strikes

us as responsive to the Supreme Court’s repeated ad-

monitions that the warrant requirement “is not an in-

convenience to be somehow ‘weighed’ against the

claims of police efficiency,” Coolidge v. New Hamp-

shire, supra, at 481; that the inconvenience and delay

involved in obtaining a warrant are “never very

convincing reasons” for failing to obtain one, Johnson

v. United States, supra, at 15; that “the Constitution

recognizes higher values than speed and efficiency,”

Stanley v. Illinois, 405 U.S. 645, 656 (1972); and

that

The needs of law enforcement stand in con-

stant tension with the Constitution’s protections

of the individual against certain exercises of offi-

cial power. It is precisely the predictability of

these pressures that counsels a resolute loyalty to

constitutional safeguards.

Almeida-Sanchez v. United States, supra, at 273.

18a

The fact that the authorities locally in this jurisdic-

tion observed, apparently without difficulty, the war-

rant requirement in like circumstances underscores

the lack of cogency in apellees’ suggestion that we are

faced with one of those relatively few instances in

which adherence to the warrant requirement is genu-

inely impracticable. There is no question that inter-

national letter mail presents a serious threat to ef-

fective drug law enforcement. But successful contain-

ment of that threat does not require abandonment of

the Fourth Amendment.

The judgments of conviction are reversed and the

cases remanded to the District Court for further

proceedings consistent herewith.

It is so ordered.

19a

Ross, Circuit Judge, dissenting: I regret that I

am unable to join in the thoughtful and scholarly ma-

jority opinion. A few words will indicate the reasons

for my dissent.

Searches classified as border searches have always

been free of both the warrant and the probable cause

requirements of the Fourth Amendment. Boyd v.

United States, 116 U.S. 616, 623 (1886); Almeida-

Sanchez v. United States, 413 U.S. 266, 272 (Ma-

jority Op.), 287-88 (Dissenting Op.) (1973); United

States v. Beckley, 335 F.2d 86 (6th Cir. 1964), cert.

denied, sub nom., Stone v. United States, 380 U.S.

922 (1965); See Zweibon v. Mitchell, 170 U.S. App.

D.C. 1, 38-39, n.93, 516 F.2d 594, 631-32, n.93

(1975).' This means that a traveller and his luggage

and effects may be subjected to a reasonable search,

without a warrant, when he crosses the border. The

search may of course extend to packages he is carry-

ing, and I think he may reasonably be required to

open a sealed envelope carried in his pocket or hand-

bag; that the contents to be inspected are enclosed

in an envelope, rather than by wrapping paper and

twine, cannot be of critical significance. If I am right

* Citing Camara v. Municipal Court, 387 U.S. 523 (1967)

the majority suggests that the Supreme Court has abandoned

“the argument based on history”. The Camara case however

involved a warrantless entry by a housing inspector in San

Francisee: it did not involve a border search. The opinion

for the Court was written by Mr. Justice White. In Almeida-

Sanchez v. United States, 413 U.S. 266, 287-88 (1973) Mr.

Justice White, dissenting, forcefully stated and approved

the historical underpinnings of border searches.

20a

about this then I think a sealed envelope acquires no

additional protection or immunity from search be-

cause it moves through international mail, rather

than in a traveller’s luggage or on his person. There

is no more reason to require a warrant in one case

than in the other.

The majority argues that warrants authorizing

the opening of letter mail may be obtained with ease.

Yet this argument applies equally to packages and

envelopes, and the majority does not deny that pack-

ages crossing the border in the mail may be opened

without a warrant. Furthermore, the First Amend-

ment considerations emphasized by the majority ap-

ply also to packages, for writings of a sensitive and

personal nature, such as diaries, political tracts, and

the like may be transmitted in wrappings rather than

envelopes.

From what has been said it follows that I agree

with the decisions of the circuit courts of appeals

for the seventh and ninth circuits in United States v.

Bolin, 514 F.2d 554, 557 (7th Cir. 1975); United

States v. Odland, 502 F.2d 148, 151 (7th Cir.), cert.

denied, 419. U.S. 1088 (1974); and United States v.

Barclift, 514 F.2d 1073, 1074-75 (9th Cir.) (per

curiam), cert. denied, 423 U.S. 842 (1975). Unless

and until the Supreme Court repudiates those deci-

sions I would not do so.

2la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1975

Criminal 74-623

No. 75-1275 and 75-1276

UNITED STATES OF AMERICA

Vv.

CHARLES W. RAMSEY, APPELLANT

No. 75-1691

UNITED STATES OF AMERICA

JAMES W. KELLY, APPELLANT

Appeals from the United States District Court

for the District of Columbia

Before: MCGOWAN, TAMM and Ross, Circuit Judges

JUDGMENT

These causes came on to be heard on the record on

appeal from the United States District Court for the

District of Columbia and were argued by counsel. On

consideration of the foregoing, it is

ORDERED AND ADJUDGED by this Court that

the convictions appealed from in these causes are re-

versed and these cases are hereby remanded to the

District Court for further proceedings, in accordance

with the opinion of this Court filed herein this date.

Per Curiam

For the Court

/s/ George A. Fisher

GEORGE A. FISHER

Date: June 10, 1976 Clerk

Opinion for the Court filed by Circuit Judge Mc-

Gowan.

Dissenting opinion filed by Circuit Judge Robb.

[Filed Jun. 10, 1976, United States Court of Appeals

for the District of Columbia Circuit

George A. Fisher, Clerk]

22a

APPENDIX C

1. Section 3 of the Act of July 18, 1866, 14 Stat.

178, 19 U.S.C. 482, provides in relevant part:

Any of the officers or persons authorized to

board or search vessels may stop, search, and

examine * * * any vehicle, beast, or person, on

which or whom he or they shall suspect there is

merchandise which is 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 envelope, wherever found, in which

he may have a reasonable cause to suspect there

is merchandise which was imported contrary to

a? >? >,

2. Section 582 of the Act of June 17, 1930, 46

Stat. 784, 19 U.S.C. 1582, provides in relevant part:

The Secretary of the Treasury may prescribe

regulations for the search of persons and bag-

gage * * *; and all persons coming into the

United States from foreign countries shall be

liable to detention and search by authorized offi-

cers or agents of the Government under such

regulations.

19 C.F.R. Part 145 provides in relevant part:

a > a a *

§ 145.1 Definitions.

The following are general definitions for the

purposes of part 145:

23a

(a) Mail. “Mail” or “international mail”

means both Postal Union mail and parcel post,

as those terms are construed in 39 CFR Part 12.

(b) Letter mail. “Letter mail’ means letters

and letter packages in Postal Union mail.

packet, envelope, or other similar container,

whether sealed or unsealed, arriving in the inter-

national mail.

§ 145.2 Mail subject to Customs examination.

All mail originating outside the Customs terri-

tory of the United States, whether sealed or un-

sealed, is subject to Customs examination, ex-

cept:

(a) Mail known or believed to contain only

official documents addressed to officials of the

U.S. Government;

(b) Mail addressed to Ambassadors and Min-

isters (Chiefs of Diplomatic Missions) of for-

eign countries; and

only correspondence or documents addressed to

diplomatic missions or the officers thereof, or to

international organizations designated by the

President as public international organizations

pursuant to the International Organizations Act

(see § 148.87(b) of this chapter). Mail, other

than letter mail, addressed to such designated in-

ternational organizations is subject to Customs

examination except where the organization certi-

fies under its official seal that such mail contains

no dutiable or prohibited articles, Any Customs

examination made shall, upon request of the ad-

dressee international organization, take place in

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the presence of an appropriate representative of

that organization.

§ 145.3 Reading of correspondence prohibited.

No Customs officer or employee shall read or

authorize or allow any other person to read any

correspondence contained in sealed letter mail

of foreign origin unless a search warrant has

been obtained in advance from an appropriate

judge or U.S. magistrate which authorizes such

action.

§ 145.4 Dutiable merchandise without declara-

tion or invoice, prohibited merchandise, and

merchandise imported contrary to law.

(a) Subject to seizure and forfeiture. When,

upon Customs examination, a package from

abroad is found to contain merchandise subject

to duty or tax, and the package is not accom-

panied by an appropriate Customs declaration

and invoice or statement of value required by

§ 145.11, or is found to contain material pro-

hibited importation or imported contrary to law,

the merchandise is subject to seizure and for-

feiture.

* * * x *

. 39 C.F.R. Part 61 provides in relevant part:

§ 61.1 What is subject to examination.

All mail originating outside the customs terri-

tory of the United States is subject to customs

examination, except (a) mail addressed to Am-

bassadors and Ministers (Chiefs of Diplomatic

Missions) of foreign countries, (b) letter mail

known or believed to contain only correspondence

25a

or documents addressed to diplomatic missions

or the officers thereof, or international organiza-

tions designated by the President as public inter-

national organizations pursuant to the Interna-

tional Organizations Immunities Act, and other

mail addressed to such international organiza-

tions pursuant to instructions issued by the De-

partment of the Treasury, and (c) mail known

or believed to contain only official documents ad-

dressed to officials of the U.S. Government.

§61.2 Separation points.

(a) Exchange offices. Mail believed to contain

matter liable to customs duty or believed to con-

tain prohibited matter is submitted immediately

to local customs officers, except when exchange

offices are authorized to redispatch such mail to

designated distribution offices for customs treat-

ment thereat. Exchange offices which redispatch

matter to be submitted to customs officers will at-

tach Tag 10 (previously Label 81), a reusable

pink slotted tag, bearing the words, “This sack

contains mail Supposed Liable to Customs Duty,”

to the label holders or hasps of sacks or pouches.

(b) Distribution offices. Distribution offices

will submit such mail to customs officers as soon

as possible after receipt. The reusable tags, Tag

10, removed from sacks containing this mail will

be returned periodically to the postmasters at

New York, New Orleans, San Francisco, Seattle,

or Miami, as may be appropriate from a geo-

graphical standpoint.

ticles receive preferential customs treatment and

are submitted to customs separately from sur-

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face mail. Upon return from customs, dispatch

will be by air if it will expedite delivery.

§ 61.3 Examination.

(a) Registered mail. The postmaster or other

designated postal employee must be present when

registered articles and registered parcels are

opened by customs officers for examination. Af-

ter customs treatment, the customs officer will

repack and reseal the articles and parcels.

* * * a a

Should an article known or supposed to be duti-

able be observed at or en route to the office of

address without having received customs treat-

ment, forward it, labeled “For Customs Inspec-

tion,” under cover to U.S. Customs Office at the

nearest office listed in § 61.3(d), except that if

registered matter is involved send to the Post-

master of the city where the customs office is

located so the mail may be handled in accordance

with § 61.3(a). Packages that have received cus-

toms treatment will bear an endorsement such as

“Passed Free U.S. Customs” or the red adhesive

U.S. Customs Service envelope that contains Cus-

toms Mail Entry, Form 3419. The U.S. Customs

Service does not endorse “Passed Free of Duty”

on printed matter (magazines, newspapers, cir-

culars, and books). If printed matter is dutiable

it will bear the red adhesive envelope that con-

tains Customs Mail Entry, Form 3419.

ee ee ee ee Le

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§ 61.4 Repacking.

(a) Responsibility of customs and postal em-

ployees. Customs employees have responsibility

for resealing or repacking mail of foreign origin

following customs examinations. Postal employ-

ees accepting mail which has been in customs

custody for examination must determine from

external inspection whether it can safely bear

further handling and transportation. Customs

employees are responsible for restoring mail that

is not in satisfactory condition.

(b) Customs shipments in bad order. Ship-

ments found to be in bad order in transit or at

the delivery office must be reconditioned by postal

employees. Note bad order and evidence of rifling

or damage on the address side of the wrapper

over the signature of the employee.

* * * * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.