Petition — Choate v. United States

IN THE : 6 ton

SUPREME COURT OF THE UNITED STATES

October Term, 197QCHALL RoLIN R

No.

2 ew A

DENNIS ROY CHOATE, W@8-42

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY B. FLYNN

Center for Law

in the Public Interest

10203 Santa Monica Boulevard

Los Angeles, California 90067

(213) 879-5588

RICHARD G. SHERMAN

MICHELLE R. ROSENBLATT

6420 Wilshire Boulevard

Los Angeles, California 90048

(213) 658-6800

FRED OKRAND

ACLU Foundation

of Southern California

633 South Shatto Place

Los Angeles, California 90005

(213) 487-1720

Attorneys for Petitioner

IN THE —

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

DENNIS ROY CHOATE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY B. FLYNN

Center for Law

in the Public Interest

10203 Santa Monica Boulevard

Los Angeles, California 90067

(213) 879-5588

RICHARD G. SHERMAN

MICHELLE R. ROSENBLATT

6420 Wilshire Boulevard

Los Angeles, California 90048

(213) 658-6800

FRED OKRAND

ACLU Foundation

of Southern California

633 South Shatto Place

Los Angeles, California 90005

(213) 487-1720

Attorneys for Petitioner

TOPICAL INDEX

Table of Authorities

OPINIONS AND ORDERS BELOW

JURISDICTION

QUESTIONS PRESENTED

FEDEPAL REGULATIONS AND CONSTI-

TUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

ARGUMENT

I "MAIL COVER" SURVEILLANCE OF

DOMESTIC FIRST-CLASS MAIL

NECESSARILY INVADES THE AD-

DRESSEE'S REASONABLE EXPEC-

TATION OF PRIVACY AND MUST

THEREFORE ADHERE TO THE PRO-

CEDURAL SAFEGUARDS AND GUAR-

ANTEES OF THE FOURTH

AMENDMENT

A. The Decision Below Is in

Conflict with the Recent

"Pen Register" Decision

of this Court, Proscrib-

ing Warrantless "Phone

Cover" Surveillance

13

18

18

20

II

IIt

INDEX TO APPENDICES

(separately bound and filed)

Page

B. The Instant "Mail Cover" Is

Governed by No Applicable

Exception to the Warrant

Requirement and Is in

Patent Non-Compliance with APPENDIX A Opinion and Order of the

the Reasonableness Require- United States Court of

ment 27 Appeals for the Ninth

Circuit, filed March 15,

"MAIL COVER" REQUESTS MAY BE 1978

COLLATERALLY ATTACKED FOR UNDER-

LYING UNTRUTHFULNESS AND SUCH APPENDIX B Order of the Ninth Circuit

INTENTIONAL FALSITY (AND NON- denying the Petition for

COMPLIANCE WITH APPLICABLE Rehearing En Banc, filed

FEDERAL REGULATIONS) VITIATES June 6, 1978

THE REQUEST AND REQUIRES SUP-

PRESSION OF THE FRUITS OF THE

SEARCH 31 APPENDIX C Opinion and Order of the

United States District Court

"MAIL COVER" SURVEILLANCE AND for the Central District of

SEIZURE OF EVIDENTIARY MATERIAL California, filed November 16,

FROM PRIVATE FIRST-CLASS CORRE- 1976, as officially reported

SPONDENCE, IF IMMUNE FROM FOURTH in 422 F.Supp. 261

AMENDMENT SAFEGUARDS AGAINST

ABUSE, UNREASONABLY TRENCHES APPENDIX D Letter dated July 19, 1972

UPON FUNDAMENTAL FIRST AMEND-

MENT RIGHTS 35

ii.

to Mr. Stanley H. Jenson

Postal Inspector in Charge

P.O. Box 30456

Los Angeles, California

from MELVIN C. JOHNSON

Special Agent in Charge

iii.

TABLE OF AUTHORITIES

Cases

Baird v. State Bar

662 U.6. & ta97i)

Bates v. City of Little Rock

361 U.S. 516 (1960)

Berger v. New York

388 U.S. 41 (1967)

Brotherhood of R.R. Trainmen Vv.

Virginia ex rel. Va. State

Bar, 377 U.S. 1 (1964)

Buckley v. Valeo

424 U.S. 1 (1976)

Coolidge v. New Hampshire

403 U.S. 467

Gibson v. Florida Legislative

Committee, 372 U.S. 539

(1963)

Griswold v. Connecticutt

381 U.S. 479 (1965)

Hodge v. Mountain States Tel.

& Tel. Co., 555 F.2d 254

(9th Cir. 1977)

Jackson, Ex parte

96 U.S. 727 (1877)

Katz v. United States

389 U.S. 347 (1976) 13,

iv.

19

37, 38

37

27, 28

38

37, 38

25

13

16-19

Keyishian v. Board of Regents

385 U.S. 589 (1967) 38

Michigan Bell Telephone Company

v. United States, F.2d

(6th Cir., Oct. 7, 1977) 22

Milwaukee Publishing Co. v. Burleson

354 U.S. 407 (1920) 35

NAACP v. Alabama ex rel Patterson

357 U.S. 449 (1958) ats On

NAACP v. Button

371 U.S. 415 (1963) 37

Paton v. La Prade

524 F.2d 862 (3d Cir. 1965) 15

Roe v. Wade

410 U.S. 113 (1973) 38

Shelton v. Tucker

364 U.S. 479 (1960) 37, 38

Talley v. California

363 U.S. 60 (1960) 38

Terry v. Ohio

392 U.S. 1 (1968) 16, 30

United Mine Workers v. Illinois

State Bar Assn.

389 U.S. 217 (1967) 37

United States v. Astroff

556 F.2d 1369 (5th Cir. 1977) 31

United States v. Belculfine

508 F.2d 58 (lst Cir. 1974)

United States v. Caceras

545 F.2d 1182 (9th Cir. 1976)

cert. granted U.S.

(46 U.S.L.W. 3749)

(June 5, 1978)

United States v. Carmichael

489 F.2d 983 (7th Cir. 1972)

United States v. Chadwick

U.S. (45 U.S.L.W.

4797) (1977)

United States v. Choate

422 F.Supp. 261

(C.D. Cal. 1976) ll,

United States v. Choate

527 F.2d 748 (9th Cir. 1975)

United States v. Damitz

495 F.2d 50 (9th Cir. 1974) 31,

United States v. Giordano

415 U.S. 505 (1974)

United States v. Lee

540 F.2d 1205 (4th Cir. 1976)

United States v. Leonard

524 F.2d 1076 (2d Cir. 1975)

United States v. Luna

525 F.2d 4 (6th Cir. 1975)

wa.

32

31

16

37

34

24

31

17

31

Page

United States v. Marihart

492 F.2d 897 (8th Cir. 1974) 31

United States v. Miller

425 U.S. 435 (1975) 22

United States v. New York Telephone

Company, 434 U.S. 159

Dec. 7, 1977) 16, 17, 20,

ae : r 33. 282

United States v. Ramsey

U.S. (45 U.S.L.W. 4577)

(1977) 17

United States v. Southwestern Bell

Telephone Co., 531 F.2d 809

(7th Cir. 1976) 22

United States v. United District

Court, 407 U.S. 297 (1972) 29

United States v. Van Leeuwen

397 U.S. 249 (1970) Avs. Be

United States v. Watson

423 U.S. 411 (1976) 27

Statutes

18 U.S.C. § 3232 2

18 U.S.C. § 3731 2

26 U.S.C. § 7201 2, 6

28 U.S.C. § 1254(1) 2

vii.

Regulations

39 C.F.R. § 233.2(c) (1)

39 C.F.R. § 232.2(c) (3)

39 C.F.R. § 233.2 (e) (1) (ii)

39 C.F.R. § 233.2(g) (4)

40 Fed. Reg. 11579

(March 12, 1975)

Rules

Supreme Court Rules

Rule 19(1) (b)

Fed. Rules Crim Pro.

Rule 41

Rule 41(b)

Constitution

United States Constitution

First Amendment

Fourth Amendment

Ninth Amendment

Text

5, 16, 21

6, 36-39

Passim

1l

Circumventing Title III: The Use

of Pen Register Surveillance

in Law Enforcement, 1977 Duke

L.J. 751 (1977)

viii.

24

The Legal Restraints upon the

Use of the Pen Register As

a Law Enforcement Tool, 60

Cornell L.Q. 1028 (1975) 24

Raggi, An Independent Right to

Freedom of Association, 12

Harv. Civ. Rts. Civ. Liber-

ties L. Rev. 1 (1977) 38

Miscellaneous

Hearings before the Subcommittee

on Courts, Civil Liberties and

the Administration of Justice,

House Committee on the Judi-

ciary, (Surveillance), 94th

Congress, lst Sess. (1975)

Part I, pages 232-34, 325

and 352-54 14

Hearings before the Subcommittee on

Administrative Practice and

Procedure of the Senate Com-

mittee on the Judiciary, Inva-

sions of Privacy (Government

Agencies), 89th Cong., lst Sess.

(1965), at page 341 15

Omnibus Crime Control and Safe

Streets Act of 1968

(Title III) 19

ix.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

DENNIS ROY CHOATE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES OCURT OF APPEALS FOR THE

NINTH CIRCUIT

Petitioner prays that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals

for the Ninth Circuit entered in the

above-captioned case on March 15, 1978.

OPINIONS AND ORDERS BELOW

The opinion and order of the United

States Court of Appeals for the Ninth

Circuit has not been officially reported

and is printed as Appendix A. The order

of the Ninth Circuit denying the Petition

he

for Rehearing and the Suggestion for

Rehearing En Banc, filed June 6, 1978,

1s printed as Appendix B. The opinion

and order of the United States District

Court is officia’ ly reported as United

States v. Choate, 422 F.Supp. 261 (C.D.

Cal. 1976) and is printed as Appendix C.

Appendices A, B and C are included

in a separately presented submission,

due to the voluminous nature of same.

JURISDICTION

The opinion and order of the Court

of Appeals were filed March 15, 1978.

A timely petition for rehearing and

suggestion for rehearing en banc were

filed by the petitioner and were denied

on June 6, 1978. Jurisdiction of the

District Court was based on 26 U.S.C.

§ 7201 and 18 U.S.C. § 3232. The govern-

ment's appeal of the order suppressing

evidence and granting the motion to

dismiss was taken pursuant to 18 U.S.C.

S dak.

This Court's jurisdiction is invoked

Pursuant to 28 U.S.C. § 1254(1) and Rule

19(1) (b).

2.

QUESTIONS PRESENTED

1. Whether warrantless "mail cover"

surveillance of domestic first-class

mail, by the United States Postal Service

at the behest of any requesting law en-

forcement agency, invades the addressee's

reasonable expectation of privacy and

implicates the important guarantees of

the Fourth Amendment, in light of this

Court's recent decision requiring less

intrusive "phone cover" surveillance

(by pen register device) to adhere to

Fourth Amendment safeguards.

2. Whether a “mail cover" request

may be collaterally attacked for untruth-

fulness, and whether the underlying and

intentional falsity (and non-compliance

with applicable federal regulations)

vitiates the mail cover request, renders

the resulting surveillance illegal and

requires suppression of the evidence

seized therefrom.

3. Whether warrantless "mail cover"

surveillance and seizure of evidentiary

material from private first-class corre-

spondence unreasonably invades and chills

fundamental First Amendment rights.

3.

FEDERAL REGULATIONS AND CONSTITUTIONAL

PROVISIONS INVOLVED

1. No Act of Congress authorizes or

regulates "mail covers." Under applic-

able postal regulations,+

(a) “mail cover"

is defined as:

"Mail cover is the process by

which a record is made of any data

appearing on the outside cover of

any class of mail matter, includ-

ing checking the contents of any

second-, third-. or fourth-class

mail matter as now sanctioned by

law, in order to obtain informa-

tion in the interest of (i) pro-

tecting the national security,

(ii) locating a fugitive, or (iii)

obtaining evidence of commission

Or attempted commission of a

crime." 39 C.F.R. § 233.2(c) (1).

(b) “crime"

is defined as:

* «+ « any commission of an

act or the attempted commission

of an act that is punishable by

law by imprisonment for a term

exceeding 1 year." 39 C.F.R.

§ 233.2(c) (3).

1/ The mail cover regulations were re-

published without substantive change

in March, 1975. 40 Fed.Reg. 11579

(March 12, 1975),

4.

(c) Postal officials and their

designees are empowered to "order mail

covers within their district":

"Where written request is

received from any law enforcement

agency of the Federal, State, or

local governments, wherein the

requesting authority stipulates

and specifies the reasonable

grounds that exist which demon-

strate the mail cover would aid

in the location of a fugitive,

or that it would assist in obtain-

ing information concerning the

commission or attempted commis-

sion of a crime." 39 C.F.R.

§ 233.2(e) (1) (ii).

(ad) “Law enforcement agency"

includes any federal, state or local

governmental agency

". , . one of whose functions is

to investigate the commission or

attempted commission of acts con-

stituting a crime." 39 C.F.R.

§ 233.2(c) (4).

2. The Fourth Amendment of the

United States Constitution as implemented

by Rule 41, Federal Rules of Criminal

Procedure, 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

5.

Warrants shall issue, but upon

probable cause, supported by

Oath or affirmation, and parti-

cularly describing the place to

be searched, and the persons or

things to be seized."

3. The First Amendment of the United

States Constitution provides:

"Congress shall make no law

respecting an establishment of

religion, or prohibiting the free

exercise thereof; or abridging

the freedom of speech, or of the

press; or the right of the people

peaceably to assemble and to

petition the Government for a

redress of grievances."

STATEMENT OF THE CASE

On August 21, 1974, petitioner (here-

inafter "Choate") was indicted for income

tax evasion for understating his income

in 1970 and 1971, in violation of 26

U.S.C. § 7201. Having voluntarily filed

amended returns for those years in

October, 1972, and having paid all taxes

due prior to the institution of the in-

stant prosecution, Choate initially moved

to dismiss the indictment on November l,

1974 for "discriminatory enforcement,"

predicated upon the usual IRS policy not

to prosecute such taxpayers.

6.

The District Court instead dismissed

the indictment because testimony at the

initial hearing in 1974 revealed that

the government had attempted to elicit

incriminating information about Choate

from his attorney through the agency of

an undercover informant, who was about

to be indicted and was soon thereafter

convicted and imprisoned for his own

narcotics dealings. The Ninth Circuit

reversed, finding no denial of the ef-

fective assistance of counsel or other

prejudice to Choate, since the attorney

was advised of the informant's covert

purpose. United States v. Choate, 527

F.2d 748, 751-52 (9th Cir. 1975).

Upon remand, Choate on July 13, 1976

moved to suppress all physical evidence

on the theory that it was entirely the

tainted fruit of a series of illegal

entries and searches of his home con-

ducted by another undercover government

informant (Thompson) in April, 1971. At

the evidentiary hearing on the motion,

it was revealed that: (1) following

these illegal entries, Thompson first

brought Choate to the attention of

v%

California State Bureau of Narcotics

Enforcement (BNE) law enforcement autho-

rities in mid-1971 and was promised

leniency if he could "make a case"

against Choate; (2) in March, 1972,

Special Agent Williams, upon joining

the federal Bureau of Customs, was pro-

vided the same 1971 BNE Report to review

and in turn contacted Thompson who re-

ported no new information on Choate;

(3) possessed with no other leads, Agent

Williams began an investigation of

Choate's assets and in April, 1972 un-

successfully attempted to interest IRS

Agent Sherrard in a tax evasion investi-

gation, whom he approached because he

was admittedly "not having much luck in

getting a seizure or coming up with a

substantive case against Mr. Choate."

At the same evidentiary hearing, in

attempting to dissipate any taint of

essential physical evidence attributable

to Thompson's illegal entries of Choate's

home, Agent Williams revealed for the

first time (despite earlier and ample

discovery demands’ ) that on July 19,

1972 he instituted a "mail cover" of all

Choate's correspondence. This "mail

cover" was initiated by a written

request>/ which was silent about tax

evasion and asset-tracing, which in fact

was based solely on stale and uncorrobo-

rated information in the 1971 BNE report

and which simply averred:

"CHOATE is currently organ-

izing a large narcotic smuggling

ring with the primary source

located in South America. It is

felt that CHOATE and the source

in South America correspond by

mail. Return addresses on mail

received at the above addresses

would be of aid in identifying

the source in South America and

other members of the smuggling

ring."

2/ A motion for pre-trial discovery was

—~ made on November 4, 1974, but the

existence of the mail cover was first

revealed at the July 13, 1976 hearing,

despite the requirements of 39 C.F.R.

§ 233.2(g) (4). ("Any data concerning

mail covers shall be made available to

any mail cover subject in any legal pro-

ceeding through appropriate discovery

procedures.")

3/ The entire "mail cover" request of

July 19, 1972 is reproduced as

Appendix D.

9.

As a result of this "mail cover"

request, every piece of mail addressed

to Choate at three addresses (residence,

business and post office box) was segre-

gated and examined by the Postal Service

for a one month period (July 25 to

August 25, 1972), and every return ad-

dress was recorded in a permanent log

which was in turn transmitted to Agent

Williams.

In fact, this "mail cover" produced

no South American or international mail,

but did reveal the identity of Choate's

personal bank accounts and major credit

card issuers, from which Agent Williams

immediately obtained vast information

concerning Choate's expenditures, all of

which was turned over to the IRS. In

September, 1972, the IRS opened an offi-

cial investigation leading to Choate's

amended tax returns and payment in

October, 1972, his indictment in 1974

and all subsequent proceedings.

Following the 1976 suppression hear-

ing, the District Court held that the

Government had sustained its burden of

attenuating the taint of Thompson's

10.

illegal entries and searches, but that

the mail cover was governed by and con-

ducted in violation of the Fourth Amend-

ment and that the evidence must be

suppressed. United States v. Choate,

422 F.Supp. 261, 263 (C.D. Cal. 1976).

The District Court thereupon dismissed

the indictment, having found, as the

Government conceded on its subsequent

appeal, that "all evidence sought to be

introduced against the defendant in this

case was derived from exploitation of

leads derived from the . . . mail cover."

(Id., at 271.)

On appeal, the United States Court

of Appeals for the Ninth Circuit reversed

(Judge Hufstedler dissenting), holding

that "mail cover" surveillance and

seizure of such evidentiary leads pur-

suant to such a criminal investigation

is not a "search" within the ambit of

Fourth Amendment procedural safeguards

and guarantees, and that the addressee's

First Amendment associational rights and

Ninth Amendment privacy rights were

likewise not violated.

ll.

Judge Hufstedler dissented at

length, being of the opinion that:

1.

There was intentional non-

compliance with applicable

postal regulations, in that

all material representations

in the mail cover request

were intentionally falsified

by Agent Williams, and that

evidence obtained from the

surveillance of Choate's

mail and its fruits must

therefore be suppressed;

The instant mail cover

trenches upon personal in-

terests protected by the

Fourth Amendment, constitu-

tes a search and seizure of

intangible evidentiary mat-

ter under the "reasonable

expectation of privacy"

rubric of Katz and its pro-

geny, and therefore impli-

cates and violates the pro-

cedural requirements of both

the warrant clause and the

reasonableness clause of the

Fourth Amendment.

ba

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

The reasons for granting the writ

as amplified in the following argument,

are: |

1. The constitutionality of the

widespread use by law enforcement offi-

cers of warrantless "mail cover" sur-

veillance of domestic first-class mail

is an important question of federal law

which has never been, but should be,

decided by this Court. Although neither

authorized nor regulated by any Act of

Congress, this governmental mail watch

has continued unabated since originally

authorized by postal regulation nearly

a century ago,4/ unfettered by antecedent

4/ Postal Regulations first addressed

and authorized the use of "mail

covers" in 1893, some twenty-six years

after the decision in Ex parte Jackson,

96 U.S. 727 (1877) wherein this Court

specifically extended Fourth Amendment

protection to warrantless governmental

inspection of first-class mail. Notably,

Ex parte Jackson was one of only four

decisions cited by this Court in support

of its now famous pronouncement that

" . . the Fourth Amendment protects

people, not places." Katz v. United

States, 389 U.S. 347, 351 (1967).

13.

judicial approval, probable cause re-

quirements or other legal safeguards

against abuse.

2. This unresolved question of

federal law has enormous importance, far

beyond the confines of this case or the

contentions of these parties, in that

such "mail cover" requests are an ex-

ceedingly common2/ (though little known)

investigative tool, granted virtually

5/ In 1973-74, some 9,130 Postal Service

mail covers" were in effect a total

of 339,425 surveillance days, causing the

segregation and search through named ad-

dressees' mail, the recordation of post-

marks, postage meter numbers and return

addresses, and the transmission of all

such data to the requesting law enforce-

ment agent. There were 4,528 other

mail covers" in effect during 1972 when

Choate's was requested and instituted

(though not discovered until 1976). See

Hearings before the Subcommittee on ;

Courts, Civil Liberties and the Adminis-

tration of Justice, House Committee on

the Judiciary, (Surveillance), 94th

Congress, lst Sess. (1975), Part I

Pages 232-35, 326 and 352-54.

14.

ste fo

automatically ,°/ and yet are never dis-

covered by the named addressees (or

senders) of private correspondence, un-

less a criminal prosecution ensues and

the device is uncovered through discovery.

Moreover, and as emphasized by Judge

Hufstedler in dissent, "in view of the

fact that mail covers often lead to

investigation of senders of mail as well

as addressees, it can readily be seen

that the rights of large numbers of

citizens are involved." (Slip Opinion,

Dissent, page 9) See, e.g., Paton v

La Prade, 524 F.2d 862 (3rd Cir. 1965)

(FBI investigated everyune who wrote to

the Socialist Workers Party, identified

by continuous "mail cover" surveillance

of this addressee, causing enormous in-

convenience, embarrassment and adverse

local and national publicity to sixteen-

year old Lori Paton who misdirected a

6/ Of the approximately 48,000 mail

covers requested in the years 1961-

64, all but 70 were approved. See,

Hearings before the Subcommittee on

Administrative Practice and Procedure

of the Senate Committee on the Judiciary,

Invasions of Privacy (Government Agencies),

89th Cong., lst Sess. (1965), at page 341.

15.

letter to the addressee as part of a

high school assignment to study the

current political spectrum).

3. The decision of this important

federal question by the Ninth Circuit is

in conflict with the very recent and

precisely analogous decision of this

Court, to wit, United States v. New York

Telephone Co., 434 U.S. 159 (December 7,

1977) (holding that "phone covers" im-

plemented through telephonic "pen regis-

ter" surveillance do involve a search

and seizure and thereby implicate the

important guarantees of the Fourth Amend-

ment and of Federal Rule of Criminal

Procedure 41). As importantly, the deci-

sion of the Ninth Circuit is in conflict

with the fundamental principle underlying

this Court's important series of Fourth

Amendment decisions since abandoning the

restrictive property concepts and preoc-

cupation with physical intrusion and

trespass in Katz v. United States, 389

U.S. 347 (1967). See, e.g., cases from

Terry v. Ohio, 392 U.S. 1 (1968) to

United States v. Chadwick, U.S.

(45 U.S.L.W. 4797) (1977), ana ie

16.

culminating by way of most relevant ex-

ample in the “phone cover" decision in

United States v. New York Telephone Co.,

supra, handed down seven months after

oral argument in the instant action.

4. Most importantly, since Katz was

decided over a decade ago, the only

Court of Appeals to consider the appli-

cability of Fourth Amendment safeguards

to "mail covers" has been the Second

Circuit in United States v. Leonard,

524 F.2d 1076 (2nd Cir. 1975). However,

Leonard only involved a "mail cover" of

incoming international mail, so that its

analysis and conclusion should not govern

the Fourth Amendment's applicability to

"mail covers" of domestic mail, in light

of the “border search" exception to the

Warrant Clause. _/ Thus, Judges Cummings

and Wallace readily admit in their

majority opir.ion below:

". . . it does appear that

the instant case is the first

7/ Compare, United States v. Ramsey,

U.S. (45 U.S.L.W. 4577, 4579-

82) (1977) with United States v. Van

Leeuwen, 397 U.S. 249, 251-53 (1970).

Rv

post-Katz situation where the

constitutionality of the mail

cover device has been squarely

presented in a manner requiring

extensive analysis." (Slip

Opinion, page 15)

to harmonize Fourth Amendment standards

applicable to the burgeoning variety and

frequency of governmental surveiliance °/

by including aberrational and often in-

discriminate "mail cover" surveillance

within the ambit of Fourth Amendment

ARGUMENT

I

"MAIL COVER" SURVEILLANCE OF

DOMESTIC FIRST-CLASS MAIL NECES-

SARILY INVADES THE ADDRESSEE'S

REASONABLE EXPECTATION OF PRI-

VACY AND MUST THEREFORE ADHERE

TO THE PROCEDURAL SAFEGUARDS

AND GUARANTEES OF THE FOURTH

AMENDMENT.

Unquestionably, one's personal,

professional or political correspondents,

their locations, and the frequency and

dates of one's communications with them

are information private to the individual

in a free society. With the one glaring

exception at issue herein, such informa-

tion can only be obtained by searching

a person's personal papers or his mailbox,

pursuant to a duly issued and executed

search warrant based upon probable cause.

The instant petition presents for the

first time an opportunity for this Court

18,

protection.

As Judge Hufstedler eloquently

stated in dissent:

"The information obtained

through mail cover surveillance

provides a data bank which is a

potent investigative tool.

"Tt is possible to learn the

identities, addresses and fre-

uency of contact of most of a

person's Sorrespondente ee

a one-month ma cover=--includ-

ng banks, creditors, affilia-

tions with religious, political,

educational, and voluntary organ-

izations, publications received,

accountants, and friends.

[Footnote omitted.] Because

many of these correspondents

Maintain files on the addressee

8/ The long and controversial history

of administratively approved wire-

tapping and electronic surveillance in

this country came to an abrupt end over

a decade ago. See, Katz v. United

States, supra; Berger v. New York, 388

U.s. 41 ); and Title III of the

Omnibus Crime Control and Safe Streets

Act of 1968.

19.

which can be discovered and used

by the investigating agency (e.g.,

bank accounts, United trates Vv.

Miller (1976) 425 U.S. 435), the

mail cover used in combination

with other techniques qguickl

makes the subject's e an open

(ele) Oo investigators.

* * 4

"AS was previously noted, the

compilation of data obtained

through a mail cover exposes the

ersonal life of the subject be-

Fore law enforcement agencies in

a manner unobtainable even through

surveillance of his movements.

(Emphasis added.) (Slip Opinion,

at pages 6-7 and 28 of the Dissent

reproduced in Appendix A.)

A. The Decision Below Is in

Conflict with the Recent

"Pen Register" Decision

of this Court, Proscrib-

ing Warrantless "Phone

Cover" Surveillance.

On December 7, 1977, the Surpeme

Court, in United States v. New York

Telephone Co., supra, held that the

utilization of a pen register constitutes

a search and seizure which the District

Court was properly empowered to autho-

rize, predicated upon a proper finding

of probable cause and otherwise in

20.

conformity with Federal Rule of Criminal

Procedure 41. As the Supreme Court

noted:

"A pen register is a mechani-

cal device that records the num-

bers dialed on a telephone by

monitorying the electrical im-

pulses caused when the dial in

the telephone is released. It

does not overhear oral communica-

tions and does not indicate

whether calls are actually com-

pleted." (46 U.S.L.W. at 4034,

SF,

Most importantly, the Supreme Court noted

that the scope of Federal Rule of Crimi-

nal Procedure 41(b), governing the

issuance of search warrants:

ss is broad enough to encom-

pass a 'search' designed to as-

certain the use which is being

made of a telephone suspected of

being employed as a means of

facilitating a criminal venture

and the 'seizure' of evidence

which the 'search' of the tele-

phone produces." (Id. at 4036.)

Finally, the Supreme Court noted that

each Court of Appeals which had consi-

dered the matter “agreed that pen regis-~-

ter orders are authorized by Federal

Rule of Criminal Procedure 41 or by an

inherent power closely akin to it to

21.

issue search warrants under circumstances

conforming to the Fourth Amendment," cit-

ing Michigan Bell Telephone Company v.

United States, F.2d _—s- (6th Cir. Oct.

7, 1977), United States v. Southwestern

Bell Telephone Co., 531 F.2d 809 (7th Cir.

1976). (Id. at 4036, n. 14.)

Remarkably, the majority opinion of

Judges Cummings and Wallace below con-

tains no discussion of or attempt to dis-

tinguish any of the "pen register" sur-

veillance cases cited above, although

they introduce their Fourth Amendment

analysis of mail cover surveillance by

stating:

"While the Supreme Court has not

expressly passed on the mail cover

device, recent analogous opinions

lead us to conclude that it would

not hold mail covers unconstitu-

tional. ..." (Emphasis added.)

(Majority Opinion, p. 15.)

The principal decisions relied upon as

analogous are United States v. Miller,

425 U.S. 435 (1975) (which is readily

distinguishable in that (a) it is common

knowledge that banking transactions are

recorded, whereas the mail cover technique

22.

is far from universally known, and (b) a

depositor can control or avoid banking

transactions, whereas a recipient of mail

cannot control or avoid others' use of

the mail) and United States v. Van

Leeuwen, 397 U.S. 249 (1970) (which is

inapposite in that only two packages were

involved, each outwardly suspicious, jus-

tifiably leading the postal authorities

to summon the police who in turn obtained

a search warrant to further explore the

suspicious circumstances). The more re-

cent and far more analogous pen register

surveillance cases would appear to be

constitutionally indistinguishable, yet

are ignored by the majority.

In contrast, Judge Hufstedler in dis-

sent relies heavily upon the pen register

decision in United States v. New York

Telephone Co., supra, in concluding that

the far more intrusive "mail cover" sur-

veillance at issue herein necessarily con-

stitutes a search and seizure and there-

fore invokes both the warrant clause and

the reasonableness clause of the Fourth

23.

9/

Amendment.— Judge Hufstedler accurately

notes that a mail cover "reveals that a

piece of mail was actually sent, usually

the identity as well as the address of

the correspondent, and other information

including the contents thereof in" sec-

ond, third and fourth-class mail, whereas

a pen register "merely records that a

10

call was made to a specific number ."22/

9/ This conclusion is further bolstered

~ by Mr. Justice Powell's observation

in United States v. Giordano, 415 U.S.

505, 533-54 (1974) (concurring opinion)

that:

"Because a pen register device

is not subject to the provisions of

Title III [of the Omnibus Crime Con-

trol and Safe Streets Act of 1968],

the permissibility of its use by law

enforcement authorities depends en-

tirely on compliance with tne consti-

tutional requirements of the Fourth

Amendment."

10/ Dissenting Opinion (Slip Opin.), n.

~~ 26 (fn. 68). Several commentators

have found pen register orders to be con-

stitutionally indistinguishable from mail

covers. See, e.g., Note, The Legal Re-

straints upon the Use of the Pen Register

As a Law Enforcement Tool, 60 Cornell L.Q.

; Note, Circumventing Title III:

The use of Pen Register Surveillance in

Law Enforcement, 1977 Duke L.J. 751 (1977).

24.

Finally, and even more remarkable

than its failure to discuss or distinguish

United States v. New York Telephone

Company, supra, is the majority's cita-

tion of Hodge v. Mountain States Tel. &

Tel. Co., 555 F.2d 254 (9th Cir. 1977)

for the proposition that the decisions

involving telephonic pen registers support

the conclusion that a mail cover involves

no search because the contents of letters

are not disclosed. (Slip Opinion, p. 16,

n. 10.) Hodge is inapposite since the

Ninth Circuit merely concluded that where

a telephone company installs such a de-

vice on its own to investigate abuse of

its service, the Fourth Amendment is not

implicated. As Judge Hufstedler stated,

concurring in Hodge, "We leave for another

day a Fourth Amendment challenge to the

telephone company's installation of a pen

register at the request of the Government

to investigate a crime that is unrelated

to the delivery of telephone service."

(Id. at 267.)

In short, when a person sends a letter

through the mail, both the sender and the

recipient reasonably expect that the fact

25.

of their communication, as well as its

content, will remain private. Ina

world where the distances between people

are great and where time requires more

expediency than hand-delivered communica-

tions afford, the mail service, even

more than the telephone, is relied upon

as an impartial (and inexpensive) message

carrier. Neither the addressee nor the

sender expects that the mail will be

opened and read. Nor does either expect,

and reasonably so, that their names and

addresses, once observed (often mechani-

cally for mail delivery purposes), will

be recorded and stored and thereafter

transmitted to and used by government

agents outside the Postal Service for non-

postal purposes. Undeniably, the addres-

see certainly does not expect that every

envelope that arrives from a correspon-

dent will already have been studied for

clues as to the recipient's private

affairs.

A “mail cover," like a "phone cover,"

therefore intrudes upon a channel of com-

munication seizing the identity and ori-

gin of the sender of the communique.

26.

Thus, it too constitutes a search and sei-

zure and is governed by both the Warrant

and Reasonableness Clauses of the Fourth

Amendment,

B. The Instant "Mail Cover" Is

Governed by No Applicable

Exception to the Warrant

Requirement and Is in Patent

Non-Compliance with the

Reasonableness Requirement.

In the circumstances herein, none of

the "jealously and carefully drawn excep-

tional circumstances," United States v.

Watson, 423 U.S. 411, 427 (1976) (Powell,

J., concurring) justify dispensing with

the warrant requirement of the Fourth

Amendment. The Government cannot assert

that there was any exigency or need for

instantaneous results which make obtain-

ing a warrant unworkable, e.g., Coolidge

v. New Hampshire, 403 U.S. 464, 470,

since the "mail cover" procedure itself

contemplates a Postal Service review

which would not require less time than

review by a magistrate. Herein, the

"Mail cover" was requested July 19 and

27.

instituted July 25, a six-day delay.

Moreover, it is clear that a cover of

any thirty-day period would have sufficed

and well-satisfied Agent Williams' true

purposes: asset-tracing. Finally, there

was no consensual basis for dispensing

with a warrant and the "plain view" doc-

trine, while superficially appealing, is

plainly inapplicable’ and begs the

principal question in issue herein con-

cerning the privacy expectations of citi-

zens using the government's mail service.

The need for imposing Fourth Amend-

ment safeguards is self-evident. A

neutral magistrate, and not an executive

officer in a coordinate law enforcement

branch of an executive agency, must per-

form the task of differentiating intrusive

11/ The mail involved is itself unsuspi-

~~ gious and unremarkable, and there is

no cause, cognizable by the Fourth Amend-

ment, for its detention and detailed exami-

nation. Moreover, the evidence seized is

‘not of a character by which "it is immedi-

ately apparent to the police that they

have evidence before them." See,

Coolidge v. New Hampshire, supra, 403 U.S.

at 464-473.

28.

fishing expeditions from legitimate search-

es for evidence or instrumentalities of

crime, based upon probable cause. As

this Court noted in United States v.

United States District Court, 407 U.S.

297, 316-318 (1972) (holding warrants to

be required for national security wire-

taps):

"Those Fourth Amendment free-

doms cannot properly be guaranteed

if . . . surveillance may be con-

ducted solely within the discretion

of the Executive Branch. The

Fourth Amendment does not contem-

plate the executive officers of

Government as neutral and disin-

terested magistrates. Their duty

and responsibility is to enforce

the laws, to investigate, and to

prosecute .... But those charged

with this investigative and prose-

cutorial duty should not be the

sole judges of when to utilize con-

stitutionally sensitive means in

pursuing their tasks . ... The

Fourth Amendment contemplates a

prior judicial judgment, not the

risk that executive discretion may

be reasonably exercised. This judi-

cial role accords with our basic

constitutional doctrine that indi-

vidual freedoms will be best pre-

served through a separation of pow-

ers and division of functions

among the different branches of

Government .. .. The independent

29.

check upon executive discretion

is not satisfied ... by... -

post-surveillance review."

(Emphasis added.)

Finally, the scope of the search

herein unreasonably exceeded the purpose

which was advanced to justify it. The

sole justification for the mail cover was

the need to identify a South American ad-

dressee, yet all mail (including mail

from domestic sources such as banks and

creditors) was surveilled, segregated

and searched. As this Court has repeat-

edly emphasized, whether a search is pur-

Suant to warrant or to a recognized excep-

tion to the warrant requirement, it must

nonetheless comply with the Reasonableness

Clause of the Fourth Amendment, In short,

"the scope of the search must be ‘strictly

tied to and justified by' the circum-

stances which rendered its initiation

permissible." Terry v. Ohio, supra, 392

U.S. at 19.

30.

II

"MAIL COVER" REQUESTS MAY BE

COLLATERALLY ATTACKED FOR UNDER-

LYING UNTRUTHFULNESS AND SUCH

INTENTIONAL FALSITY (AND NON-

COMPLIANCE WITH APPLICABLE

FEDERAL REGULATIONS) VITIATES

THE REQUEST AND REQUIRES SUPPRES-

SION OF THE FRUITS OF THE SEARCH

In all circuits which have reached

the issue, intentional misstatement of

material facts in an affidavit by a gov-

ernment agent serves to vitiate a search

warrant. United States v. Belculfine,

508 F.2d 58, 60-64. (lst Cir. 1974);

United States v. Lee, 540 F.2d 1205,

1208-9 (4th Cir. 1976); United States v.

Astroff, 556 F.2d 1369, 1371-74 (5th Cir.

1977); United States v. Luna, 525 F.2d 4,

6-9 (6th Cir. 1975); United States v.

Carmichael, 439 F.2d 983, 988-89 (7th

Cir. 1972); United States v. Marihart,

492 F.2d 897, 899-902 (8th Cir. 1974);

United States v. Damitz, 495 F.2d 50, 53-

54 (9th Cir. 1974). To date, this Court

has not resolved differences among the

circuits on the question of whether negli-

gent and material or intentional but

31.

non-material misstatements may vitiate

the warrant. See, United States v.

Caceres, 545 F.2d 1182, 1187-88 (9th

Cir. 1976), cert. granted, U.S.

(46 U.S.L.W. 3749) (June 5, 1978).

Facts established at the July, 1976

evidentiary hearing demonstrate that all

the material ene in the _—

cover" request were intentionally falsi-

fied by Agent Williams. More specifically,

of the three material representations to

the Postal Service constituting "reason-

able grounds" for the requested cover,

each was totally untrue. First, Williams

had no "current" information upon which

to assert that Choate was "currently or-

ganizing" a narcotic smuggling ring.

When Agent Williams so represented on

July 19, 1972, his only information was

Thompson's April, 1971 uncorroborated as-

sertion to state BNE agents which had

been passed along to the Bureau of Cus-

toms, and all of Williams' efforts to ob-

tain additional information had failed.

Second, Thompson's report to BNE and to

Agent Williams indicated only that Choate

12/ Reproduced in full as Appendix D.

32.

had travelled to South America, so the

averment in the request that Choate and

the purported South American contacts

corresponded by mail was pure specula-

tion. Third, the essential predicate for

the mail cover was the statement in the

request that it would aid in identifying

the South American source, a material

falsehood since Williams' own testimony

confirmed that prior to instituting the

mail cover, he had turned his attention

fully to "asset tracing," had given up

attempting to make a substantive case

against Choate and had already contacted

IRS Agent Sherrard.

Such a brazen abuse of the "mail

cover" procedure to fish for information

outside Agent Williams' jurisdiction de-

mands application of the well-settled

rules permitting collateral attack on the

averments advanced to justify a search

warrant.

Inexplicably, the majority opinion

below refuses to consider the collateral

attack on the mail cover request for un-

truthfulness, stating that "defendant on

appeal and the district judge did not

33.

question Williams' veracity." In fact,

as Judge Hufstedler recognized (Slip

Opinion, Dissent, pp. 10-18), and as the

District Court emphasized (ibid., 422 F.

Supp. at 271), evidentiary hearings in

the district court specifically probed

Agent Williams' veracity and revealed

that his sole purpose was “asset tracing"

when he instituted the surveillance of

Choate's domestic first-class mail.

Clearly, Postal Service approval can-

not be a conclusive determination of the

validity of a mail cover request. Col-

lateral attacks on the veracity of search

warrant affidavits are essential to fur-

ther "a basic purpose of the [Fourth]

Amendment and the exclusionary rule,

namely the deterrence of lawless police

action." United States v. Damitz, 495

F.2d 50, 55-56 (9th Cir. 1974). In the

context of a Postal Service "mail cover"

procedure, the need for post-surveillance

judicial review is even more pronounced,

since the representations of coordinate

law enforcement agencies are acceptcd

virtually without question or review and

the searches instituted virtually auto-

matically. 34

Thus, Fourth Amendment rights and

reasonable expectations of privacy aside,

even the purpose sought to be effectuated

by the "mail cover" regulations is evis-

cerated when such undeniably false and

conclusionary statements are sufficient

to institute a mail cover leading direct-

ly to criminal indictment and prosecution,

if the underlying request is then immu-

nized from judicial scrutiny and sanction.

III

"MAIL COVER" SURVEILLANCE AND

SEIZURE OF EVIDENTIARY MATERIAL

FROM PRIVATE FIRST-CLASS CORRE-

SPONDENCE, IF IMMUNE FROM FOURTH

AMENDMENT ,AFEGUARDS AGAINST

ABUSE, UNREASONABLY TRENCHES

UPON FUNDAMENTAL FIRST AMEND-~

MENT RIGHTS

As Justice Holmes long ago observed:

"The use of the mail is almost as much a

part of free speech as the right to use

our tongues." Milwaukee Publishing Co.

v. Burleson, 354 U.S. 407, 437 (1920)

(dissenting opinion). The mails in this

country are used as a method of communi-

cation, no less sacred than face-to-face

35.

conversation. They continue to be the

principal conveyance of private ideas and

thoughts from one part of the country to

another. Any type of governmental intru-

sion into such personal affairs, even as

to those suspected of wrongdoing, is

bound in time to curtail the free exchange

of ideas which is the bulwark of the

First Amendment, unless carefully circum-

scribed to prevent indiscriminate and

unregulated government snooping by requir-

ing adherence to Fourth Amendment stan-

dards.

The District Court below stated this

basic principle with remarkable clarity:

"While one desiring to protect

his privacy may be put to a choice

as to whether or not to install a

telephone, there are few alterna-

tives to the mail. Surely, ina

free society, citizens should be

left at least one unfettered means

Of communication which cannot be

invaded without the showing of

probable cause necessary for a

search warrant. To allow the gov-

ernment to give an absolute monopo-

ly and then to use it to invade the

privacy of the citizenry without

the protection of judicial scru-

tiny is to license the blatant

circumvention of Constitutional

36.

rights." (United States v. Choate,

Supra, 422 F.Supp. at = My

(Emphasis added.)

Similarly, in the Court of Appeals

below, Judge Hufstedler recognized the

potential chill on First Amendment rights

of expression, inquiry and association

which would flow from the unregulated use

and abuse of "mail cover" surveillance:

"Because the data will 'reveal

much about his relationships with

both individuals and organizations'

his First Amendment 'freedom of

association is also implicated,'

(Nixon v. Administration of General

Services, 5 Fa [45

U.S.L.W. at 4946) (Berger, C.J.,

dissenting), citing NAACP v.

Alabama, 357 U.S. 449, 462 (1958)).

(Slip Opinion, Dissent, pages 28-29).

Undeniably, First Amendment rights

of association, +2/and the rights of

13/ See, e.g., Buckley v. Valeo, 424 U.S.

IT (1976); United Mine Workers v.

Illinois State Bar Ass'n, 389 U.S. 217;

Griswold v. Connecticut, 381 U.S. 479

(1965); Brotherhood of R.R. Trainmen v.

Virginia ex rel. Va. State Bar, 377 U.S.

1 (1964); NAACP v. Button, 371 U.S. 415

(1963); Shelton v. “Tucker, 364 U.S. 479

(1960); Bates v. City of Little Rock,

361 U.S. 516 (1960); NAACP v. Alabama ex

rel. Patterson, 357 U.S.

(continued)

37.

14/

privacy generated therefrom,—‘ are com-

promised by warrantless "mail cover" sur-

veillance. All of an individual's cor-

respondents, both personal and political,

economic and religious, are identified,

recorded and disseminated to the request-

ing law enforcement agency.

Vital First Amendment rights of orga-

nizations and associations to preserve

the privacy of their neubershie=~’ and of

individuals to preserve the privacy of

their associational ties are seriously

13/ (continued) See also, Raggi, An Inde-

ndent Right to Freedom of Associa-

pion. Harv. Civ. Rts.-Civ. Liberties

Rev. 1 (1977).

we Griswold v. Connecticut, 381 U.S. 479

Roe v. Wade, 410 U.S.113 (1973).

15/ NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958); Keyishian v.

Board of Regents, 385 U.S. 589 (1967) ;

Shelton v. Tucker, 364 U.S. 479 (1960);

Baird v. State Bar, 401 U.S. 1 (1971);

Brotherhood of R.R. Trainmen v. Virginia

ex rel. Virginia State Bar, 377 U.S. 1

(1964).

16/ Gibson v. Florida Legislative Com-

mittee, 372 U.S. 539 (1963); Talley

v. California, 363 U. S. 60 (1960).

38.

™ a rte en ee ge + we ee ee

—2 =<

jeopardized by a widespread governmental

mail watch not limited to Fourth Amend-

ment purposes and protections. If such

membership lists or associational ties

can be secretly discovered by any govern-

mental agency, without probable cause and

by simply requesting a "mail cover," and

under the current scheme of regulation

they can, these vital associational

rights lose that mantle of protection so

carefully constructed by this Court in

order to preserve First Amendment guaran-

tees.

In short, current "mail cover" regu-

lations and practice, as demonstrated in

this case, are clearly violative of the

fundamental right of privacy of associa-

tion. Only if subjected to Fourth Amend-

ment standards will there be the compel-

ling state interest in each instance to

justify the resultant invasion.

39.

CONCLUSION

For the foregoing reasons, it is

respectfully requested that this Court

grant the Writ of Certiorari petitioned

for herein.

Executed this 29th day of June, 1978

at Los Angeles, California.

Respectfully submitted,

TIMOTHY B. FLYNN

RICHARD G. SHERMAN

MICHELLE R. ROSENBLATT

FRED OKRAND

Attorneys for Petitioner

40.

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