Petitioners Brief — United States v. Ramsey

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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.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT

CHARLES W. RAMSEY

ALLAN M. PALMEk

1707 N St., N.W.

Washington, D.C. 20036

(202) 785-3900

Counsel for Respondent

CHARLES W. RAMSEY

Washington, OC. « CLB PUBLISHERS « LAW PRINTING CO. e (202) 393.0625

(i)

TABLE OF CONTENTS

Page

SE. x co cau owas s cee cheteeeen l

CONSTITUTIONAL PROVISION, STATUTES AND

REGULATIONS INVOLVED .....ccccccccccces 2

PR er re re ee ee 2

EN GEE, wc bu bec ceevecvetcescss 7

ARGUMENT:

THE WARRANT PROCEDURE OF THE

FOURTH AMENDMENT MUST BE COMPLIED

WITH BEFORE THE INTERNATIONAL

EQUIVALENT OF DOMESTIC FIRST CLASS

LETTER MAIL MAY BE SEARCHED AFTER

SUCH MAIL REACHES OUR SHORES AND

REMAINS IN THE EXCLUSIVE CUSTODY OF

Wee WUT oc chm ec tccseserevesscece 9

A. The Government’s brief contains mislead-

ing extra-record factual material not to

be relied on by this Court ............... 9

B. The border search exception to the

warrant requirement does not extend to

the international equivalent of domestic

rrr ee ere 17

1. Statutory authority ................. 18

re rae ce ire ere ane ae 23

i EY co cues G uae lneu wae haces 26

CEE cb cece ccs eccunsacdesasvesesaces 30

(ii)

TABLE OF AUTHORITIES

Cases: Page

Camara v. Municipal Court, 387 U.S. 523 (1967) ....... 18

Carroll v. United States, 267 U.S. 132 (1925) ...... 19,20,22

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....... 18

Cotzhausen v. Nazro, 107 U.S. 215 (1882) ............ 26

Ex parte Jackson, 96 U.S. 727 (1877) ........... 23,24,25

Katz v. United States, 389 U.S. 347 (1967) ........... 27

United States v. Emery, 541 F.2d 887 (lst Cir.

RR ea aera, aN ea ae a wg 26

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

ae eh ee eee aa es i oe 26

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

ee we ee eae he le See ee aw i 27

United States v. Van Leeuwen, 397 U.S. 249 (1970)... . 16,22

United States v. Various Articles of Obscene Mer.,

tS @ fF ' | 4 eo: ree 27

Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516

ee el ei i ele wa 22,24

Constitution, statutes, and regulation:

United States Constitution:

EE TG SOE Re Se 2

ee RE le ngs ig as wale back 7

es ee I a I ek vce ek ensd ce’ 20

13 Stat. 441, 442, February 28, 1865 ............ 20

14 Stat. 178, July 18, 1866 ...............000- 21

oe fe Fe reer rere 13,17,18,19,23

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.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT

CHARLES W. RAMSEY

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 securing a search warrant.

to

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, panees, 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

(1975) set out in Appendix A, at pages 1A-S5A of the

brief for Petitioner.

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

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 re-

ceived a cable concerning the recent Thai developments

including the arrests of Bailey and Ward. (A. 3, 56)

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. (A.57)

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

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

the complete descriptic.. 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

Landrum and Atlee obtained a United States Mazgis-

trate’s Search Warrant for these three envelopes. The

envelopes were seized and subsequently determined to

contain nearly pure heroin. (A. 59-60)

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

tc 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 approx-

imately 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. (A. 56-74)

George Kallnischkies 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 procedure was for the mail in

question to come into 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. Kallnischkies 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. He observed the eight letters which raised his

suspicions and 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. Kallnischkies pro-

ceeded 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. Kallnischkies 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.

“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 trusion 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.

Kallnisch kies 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, I would say this is

Thailand and possibly heroin.”

(A. 28-54)

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. (Pet. App. A 9a-10a,

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

narcotic arrest and these convictions stand or fall with the heroin

offenses. Cf. Pet. 5, n.4; Br. 5, n.4

n.6) The majority opinion gives full recognition to the

border search exception to the warrant procedure when

dealing with packages moving through international

mail. (Pet. 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. (Pet. App. A 19a-20a)

SUMMARY OF ARGUMENT

The Government’s brief contains a great deal of

misleading extra-record factual material to support an

administrative burden theory, which should not be

relied on by this Court. This case concerns the opening

of envelope mail which looks exactly like the domestic

equivalent of first class airmail letters. Respondent

concedes that packages may be opened at the border

without search warrants. In developing a theory of

undue burden in securing warrants for entering mail,

the Government has injected facts into its brief which,

at first blush, appear to deal with the number of

seizures from envelope mail by customs officers for

certain time periods, but which actually include

seizures from package type mail in that its definition of

envelope subliminally encompasses mail matter not in

excess of four pounds (except that for Canada there is

a sixty pound limit) and with a maximum length of 24

inches and a maximum length, breadth and thickness,

combined, of 36 inches.

The statutory history of border search authorization

indicates that 19 U.S.C. 482 and its predecessors never

contemplated that customs officers could seize incom-

ing international letter mail without warrants therefore.

Custom and usage supports this statutory construction

and the Government concedes, that for the first 195

years of our nations history “letter mail was not

opened by customs officials acting alone...’ (Br. 21)

Furthermore, the unwarranted opening of this mail

matter will chill important First Amendment rights.

Although the Government asserts that customs officers

do not open envelopes unless they have reason to

believe that they contain things in addition to

correspondence, the Petitioner’s own figures show that,

upon opening the mail, the officers found neither

dutiable or prohibited items more than 80 per cent of

the time. It is reasonable to infer that such innocent

mail opened in excess of 8 out of 10 times contained

nothing but correspondence. This chilling effect on free

speech will be cured by returning the Customs Service

to the penumbra of the Fourth Amendment — as

judicial superintendence has a way of making officers

more responsible to the public they serve. Furthermore,

since the major target of these mail openings is drugs

and resultant federal prosecutions, at least 1,000 Drug

Enforcement Administration agents who work hand in

hand with customs officers stand ready, willing and able

to secure search warrants for any true letter type mail

and thus relieve the Customs Service of any perceived

undue burden.

ARGUMENT

THE WARRANT PROCEDURE OF THE

FOURTH AMENDMENT MUST BE COM-

PLIED WITH BEFORE THE INTERNA-

TIONAL EQUIVALENT OF DOMESTIC

FIRST CLASS LETTER MAIL MAY BE

SEARCHED AFTER SUCH MAIL REACHES

OUR SHORES AND REMAINS IN THE

EXCLUSIVE CUSTODY OF THE GOV-

ERNMENT.

A.The Government’s brief contains misleading

extra-record factual material not to be relied

on by this Court.

Prior to writing our instant pleading, we moved to

strike the Government’s brief on the ground that it

contained extra-record factual material and _ that,

furthermore, such material was misleading. After an

opposition and reply thereto were filed this Court

denied the motion by fiat. In resisting our assault upon

the brief the Solicitor General suggested a remedy if

our allegations were correct:

“If the statements of fact should not have been

included in the brief, the proper remedy would be

for the Court to disregard them, not to strike the

brief. If the statements were misleading, the proper

procedure would be for the respondent to show, in

his brief on the merits, why they are misleading

and why the Court should not rely upon them.”

(Opp. 1)

In support of this procedure he offered us the

assistance of the Customs Service which provided the

information to the Department of Justice in the first

instance. (Opp. 3) Although we continue to consider

such fact-finding at the appellate ievel inappropriate we

10

have, nonetheless, accepted the Solicitor’s suggestions in

light of his experience in dealing with the Court, the

probable acquiescence in the suggested procedure by

this Court reflected in the unexplained denial of our

motion and, most importantly, to correct the record.

This case concerns the opening of envelopes which

look exactly like the domestic equivalent of first class

airmail letters. Color photographs of them are contained

in the record on appeal to visually attest to this

assertion. The court of appeals was careful to limit its

ruling solely to the perimeters of the mail matter before

it and excluded package mail from the warrant

requirement.

“There is, of course, no ready line available to

distinguish letters from packages; the distinction is

one of degree. We are satisfied that the envelopes

in this case. .., 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.” (Pet. App. 9a, n.6) (Emphasis sup-

plied)

Respondent Ramsey does not contend that mail

matter other than the type appearing in this record is

subject to the warrant requirement — he specifically

rejects the notion that packages cannot be searched at

the border without a warrant. Cf. Br. 13-18.

In support of its administrative burden argument

(Br. 24-36), the Government has included in its brief

the following facts which nowhere appear in the record

and which confronted Respondent Ramsey for the first

time upon a reading of that brief:

Page 8.

“More than one billion envelopes arrive each

year...” .

Page 8-9.

“In fiscal 1976 customs officers opened approx-

imately 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 envelopes containing dutiable or prohibited

items per officer per working day. In order to find

these envelopes, each officer opens approximately

19 envelopes per working day, sorting them from

the approximately 1,900 whose exteriors he

inspects.”

Pages 24-25.

“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

envelopes and packages are not accompanied by

any declaration of their contents. . .”

BOee ‘Envelopes,’ in the sense used in this brief, refers to all

envelope-shaped mail of any postage rate, and not simply

mail moving at international letter class rates.”

Page 25.

“The Customs Service has augmented its staff of

62 officers assigned to inspection of envelopes

with trained dogs and an x-ray machine.’’?°

20Twenty customs facilities use trained dogs.”

Page 26-27.

“The Customs Service informs us that in fiscal

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 Customs Service estimates that in each of

those years its inspectors opened for visual

inspection approximately 270,000 pieces of mail,

12

or one of every 100 examined. Many of these

openings were supported only by suspicion; 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 undeclared dutiable materials in approx-

imatley 27,000. Duty was assessed on these items

before delivery. The Customs Service also found

18,000 envelopes containing prohibited items in

fiscal 1975 and over 21,000 envelopes containing

prohibited items in fiscal 1976.2? The discoveries

of prohibited items in envelopes dwarfed the

discoveries in packages: only 748 prohibited items

were found in packages in fiscal 1975, and only

915 in fiscal 1976.”

22See Appendix B, infra, p. 7A, 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 officer must scrutinize almost 1,900

envelopes daily, or 240 each hour. Each officer opens

approximately 19 envelopes daily and finds approximately

3.3 containing prohibited or dutiable items.” (footnote 21

omitted. )

Pages 30-31.

“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 no practice of routinely opening

without a warrant envelopes that appear to contain

only correspondence”’.

Page 35.

“Customs officials who must scrutinize an average

of 1,900 envelopes daily, and who now open an

13

average of 19 envelopes daily, could not find time

to draw up 19 applications for warrants... .”

In addition, Appendix B (Br. 7a) is an extra-record

compendium of alleged customs seizures from categories

designated as letter mail and parcel mail for 1975 and

1976. Seizures of prohibited items from letter mail for

this period total 39,326 items and such seizures from

parcel mail total but 1,663 items. Upon the bases of

these facts the Government somberly warns:

“If, probable cause and a warrant were required for

each opening, the inspection process would grind

to a halt.”

(Br. 9)

Pursuant to the Solicitor’s offer, on December 20,

1976, counsel representing Respondent Charles W.

Ramsey met with Dennis Cronin, Esq., General

Attorney U.S. Customs Service and Mr. Michael

D’ Angelo, Operations Officer Duty Assessment Division,

U.S. Customs Service. We were advised by these

gentlemen that the data in the Government’s brief are

based upon Customs Form 151 which is a_ report

prepared by each customs officer for each mail seizure

he makes. The type of mail matter searched is

categorized with a “P” for package mail and “L” for

letter class mail. There is no requirement that an

accurate description be given on the form of the mail

matter opened or that pictures thereof be taken.

Furthermore, we were also advised that the “L” class

mail on the form — which has been translated to

“envelope” in the government’s extra-record fact

formulation — is defined by 39 C.F.R. 22.1(b), (c),

which all customs inspectors utilize in filling out the

1S1. Those regulations define letter class mail to

include pieces not in excess of four pounds (except that

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

maximum length of 24 inches and a maximum length,

14

breadth and thickness, combined, of 36 inches. The

“L” or “P” classification does not alter, we were told,

by the securing of the mail matter with string nor

because of the postage rate at which it moves through

the mails. Thus, when the Government’s brief alludes to

customs officers opening approximately 270,000 “‘en-

velopes” in fiscal 1976 the term envelope as used

obviously includes a plethora of mail that even grade

school children would call packages.”

For all we know 20 percent, 50 percent, or perhaps,

80 percent of these “envelopes” could very well have been

packages when viewed from a common sense angle of

vision and, concededly, not subject to the warrant

requirement.

It is for these reasons we have consistently urged that

the extra-record material herein is misleading and not

the stuff upon which this Court’s judgment should rest.

Furthermore, the government apparently believes that

it has adequately discharged its burden of apprising us

as to the real meaning of “envelope,” via footnote 19,

Of

““*Envelopes’ in the sense used in this brief,

refers to all envelope-shaped mail of any postage

rate, and not simply mail moving at international

letter class rates.”

(Br.25)

$$

2in some of the “L” 151’s turned over to us for review we

were not suprised therefore to find, inter alia:

1. “Suspected hashish inside cassette” (sic).

2. “Suspected hashish in plastic bag inside cassette with

brown wrapping paper.”

No wonder the Government could confidently allege that “‘the

discoveries of prohibited items in envelopes dwarfed the

discoveries in packages. .. .” (Br. 27)

15

In addition, when it is postulated that in “fiscal 1976

customs officers opened approximately 270,000 enve-

lopes..., Of which approximately 48,000 contained

dutiable or prohibited items,....’’ (Br. 8), this Court

might find it interesting to know how this 270,000

approximation was arrived at. If a search does not yield

dutiable or prohibited items a form 151! is not filled

out and no record is kept of the intrusion. Mr.

D’Angelo explained to us how this figure was reached

in the absence of any records as follows. Nine key

regional customs people were contacted pursuant to the

Justice Department’s request for the information who

in turn relied on their mail branch people to think back

over the year and, based on their experience, to arrive

at a figure as to how many “L”’s they thought were

opened in fiscal 1976 in that region. The nine key

regional people in turn each submitted their estimates

which totalled up to “approximately 270,000 enve-

lopes.”’ (Br.8)?

By some alchemy not yet fully revealed to us, all of

these extra-record facts have been dubbed “legislative

facts” or “legislative information.” (Opp. 2) and

therefore, to be properly injected into the Govern-

ment’s brief. However, for the reasons we have

advanced we cannot take the Government’s “‘legislative

facts’ seriously, for we do not know the accurate

contours of any oppressive administrative burden that

3In light of this explanation to us by Customs, we reject the

accuracy of footnote 2 in the Government’s Opposition to our

Motion to strike its brief:

“The Motion to Strike asserts (p. 3) that the Customs Service

data were ‘generated... specifically to further the quest for

reversal in this Court.’ This statement is in error, as respondent’s

counsel was informed before filing his motion; the information

contained in Appendix B and elsewhere in our brief is preexisting

information compiled for its own purposes by the Customs

Service.” (Opp. 3, n.2)

16

might exist and thus, cannot intelligently respond to

the Government’s self-generated argument on. this

score.*

4 Interesting to note in this regard is the fact that of some 105

sample Customs Forms 151 turned over to us on a randomly

selected basis which reported seizures from “L” designated mail

matter from around the country, of the 101 that were readable,

every single one concerned illicit drugs in small quantities.

Although the Government’s brief hawks other fears of smuggling;

no jewels, precious metals, microfilm or money (Br. 18) were

found in any of this “L” type mail. Furthermore, based on our

experience, the senders do not appear to be large scale dope

dealers, but rather servicemen and students forwarding small

samples of drugs back home. Thus, from this sampling provided

to us by the Government, the following were found in small

quantities:

40 “L”s — Hashish

29 “L”’s — Cocaine

26 “L”’s — Marijuana

3 “L’’s — Liquid Hashish

2 “L’’s — Heroin

1 “L” — Cocoa Leaves.

In many of these cases the drugs were turned over for

processing to agents of the Drug Enforcement Administration

who work closely with Customs as was done herein. Since it

appears that the overwhelming majority of such searches involve

drugs and criminal law enforcement, there are least one thousand

D.E.A, agents around the country who stand ready, willing and

able to rapidly obtain search warrants for contraband entering

the country in true letter type mail and thus relieve the

potentially burdened customs inspectors of this chore. Cf. United

States v. Van Leeuwen, 397 U.S. 249 (1970), wherein this Court

unanimously upheld the authority of officials to detain domestic

first class mail for 29 hours while they investigated suspicious

circumstances and obtained a search warrant.

In addition, the Government’s brief states that undeclared

dutiable materials were discovered in approximately 27,000

pieces of mail in fiscal 1976 and 21,000 envelopes contained

prohibited items during this same period. (Br. 26) Appendix B

solely seeks to report seizures of prohibited items and nowhere

in the brief are we specifically told what the dutiable materials

consisted of or the precise nature of the mail matter they

entered in. Looking at Appendix B in light of our assertions of

(continued)

17

B.The border search exception to the warrant

requirement does not extend to the inter-

national equivalent of domestic first class

letter mail.

The starting point of any discussion concerning the

so-called “reasonableness” of government agents seizing

the property of citizens, is the constitutional mandate

that search warrants are the preferred route thereto. In

(footnote continued from preceding page)

what “L” type mail really refers to, we see that pornography

accounts for some 15,000 pieces of “L” mail seizures while

“soft” drugs account for the vast majority of the remaining

6,000 seizures. By pornography we assume the Government is

referring to the commercial variety thereof and not servicemen or

students sending dirty pictures to their anxious friends back home.

For if it is referring to the latter, then widespread intrusions into

privacy are committed daily by customs officers. Furthermore, “por-

nography”’ includes photos, books and films, and we find it hard to

believe that the bulk of the 15,000 pornography seizures were

not from “L’’ mail matter weighing up to four pounds and

having a maximum length, breadth and thickness, combined, of

36 inches, 39 C.F.R. 22.1(b), (c). Thus, it is not unreasonable to

assert that most of this pornography arrived to our shores in

“packages” which could be seized without a warrant anyway.

Taking the remaining 6,000 “L’’s at face value, an experienced

customs officer knows when suspected drugs are his target and

this amounts to but 26 warrants per day, assuming 230 working

days each year. 26 search warrants per day to be secured by

customs agents aided, if deemed desirable, by at least 1,000

D.E.A. agents on a countrywide basis is no real burden at all.

Again using the Government’s own figures at face value, we are

told that customs officers “do not open envelopes unless they

have reason to believe that they contain things in addition to

correspondence” (Br. 27); this procedure accounted for 48,000

seizures for 270,000 “L” mail openings in fiscal 1976—an error

of judgment rate in excess of 80 percent. (Br. 27) We therefore

iaust conclude that nothing but correspondence was found over

80 percent of the time and that a probable cause/search warrant

requirement will tighten up this presently unconstitutional

procedure that tends to chill First Amendment guarantees.

18

construing this command of reasonabless, there has been

general agreement that “except in certain carefully

defined classes of cases, a search of private property

without prover consent is ‘unreasonable’ unless it has

been authorized by a valid search warrant.” Camara vy.

Municipal Court, 387 U.S. 523, 528-529 (1967). The

presumption has always been that a warrant should be

obtained whenever practicable, and exceptions to the

warrant requirement have been based on exigent or

other circumstances where delay would frustrate

legitimate police activity. The warrant requirement “‘is

not an inconvenience to be somehow ‘weighed’

against the claims of police efficiency.’ Coolidge y.

New Hampshire, 403 U.S. 443, 481 (1971).

In light of this well entrenched approach to the

limitations on governmental power, we find somewhat

anomalous Petitioner’s nerve-center theory that a petty

official can search at his whim any incoming inter-

national letter class mail—“[{[njothing else—not

suspicion, not probable cause, and not antecedent

judicial approval—is constitutionally necessary.” (Br. 12,

footnote omitted.) The Government seeks to support

this heady contention on the basis of alleged long-term

statutory authority and, the force of history.

1. Statutory Authority.

We are told that “the officer was acting pursuant to

authority granted by a statute enacted in 1866 that

explicitly allows customs searches of ‘envelopes’ (See 19

U.S.C. 482... ).” (Br. 10)

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

Any of the officers or persons authorized to

board or search vessels may stop, search, and

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

19

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

law;* * *,

A proper understanding of that statute as it presently

exists begins with Carroll v. United States, 267 U.S.

132 (1925), which sustained the probable cause search

of a car without a warrant under the National

Prohibition Act because of the exigencies of ap-

prehending a fleeing car. 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....”. Carrol, 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

20

locality or jurisdiction in which the warrant must

be sought.” /d. at 153.

Thus, this Court long ago viewed the border search

concept as inseparably entwined with the element of

exigence, lest the offending party and his wares

disappear into a still rugged country. Where there was

no danger of that disappearance, however, a warrant

was required even though smuggling was the target.

Thus, the foundation Border Search statute considered

in Carroll v. United States, supra, 3 Stat. 231, 232,

March 3, 1815, distinguished between an ambulatory

and a permanent situation and mandated a search

warrant for the latter.

‘““And if any of the said officers of the customs

shall suspect that any goods, wares, or mer-

chandise, 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.”

(Emphasis supplied.)

We therefore see that search warrants were also required

for packages unless there was danger of their

disappearing via man or beast. It was this statute which

was alluded to in Carroll when it was observed that

neither this section “‘nor any of its earlier counterparts

has ever been attacked as unconstitutional.” 267 U.S.

152. 13 Stat. 441, 442, February 28, 1865, which

continued the border search power, only provided for

the warrantless stopping and searching of persons or

21

vehicles in transit. For non-moving situations the statute

provided:

“That in case any store, warehouse, or other

building shall be upon or near the boundary line.

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 included

language specifically authorizing customs officers to

search any “trunk or envelope.” But it is amply clear

from both a reading of the statute and its predecessors,

that such searches without warrant only applied to

trunks or envelopes on board vessels or upon vehicles,

beasts or persons.

Sec. 2 thereof [authorized customs officers to

board any vessel, search the same and] “any

person, trunk, or envelope on board....” |

Sec. 3 authorized [such officers to also search

any] “vehicle, beast, or person on which or whom

he or they shall suspect there are goods....

*“*[subject to duty or introduced 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 reasonable cause to

suspect, there are goods which were imported

contrary to law; and if any such officer... shall

find any goods, wares, or merchandise, on or

about any such vehicle, beast, or person, or in any

such trunk or envelope,...” [he shall seize and

secure the same for trial. Every] “such vehicle and

beast, or either...and all other appurtenances,

including trunks, envelopes, covers and all means

of concealment....” [shall be subject to seizure

and forfeiture.{ (Emphasis supplied)

The present statute, 19 U.S.C. 482, is but an

abbreviated form of its predecessors which, from this

historical perspective, does not authorize the opening of

incoming international letter class mail when there is no

danger of that mail moving before a warrant can be

obtained. Cf. United States v. VanLeeuwen, supra.

The Court in Carroll also alluded to border searches

as follows.

“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.” 267 U.S. 153-154.

In commenting upon such searches, one court of

appeals stated:

‘First and most important is the fact that a border

search is conducted incident to conferral of the

privilege of admittance to the country, and it is

certain that the subject of the search is in fact

receiving that benefit... In effect, a reasonable

border search is ‘consented’ to in order to obtain a

benefit that is only to be accorded those who can

show that they should gain admittance and who

can demonstrate that they are only transporting

goods which can lawfully be brought into this

country. Moreover, there is little danger of abuse

of such searches. Zweibon y. Mitchell, 170 U.S.

App. D.C. 1, 39, 516 F.2d 594, 632 (1975) (N.93)

Furthermore, said the Court, in these circumstances

of searching travellers and their effects at the border in

their presence,

“Over-intrusive searches will be apparent to their

subjects and may thus be challenged in court... .-

Finally,...there is no substantial likelihood that

ae en ewes or.

ee ee

eee -

23

border searches will chill the exercise of First

Amendment rights.” /d.

We thus fail to see how it can be claimed by the

Government that 19 U.S.C. 482 somehow authorized

the warrantiess search in question.*®

2. History

If we are correct in our historical reading of the

border search statutes, we would expect to find that

customs officers did not always feel empowered to

open international letter mail at their pleasure and

accordingly, did not do so. Support for this hypothesis

is no further away than the Government’s brief. It is

conceded therein that for the first 195 years of this

nation’s history customs officers did not open inter-

national letter mail. “Letter mail was not opened by

customs officials acting alone until 1971.” (Br. 21) This

is clear and convincing proof, we submit, that in this

limited zone of private correspondence the border

search power contended for does not and never has

existed in this republic. In 1970, we are advised, the

Post Office and Treasury Department jointly proposed

changes in the regulations which became effective in

1971, to authorize the type of search conducted herein.

(Br. 22-24)°

‘In responding to Senator Ervin’s lament that the 1970

proposed regulations authorizing such searches (see_ infra,

History) were propounded without public scrutiny, the then

General Counsel of the Post Office Department responded, inter

alia:

“There are not statutory provisions dealing specifically with

the customs treatment of any type of incoming foreign

mail.”’ 116 Cong. Rec. 13864 (1970)

“At this juncture we cannot help but envision the various

bureaucrats from the two agencies mulling over their changing

195 years of history to allow them to invade all international

letter mail at their whim and one inquiring of the assemblage:

“Do you really think we can do this?”

(continued)

24

Undaunted by this reverse force of history, Petitioner

advises us that customs officers really had this power all

along but, unlike all other law enforcement officers,

never “used the full power conferred by statute.” (Br.

18)

The bold but tortured reasoning to support this claim

(Br. 21-24) is properly to be compared with a later

assertion by Petitioner in response to our motion to

strike its brief wherein it was candidly stated that these

“historical practices followed by the Post Office and

the Customs Service... undermines, to some extent,

our argument that the opening of envelopes at the

border is justified by force of history.” (Opp. 6, n.5)

Ex parte Jackson, supra, concerned domestic mail

and the opinion indicates that at one time the post

office only carried letters, newspapers, magazines and

other printed matter not exceeding eight ounces.

“Afterwards books were added and now. small

packages...are transported in the mail.” The only

items which could be searched without a warrant were

those open to inspection and thus, “purposely left in a

condition to be examined.”

As we see it, the right of border search appears to

have always extended to persons, vessels, vehicles,

beasts, etc., and their wares entering this country based

on the dual concepts of national self-protection and the

exigencies of the moment. And, as Zweibon v. Mitchell,

supra, points out, a consent to search by the entering

person for himself and/or his wares inheres in the very

act of crossing an international border. From time

immemorial such unobtrusive searches have always

been anticipated as a consequence of international

(footnote continued from preceding pege)

The answer is clear.

“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 prirciple embodied

in the fourth amendment of the Constitution.” Ex parte

Jackson, 96 U.S. 727 (1877).

Ae a ne i ce

ome

Ge. cere Senne Serene see Wes

25

travel. Not one person reading this brief who has ever

travelled to a foreign land has ever done so without

expecting and consenting to an invasion of his privacy

by customs inspectors. And, as the mail service grew

along with the size of what could be mailed, packages

were understood to be and were left in a condition to

be examined when they reached our shores—an implied

consent to have them searched by the sender. (Br. 21)

We find no historical support for the sweeping assertion

that sealed international letter mail could constitu-

tionally be opened at the discretion of customs

inspectors without warrants. Indeed, for a newly

founded nation which had engaged in armed rebellion

in part because of writs of assistance and general

warrants executed by the King’s messengers and which

generated the Fourth Amendment in response thereto,

we find it hard to believe that such a nation would

have tolerated for one minute the unfettered opening of

its incoming mail by petty officials. At that point in

history most Americans were born in England or had

relatives and friends there whom they regularly

communicated with by mail—a two way inherently

personal and private means of discourse. We can only

imagine Mr. Jefferson’s response to the notion that his

return letters could be arbitarily opened before delivery

to him, their being “not suspicion, not probable cause,

and not antecedent judicial approval’ to do so. (Br. 12)

That could not have happened however, because at the

time, the government layed no claim to such power nor

would it have then dared to.

Accordingly, we believe that the full force and effect

of Ex parte Jackson, supra, applies to the mail matter

in the instant case.

“The constitutiona! guaranty of the right of the

people to be secure in their papers against

unreasonable searches and seizures extends to their

papers, thus closed against inspection, wherever

they may be. Whilst in the mail, they can only be

26

opened and examined under like warrant, issued

upon similar oath or affirmation, particularly

describing the thing to be seized, as is required

when papers are subjected to search in one’s own

household.”

3. The Present

Because searches aimed at the type of mail matter

before us were not undertaken pricr to 1971, legal

challenges thereto have only recently surfaced in the

various courts of appeal. While most of these cases

sustain the power asserted, cf. Br. 10, n.6, none of

them—save the one at bar—even begins to carefully

analyze the numerous considerations that impinge on

the opening of international letter mail. The most

recent case, United States v. Emery, 541 F.2d 887 (lst

Cir. 1976), sustained the border search of a package but

pointedly reserved decision as to “first class letters.”

Other Judges have expressed a similar hesitancy where

letters are concerned. E.g., United States v. Sohnen,

298 F. Supp. 51 (E.D.N.Y. 1969) (“The Constitu-

tion...may well prevent the opening of letters, as

opposed to packages... without a search warrant.’’);

7Cotzhausen v. Nazro, 107 U.S. 215 (1882), cited by the

Government does not aid its cause. In that case a dutiable shaw]

was mailed into this country from Germany and was identified as

such in writing on the container it came in. This Court variously

described that container as a “sealed envelope” and a “‘letter’’.

Apparently, the nature of the container was not critical because

the trial court, in propounding a special verdict to the jury,

called it a “package” three times and a “sealed envelope”’ once.

Furthermore, whatever it appeared to be, the customs people—

although notified in writing upon the item itself that it contained

dutiable material—did not venture to search it themselves.

Instead, a customs officer was notified to be present when the

shawl was delivered to the addressee and, only after the

addressee opened the mail and removed the shawl did the officer

seize it. Accordingly, the case does not even remotely resemble

the one before us and cannot be thought to condone the power

contended for here.

A. nee oe ~-- Dane

27

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

1971) (“We do not determine whether the Constitution

prevents the opening of letters... without a search

warrant”); United States v. Various Articles of Obscene

Mer., 363 F. Supp. 165 (S.D.N.Y. 1973) (“The

constraints...[of] the Fourth Amendment do apply

to Customs searches... Some courts have hinted that

the standards may be different when dealing with a

letter-sized envelope than when it is a package... at

issue.”’), Since none of the courts of appeal have

critically assayed the statutory or historical factors

vis-a-vis the warrantless search of international letter

mail—nor even mentioned that the practice only began

full blown in 1971—their opinions have little prece-

dential value.

No less than our forefathers, each of us deplores the

thought that our private correspondence is subject to

unrestrained governmental intrusion. We are not so

much concerned in this shrinking world that our letters

will be answered from New York, Boston, London or

Munich as with the idea that the flow of that

communication process will be unimpeded—we expect

and demand that our correspondence will remain

private. Such expectation is not unreasonable in light of

the fact that our wishes were ininterruptedly respected

in this regard for 195 years. Such long standing privacy

can easily repel the recent assault thereon by the

combined forces of the “Post Office and Treasury

Department.” (Br. 22-24) Katz v. United States, 389

U.S. 347 (1967).

In this regard, the court below was_ properly

concerned with the chilling effect the claimed power

might have in the hands of customs officers on First

Amendment rights.

“Even if the ordinary practice of the Customs

Service is not to read the mail that is

opened,....mere knowledge on the part of

28

individuals of the practice of routinely opening

mail inhibits the exercise of free speech.”

*x* * * *

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.” (Pet.

lla, 13a).

The Government’s own extra-record facts bear out

the clear and present danger that exists in this area.

At Br. 27 it is asserted: “customs officers do

not open envelopes unless they have reason to

believe that they contain things in addition to

correspondence.”

We/ are elsewhere told that in fiscal 1976, customs

officers found 48,000 dutiable or prohibited items in

approximately 270,000 pieces of mail. (Br. 8, 26) We

have earlier shown how this 270,000 figure was arrived

at post facto without records and, accordingly, the

figure could easily be 300,000 pieces of opened mail or

more. Using this latter figure, customs officers failed to

find either dutiable or prohibited items 84 percent of

the time they opened “L” type of mail without a

warrant. It is also reasonable to infer that, most of the

time such innocent mail was opened, it containeu

nothing but correspondence. This certainly underscores

the court of appeals’ concern with the danger to First

Amendment rights this practice generates. The court

below was right on target when it held that a warrant

was required for such searches because, inter alia,

“by requiring that the inferences to which law

enforcement officials are entitled be drawn by

neutral magistrates rather than by officers in the

heat of duty,..., it helps to limit unjustified

intrusions upon the private and communicative

material contained in letter mail.” (Pet. App.

14a-1 5a).

29

We are certain that returning the Customs Service to

the penumbra of the Fourth Amendment after its six

year frolic free of its strictures, will increase the

efficiency of its operatives from a dismal 84 percent

error rate to one in the 10 to 15 percent range. Judicial

superintendence has a way of making officers more

responsible in their conduct as indeed it should—this

being the very goal of the Fourth Amendment.

To ward off this compelling claim the Government

offers, in part, the following palliatives:

1. “[A]ny person who desires to guard against the

reading of international correspondence has a

simple expedient: he can send [smaller] enve-

lopes...[{because they do not] give rise to

suspicion that they contain something other

than correspondence. There has been no

showing in this case that customs inspectors

open such envelopes.” (Br. 30)

* * *k *

2. “In fact, the international exchange of ideas

does not stand on an equal footing with the

domestic exchange of ideas.” (Br. 30, n. 24)

A further consideration is the fact that the real

apparent aim of present day border searches of mail is

criminal prosecution of drug offenses. It is no mere

coincidence that 100 percent of the Customs Forms

151 turned over to us on a random basis involved small

drug seizures from “L” type mail. And, working hand

in hand with these customs officers are D.E.A. agents

who handle the evidence and perfect the prosecutions

as, for example, in this case. The true targets of the

majority of these searches are the U.S. addressees at

home whose mail D.E.A. agents could never hope to

open on their own. We accordingly find that the

Government has observed in this connection:

30

“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.” (Br.

31, n.25)

Since there is this close working relationship between

the Customs Service and the Drug’ Enforcement

Administration, it would only be proper to have D.E.A.

agents secure search warrants to aid the prosecution of

these domestic crimes.* Indeed, in the case at bar, DEA

agents, in fact, obtained search warrants for the eight

envelopes originally seized at the N.Y. Post Office

without warrant and secured a second search warrant

for three more suspicious envelopes at the main Post

Office in Washington, D.C., which were tied into this

case and had not been previously opened. (App. 59)

The court below—as we do—thought that this latter

seizure seriously compromised the Government’s claim of

undue burden in securing such warrants. (Pet. App.

17a)

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

ALLAN M. PALMER

1707 N St., N.W.

Washington, D.C. 20036

(202) 785-3900

Counsel for Respondent

Charles W. Ramsey

® The Drug Enforcement Administration informs us that there

are presently some 1700 ‘‘working agents’ in the United States.

A working agent is a man on the street making arrests, securing

search warrants and the like.