# Petition — United States v. Ramsey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 606

## Text

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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,
13
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)

2

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,

3

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.

4

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

7
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).

8

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.

9

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.

10

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-

11

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

12

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

13

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).

14

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,

15

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.

16

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.

la
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

2a

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.

H

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.

3a

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

4a

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.

II

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

5a

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.

6a

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.

7a

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.

8a

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

9a

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.

a

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
Vv

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.

(c) Package. “Package” means any parcel,
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

(c) Letter mail known or believed to contain
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

24a

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.

(c) Priority treatment of airmail. Airmail ar-
ticles receive preferential customs treatment and
are submitted to customs separately from sur-

26a

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

(c) Failure to receive customs treatment.
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

27a

§ 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.

* * * * *

©. 6. GOVERNMENT PRinTiNG OFFicE; 1976 216626 264

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0396%3A1. Public record. Not legal advice.