Petitioners Brief — United States v. Ramsey

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NOV 18 1976

MICHAEL Ronan io .

No. 76-167 [ mci oo AR, IR, CLERK

—

an A ee ——

Gu the Supreme Gourt of the Gnited States

‘Ocrosper TERM, 1976

Uxirep STATES OF AMERICA, PETITIONER

Ciariues W. Rausey anp James W. KELLY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS POR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

ROBERT H. BORK,

Solicitor Generai,

RICHARD L. THORNBURGH,

\xsistant Attorney General,

FRANK H. EASTERBROOK,

issistant to the Solicitor General,

JEROME M. FEIT,

ANN T. WALLACE

Attorneys.

Department of Juatice.

Washington, DO. 20530.

Page

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Constitutional provision, statutes and regulations in-

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Neither probable cause nor a warrant is necessay before

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B. Border searches on less than probable cause are

an accepted part of our constitutional herit-

C. Important law enforcement interests justify

the minimal intrusion involved in opening

an envelope received from abroad, even in

the absence of probable cause___...------- 24

D. A warrant is not required to open an envelope

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CITATIONS

Cases:

Almeida-Sanchez v. United States, 413 U.S, 266_-___- 17, 27

Boyd v. United States, 116 U.S. 616__.-------------- 13, 15

Brolan v. United States, 236 U.S. 216_....-..-.--_-- 15

California Bankers Association v. Shultz,416U.S.21. 17

Camara v. Municipal Court, 387 U.S. 523__...._---- 34

Carroll vy. United States, 267 U.S. 182_-.-----._-___- 16

Colonnade Catering Corp. v. United States, 397 U.S.

et .cccdmneennnnecicnneuignewanintiwenidinlindinids 12

224-159—76——-1

Cases—Continued Page

Coolidge v. New Hampshire, 403 U.S. 443_---------- 34 Cases—Continued Page

Cotzhausen v. Nazro, 107 U.S. 215.---------- 7, 13, 15, 19, 21 United States v. Van Leewwen, 397 U.S, 249... 29

Jackson, Ex parte, 96 U.S. 727..------------------- 29 United States v. Watson, 423 U.S. 411__-__________- 12, 24

Katz vy. United States, 389 U.S. 347.--.-----.------- 29, 34 Weber v. Freed, 239 U.S. 325................_____ ak: 1)

Kleindienst v. Mandel, 408 tS Pe 50 Wolff v. McDonnell, BF We OO iiiiccececccecccens 31

United States v. Barclift, 514 F. 2d 1073, certiorari Constitution, treaties, statutes, and regulations:

denied, 483 U.S. 068... 2ocnccnccccesssaneans 11 United States Constitution :

United States v. Beckley, 335 F. 2d 86, certiorari denied Article I, Section 8, Clauses 1 and 3____... 14

sub nom. Stone y. United States, 380 U.S, 922_----- 10-11 Fourth Amendment__________ __. | 2, 7, 12. 33. 36. 37

United States v. Bolin, 514 F. 2d 554_--------------- 11 | "Saas 26

United States v. Brignoni-Ponce, 422 U.S. 873__------ 17 International Postal Treaty, Berne, October 9, 1874.

United States v. Brown, 499 F. 2d 829 certiorari denied, protocol Art. 25, 19 Stat, 604_.................___ 20-21

499 UD. 1068 ..nniscncsudssuseosiieeee 12 | Additional Act of Lisbon, The, March 21, 1885, Art. 8,

United States v. Cameron, 538 F. 2d 254_-.--.------- 11 | EEE ae 21

United States v. Diaz, 503 F. 2d 1025.__----.--__-_- 12 Universal Postal Convention :

United States vy. Doe, 472 F.2d 982, certiorari denied Paris, June 1, 1878, Art. 11, 20 Stat. 740-741______ 21

sub nom. Rodriquez v. United States, 411 U.S. 969__ 10 Vienna, July 4, 1891, Art. 16-3, 28 Stat. 1088-1089_ v1

United States v. Emery, C.A. 1, No. 75-1420, decided Washington, June 15, 1897, Art. 16-3, 30 Stat.

September 96, 1900.......csncassentsaninaaen 11 St Di eiiitinendanccancéaceececus 21

United States v. Henritze, 522 F.2d 1279, certiorari tome, May 26, 1906, Art. 16-3-2°(b), 35 Stat.

@ented, 404 U.S, O08.......xscsencesnneunsaes 10 EES ¥1

United States v. Janis, No, 74-958, decided July 6, Madrid, November 30, 1920, Art, 18-2(d), 42 Stat.

ee 32 EEE ' oy

United States v. King, 517 F.2d 350__---------------- 10 Stockholm, August 28, 1924, 44 Stat. 2221 et seq.:

United States v. Martinez-Fuerte, No. 74-1560, decided Art. 34, Section 9,44 Stat. 2238... 20, 2]

ouny 6, 1908...nncc0cssncossiommaieeeee 17, 28, 34, 36 Art. 41, Section 1(d), 44 Stat. 2241... 20

United States v. Milroy, 538 F.2d 1033, certiorari de- Vienna, 1964, Art. 30, 16 U.S.T, 1348 (1965) _____ 22

nied, June 7, 1976 (No. 75-6479) --_--------__-__- 10 Tokyo, 1969, Art. 31, 22 U.S.T. 1099 (1971)______ oD)

United States v. Odland, 502 F.2d 148, certiorari denied, Lausanne, 1974, Art. 34__............-_-_______ vv

40, USD. 3106 ...ccntdcccsostanseneeeeee 11 Act of July 31, 1789, 1 Stat. 29—

United States v. Santana, No. 75-19, decided June 24, I 14

BONS ncnecccecssncdsesunseneeeeee d EE 14

United States v. Sohnen, 298 F. Supp. 51------------ 21 EEE 15, 18, 20

United States vy. Soria, 519 F.2d 1060_______________ 12 ELS ES 19

United States v. Stornini, 443 F.2d 833, certiorari de- i eenecocecne 14

nied, 406 US O01 ....nncussciusiatbesamusamansee 12 EEE ES 1)

United States v. Swede, 326 F. Supp. 533_..--.--_--- 11,21 ENE EE Se -itiinerssene 19

United States v. Thirty-seven Photographs, 402 ES (binant 19

UB BiB ccecccnncnscdcstiosekdaaee 16 ESSE 19

United States v. 12 200-ft. Reels of Super 8mm, Film, EEE aN 21

433 USD. 198........22. 2. snennccasseneedennnunee 17 Ee V4 EEO 30, 32

= Uae. Boe. 1900(e)(1).......................- 5

Gu the Supreme Gourt of the Gnited States

OcToBER TERM, 1976

No. 76-167

Usirep StTaTes OF AMERICA, PETITIONER

Vv.

CuarLtes W. Ramsey anp JAMES W. KELLY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App.

la-—20a) is reported at 538 F. 2d 415.

JURISDICTION

The judgment of the court of appeals (Pet. App.

21a) was entered on June 10, 1976. On July 1, 1976,

the Chief Justice extended the time within which to

file a petition for a writ of certiorari to August 9,

1976. The petition was filed on August 5, 1976, and

was granted on October 4, 1976 (A. 82). The jurisdic-

tion of this Court rests upon 28 U.S.C. 1254(1).

(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

Constitution 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

affirmation, 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

(1975) are set out in Appendix A, infra, at pages

1A-5A.’

STATEMENT

In November 1973 Sylvia Bailey and William

Ward, then residing in West Germany, were princi-

pals in an international narcotics trafficking operation

139 C.F.R. Part 61, in effect at the time of the search in this

case, has been superseded by U.S.P.S. Pub. 42, Part 820, incorpo-

rated at 39 C.F.R. Part 10, 41 Fed. Reg. 35683-35684 (1976),

which makes no substantive change.

(Pet. App. 2a-3a). West German agents intercepted

several trans-Atlantic telephone conversations be-

tween Bailey and respondent Ramsey during which

the narcotics operation was discussed (id. at 3a).

In late January 1974 Bailey and Ward moved the

base of their operation to Thailand (Pet. App. 3a).

Thai officials, alerted by West German authorities,

saw them mailing numerous envelopes (ibid.). Five

envelopes were inspected by Thai officials; one of the

addresses was linked to respondents (ibid.). On Feb-

ruary 2, 1974, Thai officials arrested Bailey and Ward

and seized numerous envelopes containing heroin.

Eleven of the envelopes bore Washington, D.C. ad-

dresses connected to respondents (ibid.).

Two days later George Kallnischkies, a customs offi-

cer in New York City who was unaware of these

events, detected undeclared matter in eight envelopes

en route from Thailand to four addresses in Washing-

ton, D.C. (A. 30-31). These envelopes were “rather

bulky,” and officer Kallnischkies believed that they

contained merchandise rather than correspondence

(A. 31, 32, 42, 53). He weighed one of them and found

that it was three times the ordinary weight of an air-

mail letter (A. 31, 47). He opened this envelope and

found, between two pieces of cardboard, a plastic bag

containing a white substance that he believed to be

heroin. The envelope contained no correspondence.

Based upon this discovery, he opened the other seven

bulky envelopes, which appeared to have been ad-

dressed on the same typewriter as was the first en-

224-159—76——_2

velope; these envelopes also contained heroin (A. 32,

42, 56, 61-62).

The envelopes were resealed, and six of them were

delivered to three addresses (A. 67-74).’? Federal

agents saw respondent Kelly collect the envelopes,

rendezvous with respondent Ramsey, and give Ramsey

a brown paper bag (A. 70-72). Respondents were then

arrested. The bag contained the six envelopes of

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

dilute the heroin (A. 72-73). Additional evidence

was discovered pursuant to search warrants for sev-

eral residences (A. 74-80).

Respondents were indicted for numerous offenses

arising out of this transaction (A. 9-15). They moved

to suppress the heroin that had been discovered by

officer Kalinischkies.’ After an evidentiary hearing, the

district court denied the motion from the bench (A.

* After officer Kallnischkies had opened the envelopes, they

were sent to Washington in a locked pouch; they were opened in

Washington by agents of the Drug Enforcement Administration,

who removed most of the heroin before making the delivery to re-

spondents. The agents obtained a search warrant before opening

the envelopes (A, 5, 60). This was an exceptional precedure; war-

rants are not obtained to open the mail in the first instance (Ac

33, 43), and a post-opening warrant obviously does not justify

the original opening. Nothing in the record of this case indicates

why the agents obtained the warrant. It is possible, however, that

they did so because they feared that the second opening might

be viewed as an inland search to which the border search rules

would not apply. At all events, the obtaining of a post-opening

warrant in this case does not indicate anything about the constitu-

tionality of the initial warrantless opening or the feasibility of

requiring pre-opening warrants.

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

officer Kallnischkies’ opening of the envelopes. The envelopes were

54). Respondents then waived their right to a jury

trial, and the case was submitted on the basis of

stipulated facts and exhibits. On December 20, 1974,

the district court found respondents guilty of unlaw-

ful importation of heroin and of possession of heroin

with intent to distribute it, in violation of 21 U.S.C.

841(a) and 952(a). The court also found respondent

Kelly guilty on one count, and respondent Ramsey

guilty on three counts, of the unlawful use of a com-

munication facility, in violation of 21 U.S.C. 843(b).

Finally, the court found respondent Ramsey guilty of

two firearms offenses.‘ Respondent Ramsey was sen-

tenced 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

on ail counts. Although it found officer 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

not addressed to them and contained no correspondence. The gov-

ernment did not contend below that respondents 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.

* These offenses—receiving and possessing a firearm as a con-

victed 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 to 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.

searches have traditionally been recognized as an ex-

ception to the warrant requirement of the Fourth

Amendment (Pet. App. 5a-7a). It thought, however,

that this exception was justified only by the exigencies

attendant upon other kinds of border searches (id.

at 7a); finding no exigencies compelling officer Kall-

nischkies to act without a warrant, the court con-

cluded that he could not do so.

The court distinguished between letter mail en-

velopes and mail packages, indicating that warrant-

less searches of the latter would be allowed with or

without 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” (Pet. App. 8a). Second, the

court thought that officials using metal detectors, \-

rays, and trained dogs could detect items smuggled

in envelopes (ibid.). Third, envelopes can be detained

more readily than travellers while a warrant is being

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

that warrantless openings of envelopes would inhibit

freedom of expression (id. at lla—l3a).

Judge Robb dissented. He would have followed the

uniform decisions of other courts of appeals that have

allowed warrantless inspections of envelopes at the

* The court of appeals limited its holding to international letter

class mail, and it did not require probable cause or a warrant to

oper other classes of mail on which less postage is paid. See Pet.

App. 9a—10a n. 6.

border (Pet. App. 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 or en-

velope should not acquire greater security against in-

spection simply because it is smaller or is not earried

by a person.

SUMMARY OF ARGUMENT

The judgment of Congress, embodied in longstand-

ing statutes, is that border searches without probable

cause or warrants are essential to detect dutiable items

and contraband as they enter the country. Approxi-

mately one billion envelopes enter the United States

from abroad 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 offi-

cers have authority to open the envelopes, they will

become hiding places for smuggled goods of all sorts.

The judgment of Congress is entitled to a strong

presumption of constitutionality. This is especially

so here, because border searches have been accepted

for more than 200 years. In 1882 this Court upheld

a seizure from an envelope entering the United States

(Cotzhausen v. Nazro, 107 U.S. 215), and since then

the right of customs inspectors to open parcels at the

border has not been seriously questioned. The Court

has continued to indicate in considered dicta that such

searches are consistent with the Fourth Amendment.

The power to inspect things entering this country

has not been confined to goods travelling with their

owner; the first customs statute authorized the seizure

of goods arriving by ship in much the same way small

parcels today arrive by mail. Nor would there be any

logic in such a distinction. Bulky envelopes arriving

at the border may contain counterfeit money, micro-

film, jewels, precious metals, drugs, or many other

things either barred from entry or subject to duty.

Bulky envelopes, like larger containers, rarely

announce that they contain contraband, and customs

officers rarely know enough about them to have even

a fair idea of their contents. To require probable

cause as a condition of inspection therefore would be

to guarantee success to resourceful smugglers.

The difficulties in developing probable cause are

magnified by the enormous quantities of mail enter-

ing this country. More than one billion envelopes

arrive each year; it is not possible to subject each one

to the scrutiny necessary to ascertain its contents with

precision. Even devices such as magnetometers and

X-ray machines cannot detect heroin; although

trained dogs sometimes can detect marijuana, odors

can be masked, and dogs usually cannot smell sub-

stances (such as heroin) that have only faint odors.

In fiscal 1976 customs officers opened approximately

270,000 envelopes (less than 0.03% of the total),

of which approximately 48,000 contained dutiable

or prohibited items, which is more than three en-

velopes containing dutiable or prohibited items per

officer per working day. In order to find these en-

velopes, each officer opens approximately 19 envelopes

per working day, sorting them from the approxi-

mately 1,900 whose exteriors he inspects. If probable

cause and a warrant were required for each opening,

the inspection process would grind to a halt.

Perhaps a requirement of probable cause might be

justified if it were necessary to protect important

privacy interests. But the opening of a bulky envelope

at the border can fairly be characterized as a mini-

mal intrusion in an area where there has traditionally

been little expectation of privacy. It is certainly less

of an intrusion than the detailed personal inspection

to which international travelers are routinely exposed.

Why shonld the greater intrusion be allowed and the

lesser intrusion be banned ?

The court of appeals evidently was most concerned

with a supposed “chilling effect” that openings of

envelopes might have upon the expression of ideas.

Although we do not question the legitimacy of concern

about any practice involving warrantless reading of

mail, 19 C.F.R. 145.3 already provides that no corre-

spondence may be read without a warrant. There is

no evidence in the record of this case that customs

officers disregard this rule. Moreover, any person

aesiring to guard against the opening of his inter-

national correspondence can do so by sending en-

velopes that are not so large and bulky that they give

rise to suspicion that they contain something other

than correspondence; there has been no claim in this

case that customs officers open such envelopes. In any

event, respondents have not argued that they were

exposed to any chilling effect; the envelopes involved

here contained no correspondence. The concerns artic-

ulated by the court of appeals would justify, at most,

a rule that correspondence seized from the mails with-

out a warrant, and any “fruits” derived from read-

ing such correspondence, may not be admitted into

evidence. There is no need to fashion a broader exclu-

sionary rule.

ARGUMENT

NEITHER PROBABLE CAUSE NOR A WARRANT IS NECESSARY

BEFORE OPENING AN ENVELOPE AS IT ENTERS THE

UNITED STATES FROM ABROAD IN THE MAIL

A. INTRODUCTION

This case involves the opening by a Customs Service

officer of envelopes mailed into this country from

abroad. In opening the envelopes, which he suspected

contained something other than or in addition to cor-

respondence, the officer was acting pursuant to au-

thority granted by a statute enacted in 1866 that ex-

pleitly allows customs searches of ‘‘envelopes” (see

19 U.S.C. 482, App. A, infra, p. 1A) and pursuant to

postal and customs regulations implementing that

statute (App. A, infra, pp. LA-5A). The officer was

proceeding in conformity with the decisions of every

court, save the court of appeals in this case, that has

considered the problem.* His actions were unquestion-

®See 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. Milroy, 5388 F. 2d 1033 (C.A. 4),

certiorari denied, June 7, 1976 (No. 75-6479); United States v.

King, 517 F. 2d 350, 352-353 (C.A. 5); United States v. Henritze,

522 F. 2d 1279 (C.A. 5), certiorari denied, 424 U.S. 966; United

ably proper under the traditional approach to border

searches.

It may be helpful to begin by pointing out what

this case does not involve. It does not involve the open-

ing of domestic mail. It does not present the difficult

problem of defining the geographic limits of border

searches, and it does not require the Court to con-

sider whether some inland area is the ‘‘functional

equivalent” of the border; in this case the search took

place at a post office as the mail was entering the

United States, the very point where border search

authority must be exercised if it is to be meaningful.

This case does not present any question concerning the

standard of conduct established by the Fourth Amend-

ment for especially intrusive searches at the border,

such as visual inspections of the body (“strip

searches”) and intrusions into the body itself (‘‘body

cavity searches”).’ The search here involved an in-

States v. Beckley, 335 F. 2d 86, 88-89 (C.A. 6) (dictum), certio-

rari denied sub nom. Stone v. United States, 380 U.S. 922; United

States v. Bolin, 514 F. 2d 554 (C.A. 7); United States v. Odland,

502 F. 2d 148, 151 (C.A. 7), certiorari denied, 419 U.S. 1088;

United States vy. Barclift, 514 F. 2d 1073. 1074-1075 (C.A. 9),

certiorari denied, 425 U.S. 842; United States v. Swede, 326 F.

Supp. 533, 536 (S.D. N.Y.). The First Circuit recently upheld a

border search of a package without probable cause or a warrant,

but it reserved the question of the search of an envelope. United

States v. Emery, C.A. 1, No. 75-1420, decided September 24, 1976,

slip op. 3. ,

*The law with respect to such searches is instructive, how-

ever. Customs officials are entitled to make intrusive searches

without a warrant upon real or reasonable suspicion (for strip

searches) or a clear indication of wrongdoing (body cavity

searches). See, e.g., United States v. Cameron, 538 F. 2d 254 (C.A.

9) (collecting cases).

224-159—76——3

spection of a package, not of a person. No one was

exposed to indignity or delay. The sole question

presented is whether it is ‘‘reasonable,’’ within the

meaning of the Fourth Amendment, for a customs

officer, having before him an envelope that he has

reasonable cause to suspect contains something other

than correspondence, to open that envelope without

antecedent judicial approval.

We submit that the search here is justified by the

single fact that the officer knew that the envelope

was entering the United States from abroad. Nothing

else—not suspicion, not probable cause, and not ante-

cedent judicial approval—is constitutionally neces-

sary.” ‘hat is the judgment of Congress embodied in

longstanding statutes that condition the entry of

things into this country upon exposure to the routine

searches necessary to detect the importation of pro-

hibited or dutiable items. This long history, and the

judgment of Congress, are entitled to considerable

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

Colonnade Catering Corp. v. United States, 397 U.S.

72, 75-76. Border searches stand upon their unique

historical and practical footing rather than, as the

*A number of lower courts have confirmed the authority of

customs officials to search items brought into the country “on sub-

jective suspicion alone, or even on a random basis.” See, ¢.g.,

United States v. Stornini, 443 F. 2d 833, 835 (C.A. 1}, certiorari

denied, 404 U.S. 861; United States v. Soria, 519 F. 2d 1060, 1063

(C.A. 5); United States v. Diaz, 503 F. 2d 1025, 1026-1027 (C.A.

3); United States v. Brown, 499 F. 2d 829, 833 (C.A. 7), certio-

rari denied, 419 U.S. 1047.

court of appeals supposed, upon exigent circum-

stances in particular cases.

We think that the rationale for border searches of

persons and their effects applies with full force to

border searches of envelopes. It would be strange in-

deed if envelopes were entitled to greater protection

than people. What this Court said in 1882 is no less

true today (Cotzhausen vy. Nazro, 107 U.S. 215, 218):

Of what avail would it be that every pas-

senger, citizen and foreigner * * * is compelled

to sign a declaration before landing, either that

his trunks and satchels in hand contain nothing

liable to duty, or if they do, to state what it

is, and even the person may be subjected to a

rigid examination, if the mail is to be left un-

watched, and all its sealed contents * * * are

to be exempt from seizure, though laces, jewels,

and other dutiable matter of great value may

thus be introduced from foreign countries.

If, as is universally agreed, “even the person may

be subjected to a rigid examination” at the border, it

must follow that effects entering the United States

separately, whether in trunks, in parcels, or in en-

velopes, are subject to examination.

B. BORDER SEARCHES ON LESS THAN PROBABLE CAUSE ARE AN

ACCEPTED PART OF OUR CONSTITUTIONAL TIERITAGE

1. Border searches occupy a unique status in our

law. As the Court observed in Boyd v. United States,

116 U.S. 616, 623, “the seizure of goods forfeited for

a breach of the revenue laws, or concealed to avoid

duties payable on them, has been authorized by Eng-

lish statutes for at least two centuries past; and the like

seizures have been authorized by our own revenue

acts from the commencement of the government” (foot-

note omitted). A statute enacted by the same Congress

that proposed the Bill of Rights provided that customs

officials had ‘‘ full power and authority” to search vessels

for smuggled goods.’ Ever since, border searches without

probable cause or a warrant have been an unques-

tioned part of the system of detecting smuggling. See

generally Note, From Bags to Body Cavities: The

Law of Border Search, 74 Colum. L. Rev. 53 (1974) ;

Barnett, A Report on Search and Seizure at the

Border, 1 Am. Crim. L.Q. no. 4, p. 36 (1963).

Clauses 1 and 3 of Article I, Section 8 of the Con-

stitution grant Congress the power to regulate com-

* The first customs statute (Section 24 of Act of July 31, 1789,

1 Stat. 29, 43) was enacted approximately two months prior to

the prep sal of the Bill of Rights to the state legislatures on

September 25, 1789 (1 Stat. 97). Sections 23 and 24 provided in

part:

“Sec, 23. * * * [L]t shall be lawful for the collector, or other ofli-

cer of the customs, after entry made of any goods, wares or mer-

chandise, on suspicion of fraud, to open and examine, in the pres-

ence of two or more reputable merchants, any package or packages

thereof * * *,

“Sec. 24. * * * [E]very collector, naval officer and surveyor, or

other person specially appointed by either of them for that pur-

pose. shall have full power and authority, to enter any ship or

vessel, in which they shall have reason to suspect any goods, wares

or merchandise subject to duty shall be concealed; and therein to

search for, seize, and secure any such goods, wares or

merchandise.”

Section 24 differentiated between the cause needed to search a

vessel for dutiable goods and the cause needed to search a “dwell-

ing-house, store, [or] building” on land where it was suspected that

smuggled goods had been place 1. In the latter case, a warrant was

required ; in the former, mere suspicion was sufficient.

merece with foreign nations and to lay and collect

duties. Because the power thus granted includes the

power to “exclude merchandise at [Congress’] discre-

tion’? (Brelan vy. United States, 236 U.S. 216, 219;

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

the power to condition the entry of all things intd the

country upon exposure to the routine, suspicionless

inspections necessary to prevent the importation of

prohibited things.

Cotzhausen v. Nazro, supra, this Court’s first border

search case, involved a seizure of a shaw! from a pack-

age sent through the mails. The seizure was made un-

der Section 3061 of the Revised Statutes, which is the

source of 19 U.S.C. 482, upon which we rely here.”® The

Court upheld the search and seizure, remarking that

the statutes “authorize and direct the seizure of any

property imported contrary to law; and the officer is

to open envelopes for that purpose, and, on reasonable

ground to believe it subject to duty or to have been

unlawfully imported, he shall seize and secure the

same for trial” (107 U.S. at 219; emphasis added).

The right of customs officials to open parcels at the

border has never since been seriously questioned. The

Court has continued to endorse such searches in con-

sidered dicta, and no Justice has expressed doubts

about their constitutionality. The Court wrote in Boyd

v. United States, supra, 116 U.S. at 623, that searches

(App. A, infra, p. 1A) and implementing regulations. Cf. 19

U.S.C, 1498 (a) (1) and 1499.

at the border for smuggled goods “are totally different

things” from inland searches.

In Carroll v. United States, 267 U.S. 132, the Court

considered the warrantless stop and search of an

automobile for bootleg liquor. It held that such

searches could be conducted without a warrant, but that

they required probable cause. It carefully distin-

guished border searches, however (267 U.S. at 153-

154):

It would be intolerable and unreasonable if

a prohibition agent were authorized to stop

every automobile on the chance of finding liquor

and thus subject all persons lawfully using the

highways to the inconvenience and indignity of

such a search. Travellers may be so stopped in

crossing an international boundary because of

national self protection reasonably requiring

one entering the country to identify himself

as entitled to come in, and his belongings as

effects which may be lawfully brought in. But

those lawfully within the country, entitled to

use the public highways, have a right to free

passage without interruption or search * * *.

More recent cases demonstrate that border searches

continue to be accepted. United States v. Thirty-seven

Photographs, 402 U.S. 363, involved an opening of

luggage at the border and the seizure of allegedly

obscene materials. The Court remarked (id. at 376):

“TA] port of entry is not a traveler’s home. His right to

be let alone neither prevents the search of his lug-

gage nor the seizure of unprotected, but illegal, mate-

rials * * *. Customs officers characteristically inspect

luggage and their power to do so is not questioned in

this case; it is an old practice and is intimately asso-

ciated with excluding illegal articles from the

eountry.”

The same theme was sounded in United States v.

12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123,

125, in which the Court again upheld a seizure of

obscene materials at the border, writing: “Import re-

strictions and searches of persons or packages at the

national borders rest on different considerations and

different rules of constitutional law from domestic

regulations. * * * Historically such broad powers [to

search] have been necessary to prevent smuggling

and to prevent prohibited articles from entry.’’ The

Court recognized that the mails were a particularly

vulnerable path of entry: ‘‘[ A] large volume of obscene

material on microfilm could rather easily be smuggled

into the United States by mail” (id. at 129).

In the recent cases involving inland searches near

the border, the Court repeatedly has recognized that

border searches themse!ves stand on a different foot-

ing, and that neither probable cause nor a warrant is

necessary for a search at the border itself. Almeida-

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

of the Court), 288 (opinion of White, J.); United

States v. Brignoni-Ponce, 422 U.S. 873, 884 (opinion

of the Court), 887 (opinion of Rehnquist, J.) ; United

States v. Martinez-Fuerte, No. 74-1560, decided July

6, 1976; see also California Bankers Association v

Shultz, 416 U.S. 21, 62-63.

The power to inspect people and goods upon entry

into this country has not been limited to goods travel-

ling with their owner; the first customs statute au-

thorized the seizure and inspection of goods arriving

by ship ™ in much the same way small packages today

arrive by mail. Nor would there be any logic to such

a limitation. Bulky envelopes arriving at the border

may contain money, microfilm, jewels, precious metals,

drugs, and many other things either barred from en-

try or subjected to duty. To close such envelopes to

customs officials would be to create a broad highway

over which smugglers such as respondents could ply

their trade.

2. The customs procedures with respect to mail have

evolved differently from the customs procedures with

respect to importations by other means, and it may be

helpful to trace that evolution briefly. 19 U.S.C, 482 is

the recodification of Rev. Stat..§ 3061, an amended

version of the very first customs statute. Section 482

provides that a customs officer may “search any trunk

or envelope, wherever found, in which he may have

reasonable cause to suspect there is merchandise which

was imported contrary to law * * *.” This is now im-

plemented by 19 C.F.R. 145.2, which authorizes cus-

toms officials to open all mail originating outside the

customs territory, with exceptions for diplomatic mail.

Customs officials have not always used the full pow-

ers conferred by statute, however. Until approximately

100 years ago, the international letter mail system was

1 See note 9, supra.

ecm

—

devoted primarily to the transmission of correspond-

ence, and merchandise was sent by freight or parcel

post. The Post Office began as an establishment solely

for the ‘‘communication of intelligence by letter, news-

paper or pamphlet” (5 J.C.C. 719 (1776); 21 J.C.C.

670 (1782) ).’* Merchandise or other non-written ma-

terial was not generally admitted to the domestic

mails until 1863. See 12 Stat. 704; 17 Stat. 301. Until

1924 it was generally forbidden to introduce dutiable

articles into the international letter mails. The Court

observed in Cotzhausen vy. Nazro, supra, 107 U.S. at

217-218, not only that the importer had neglected to

pay duty on the shawl, but also that the sender had

'? During these earliest years customs officials had little role to

play with respect to letters arriving from abroad. The federal gov-

ernment did not yet levy duties on imports, and the major role of

customs officials was ensuring that letters were delivered to post-

masters by the officers of incoming vessels; the vessels were not

allowed to carry mail themselves from one port to another except

under contract with the Post Office. The Continental Congress

provided in this regard (16 J.C.C. 413 (1780) ) :

“That all masters of packets and other vessels in continental

service be, and they are hereby, required to lodge whatever letters

they bring from abroad, in the post office nearest to the port

where they arrive, and immediately after their arrival.”

Approximately two years later, Congress proscribed the open-

ing of letters (other than “dead mail”) by postal employees (23

J.C.C. 673-674 (1782) ).

These postal ordinances were given effect by the First Con-

gress. 1 Stat. 70. The Second Congress enacted postal legislation

requiring the delivery of letters on board vessels to the post-

master at the port of entry (1 Stat. 235-236). In 1852 customs

collectors were authorized to “carefully search every vesse] for

letters.” 10 Stat. 140. These duties apparently included nothing

more than assisting in enforcing the postal laws.

224-159—76——4

posted it in the mails in violation of a treaty excluding

dutiable articles from the mails.

Smuggling by parcel post packages had been a prob-

lem much earlier, however. In 1866 Congress enacted

Rev. Stat. § 3061 (now 19 U.S.C, 482), which-author-

ized customs officials to open “envelopes”? for imspec-

tion, This authority was used to open unsealed or parcel

post envelopes; it was not immediately used to open

sealed letter mail. The first regulation outlining the

agreement between postal and customs authorities to

cooperate in the performance of their duties was pro-

mulgated in 1871; it provided that customs officials

could open any package arriving from abroad with-

out probable cause or a warrant, but that letter mail

would be opened only by authority of the addressee.

Customs officials could require the addressee to come

to the post office and open the letter in their presence.

1873 Postal Laws and Regulations (“P.L. & R.”)

$ 52,"

This system was effective as long as international

conventions continued to prohibit the use of letter

mail to carry dutiable articles, and as long as senders

generally respected that ban. In 1924, however, the

Universal Postal Convention was modified to permit

the insertion of certain dutiable articles into interna-

tional letter mail. Universal Postal Convention

(“UPC”), Stockholm, August 28, 1924, Art. 34, Section

9; Art. 41, Section 1(d), 44 Stat. 2238, 2241."

'* See also 1879 PLL. & R. § 1155; 1887 PLL. & R. § 621; 1893

P.L. & R. § 579: 1902 PLL. & R. § 696.

' From 1874 to 1924 the multilateral postal convention had pro-

hibited the insertion of dutiable articles into letter post items.

International Postal Treaty, Berne, October 9, 1874, protocol Art.

In order to alleviate potential problenis of smuggling

or avoidance of duty, the Convention authorized

postal administrations to require the sender to com-

plete and attach to the envelope a ‘“green label,” a

form declaring the nature and value of the contents.

See 44 Stat. 2279-2280. Attachment of a “green label”

amounted to a consent to search (44 Stat. 2238), and

the Post Office promulgated regulations authorizing

the opening of “green label” mail by customs

officials.”*

When incoming letter mail apparently containing

merchandise lacked a “green label,” customs and

postal officials arranged for a delivery to the addressee

at the post office but declined to’ turn over the mail

until opening had been authorized.’ Letter mail was

not opened by custonis officials acting alone until 1971.

The restraint with which customs officials had exer-

cised their authority under 19 U.S.C, 482 was attrib-

25, 19 Stat. 604; UPC, Paris, June 1, 1878, Art. 11, 20 Stat. 740-

Tti: The Additional Act of Lisbon, March 21, 1885, Art. 8,

25 Stat. 1344; UPC, Vienna, July 4, 1891, Art. 16-3, 28 Stat. Loss

1089; UPC, Washington, June 15, 1897, Art. 16-3, 30 Stat. 1641-

1642; UPC, Rome, May 26, 1906, Art. 16-3-2°(b), 35 Stat. 1656-

1657; UPC, Madrid, November 30, 1920, Art. 18-2(d), 42 Stat.

1991-1992. See Cotzhausen v. Nazro, supra, 107 U.S, at 217-218.

4 See 1924 P.L. & R. § 632, $8 3, 9(a) ; 1940 P.L. & R. $$ 2229-

2930; 1948 P.L. & R. Part 116; 39 C.F.R. 116.8(a), 116.12(c)

(1949) ; 39 C.F.R. 161.1 (1955); 39 C.F.R. 182.1(a) (1959) ; 39

C.F.R. 151.3(a) (1962) ; 39 C.F.R. 262.1 (1968).

See note 14. supra. A violation of these regulations by cus-

toms officials was not, however, considered to be a ground to sup-

press any evidence discovered during a search, See United States

v. Sohnen, 298 F, Supp. 51, 53 (E.D. N.Y.); United States v.

Nivede, supra,

utable in part to concern, shared by postal authorities,

that unilateral searches of non-“green label’’ items

would violate the Convention * and in part to the fact

that the old procedures usually had been a satisfae-

tory way to gain access to envelopes requiring inspec-

tion. Moreover, so long as customs officials were

enforcing tariff regulations rather than absolute pro-

hibitions on entry, addressees were usually willing to

cooperate with the procedures.” But the volume of

international letter mail has expanded dramatically.

in recent years, and smugglers do not attach “green

labels” to their mail. Attempts te obtain the ad-

dlressee’s consent to search, or the making of a “con-

trolled delivery” (such as was done in this case),

require substantial investments of time by postai and

customs employees, investments that are worthwhile

only when customs officials are almost certain that the

envelope contains contraband. Too, attempts to obtain

addressee consent create a substantial risk of alerting

the smugglers and allowing them to flee.

In 1970 the Post Ojfice and Treasury Department

therefore jointly proposed changes in the postal and

customs regulations to allow the opening of non-

“ereen label’’ envelopes that were believed to contain

dutiable or prohibited matter. 35 Fed. Reg. 2410-2411,

The ‘Treasury Department stated (id. at 2410):

* The Convention now explicitly allows the opening of any en-

velope at the border. UPC, Vienna, 1964, Art. 39, 16 U.S.T. 1348

(1965) ; UPC, Tokyo, 1969, Art. 31, 22 U.S.T. 1099 (1971): UPC.

a ausanne, 1974, Art. 34.

* Addressees usually were willing to authorize openings and pay

duty to receive valuable articles; they obviously would be far less

likely to authorize openings to search for contraband.

The long recognized authority of the Bureau

of Customs to open sealed letters arriving in‘

the international mail has been inhibited by

the presence of [certain postal] regulations

which generally provide that a sealed letter of

foreign origin believed to coiitain prohibited

or dutiable matter shall be returned unopened

to its origin unless the addressee authorizes the

opening of the letter.

The practice of not searching non-“green label”

mail except with consent made smuggling too easy:

the sender would fail to attach a “green label’’ to the

envelope, which would often be delivered unsuspect-

ingly ; if, however, customs officials suspected that the

letter contained contraband, and requested the ad-

dressee’s consent to search, the addressee would be

alerted and could refuse delivery. The new regula-

tions, which allow customs inspectors to open en-

velopes when they suspect they contain matter other

than correspondence, alleviate that problem and allow '

more efficient use of scarce customs resources.

Some members of Congress objected to the new reg-

ulations (116 Cong. Ree. 13862-13864 (1970)), but

efforts to prohibit the change were defeated.” The

** A proposed amendment was defeated on the floor of the House.

116 Cong. Rec. 20482-20483 (1970). In the Senate, a committee

held hearings on a bill (S. 3613, 91st Cong., 2d Sess. (1970) ) that

would have required a warrant for the opening of any envelope.

Ifearings on S. 3613 before the Senate Committee on Post Office

and Civil Service, 91st Cong., 2d Sess. (1970). The Committee re-

ported a bill that required a warrant only for sealed domestic

mail. After a conference Congress adopted the Senate suggestion,

which become 39 U.S.C. 3623(d). See H.R. Conf. Rep. No. 91-

1363, 91st Cong., 2d Sess. 88 (1970).

new regulation became effective on July 22, 1971. 36

Fed. Reg. 11850-11851. It represents an application to

envelopes of the same power customs officials always

have exercised over parcels, trunks, and persons. It

should be upheld in light of that history. See United

States v. Watson, supra.

C. IMPORTANT LAW ENFORCEMENT INTERESTS JUSTIFY THE MINIMAL

INTRUSION INVOLVED IN OPENING AN ENVELOPE RECEIVED FROM

ABROAD, EVEN IN THE ABSENCE OF PROBABLE CAUSE

In our view the history anc long constitutional ac-

ceptance of border searches is sufficient to support the

search that took place in this case. But we need not

stand upon history alone, since compelling practical

considerations render the practice constitutionally

reasonable. These considerations have been recognized

by the American Law Institute, which has endorsed

border searches. The Model Code of Pre-arraign-

ment Procedure §SS 260.2(1)(d) (1975) provides

that customs officials should be able to search with-

out a warrant “personal effects, and packages and

other containers of whatever description,” as they en-

ter the United States. Section SS 260.2(2) provides

that reasonable cause is not required to undertake such

searches. The commentary to the Model Code (id. at

pp. 546-550) concludes that border searchers are justi-

fied by practical necessity as well as by history.

The Customs Service faces staggering difficulties in

searching for dutiable articles and contraband in in-

coming mail. The Customs Service informs us that

during each of fiscal years 1975 and 1976 more than

one billion envelopes and 42 million packages entered

the United States from abroad.” Most of these enve-

lopes and packages are not accompanied by any dec-

laration of their contents, and the fact that they are

arriving from abroad prevents customs inspectors

from having even a fair idea as to what they may

- contain. Many of the envelopes are large, bulky and

stiff, and they conceal their contents as well as does a

eardboard box. Unless customs officials have author-

ity to inspect these envelopes, they will become hiding

places for smuggled goods of all sorts. To require prob-

able cause as a condition of inspection would be to

guarantee success to resourceful smugglers.

The Customs Service has augmented its staff of 62

officers assigned to inspection of envelopes with

trained dogs and an X-ray machine.” Regrettably,

these tools are of limited value in detecting contra-

band. Dogs can smell contraband only if it gives off

discernible odors; although marijuana has such an ,

odor (if it is not masked), jewelry, counterfeit cur-

rency, pornography, and many other dutiable and

prohibited items do not. The odor of heroin is exceed-

ingly faint, and it can be masked. Although an X-

ray machine can detect metals and other dense objects,

it cannot detect drugs and microfilm. At best, the cus-

toms inspectors can isolate those envelopes that are

likely to contain objects other than correspondence.

1° “Envelopes,” in the sense used in this brief, refers to all en-

velope-shaped mail of any postage rate, and not simply mail mov-

ing at international letter class rates.

#0 Twenty customs facilities use trained dogs.

Whether those envelopes contain dutiable material,

contraband, non-dutiable matter, or simply cardboard

usually must be determined by a visual inspection.

The Customs Service informs us that in fiseal 1975

and again in fiscal 1976 the Postal Service referred

for screening approximately 27 million envelopes

(about one-fortieth of the envelopes entering the

United States in each of those years). * The Cus-

toms Service estimates that in each of those years its

inspectors opened for visual inspection approximately

270,000 pieces of mail, or one of every 100 examined.

Many of these openings were supported only by sus-

picion; the total openings represented approximately

one of every 4,000 envelopes arriving from abroad.

Of the approximately 270,000 pieces of mail opened

each year, the Customs Service informs us, it found un-

declared dutiable materials in approximately 27,000.

Duty was assessed on these items before delivery. The

Customs Service also found 18,000 envelopes contain-

ing prohibited items in fiscal 1975 and over 21,000

envelopes containing prohibited items in fiscal 1976.”

*t Postal officials refer to the Customs Service mail appearing

to contain something other than correspondence; they also refer

all mail coming from certain countries, such as Thailand and

Colombia, that are notorious sources of contraband. See also

A. 39.

22 See Appendix B, infra, p. TA, which sets out a description of

the prohibited items found and seized. This table counts only

one item per envelope, but some contained more than one. With

62 officers examining 27,000,000 envelopes yearly, and assuming

230 working days each year, each office must scrutinize almost

1,900 envelopes daily, or 240 each hour. Each officer opens ap-

proximately 19 envelopes daily and finds approximately 3.3 con-

taining prohibited or dutiable items.

The discoveries of prohibited items in envelopes

dwarfed the discoveries in packages: only 748 pro-

hibited items were found in packages in fiscal 1975,

and only 915 in fiseal 1976. ©

These data suggest that envelopes are an attractive

medium for smugglers. Despite the fact that the Cus- ~

toms Service found dutiable or prohibited matter in

almost one-fifth of the envelopes it opened in the last

two fiscal years, great quantities of such items con-

tinue to be sent by mail. A requirement that customs

officers have probable cause before opening an en-

velope would cripple the inspection program and

greatly facilitate smuggling. In this area, searches on

suspicion amounting to less than probable cause are

essential to “maintaining any kind of credible deter-

rent” (Almeida-Sanchez v. United States, supra, 413

U.S. at 293 (White, J., dissenting)).

The court of appeals suggested that it would take a

flexible view of probable cause (Pet. App. 13a-l4a

n. 8). It is hard to know what to make of this state-

ment. If the court meant that it would be enough to

have probable cause to believe that something other

than correspondence is in an envelope, the court’s de-

cision not only denigrates the concept of probable

cause but also is unresponsive to any real problem of

government misconduct: customs officers do not open

envelopes unless they have reason to believe that they

contain things in addition to correspondence. But

if—as seems likely in light of its suggestion that cus-

toms officers make use of trained dogs, X-ray ma-

chines, metal detectors, and the like—the court meant

to require something more, then its decision would

preclude effective interception of contraband at the

border. None of the techniques the court of appeals

mentioned can distinguish a copy of a book by Jane

Austin from a book of hard-core pornography; none

can distinguish a toy watch from a real one, or a jewel

from a piece of glass.

Perhaps a requirement of probable cause might be

justified if it were necessary to protect important

privacy interests. But the opening of an envelope at

the border, when the officers have reason to believe |

that it contains things other than or in addition to

correspondence, can fairly be characterized as a

“minimal”? intrusion. United States v. Martinez-

Fuerte, supra, slip op. 15. It is certainly less of an

intrusion than the detailed personal inspection to

which international travelers are exposed routinely.

It does not expose any person to indignity or delay.

It does not invade any area in which the individual

has a legitimate expectation of privacy; it is well —

known that things crossing the border are subject to

inspection, and no one could reasonably expect that

bulky and opaque envelopes will escape some form of

scrutiny. The pressing needs of law enforcement,

balanced against the interests of privacy, as in

Martinez-Fuerte, lead inescapably to a conclusion that

searches of envelopes at the border are reasonable.

The court of appeals advanced several reasons for

a contrary conclusion, but none withstands analysis.

The court thought that searches of envelopes are less

“exigent” than searches of people, because people are

more mobile (Pet. App. 10a). This does not explain,

however, why searches of trunks and baggage and >

parcels are permitted, and it does not account for the

‘unique historical footing of border searches. The

court thought that envelopes are less likely than pack-

ages to be used to carry contraband (Pet. App. 8a).

That is simply wrong. Perhaps because senders are

certain that parcels will be inspected but know that

many envelopes will escape inspection, international

letter class mail is preferred to packages as a place

to conceal contraband (see App. B, infra, p. 7A). The

court apparently thought that dogs, metal detectors,

and other devices could detect contraband more

readily when the contraband is in envelopes than

- when it is in packages (Pet. App. 8a); theré is no

support for this speculation, and at a minimum it is

unproven.

The court of appeals was most concerned, however,

with the ‘‘chilling effect” that openings of envelopes

may have upon the expression of ideas. Although we

do not doubt that the privacy interest in domestic

communication by first class mail is sufficient to require

probable cause and a warrant before an envelope can

be opened,” that requirement ought not to be extended

to envelopes entering the country in letter class mail.

Several reasons, in addition to the historic differences

*® See 'x parte Jackson, 96 U.S. 727; United States v. Van Leeu-

wen, 397 U.S. 249. Cf. Katz v. Wnited States, 389 U.S, 347 (domes-

tic wire communications).

between border and inland searches, support this

argument.” .

First, any person who desires to guard against the

reading of international edrrespondence has a simple

expedient: he can send envelopes that are not so large

or bulky that they give rise to suspicion that they con-

tain something other than correspondence. There has

been no showing in this case that customs inspectors

open such envelopes. Second, 19 C.F.R. 145.3 provides

that no correspondence may be read without a warrant.

See also 18 U.S.C. 1702. There has been no claim in

this case that correspondence has been read or cen-

sored by customs officers. Third, although many enve-

lopes contain personal correspondence, many others

do not. Conversely, many packages or parcels contain

correspondence. The court of appeals would allow

searches of parceis containing correspondence; it

should follow that searches of envelopes that appear

to contain merchandise should be permitted.

The court of appeals analyzed this case as if inter-

national correspondence were regularly read or cen-

sored by customs officers (Pet. App. Ia, 13a). The

data provided by the Customs Service shows that

fewer than one in 4,000 envelopes is opened, however,

and there is no evidence in the record of this case

demonstrating that the Customs Service violates its

regulation forbidding the reading of letters. There is

In fact, the international exchange of ideas does not stand

on an equal footing with the domestic exchange of ideas. See

Nleindienst vy. Mandel, 408 U.S. 753, 762-770.

’

no practice of routinely opening without a warrant

envelopes that appear to contain only correspondence.

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.” The con-

cerns articulated by the court of appeals would

justify, at most, a rule that correspondence seized

without warrant or probable cause from international

mails, and ‘“‘fruits” derived from a reading of such

correspondence, may not be admitted into evidence.

There is no need to fashion a broader exclusionary

rule and to exclude contraband discovered in bulky

** Such an effect is not different in kind from that attending the

inspection of envelopes entering 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 Court considered and rejected as cumbersome and un-

workable a proposal by the court of appeals in that case (remark-

ably like the proposal of the court of appeals here) that prison

officials use sophisticated detection techniques and verify the con-

tents of suspicious envelopes by communicating with the sender.

In Wolff the envelopes ultimately were opened in the prisoner's

presence; customs inspectors do not open envelopes in the ad-

dressee’s presence. We submit, however, that this should not call

for a different result, at least in the absence of some demonstra-

tion that customs inspectors are abusing their authority. Obviously

the practicality of having the addressee present is far greater in a

prison than in the international mail context. Moreover, in cases

such as the instant one, providing for the presence of the addressee

when opening the envelope would drastically subvert the prospects

for successful prosecution when a crime is involved to which the

addressee is a party.

envelopes.” Exclusionary rules are in derogation of

the search for truth in a criminal case; they should

not sweep more broadly than is necessary to achieve

the deterrence thought to be desirable. Cf. United

States v. Janis, No. 74-958, decided July 6, 1976.

2° Even if, despite existing legal prohibitions, there were occa-

~ sional instances of the reading of correspondence by individual

customs officers acting out of malicious curiosity, it seems unlikely

that the court of appeals’ procedures would be effective in elimi-

nating such meddling; a Customs Service employee who reads in-

ternational correspondence does so for personal reasons, not out

of any expectation that incriminating material will be found and

that a criminal prosecution will follow. Because reading of inter-

national correspondence is not motivated by a desire to secure a

criminal conviction, suppression of evidence in a criminal case (in

which, indeed, no correspondence has been read) could not deter

the conduct. Suppression would penalize customs officials who en-

gage in legitimate activities—the discovery and seizure of contra-

band—while leaving customs officials who improperly read corre-

spondence unaffected. What is more, there is no reason to suppose

that a requirement of a warrant would overcome any tendency

that now exists on the part of Customs Service employees to read

international correspondence; if these employees are (by assump-

tion) willing to ignore present prohibitions (18 U.S.C, 1702 and

19 C.F.R. 145.3), they-also would be willing to ignore a require-

ment of probable cause and a warrant. If, on the other hand,

customs officials adhere to 19 C.F.R. 145.3, a requirement of prob-

able cause and a warrant would not add appreciably to the protec-

tions accorded international correspondence. .

Much the same argument applies to concerns about the possible

reading of international correpondence by national security agen-

cies of the federal government. To the extent these agencies may

read international correspondence, they do not do so with any

_ expectation of discovering evidence to be introduced in a criminal

prosecution; an exclusionary rule therefore would not deter their

conduct. Nor would they be affected by any requirement directed

to the legitimate activities of the Customs Service.

D. A WARRANT IS NOT REQUIRED TO OPEN AN ENVELOPE AT THE BORDER

The court of appeals, having concluded that searches

of*envelopes entering this country from abroad must

be based on particularized suspicion about the contents

of an envelope amounting to some form of “probable

cause,” invalidated the search in this case because,

it held, a search of the contents of such envelopes is

awful only if a search warrant has been obtained.

We submit that—whatever may be said about the need

of some kind of particularized suspicion to support

the constitutional reasonableness of opening envelopes

from abroad at the border—the Fourth Amendment

does not require that search warrants be obtained in

advance of such openings.

In the preceding discussion we have demonstrated

that both history and compelling exigencies attending

the enforcement of the customs laws dictate that cus-

toms authorities be permitted to open envelopes such

as those involved in the instant case without any par-

ticularized suspicion that any given envelope contains

dutiable items or contraband, aud certainly without

suspicion amounting to probable cause. If that is so, it

follows directly that the privacy interests at stake are

not the kind that should receive the protection of a

warrant requirement; warrants, after all, may be

issued only upon a showing of probable cause, under

the express terms of the Fourth Amendment.”

*? The court of appeals thought that there was probable cause

to open the envelopes in this case (Pet. App. 13a n. 8). We hesitate

to take issue with that conclusion, although the information known

What is more, because it has always been under-

stood that enclosed containers entering this country

from abroad may be opened without probable cause,

veither the addressee nor the sender of a_ bulky

envelope has a reasonable expectation of privacy in

its interior. See Katz v. United States, 389 U.S.

347, 353. In the absence of such a reasonable expecta-

tion of privacy, the usual foundation for requiring a

warrant is absent.The court of appeals thought other-

wise, relying on Camara v. Municipal Court, 387 U.S.

523 (see Pet. App. Ta n. 5). Camara, however, is

“not * * * an apt model. It involved the search of

private residences, for which a warrant traditionally

has been required.” United States v. Martinez-Fuerte,

supra, slip op. 21. The opening of envelopes and the

search for dutiable goods and contraband involved in

the customs practice does not present the sort of

dangers against which a warrant is designed to pro-

tect. This case does not involve “a search or seizure

carried out on a suspect’s premises” (Coolidge v. New

Hampshire, 403 U.S. 443, 474 (plurality opinion) ) ; it

involves, instead, a search of an enclosure in which

to the officer (that the envelope was bulky and from a country

notorious as a source of contraband) seemingly would not be suf-

ficient to authorize an inland search. But however that may be,

the court’s conclusion that there was probable cause on these facts

does not buttress its conclusion that a warrant was required. if

officer Kallnischkies could have opened the envelopes on mere

suspicion without a warrant, the fact that his suspicion in this case

Was strong enough to amount to probable cause (and thus to en-

able him to obtain a valid warrant) would not compel him to seek

antecedent judicial approval that is unnecessary when suspicion is

weaker.

there has traditionally been little or no expectation of

privacy. Far from falling within the rule that searches

are presumptively unreasonable without a warrant,

the search here falls within the oldest exception to a

warrant requirement.

We also believe that the court of appeals’ warrant

requirement is entirely impractical. Customs officials

who must serutinize an average of 1,900 envelopes

daily, and who now open an average of 19 envelopes °

daily, could not find time to draw up 19 applications

for warrants without dramatically decreasing their

ability to inspect the mail. The enormous volume of

international mail makes individual warrants im-

possible; neither the Customs Service nor the federal

courts could cope with a requirement that approxi-

mately 270,000 warrants be issued each year, each

with an affidavit “particularly describing the place

to be searched, and the persons or things to be seized.”’

_ Perhaps the court of appeals envisaged streamlined

procedures under which customs officials would pre-

sent larger quantities of mail to a magistrate at one

time for some kind of group warrant. But this, too,

would hinder effective use of the time of the officials

to search for smuggling, while at the same time de-

priving the warrant procedure of the means of afford-

ing any realistic antecedent judicial scrutiny. If the

Customs Service simply presented a bag full of mail

to a magistrate and represented that each piece re-

quired inspection, the magistrate could not effectively

make a detached judgment whether the opening of

particular envelopes was appropriate; if, on the other

hand, customs personnel attempted to provide the

magistrate with a detailed description of each enve-

lope, and the attributes of that envelope that made

opening appropriate, the process would be nearly as

cumbersome as obtaining a separate warrant for each

envelope.

The Warrant Clause of the Fourth Amendment

trol over massive and routine administrative searches

( ay was not designed as a method of judicial con-

such as border searches. The Fourth Amendment’s

requirement of ‘‘reasonableness’’ does not depend, in

these circumstances, upon antecedent judicial ap-

proval. The search here was reasonable because it took

place at the border as part of a longstanding admin-

istrative program of searches. The activities of the

customs officers are a matter of routine; to the extent

there is any question about the reasonableness of par-

ticular border searches, these questions can be exam-

ined in subsequent judicial proceedings no less well

than the activities of the Border Patrol that were

upheld in Martinez-Fuerte.

Moreover, the opening of an envelope at the border

is no more intrusive, and no more in need of anteced-

ent judicial approval, than is the search of a package

at the border, which the court recognized does not

require a warrant. It is far less intrusive than the

search of a person entering the United States. As

Judge Robb remarked in dissent in this case (Pet.

App. 19a), “that the contents to be inspected are

enclosed in an envelope, rather than by wrapping

paper and twine, cannot be of critical significance.’’

We submit that the decision of the court of appeals

stands the Fourth Amendment on its head by requir-

ing greater cause and more judicial scrutiny to make

the less intrusive search. The court of appeals’ ap-

proach—making border searches stand on exigent cir-

cumstances in particular eases—rides roughshod over

200 vears of history and erects an unworkable require-

ment that does little or nothing to enhance the safe-

guards afforded to recipients of international mail.

CONCLUSION

The judgment of the court of appeals should he

reversed.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Ricuarp L. THorNsurGH,

Assistant Attorney General.

FraNK H. EAstTersroox,

Assistant to the Solicitor General.

JEROME M. Feit,

ANN T. WALLACE,

Attorneys.

NOVEMBER 1976.

APPENDIX A

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

178, Rev. Stat. § 3061, 19 U.S.C. 482, provides in rele-

vant 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

mw, ° f%,

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.

3. 19 C.F.R. Part 145 provides in relevant part:

* * * * «

§ 145.1 Definitions.

The following are general definitions for the

purposes of part 145:

(1a)

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

and letter packages in Postal Union mail.

packet, envelope, or other similar container,

whether sealed or unsealed, arriving in the in-

ternational mail.

§ 145.2 Mail subject to Customs examination.

All mail originating outside the Customs ter-

ritory of the United States, whether sealed or

unsealed, is subject to Customs examination,

except:

(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 Diplomatie Missions) of for-

elgn countries; and

(ce) 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 desig-

nated international organizations is subject to

Customs examination except where the organi-

zation certifies under its official seal that such

mail contains no dutiable or prohibted articles.

Any Customs examination made shall, upon

request of the addressee international organi-

zation, take place in the presence of an appro-

me 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.

8145.4 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

forfeiture.

- * * * *

39 C.FLR. 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 correspond-

ence or documents addressed to diplomatic mis-

sions or the officers thereof, or international

organizations designated by the President as

publie international organizations pursuant to

the International Organizations Immunities

Act, and other mail addressed to such interna-

tional organizations pursuant to instructions

issued by the Department of the Treasury, and

ficial documents addressed 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

attach 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.

(ec) Priority treatment of airmail. Airmail ar-

ticles receive preferential customs treatment and

are submitted to customs separately from sur-

face mail. Upon return from eustoms, 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.

* * * * *

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

loeated so the mail may be handled in aeccord-

ance with § 61.3(a). Packages that have

received customs treatment will bear an en-

dorsement such as “ Passed Free U.S, Customs”’

or the red adhesive U.S. Customs Service enve-

lope that contains Customs Mail Entry, Form

5419. The U.S. Customs Service does not en-

dorse “Passed Free of Duty” on printed matter

(magazines, newspapers, circulars, and books).

lf printed matter is dutiable it will bear the

red adhesive envelope that contains Customs

Mail Entry, Form 3419.

~ + * + *

APPENDIX B

SEIZURES FOR CUSTOMS VIOLATIONS *

Letter mail Parcel mail

Violations 1975 1976 1975 1976

WD, dicndidgbinnnetmninnnd 0 1 20 35

Git ante ccesmenecetoeseoes 496 644 31 24

Drug Paraphernalia. ---_--...-.-- 0 0 5 3

Ei sheeisciepcitittinn nddiinemanananidindie 1, 902 3, 600 231 153

ieddtddatdundsegeceneeqnin 72 148 2 18

i inttindddmegwadiamneenciennhtiit 0 3 0 1

acti etinenagth isitnitiin ination < 1, 242 1, 526 222 274

Other Dangerous Drugs. -_-—- ~~ --~- 39 90 15 85

ts alndimetnnendnebakened 3 9 6 6

Switch Blade Knives. ------.----- 0 1 66 114

Ds dp dshlGmatebindape tid 0 0 0 2

| ELEC 214,250 715,300 27150 2 200

Pe icwstatibiotnmedebte 18, 004 21, 322 748 915

—_——-—— — —- -_——

1 Source: Information supplied by the Customs Service. Fach seizure re-

flects contraband found in a single envelope or package, which may contain

more than one prohibited item.

? Estimate.

(7A)

U.S. GOVERNMENT PRINTING OFFICE 1976

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