Opposition — United States v. Ramsey

T seprome Coun, 3

U.

FILED

SEP 3 1976

eS aE

ht JR,CLERS

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No. 76-167

UNITED STATES OF AMERICA,

Petitioner,

CHARLES W. RAMSEY and

JAMES W. Kelly,

Respondents.

OPPOSITION TO A PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

ALLAN M. PALMER

1707 N Street, N.W.

Washington, D.C. 20036

785-3900

Counsel for Respondent

Charles W. Ramsey

Heer rereee eee ee ease eee ee rere ee a a OE TEED

Washington, 0.C. « CLB PUBLISHERS e LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page

- ck ct atk ban eehe see eh ee eeeee l

PE Piece wkeek 6eeeeb eee dnseenece eines l

I onc ccc awe tes eeneuesceecs 2

CONSTITUTIONAL PROVISION, STATUTES AND

REGULATIONS INVOLVED ......ccccccccccecs 2

EE Sead oak bbe e esse ed hes beee s én 2-7

REASONS FOR DENYING THE PETITION ......... 8-19

Pn “aaa 6h a kok od ow ee 6 we oe ha rece os 19

TABLE OF AUTHORITIES

Cases:

Carroll v. United States, 267 U.S. 132 (1925) ......... 10,12

Corngold v. United States, 367 F.2d 1 (9th Cir.

DN ba shh ee abe eke eee sees CaS DEEE EKER OOD 15

Ex Paste Jackson, 96 US. T27 CIGTT) 2. cc ccc cc ccc cece 16

Katz v. United States, 389 U.S. 347 (1967) .......... 16,17

Stroud v. United States, 25, U.S. 1 (1919) ............. 17

United States v. Barclift, 514 F.2d 1073 (9th Cir.

ee: wecdeeveeneoe PP Pee EVE Se ee Tere 14

United States v. Beckly, 335 F.2d 86 (6th Cir.

ey ey ee ee oe re ee 13

United States v. Di Re, 332 U.S. 581 (1948) ........... 15

United States v. Doe, 472 F.2d 982 (2d Cir. 1973) ....... 15

United States v. Odland, 502 F.2d 148 (7th Cir.

SE SKS Nee CRRNEN SE CER OEE OL URES NES HERR 14

United States v. Sohnen, 298 F. Supp. 51 (E.D.N.Y.

RRR ra era av an per Ee any sn eens Een 14

United States v. Swede, 326 F. Supp. 533 (S.D.N.Y.

EE os sab ees aed eure ee bee he's Wwe 686 eRe 15

(ii)

United States v. Various Articles of Obscene Mer.,

363 F. Supp. 165 (S.D.N.Y. 1973) ................ 16

Constitution and statutes:

United States Constitution:

I ee ee eee ee nae 9-11,16

Fe ee a wa ae ee 11,13,15,17

I os ec re re kd 18

7 ae, en a Dg gs vs oon eb eeance 12

13 Stat. 441, 442, February 28,1865 ............ 12

ok my I RAE aie ee an 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-167

UNITED STATES OF AMERICA,

Petitioner,

CHARLES W. RAMSEY and

JAMES W. Kelly,

Respondents.

OPPOSITION TO A PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

OPINION BELOW

The opinion of the court of appeals is not yet

reported and appears at App. A. pp. la-20a of the

Petition.

JURISDICTION

Jurisdiction of this Court is properly invoked under

28 U.S.C. 1254(1).

2

QUESTION PRESENTED

Whether customs officials in exclusive custody and

control of the international equivalent of domestic first

class letter mail matter, may invade the privacy thereof,

upon suspicion that drugs were “possibly” contained

therein, without first obtaining a search warrant.

CONSTITUTIONAL PROVISION STATUTES

AND REGULATIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secured in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

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. pp. 22a-27a of the Petition.

STATEMENT

Charles W. Ramsey and James W. Kelly were

long-time friends who, the record reflects, pooled their

resources to commence a heroin-by-mail enterprise in

the Washington, D.C. area. Essentially, letters containing

nearly pure heroin were mailed from Bangkok, Thailand

to various locations for distribution.

On January 29, 1974, Bailey and Ward, their

suppliers, registered at a hotel in Bangkok and the Thai

3

authorities were alerted to their arrival by German

agents. Twenty-four hour surveillance was then placed

on them. During that surveillance, Ward was observed

to place letter-size envelopes in six different mail boxes.

Five of these envelopes were seized from the mailboxes

and among the various addresses thereon was one

destined for a Ramsey-Kelly local mail drop. On

February 2, 1974, police officers entered Bailey and

Ward’s hotel room, arrested them, and seized all of the

ingredients of their heroin-by-mail operation. Eleven of

the sealed heroin filled envelopes seized at that time

had Washington, D.C. area addresses which were later

tied in to Ramsey and Kelly. On February 4, 1974, the

Drug Enforcement Administration in Washington

received a cable concerning the recent Thai develop-

ments including the arrests of Bailey and Ward.

On that same date and, independent of the

knowledge of what had previously transpired, New

York based Customs Officer George Kallnischkies

routinely seized and opened eight heroin laden

envelopes addressed to four D.C. area locations. These

envelopes had been mailed by Bailey and Ward in

Thailand for eventual delivery to Ramsey and Kelly.

The eight envelopes were then placed in a _ locked

container and sent from New York City to Washington,

D.C,

As a result of this seizure in New York, Drug Agents

here alerted a Postal Inspector on February 5, 1974, of

the complete description of the eight envelopes seized

and those seized in Bangkok, Thailand. On February 7,

1974, the Postal Inspector notified one of the Drug

Agents that three similar envelopes had been inter-

cepted and detained at the Main United States Post

Office in Washington, D.C. That same day Agents

4

Landrum and Atlee obtained a United States

Magistrate’s Search Warrant for these three envelopes.

The envelopes were seized and subsequently determined

to contain nearly pure heroin.

On February 12, 1974, the eight letters seized and

searched in New York arrived in their locked container

and were recovered by Postal Inspector Hall. Then, for

the first time, Agents Landrum and Atlee obtained a

search warrant for these eight envelopes. On February

14, 1974, six of the eight envelopes were delivered to

three addresses contained thereon -— two to each

location. The two remaining ones were not delivered

because of an error in addressing them by Sylvia Bailey

to a non-existent address in Washington. James Kelly

was then observed on February 14, 1974, in the

company of two women, making his rounds to the three

surveilled locations and to recover six envelopes which

he placed in a brown paper bag. At approximately 1:15

p.m. Kelly drove to the unit block of S Street, N.E.

between North Capitol Street and Lincoln Road, parked

his car, and walked to 13 S Street, N.E., where Charles

W. Ramsey resided. At about the same time, Ramsey

was Observed to drive slowly past Kelly’s car, circle the

block and park about a car length in front of Kelly’s

car. Kelly walked to the driver’s side of Ramsey’s car

and gave the latter the brown paper bag containing the

six letters. Agents moved in quickly and made their

arrests.

George Kallnischkies (hereafter referred to as Mr. K),

testified that he was employed by the United States

Custom Service and worked Region 2, New York City.

His main responsibility was to examine incoming

foreign mail, letter class mail, to see if it contained any

dutiable merchandise or contraband. The usual pro-

cedure was for the mail in question to come into

5

Kennedy airport and from there be routed to the

various post offices; in the instant case the mail was

delivered to the General Post Office.

On Monday, February 4, 1974, Mr. K was working

and had occasion to “inspect” letter class mail that had

entered this country from other countries. Prior to

February 4, 1974, the witness remembered that heroin

had been seized from mail coming in from Thailand.

Mr. K observed the eight letters which raised his

suspicions, He weighed one of the envelopes and found

it to weigh 42 grams which he considered rather heavy

for an airmail envelope. It also felt as if something was

inside of the envelope, not merely plain paper.

Accordingly. he opened the envelope via his normal

procedure:

“T usually have a very primitive tool, an ice pick

and I just peal (sic) the flap open very carefully

and remove the contents and examine them... .”

Upon opening one of the envelopes herein, he found

two pieces of cardboard, and between them, a plastic

bag containing heroin. The seven other envelopes

appeared similar to him and Mr. K proceeded to open

those also and discover heroin in each of them.

The witness stated that no search warrant had been

obtained to open the mail in question which he

described as airmail letter type envelopes. At the time

Mr. K opened the envelopes, he had no _ prior

information about this case nor had he _ previously

noticed the addresses typed on the envelopes for

delivery in this country. These particular articles of

airmail, had they been mailed within this country

would have been considered the equivalent of first class

mail.

6

“Q Now, on the face of each one of these

envelopes, did they appear to be so-called letter

mail, as you looked at the envelope?

”

A Yes, sir, these are letters... .

It is clear that the first intrusion into this mail

occurred at 1:30 p.m. on Monday, February 4, 1974,

and that the items searched could not have arrived at

the post office that same day. These eight letter type

envelopes arrived at the post office from the airport at

the latest on Sunday and at the earliest on Saturday.

They were kept there for inspection over the weekend

because the customs people did not work on weekends

although the post office personnel did. Because of

several prior heroin mailings from Thailand, Mr. K was

generally suspicious of all mail coming in from that

country which probably ranged between ‘200 or 500

envelopes from” there. On occasions mail would be

opened which turned out to contain innocuous

material. The particular envelope in question raised a

suspicion in his mind:

“Q In other words is it fair to categorize this as

intuition or intuitive?

A Yes, sir.”

“You know, if you wanted me to be specific,

based on my experience, | would say this is

Thailand and possibly heroin.”

In the course of his daily activities the witness indicated

that he probably opened several hundred pieces of mail

per day coming in from Thailand and South American

countries. The witness could not state with any degree

of exactitude what percentage of the mail opened did

not contain contraband other than to say, “it does

happen, yes.”

7

The cases proceeded to non-jury trial upon the basis

of a stipulated record below after various motions

raised by the defense were denied by the district court.

Upon prior agreement of counsel and the court, twelve

of the seventeen drug related counts against Mr.

Ramsey in Crim. No. 74-623 were severed and he was

adjudged guilty on counts one, two, fourteen, fifteen

and seventeen. On February 14, 1975, he was

sentenced to concurrent terms of imprisonment for ~

these offenses, the longest of which was 10 to 30 years.

In Crim. No. 74-624 he was adjudged guilty of two

firearm’s offenses and received lesser terms.'

A divided panel of the court of appeals reversed.

Judges McGowan and Tamm held that before inter-

national letter mail may be opened, a showing of

probable cause be made to and a warrant secured from

a neutral magistrate. The majority, while recognizing

that Postal Regulations include within the term

international letter class mail items that would clearly

be packages, was careful to delimit its definition of the

term, for warrant purposes, to that mail matter which

common sense tells us are letters. (Petition App. A

9a-10a, n.6) The majority opinion gives full recognition

< 7

to the border search exception to the warrant

procedure when dealing with packages moving through

international mail. (Petition App. A. Sa-6a) Judge Robb

dissenting, thought that the border search exception

extended to sealed envelopes moving in such mail, as had

two other Circuit Courts of Appeal that had considered

the question.

'These weapons offenses were, concededly, the fruit of the

narcotic arrest and these convictions stand or fall with the heroin

offenses. Cf. Petition p. 5 n. 6.

8

REASONS FOR DENYING THE PETITION

In the opening round of its reasons advanced to grant

the instant petition, the government raises the spectre

that the ruling below may apply to mail entering this

country in containers weighing as much as 60 pounds

and accordingly, surmises that smuggling will soon run

rampant. Petition p. 7 and n. 5. It becomes more

certain as the Petition progresses. Petition pp. 11-12.

Perhaps this expansive reading of the opinion below is

itself cogent reason to deny the relief sought, and await

the manner in which that opinion is treated by other

courts considering the issue. As we see it, the majority

took great pains to indicate that its ruling solely

applied to /Jetters or letter-sized envelopes and

not to what one would call a package — viewing the

distinction between the two from a common sense

angle of vision. In so limiting its rationale, the majority

specifically sought to minimize the impact on border

searches by confining the search warrant requirement to

letters that look like letters and nothing more. Thus, in

considering the instant Petition, the Court should view

the ruling below as only applying to and seeking to

limit unwarranted intrusions into international letter

class mail which objectively appears to seek the aegis of

the right to privacy.

If that is not readily apparent, then the Court should

await future rulings to see whether or not the instant

case is — aS we contend — to be narrowly construed. In

addition to the opinion below being self-limiting, we are

not unmindful of the fact that the court had particular

envelopes in mind, which were photographed in color

and which formed part of the record on appeal. The

court alluded to this at n.6 of its slip opinion wherein

9

~

it described those envelopes and concluded, that

“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.” Petition App. A 9a.

To our knowledge, the government has not provided

this Court with those exhibits in order that it may be

fully informed as to the precise factual matrix

presented to the court of appeals. Being fully apprised of

these specifics, we cannot take seriously the suggestion

in the Petition that the judgment below mandates

search warrants based upon probable cause before

customs officials may inspect “‘[b]ulky envelopes and

packages arriving from abroad.” Petition at 11. From

this we are presented with the further bootstrap

argument that smuggling will now be both profitable

and protected. We submit that, upon careful analysis,

the opinion will spawn no such enclave for smugglers.

If Petitioner is in error, and the issue is more

narrowly drawn, then we are left with a case that seeks

an answer to the question whether this Court, at this

point in history, is willing to permit petty government

officials armed with ice picks, as was Mr. Kallnischkies,

to open the international equivalent of domestic first

class letter mail entering this country — without a

warrant and upon their suspicions alone. If not, the

judgment below should stand and the Petition denied.

Let us make no mistake about the fact that the

government is contending for nothing less than the

absolute constitutional right to open private letters

arriving in this country without a warrant, at random,

and without suspicion to believe that they contain

contraband or dutiable materials. Petition at pp. 11-12.

For that reason, the instant case is unique in that it

10

does not concern the Fourth Amendment in but its

theoretical application to ordinary citizens, but indeed,

conjures up that point in history when the populace at

large had legitimate fears concerning intrusions into

their privacy at the discretion of the crown’s

messengers.’

The government herein contends that at its whim and

caprice it can inspect, inter alia, the following incoming

international mail:

Private correspondence from every American citizen

traveling outside of the country who may be writing

home, to their jobs, to their doctors, to their lawyers

or, to judges — to whom they may be related. Further

oppressive examples are legion. Notwithstanding this,

the government seeks to console us with the thought

that once this correspondence is opened, the customs

official is not supposed to read what he finds without

first obtaining a warrant. Petition at p. 14. The court of

appeals was also aware of this regulation which, it

noted, had “no sanction” accompanying it. Slip. op. 12

n. 9. Petition App. A 14a.

In any event, as we see it, the border search

exception to the warrant requirement is historically

inapposite to the situation at hand.

This Court, over six years ago, allowed a 29 hour

detention of first class mail during which time a search

warrant could be procured for a seizure. United States

v. Van Leeuwen, 397 U.S. 249 (1970) The definition of

border search sought by the government is not as broad

as it may appear at first blush as we read Carroll vy.

United States, 267 U.S. 132 (1925), and other recent

cases. Carroll sustained the probable cause search of a

car without a warrant under the National Prohibition

* Recognizing these realities, the government petitioned this

Court straightaway without first seeking rehearing en banc below.

Act, because of reasonableness. In reflecting upon such

searches the Court alluded, inter alia, to the progenitor

of 19 U.S.C. §482 which:

‘“‘{M]ade lawful for customs officers not only to

board and search vessels within their own and

adjoining districts, but also to stop, search and

examine any vehicle, beast or person on which or

whom they should suspect there was merchandize

which was subject to duty or had been introduced

into the United States in any manner contrary to

law....”. Carroll, supra at 151. The Court alluded

to this statute and similar ones --

“To show that the guaranty of freedom from

unreasonable searches and seizures by the Fourth

Amendment has been construed, practically since

the beginning of the Government, as recognizing a

necessary difference between a search of a store,

dwelling house or other structure in respect of

which a proper official warrant readily may be

obtained, and a search of a ship, motor boat,

wagon or automobile, for contraband goods, where

it is not practicable to secure a warrant because

the vehicle can be quickly moved out of the

locality or jurisdiction in which the warrant must

be sought.” at 153.

The Court also noted that all travellers may be stopped

while crossing international boundaries because of

national self-protection, “[b]ut those lawfully within

the country, entitled to use the public highways, have a

right of free passage without interruption of search

unless” there is probable cause to believe they are in

violation of the law.

The present Border Search authorizing statute is 19

U.S.C., §482. It provides for searches of 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

12

any manner contrary to law.” It also provides for

customs agents “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 law.” The term “wherever found”

however, is as we shall see, quite limited in scope.

It is critical to note that the foundation Border

Search statute considered in Carroll v. United States,

supra., ie, 3 Stat. 231, 232, March 3, 1815,

distinguished between an ambulatory and permanent

situation.

“And if any of the said officers of the customs

shall suspect that any goods, wares, or merchan-

dise, which are subject to duty, or shall have been

introduced contrary to law, are concealed in any

particular dwelling, store or other building, he

shall, upon proper application, on oath, to any

judge or justice of the peace, be entitled to a

warrant ... Provided always, that the necessity of

a search warrant, arising under this act, shall in no

case be considered as applicable to any Carriage,

wagon, sleigh, vessel, boat, or other vehicle, of

whatever form or construction, employed as a

medium of transportation, or to packages on any

animal or animals or carried by man on foot.”

It was this original statute the Court alluded to in

Carroll, supra., when it observed that neither this

section “‘nor any of its earlier counterparts has ever

been attacked as unconstitutional.” 267 U.S. at 152. 13

Stat. 441, 442, February 28, 1865, which again allowed

for the so-called Border Search, provided for the

stopping and searching of persons or vehicles in (ransit.

For non-moving situations the statute provided:

“That in case any store, warehouse, or other

building shall be upon or near the boundary line

13

between the United States and any foreign

country, and there is reason to believe that [items

are placed there in violation of law], and the

collector...or surveyor of customs, shall make

oath before any magistrate ..., that he has reason

to believe, and does believe, that such offence has

been therein committed, such officer shall have the

right to search such building...”

14 Stat. 178 July 18, 1866, for the first time

specifically allowed customs officers to search any

“trunk or envelope”. But it is clear from a reading

thereof, that such searches without warrant only

applied to trunks or envelopes “on board” vessels or

upon vehicles, beasts or persons. The present statute 19

U.S.C., §482 is but an abbreviated form of its

predecessors, and from an historical perspective, does

not permit for the opening of international mail when

there is no danger of that mail moving before a warrant

can be obtained. Cf., United States v. Van Leeuwen,

supra.

Time and time again the key to the validity vel non

of a particular search is ‘‘reasonableness’’, vis-a-vis the

fact that the warrant procedure is the judicially

preferred route.

In United States v. Beckly, 335 F.2d 86 (6th Circuit

1964) marihuana arrived into this country in a package

weighing between 9 and 10 pounds. It was stated to

contain wall matts, pillow cases and robes of a total

value of $23.00. A customs agent opened the package

without warrant and the Court sustained introduction

of the evidence at trial. As its first ground the Court

relied on the fact that only first class mail is subject to

the warrant procedure and here ‘“‘first class postage was

not paid on the package.” 335 F.2d at 88. The Court

also fashioned a policy that:

14

‘Fourth Amendment standards applicable to mail

matter moving entirely within the country are not

applicable to mail matter coming in from outside

the country at least where a customs deter-

mination must be made. There seem to be no

adjudicated cases dealing with the necessity of

probable cause and search warrants for inspection

of imports by mail, but there are many cases

holding or indicating that such is not required

generally for searches by custom agents at the

borders of the country.”’ Accord, United States v.

Odland, 502 F.2d 148 (7th Cir. 1974). United States

v. Barclift, 514 F.2d !073 (9th Cir. 1975).

These decisions used a shotgun border search approach

and extrapolated it to non-moving situations, without

analyzing the difference between a true border search

and mail matter already within the control of the postal

authorities and for which time to obtain a warrant is

present. United States v. Sohnen, 298 F. Supp. 51

(E.D. N.Y. 1969) sustained a search of an international

package without a warrant relying on the Beckly,

rationale. However, the Court in Sohnen added a

caveat:

“The Constitution at least prevents harsh and

demeaning searches on mere suspicion and it may

well prevent the opening of letters, as opposed to

packages containing merchandise, without a search

warrant.”

Sohnen, concerned a_ sealed package containing

twelve gold coins which

“did not bear a required label stating that it could

be opened for customs inspection.

* * * *

The situation here is analogous to the inspection

of inbound commercial shipments.”

15

United States v. Swede, 326 F. Supp. 533 (S.D.N.Y.

1971), also upheld the opening of first class type mail

from Switzerland without a search warrant. In ruling,

however, the Court determined that the envelope was a

“package” and thus, “we do not determine whether the

Constitution prevents the opening of letters, as opposed

to packages containing merchandise without a search

warrant.” However, if a letter is initially involved, a

search cannot retroactively transform it into a package

because “‘a search is not to be made legal by what it

turns up.”’ United States v. DiRe, 332 U.S. 581, 595

(1948).

Recently, lower federal courts have obviously been

aware of the havoc that a blanket border search

approach to first class international mail would entail,

and have accordingly, been narrowing their decisions to

exclude letters, as the Court did in United States y.

Swede, supra. In United States v. Doe, 472 F.2d 982

(2d Cir. 1973), for example, the Court upheld the

search of a large package from Colombia, South America

labelled “‘old clothing.”

“While this court has never expressly so held,

there is a substantial body of precedent that would

apply the same border search standards to mail

coming into the country, especially where, as here,

there is a representation on the package that it

contains merchandise,”’ 472 F.2d at 984.

In Corngold v, United States, 367 F.2d 1 (9th Cir.

1966) the Court invalidated the search of a domestic

first class parcel containing smuggled watches without a

warrant. The government, in part, relied on 19 U.S.C.

§482. The Court noted that this was not a broder

search and, in any event, concluded that:

16

“We need not examine the statute’s precise

meaning, for appellant’s attack upon the search of

his package is based solely on constitutional

grounds and, however it is to be read, the statute

could not effectively authorize a search which the

constitution prohibited.” 367 F.2d at 3.

Cf. Ex Parte Jackson, 96 U.S. 727, 733 (1877).

“No law of Congress can place in the hands of

officials connected with the postal service any

authority to invade the secrecy of letters and such

sealed packages in the mail; and all regulations

adopted as to mail matter of this kind must be in

subordination to the great principle embodied in

the fourth amendment of the Constitution.”

“It can hardly be contended that the sender or the

addressee had a reasonable expectation of privacy

with regard to a large package mailed from a

foreign country, which is represented to contain

non-dutiable merchandise. Cf. Katz v. United

States, 389 U.S. 357... ”. 472 F.2d 985.

Conversely, as to letter type envelopes, such

expectation of privacy would be reasonable and

accordingly, subject to the Fourth Amendment on the

rationale of Karz.

In United States v. Various Articles of Obscene Mer.,

363 F. Supp. 165 (S.D.N.Y. 1973), the Court noted

that “the constraints placed on government intrusion

into persons and their papers by the Fourth Amend-

ment do apply to Customs searches.” at 167. Judge

Duffy also observed that: “Some courts have hinted

that the standards may be different when dealing with a

letter-sized envelope than when it is a package with

merchandise which is at issue.”

This distinction between letters and packages is, no

doubt, due in large part to subjective appraisals of

17

privacy. While all of us have a general notion that large

packages can be inspected by postal employees, we

strongly believe that our letters and small sealed

envelope type of correspondence is beyond postal

scrutiny. We abhor notions of censorship such as that

practiced in totalitarian countries or prisons. Cf. Stroud

v. United States, 251 U.S. 15, 21 (1919). (No

expectation of privacy for letters mailed by inmate at

Leavenworth penitentiary.) Accordingly, there is a

firmly grounded reasonable expectation that this

envelope type of mail is secure from intrusion. As a

result thereof, only the warrant procedure of the

Fourth Amendment could effect a lawful seizure. Katz

v. United States 389 U.S. 347 (1967).

We thus conclude — for the purposes of this case —

that international letter type mail coming into this

country which is functionally equivalent to domestic

first class mail is not subject to governmental intrusion

without a search warrant, unless that mail is upon a

person or his luggage entering the country. We believe

this to be the proper historical angle of vision from

which to read 19 U.S.C. §482. The so-called border

search concept is an offshoot of the necessity to act

quickly to preserve our territory and customs duties at

a time when an individual and/or his belongings

entering the country could rapidly disappear. No such

justification exists herein, when the mail was in the

custody and control of the postal authorities and the

agents had ample time to apply for a search warrant.

To reiterate, this view is strongly supported by Katz

v. United States, supra, which greatly changed notions

of privacy under the Fourth Amendment. When any of

us cross international boundaries we expect and readily

submit to customs inspections of our persons and

18

belongings — a cognizable consequence of such travel.

When we write to people in foreign lands we expect an

answer and, vice versa, because letters are, of necessity,

unilateral documents requiring further correspondence

as a rule. It is unreasonable to assume in this shrinking

world that the law only protects one side of this flow

of communication from unreasonable searches and

seizures. It is untenable to think otherwise than that all

parties to the communication process, especially those

receiving letters in America, have a reasonable expecta-

tion of privacy as to their mail. Cf 1&8 U.S.C. §1702.

Finally, as a reason for the granting of its petition,

the government points to an undesirable “conflict

among the circuits” which was engendered by the

opinion below. Petition p. 9. While such a conflict

appears to exist, it may well be that re-examination of

the issue by the various Courts of Appeal will bring us

the harmony sought by the government. If, as we

contend, the opinion below was correct, other courts

could realign their thinking in the matter upon

consideration of that opinion. Furthermore, at page 9,

n. 9 of its Petition, the government has given us some

extra-record insight into an ongoing administrative

procedure which might obviate the problem it sees. We

are advised that 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.

We are further informed that the government has

been informed by the Customs Service that it cannot

meet these procedures with the current level of

personnel. However, hope for the future is not ruled

out, because we are also told that compliance would be

19

impractical even with an expanded staff. While, in our

experience, nothing takes the place of live testimony

subject to rigorous examination to develop a precise

factual record, taken at its obscure best, we can infer

from this extra-record material, that compliance will be

achieved in the future — albeit with some difficulty. We

have great confidence that the government will not let

this mail matter slip through its hands for long without

some sort of monitoring system which will comply with

the ruling below.’ Therefore, compliance at the

administrative level may soon forestall the need for

further review by this Court. At the very least, we

suggest that the Court await the outcome of further

administrative proceedings to be more fully explored in

future cases upon an adequate record.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ALLAN M. PALMER

1707 N. St., N.W.

Washington, D.C. 20036

September 1976,

> Judges McGowan and Tamm — quite concerned with the

problem of smuggling — were particularly careful to articulate

how the Customs Service could readily comply with the search

warrant requirement as applied to that limited class of mail

matter with which the opinion dealt. Cf. Petition App. A,

8a- 10a.