Opposition — United States v. Ramsey

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SUPREME COURT OF THE UNITED STATES

October Term, 1976

UNITED STATES OF AMERICA

Petitioner

Vv. No. 76-167

CHARLES W. RAMSEY and JAMES W. KELLY

Respondents

BRIEF OF RESPONDENT JAMES W. KELLY

IN OPPOSITION TO PETITION FORA

WRIT OF CERTIORARI

Irving R. M. Panzer

1735 DeSales Street, N. W.

Washington, D. C. 20036

(Appointed by the United

States Court of Appeals,

District of Columbia Circuit,

under the Criminal Justice

Act)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

UNITED STATES OF AMERICA

Petitioner

Ve No. 76-167

CHARLES W. RAMSEY and JAMES W. KELLY

Respondents

BRIEF OF RESPONDENT JAMES W. KELLY

IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

Respondent Kelly accepts the Question Presented, the State-

ment of the Case, and the other formal portions of the petition

for a writ of certiorari, and proceeds to the body of his Opposition.

REASONS FOR DENYING THE WRIT

1. There is no square conflict.

The first (and obviously the major) reason advanced by the

Government for granting the writ is that there is a conflict of

circuits and that the court below "acknowledged that it was creating

a conflict among the circuits" (Petition, p.- 9). Indeed the majority

of the Court of Appeals did believe its decision was in square con-

flict with the Seventh Circuit and the Ninth Circuit, see App. A,

p. 6a, as did the dissenting judge, see App. A, p. 20a, but analysis

of the cited decisions shows, surprisingly, that while a superficial

conflict does exist, none of the cases cited by the Court of Appeals

can be said to be in square conflict with the decision below.

The decision below not only held that a warrantless search of

international letter mail violated the Fourth Amendment (and to that

extent there is indeed a conflict with the Seventh and Ninth Cir-

cuits), but it also brought in the First Amendment as an important

factor, since communication is involved. It is the conjunction of

these two Constitutional mandates that gives the decision below its

unique nature, unique because none of the allegedly conflicting

decisions touches this point. And none of those decisions devoted,

to the basic issue, the careful and scholarly attention that was

invested by the Court below.

Indeed, of the cases cited (by both the majority and the

1

minority below) as being im square conflict, only one, United States

v. Odland, 502 F. 2d 148, even purported to deal at any length with

the issue raised here. In Odland, the Seventh Circuit did not deal

with 19 U.S.C. 482 as did the court below (see Pet. App. A, Pp- 13a)

but did sustain under 39 CFR 61.1 a search, without a warrant and

without probable cause, of mail originating outside the United

emia The Seventh Circuit expressly held that the confidentiality

of mail is guaranteed only to first class mail (that is, domestic

mail), 502 F. 2d at 150, citing 39 U.S.C. 3623(d). The Seventh Cir-

Cuit dealt only superficially with the Fourth Amendment and did not

mention the First Amendment at all. And in its other cited decision,

United States v. Bolin, 514 U.S. 554 (1975), the Seventh Circuit in

sustaining a warrantless search of international mail did no more

T7 United States v. Bolin, 514 F. 2d 554 (7th Cir., 1975); United

States v. Odland, 502 F. 2d 148 (7th Cir., 1974), cert. den.,

419 U.S. 1088; United States v. Barclift, 514 F. 2d 1073 (9th

Cir., 1975), cert. den. 423 U.S. 842.

2/ 39 CFR 61.1, printed at Pet. App. A, pp. 24a-25a, provides:

“All mail originating outside the customs territory of the

United States is subject to customs examination" (with the ex-

ception of diplomatic or official mail. The regulation is an

implementation of 19 U.S.C. 1582 (printed at Pet. App. A, p. 22a,

which provides: "The Secretary of the Treasury may prescribe

regulations for the search of persons and baggage..."

than cite the Odland decision, without again reviewing the law.

The Ninth Circuit, in a per curiam decision in United States

v. Barclift, 514 F. 2d 1073 (1975), sustained a warrantless search

of international mail on only the briefest of discussions, basing

its decision neither on 19 U.S.C. 482 nor 39 CFR 61.1; instead, the

Ninth Circuit —_ its holding on 19 CFR 145.2 (printed at Pet.

3

App. A, p. 23a), and cited the Odland decision with approval. (The

Ninth Circuit appears to believe - incorrectly - that the Odland

opinion also relied upon 19 C.F.R. 145.2)

No mention was made of the First Amendment; indeed, the en-

tire discussion of the search issue is shockingly short (three

paragraphs on pp. 1074-5).

There thus is no agreement among the circuits upon exactly

what statute or regulation is involved, the court below not having

mentioned either of the two regulations relied upon by the Seventh

and Ninth Circuits, and it cannot be said that there is a square

conflict of circuits.

2. The decision below should be given time to make its

influence felt.

The thoroughness and persuasiveness of the decision below is

such (especially as compared to the brief, almost cryptic, dis-

cussions of the Seventh and Ninth Circuits) that it seems an excellent

possibility that the opinion below will influence all future decisions

and thereby obviate any conflict, making it unnecessary for this

3/ 19 C.F.R. 145.2 is almost a duplicate of 39 C.F.R. 61.1. It

provides: "All mail originating outside the Customs territory

of the United States, whether sealed or unsealed, iz subject

to Customs examination, except" (and the exceptions are dip-

lomatic or official mail).

Court to devote its time to this matter. The Court should deny

the writ at this point and allow a reasonable period of time to see

whether the conflict, if there is one, disappears.

Despite the efforts of the Government to make it appear that

the decision below has created a crisis for the Customs Service, a

cool appraisal of the facts indicates that no critical problem exists.

Given the fact that this Court has sustained the authority of Govern-

ment officials to delay first class mail for a period of at least

29 hours while they investigated suspicious circumstances and then

obtained a search warrant, United States v. Van Leeuwen, 397 U.S.

249 (1970), a unanimous decision, the solution is clear. The Customs

officials could collect any suspicious international letter mail,

take the appropriate time to present it properly to a magistrate,

and obtain a iain a Certainly the impressive testimony of the

Customs Inspector in this case would virtually guarantee the issu-

ance of a warrant, thereby obviating the confrontation that the

Government appears to have forced. There is no necessity to have

a confrontation or to have this Court decide the issue at this

very moment.

One of the chief factors influencing the denial of the issu-

ance of the writ in this case should be the impact of the First

Amendment on the warrant requirement of the Fourth Amendment in

cases involving letter mail, an impact which (as we have said)

was totally ignored by the other courts. The decision of the

court below was so clearly correct and so impressive on this point

4/ As was pointed out below by the Court of Appeals, Pet. App.

17a, this is precisely what the authorities in Washington,

D.C., did when similar envelopes arrived at the Washington

Post Office. The procedure appears to have caused the auth-

orities no particular problem.

that we confidently expect it to have great influence on other

federal appellate courts; we expect to see its rationale adopted.

We think this Court should give the decision its opportunity to

circulate among other courts and to make its weight felt. As the

court below pointed out in the portion of its opinion dealing with

First Amendment considerations, Pet. App. lla-l4a:

"Finally, and probably most important,

letter mail is a vital means of communica-

tion 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 privacy and our interest in free

expression, far more than packages or suit-

cases 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 25l.

Even if the ordinary practice of the Customs

Service 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, Jr., concurring); cf. Talley v. Calif-

ornia, 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 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

‘fh]istory abundantly documents the tendency of

Government - however benevolent and benign its

motives - 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 e.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., lst 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,

43, 148, 150, 163; id., Vol. 6, at 202-06,

367, highlight the importance of the Supreme’

Court's observation. The Supreme Court has”

also stated, as one reason supporting its re-

quirement 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 indiscriminate wire-

tapping and bugging of law-abiding citizens

cannot occur.' United States v. United States

District Court, supra, at 321. Routine opening

of international mail presents the same threat

to First Amendment 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 unrestrained opening of international mail.

We believe that the values protected by the First

and Fourth Amendments demand that, before inter-

national letter mail is opened, a showing of

probable cause be made to and a warrant secured

from a neutral magistrate. "

It is unnecessary for this Court to devote its attention to

this matter at this time. The petition for a writ of certiorari

should be denied.

Irving R. M. Panzer o

1735 DeSales Street, N. W.

Washington, D. C. 20036

Telephone: 783-3391

(Appointed by the U.S. Court

of Appeals, District of

Columbia Circuit)