# Appendix — Choate v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 953

## Text

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IN THE

MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES
October Term, 1978

no. _@8-42

DENNIS ROY CHOATE,

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

APPENDICES FOR

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

a tee

INDEX TO APPENDICES

APPENDIX A Opinion and Order of the
United States Court of
Appeals for the Ninth
Circuit, filed March 15,
1978

APPENDIX B Order of the Ninth Circuit
denying the Petition for
Rehearing En Banc, filed
June 6, 1978

APPENDIX C Opinion and Order of the
United States District Court
for the Central District of
California, filed November 16,
1976, as officially reported
in 422 F.Supp. 261

APPENDIX D Letter dated July 19, 1972
to Mr. Stanley H. Jenson
Postal Inspector in Charge
P.O. Box 30456
Los Angeles, California
from MELVIN C. JOHNSON
Special Agent in Charge

APPENDIX A

= SOT? REY BEE eer

a oe

FILED
MAR 15 1978

EMIL E. MELFI, JR.
CLERK, U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
vs. No. 76-3486
DENNIS ROY CHOATE, OPINION
Defendant~-Appellee.

Appeal from the United States
District Court for the Central
District of California

Before: CUMMINGS’, HUFSTEDLER and
WALLACE, Circuit Judges
CUMMINGS, Circuit Judge

On August 21, 1974, a two-count in-
dictment was returned against defendant,
then a resident of Long Beach, California.

Count One charged that defendant filed a

false individual income tax return for

® The Honorable Walter J. Cummings,
United States Circuit Judge, Seventh
Circuit, sitting by designation.

a.

1970, listing his adjusted gross income
as $4,681 instead of the correct figure
of $32,581, in violation of 26 U.S.C.

§ 7201. Count Two charged a similar
violation for the year 1971, with defen-
dant listing his adjusted gross income
as $5,306 instead of the proper figure
of $64,744,

Two and one-half months later, defen-
dant filed a motion to dismiss the in-
dictment on the ground that it was "the
result of impermissably [sic] discrimina-
tory law enforcement and unequal applica-
tion of the law denying the defendant
equal protection of the law." On December
6, 1974, this motion was granted and the
case dismissed on the ground that the
activities of government informer Tony
Gordon had violated defendant's Sixth
Amendment right to counsel. On appeal
this Court held that the Government's
attempted use of Gordon had not preju-
diced defendant, so that the case was
remanded for trial. United States v.
Choate, 527 F.2d 748 (9th Cir. 1975).

Upon remand, defendant filed a
motion on March 12, 1976, to supress all
2.

the physical items of evidence sought to
be introduced against him. After first
hearing evidence on July 13, 1976, Judge
Ferguson granted the motion to suppress
“as to mail cover issue" after hearing
oral argument on October 18, 1976. A
memorandum opinion was filed on November
16, 1976, and is now reported in 422 F.
Supp. 261. On the same date, the Govern-
ment appealed the ruling granting the
motion to suppress evidence, and on
December 7, 1976, the Government filed
an amended notice of appeal to include
Judge Ferguson's memorandum decision.
Jurisdiction properly was lodged in the
district court under 26 U.S.C. § 7201
and 18 U.S.C. § 3232, and the appeal of
the order granting the motion to dismiss
was taken pursuant to 18 U.S.C. § 3731.

In the district court, defendant ini-
tially argued that a now-deceased state
government informant named Carl Thompson
had obtained substantial information
from an illegal search of defendant's
residence, supposedly providing the im-
petus for the entire income tax investi-
gation that culminated in defendant's

3.

indictment and Prosecution. However,
Judge Ferguson held that the Government
had established by a preponderance of
the evidence that any such illegality
"did not taint the evidence in this case
in more than a de minimis manner" (422
F.Supp. at 263).

Concerning the "mail cover issue,"
the court found that the Government had
initiated a mail cover on defendant's
mail from July 31, 1972, to August 25,
1972,2/ This mail cover permitted the

1/ Under the 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) (1975).

Under 39 C.F.R. § 233.2(c) (3),
"crime" is defined as "any commission of

recording of the data appearing on the
outside cover of defendant's incoming
first and fourth class mail at three
listed addresses, two in Balboa and one
in Newport Beach, California. The data
consisted of the class of mail, eee
of the addressees (occasionally a piece
of mail was addressed to Choate and an-
other person), name and return addresses
of the senders and place and date of
postmarks on mail going to defendant.

The mail cover was obtained through
Bureau of Customs Special Agent Melvin C.
Johnson's letter to the postal inspector
in charge in Los Angeles, California.

The letter read as follows:

July 19, 1972
LA06RO692701

Mr. Stanley H. Jenson
Postal Inspector in Charge
P.O. Box 30456

Los Angeles, California

Dear Sir:

A cover for First and Fourth Class mail
is requested for the following names and

addresses:

an act or the attempted commission of an
act that is punishable by law by imprison- S.
ment for a term exceeding 1 year."

4.

Dennis Roy CHOATE
511 W. Bay St., Apt. A
Balboa, California

CARSON AND CHOATE SURFBOARDERS
2811 Newport Blvd.
Newport Beach, California

Dennis Roy CHOATE

P.O. Box 886

Balboa, California
The above listed subject is currently
under investigation by this office for

the suspected smuggling of large quanti-

ties of narcotics into the United States.

CHOATE is currently organizing 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 ad-
dresses 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. It is
requested that a mail cover be placed at
the above addresses for a period of 30
days. It is further requested that all
replies be directed to Special Agent
Lynn P. Williams.

ee ae

-

ee ee eee eee

Smuggling narcotics into the United
States is in violation of Title 21 USC
952 and carries a penalty under Title 21
USC 960(a) (1) of 15 years imprisonment
or a fine of $25,000 and/or both. CHOATE
is not under indictment as a result of
any investigation conducted by this of-
fice nor does this office have any know-
ledge of any other indictments pending
against CHOATE. It is believed that
CHOATE has retained Sherman & Sturman,
Attorneys at Law, 8500 Wilshire Blvd.,
Suite 908, Beverly Hills, California

as legal counsel.

Your cooperation in this matter would be

appreciated.
Sincerely yours,
MELVIN C. JOHNSON
Special Agent in Charge
cc; SUI 5

[Lynn] WILLIAMS/ab

"422 F.Supp. at 264-265 n. 5".
(emphasis supplied.)

This letter was initiated by Special
Agent Lynn Williams of the Drug Enforce-
ment Agency who was then working as a

7.

special agent for the Bureau of Customs,
assigned to its hard narcotics unit. In
March or April 1972, Williams had been
assigned to investigate defendant be-
cause he was suspected of importing
large quantities of cocaine into the
United States.

Judge Ferguson first held that the
foregoing letter did not specify "the
reasonable grounds that exist" for re-
questing a mail cover as required by a
July, 1965, postal regulation, which
provides that all postal inspectors in
charge may order mail covers within
their district, viz.:2/

"Where written request is received
from any law enforcement agency of
the Federal, State, or local gov-

ernments, wherein the requestin
authority stipulates and specifies
the reasonable grounds that exist
which demonstrate the mail cover
would aid in the location of a
fugitive, or that it would assist
in obtaining information concern-
ing the commission or attempted
commission of a crime" (39 C.F.R.
§ 233.2(e) (1) (ii); emphasis
supplied).

2/ The mail cover regulations were re-
: setae without substantial change
n Marc 5. 40 Fed. Reg. 1157

3. ee g 9 (March

The district court next held that the “

use of the mail cover as part of the
early narcotics investigation of defen-
dant was unconstitutional under the
Fourth Amendment, citing Katz v. United
States, 389 U.S. 347. The opinion noted
that it was the identity of the sender
that was of interest to the law enforce-
ment authorities here and that a reason-
able person who posted a piece of mail
would have an expectation of privacy

"(1) that the information contained in
the return address will only be used for
postal purposes, and (2) that it will be
utilized in only a mecahnical fashion
without any records being kept" (422 F.
Supp. at 270). Judge Ferguson could
find no compelling governmental interest
which could justify the incursion on
what he viewed to be a substantial

privacy interest.

In closing, the district court con-
cluded that all the evidence the Govern-
ment sought to introduce against the
defendant "was derived from exploitation
of leads derived from the illegal mail
cover" (422 F.Supp. at 271), so that no

9.

Ld

part of the evidence could be purged of
the taint of the mail cover. In its
principal brief the Government admitted
that it could not prove the absence of
taint if the mail cover was illegal (Br.
8), and at the oral argument the Govern-
ment conceded that it could not proceed
with the trial if the motion to suppress
evidence was properly granted. We
reverse.

The Government's Evidence Was Not Fatally
Tainted by Informant's Entry into Defen-
dant's Home.

The district court found that Carl
Thompson, an informer for Primo T. Orosco
of the California Bureau of Narcotics
Enforcement, had burglarized defendant's
Huntington Beach, California, residence
in April 1971 and had obtained Choate's
future wife's Farmers and Merchants Bank
stetement for the period March 15-April
15, 1971. However, the court held that
the Government established by a prepon-
derance of the evidence that any such
illegality "did not taint the evidence
in this case in more than a de minimis
manner" (422 F.Supp. at 263). In attack-
ing this holding, it was unnecessary for

10.

—— Ss meee < = -

defendant to file a cross-appeal because
he was endeavoring to support the judg-
ment in his favor on this issue on the
claim that he had advanced below. United
States v. Campbell, 293 F.2d 816, 822
(9th Cir. 1961) .2/ We are in accord with
the district court's disposition of this

matter.

The record shows that Carl Thompson,
who died in May 1976, was used as an
undercover informer in April and May
1971 by California Narcotics Agent Orosco
to help build a state narcotics case
against defendant in exchange for favor-
able treatment in a potential inquiry
into Thompson's own connections with
narcotics importation. In Orosco's May
3, 1971, report for the California Bureau
of Narcotics Enforcement, he noted that
the bank statement Thompson had obtained

See also Tiedeman v. Chicago, Milwaukee,
2/ St. Paul & Pacific R. Co., 513 F.2d
1267, l2?2-l273 (8th Cir. 1975); Olympic
Fastening Systems, Inc. v. Textron, Inc.
504 F.2d 609, 617-618 (6th Cir. 1974);
James v. Reese, 546 F.2d 325 (9th Cir.

1976); 9 Moore's Federal Practice
q 204.11[3].

ll.

from defendant's residence in April 1971
was for an account in the name of Suzanne
Sylvester (later Mrs. Choate) and that
Thompson had indicated that she and
defendant were authorized to sign on her
account at the Farmers and Merchants Bank
in Long Beach, California.

Orosco's report was turned over to
Special Agent Lynn Williams of the
Federal Bureau of Customs in early April
of 1972. In order to give Williams a
feeling for the hard narcotic unit's
work, the Bureau gave Williams some
closed files to study. Believing that
there was sufficient information in
Choate's file to warrant fuller investi-
gation, Williams had reopened an earlier
federal narcotics investigation of defen-
dant closed in April 1971. Orosco's
report was in Choate's file. Williams
had discussions with Thompson during the
Spring of 1972 concerning his relation-
ship to Dennis Choate and his involvement
in deriving narcotics intelligence re-
garding Choate for state narcotic

ot Cele Oe tse

7 ie ne et ee a ee

ct all, lia

developed information regarding defen-
dant's »ssets, in order to see if they
coincided with the amount of cocaine
reportedly involved, which was later
communicated to the Internal Revenue
Service and used as part of the present
tax prosecution. On May 8, 1972,
Williams determined that defendant was
not a signatory on, and had no interest
in, the Farmers and Merchants Bank ac~-
count mentioned in Orosco's report and
made no further use of that account in
tracing defendant's assets. When
Williams turned over his information re-
lating to defendant's assets to the
Internal Revenue Service, none of that
information emanated from Suzanne
Sylvester's bank account.

Special Agent Raymond Sherrard of
the Internal Revenue Service commenced
a criminal tax investigation of defen-
dant in the late Spring of 1972 after
being contacted by Customs Agent
Williams. Williams told Sherrard that
Choate was outspending his apparent

means and turned over some of his infor-

agencies. During his ensuing narcotics
investigation of defendant, Williams mation on Choate to the Inter1.al Revenue

sc $3.

Service since Williams had not been able
to build a substantive narcotics case
against Choate. Sherrard ceased his
investigation in July 1972, when he was
unofficially replaced by IRS Special
Agent Emmett S. Roach.

In September 1972 Roach was official-
ly placed in charge of the investigation
involving defendant's violation of the
income tax laws. Williams gave him
Orosco's May 1971 report. Roach had the
task of verifying expenditures made by
defendant in 1970 and 1971, the two tax
years included in this indictment. No
reference was made to the Farmers and
Merchants Bank account in verifying the
expenditures for 1970 when Roach began
his investigation. However, when he was
examining defendant's expenditures for
1971, he discovered that out of defen-
dant's $50,000 in expenditures for that
year, under $500, precisely $432.59,4/

4/ The $432.59 consisted of

4 ; payments of
$117.60 and $70.36 to Master Charge,

$54.58 and $118.72 to Diner's Club and

$71.33 to Carte Blanche.

14.

ne a RE ln ihe

~~ e

“<

was made through that account, while over
$44,000 was expended in cash without re-
ference to any bank account. The $432.59
in question was first documented by re-
cords from the credit card recipients

and only later verified by the bank
statement. Since these payments amounted
to less than $500, Judge Ferguson was
certainly justified in concluding that
Thompson's obtaining of the merely corro-
borating one-month bank statement "did
not taint the evidence in this case in
more than a de minimis manner" (422 F.

Supp. at 263).

Thompson's entry into defendant's
Huntington Beach residence was to lear.
of defendant's narcotics activity, and
defendant is now being charged with tax
evasion. Defendant's modest expenditures
to the credit card companies made through
the Farmers and Merchants Bank in 1971
were ascertained through the three credit
card companies before any recourse to the
bank statement. The amount was extremely
small in comparison with the understate-
ments of income alleged in the indictment.
Consequently, under the various standards

15.

\

developed in United States v. Bacall,

443 F.2d 1050 (9th Cir. 1971), the
Thompson burglary, upon the preponderance
of evidence in the record (United States
v. Cales, 493 F.2d 1215, 1216 (9th Cir.
1974), did not fatally taint the Govern-
ment's evidence and did not require its
suppression. Because the standard of
proof in the district court was prepon-

derance of the evidence, we may not over-
turn the district judge in this regard
unless his factual conclusion was clearly

erroneous. As demonstrated above, it was
not.

There Was Compliance with the Postal
Regulations.

As already noted, 39 C.F.R. § 233.2
(i) (1) (ii) requires the requesting autho-
rity to stipulate and specify "the reason-
able grounds that exist which demonstrate
the mail cover would aid in * * * obtain-
ing information concerning the commission
or attempted commission of a crime."
Here the requesting authority stated that
the Bureau of Customs was investigating
defendant for the suspected smuggling of
large quantities of narcotics into the

16.

i ait la ats | lie A cle “

ee

Ce ee a ee ee ee a, ee ee

a. a

United States. He was said to be "cur-
rently organizing a large narcotics
smuggling ring with the primary source
located in South America." In his key
letter, the special agent in charge of
the Bureau of Customs office in Los
Angeles then stated "It is felt that
[defendant] CHOATE and the source in
South America correspond by mail."
Johnson next wrote that return addresses
on mail received at defendant's listed
three addresses "would be of aid in iden-
tifying the source in South America and
other members of the smuggling ring."
Johnson noted that smuggling narcotics
into the United States violated 21 U.S.C.
§ 952, with a penalty of fifteen years'
imprisonment or a fine of $25,000, or
both, under 21 U.S.C. § 960(a)(1). He
added that defendant was not under indict-
ment as a result of any investigation
conducted by Johnson's office, and that
Johnson's office knew of no other indict-
ments pending against defendant, whose
lawyer was then identified so that in
accordance with customary practice under
39 C.F.R. § 233.2(f) (2), there would be

17.

no mail cover of correspondence between
Choate and his counsel, >/

Judge Ferguson decided that the
letter was defective because Johnson used
the phrase "It is felt" that the defen-
dant and the source in South America
correspond by mail:

"The [regulation] should, there-
fore, be read as having some signi-
ficance -- if an agency's mere
'feeling' that criminal activity

is afoot is sufficient to provide
the needed showing, it will have
been read out of existence."

(422 F.Supp. at 266).

In our judgment this was too strict an
interpretation of the regulations. The
letter written by one layman to another
is replete with "reasonable grounds"
demonstrating that the mail cover would
aid the Bureau of Customs in obtaining

5/ Since Thompson was represented by the
same lawyer as defendant in 1971 or
earlier, Thompson probably relayed the
lawyer's name to Orosco. It also should
be noted that the secretary for defen-
dant's lawyer had previously been em-
ployed by Thompson. Thompson was con-
victed of conspiracy to import narcotics
into this country in 1970. See United
States v. Thompson, 493 F.2d 305 (9th

ri 1974), certiorari denied, 419 U.S.

18.

lt a

_

tee I a ee lit

|
|

information concerning the commission or
attempted commission of a crime, as re-
quired by this regulation. Neither the
regulations governing requests for mail
covers nor the postal interpretation of
mail cover procedures require a probable
cause finding or a determination by a
judicial officer .o/ According to House
testimony of William J. Cotter, Chief
Postal Inspector, United States Postal
Service in 1975, which we must take as
an authoritative construction of the
regulations (Udall v. Tallman, 380 U.S.
1, 4), "mail covers were to be instituted

only upon written request stipulating
and specifying a reasonable need for the
mail cover and a proper reason for its
use" Postal Inspection Hearings at 47.
The regulations simply do not require
the specification of the factual predi-
cate upon which the requesting agency

6/ Hearings on Postal Inspection
Service's Monitoring and Control of
Mail Surveillance and Mail Cover Programs
before the House Subcommittee on Postal
Facilities, Mail and Labor Management of
the House Committee on Post Office and
Civil Service, 94th Cong., lst Sess.,
Ser. No. 94-39, 49, 51-52 (1975) (here-
inafter "Postal Inspection Hearings")

19.

bases its conclusion that the mail cover
subject is involved in the commission or
attempted commission of a crime. Failure
to specify this predicate is proper under
the regulations. Whether a mail cover
may sustain constitutional muster will

be addressed infra. "Mail covers cannot
be authorized for exploratory purposes"
where reasonable grounds are not put
forth to show the cover will aid in the

investigation of a crime. Postal Inspec-
tion Hearings at 52.

Of course, Stanley H. Jenson, the
postal inspector in charge or his desig-
nee had to be satisfied under the regu-
lations that the Bureau of Customs’
request set forth reasonable grounds
to demonstrate that the mail cover
would assist in obtaining information
about the commission or attempted com-
Mission of a crime (39 C.F.R. §§ 233.2
(e) (1) (ii) and 233.2(e) (2)). Moreover,
the Chief Postal Instpector mus .5e con-
vinced in his review of actions taken by
postal inspectors upon initial submis-
sion of a report on a request for a
mail cover that the regulations have

been satisfied. 39 C.F.R. -§ 233.2 (i)
20.

~—

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Pet. et oe WOE Older its ted

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ees

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TG es Sletten able ee ES

The requesting letter stated that defen-
dant was currently organizing a large
narcotics smuggling ring with its primary
source in South America and that it was
suspected of smuggling large quantities
of narcotics into the United States.
Based on their prior experience, the
requesting special agent and his asso-
ciates would know that defendant and his
South American source would probably
correspond by mail. The Committee for
Public Justice and the American Civil
Liberties Union Foundation of Southern
California (amici) filed a joint brief
and participated in the oral argument
urging affirmance of the district court's
decision. One of their grounds is that
there was noncompliance with the postal
regulations because requesting Special
Agent Jenson wrongfully stated in his
July 19, 1972, letter to the Los Angeles
postal inspector in charge that "CHOATE
is currently organizing a large narcotics
smuggling ring with the primary source
located in South America" (emphasis
supplied). Amici attack this statement
on the ground that the federal narcotic
investigation of defendant had been
ai.

closed in April 1971. However, it was
reopened by Special Agent Lynn Williams
on April 3, 1972, because of additional
information received by the Bureau of
Customs. That narcotics investigation
was continuing even at the time of the
July and October 1976 hearings below.
Therefore, amici cannot fault the mail
cover request on the ground that it
related to a closed matter. Although
the requesting letter was apparently
prepared by Agent Williams (422 F.Supp.
at 264), defendant on appeal and the
district judge did not question Williams'
veracity, and it is inappropriate for us
as reviewing judges to impugn his truth-
fulness on the basis of a cold record
that can be read consistently with the
contents of the letter.

Viewing the Jensen letter, drafted
by a nonlawyer, in a "practical and not
abstract * * * commonsense and realistic
fashion," it satisfies the applicable
regulations, as the Supreme Court held
with respect to affidavits for search
warrants in United States v. Ventresca,
380 U.S. 102, 108. As Justice Goldberg

22.

there stated, "Technical requirements of
elaborate specificity once exacted under

common law pleadings have no proper place

in this area." (Id.) Since hypertech-
nical niceties should not be applied to
7/

this mail cover request,— we hold that
there was no violation of the applicable
postal regulations. Accordingly, there
is no need to suppress the evidence on
the ground of intentional circumvention
of administrative regulations as in
United States v. Caceres, 545 F.2d 1182
(9th Cir. 1977).

The Mail Cover Does Not Violate The
Constitution

"[T) he protection of a person's
general right to privacy - his right to
be let alone by other people - is, like
the protection of his property and of
his very life, left largely to the law
of the individual States." Katz v.
United States, 389 U.S. 347, 350-351
(footnotes omitted). Almost tautologi-
cally, only if specific "provisions of

7/ See Andresen v. Maryland, 427 U.S.
~ 463, 478-479 n. 9.

23.

the Constitution protect personal pri-
vacy from other forms of governmental
invasion" (id. at 350) will a person be
able to raise the shield of the Consti-
tution against the practice. The speci-
fic sources for zones of privacy in the
Constitution seem only to include the
First, Third, Fourth, Fifth and Ninth
Amendments. Griswold v. Connecticut,
381 U.S. 479, 484. If a zone of privacy
cannot be grounded on neutral principles
rooted in one of these constitutional
sources, it simply may not enjoy consti-
tutional protection. See Craven,
Personhood: The Right to Be Let Alone,
1976 Duke L.J. 699, 704.

Requiring that a constitutional right
be locatable in the Constitution most
emphatically does not, of course, suggest
a strict circumscription of the various
specific constitutional guarantees in the
Bill of Rights. Each guarantee still has
its Griswold penumbras and emanations.
But if it is demonstrated seriatim that
none of the specific guarantees creates
a zone of privacy in a given case, then
there simply is not a constitutional

24.

"right of privacy" in that case. Nor is
there any question of synergistic cou-
pling between the several Bill of Rights
guarantees to create by the operation of
all of them together a constitutional
right not locatable upon any one of them.
See Whalen v. Roe, 429 U.S. 589, 598-599
n. 23. This follows from the text of
the Ninth Amendment itself: "The
enumeration in the Constitution, of
certain rights, shall not be construed
to deny or disparage others retained by
the people." Griswold v. Connecticut,
381 U.S. 479, 491-492 (Goldberg, J.,

concurring).

So posed, our task is to analyze the
several specific provisions in the Bill
of Rights to see if the zones of privacy
emanating therefrom encompass Choate's
claimed right to have a mail cover placed
on his mail. Clearly, under the facts of
this case, the Third Amendment may be
dismissed by an ipse dixit. Nor need the
Fifth Amendment give us pause since de-
fendants and the amici concede that mail
cover information derives from an exte-
rior inspection when the mail matter is

25.

still under the sender's control. 2/
Indeed neither the Third nor the Fifth
Amendments were raised anywhere in the
record below. Only the Fourth and First
Amendments have been relied upon.

This Mail Cover Does Not Violate the
Fourth Amendment

We now turn in our analysis to in-
quire whether the Fourth Amendment was
violated by the mail cover. As ex-
plained by the Seventh Circuit in United
States v. Balistrieri, 403 F.2d 472, 475
n. 2 (1968), a mail cover is conducted
by the Postal Service's furnishing the
requesting government agency with the
information appearing on the face of
the envelope or packages addressed to a
Suspect. Information given includes the
name of the addressee, the postmark, the
name and address of the sender (if it
appears), and the class of mail. The
mail itself is promptly delivered to the

8/ The only conceivable substantive
Fifth Amendment protection would be
over self-incrimination or fundamental
liberty interests. See Whalen v. Roe,
429 U.S. 589, 598-599 n.- 23. Ghoate does
not have standing to raise either one.

26.

addressee, and the Postal Service fur-
nishes this confidential information
only to the requesting agency. A crime
has to be a felony before a mail cover
will be permitted under 39 C.F.R.

§ 233.2(e) (1) (ii).2% See note 1 supra.

First of all, there is some question
whether this mail cover even constituted
a "search" within the Fourth Amendment
for, as this Court explained in United
States v. Solis, 536 F.2d 880, 881 (9th
Cir. 1976):

"Generally evidence acquired by
unaided human senses from without
a protected area is not considered
an illegal invasion of privacy,
but is asable under doctrines of
plain view or open view or the
equivalent.”

Assuming a search was involved here,
since 1878, it is settled that the Fourth
Amendment's protection against "unreason-
able searches and seizures" protects a
citizen against the warrantless opening
of sealed letters and packages addressed
to him in order to examine the contents.
Ex parte Jackson, 96 U.S. 727. A recent

9/ Postal Inspection Hearings, 10, 47.

27.

article by Professor Geoffrey R. Stone
discussed the scope of the Fourth Amend-
ment since that time, The Scope of the
Fourth Amendment: Privacy and the Policy
Use of Spies, Secret Agents and Informers,
American Bar Foundation Research Journal
1195 (1976). As shown therein, the most
important relevant case since Ex parte
Jackson is Katz v. United States, 389
U.S. 347. There the Supreme Court held
that because of the Fourth Amendment the
prosecution could not introduce evidence
of the contents of a telephone conversa-
tion of the defendant, which was heard
by placing a device on the outside of the
public telephone booth in which the defen-
dant was speaking, since an individual
speaking to someone over the telephone
has a "reasonable expectation of privacy"
with respect to the contents of those
conversations. 389 U.S. at 360 (Justice
Harlan concurring). The Court decided
that "[w]hat a person knowingly exposes
to the public, even in his own home or
office, is not a subject of Fourth Amend-
ment protection," whereas "what he seeks
to preserve as private, even in an area
accessible to the public, may be

28.

constitutionally protected." 389 U.S.
at 351, 352. "(T]he Fourth Amendment

protects people, not places." Id. at 351.

Prior to Katz, the courts uniformly
upheld the constitutionality of mail
covers. E.g., United States v. Costello,
255 F.2d 876, 881 (2d Cir. 1958);
Canaday v. United States, 354 F.2d 849
(8th Cir. 1966); Cohen v. United States,
378 F.2d 751 (9th Cir. 1967), certiorari
denied, 389 U.S. 897; Lustiger v. United
States, 386 F.2d 132 (9th Cir. 1967),
certiorari denied, 390 U.S. 951

Subsequent to Katz, the crucial
question presented has been whether an
individual has a reasonable expectation
of privacy which would prevent the Govern-
ment from inspecting information contained
on the outside of mail addressed to him.
In all post-Katz decisions except this,
the courts have again sustained mail
covers on the ground that there is no
reasonable expectation that such infor-
mation will remain unobserved. United
States v. Bianco, 534 F.2d 501, 508 (2d
Cir. 1976); United States v. Leonard,

524 F.2d 1076, 1087 (2d Cir. 1975);
29.

United States v. Balistrieri, supra;
United States v. Isaacs, 347 F.Supp. 743,
750 (N.D. Ill. 1972), affirmed on other
grounds, 493 F.2d 1124 (7th Cir. 1974),
certiorari denied, 417 U.S. 976. Less
than three months after Katz, certiorari
was denied in our Lustiger case, supra.
However, it does appear that the instant
case is the first post-Katz situation
where the constitutionality of the mail
cover device has been squarely presented
in a manner requiring extended analysis.

While the Supreme Court has not ex-
pressly passed on the mail cover device,
recent analogous opinions lead us to
conclude that it would not hold mail
covers unconstitutional even though
neither the addressee nor the sender is
aware that the exterior data is being
used for purposes other than the proper
routing of the mail. In United States
v. Miller, 425 U.S. 435, it was held
that a bank customer has no legitimate
"expectation of privacy" in the contents
of his original checks and deposit stubs
because they "contain only information
voluntarily conveyed to the banks and

30.

exposed to their employees in the ordi-
nary course of business." 425 U.S. at
442. Here too the information in ques-
tion was voluntarily conveyed to the
Postal System and exposed to its employ-
ees and others in the ordinary course of
passage of letters and packages from the
senders to the defendant. The following
passage from Justice Powell's Miller
opinion, substituting the mailer for the
depositor, seems singularly apt:

"The depositor takes the risk
in revealing his affairs to an-
other, that the information will
be conveyea by that person to the
Government. United States v.
White, 401 U.S. 745, 751-752
(1971). This Court has held re-
peatedly that the Fourth Amend-
ment does not prohibit the ob-
taining of information revealed
to a third party and conveyed by
him to Government authorities,
even if the information is re-
vealed on the assumption that it
will be used only for a limited

urpose and the conticence a

laced in the third party w
ae be betrayed. i1d., ic 752;
Hoffa v. United States, 385 U.S.
at 302; Lopez v. United States,
373 U.S. 4 963). (Footnote
omitted, emphasis supplied.)

425 U.S. at 443.

31.

This portion of Miller concluded that
even if the banks were acting solely as
Government agents in transcribing the
information and complying with the sub-
poenas, there would be no intrusion upon
the depositors' Fourth Amendment rights.
Id. Applying Miller here would mean the
transcription of the information in ques-
tion by the postal authorities and the
transmitting of it only to the Bureau of

Customs would not violate the Fourth
Amendment, 22/

10/ As the district court noted below,
this "Circuit has held that there is
no reasonable expectation of privacy as to
the fact that telephone calls were placed
on particular dates to particular phone
numbers from a home * * * telephone" (422
F.Supp. at 270 n. 19). United States v.
Baxter, 492 F.2d 150, 167 (Sth Cir. 19753)
ge 416 U.S. 940; United .
ates v. thian, 452 F.2d 505, 506 (9th
Cir. 1971). The district court drew the
following distinction between telephones
and the mail: "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 alternatives to
the mail" (422 F.Supp. at 270-271). But
if a sender wishes to avoid the mail
cover, he simply may refrain from using
his return address. Moreover, since the
mail covers are subject to regulations
(continued)

32.

AY

Subsequently, in United States v.
Santana, 427 U.S. 38, the Court held
that the warrantless arrest of Mrs.
Santana upon the threshold of her
dwelling-house would not violate the
Fourth Amendment because she was not
in an area where she had any expectation

10/ (continued) (and have been the

theme of three Congressional hearings
in a decade), the sender must be presumed
to know of the possible existence of a
mail cover upon the mail of his addressee.
Therefore, we find the district court's
plea that "in a 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"
(422 F.Supp. at 271) to have a defective

assumptive premise.

As with telephonic pen registers, the
contents of the letters are not disclosed,
nor does a mail cover encroach upon the
privacy upon which one justifiably relies.
Therefore, there has been no search or at
least no unreasonable search within the
meaning of the Fourth Amendment. Hodge
v. Mountain States Tel. & Tel. Co., 555
F.2d 254, 256-257, 266, 267 (9th Cir.
1977) (majority and concurring opinions).
It is certainly more plausible to expect
privacy to be invaded when a communica-
tion must pass through many hands than
when it is transmitted by an electronic
pen register system. See also United
States v. Baxter, 492 F.2d 150, 167 (9th

Cig. 1973}.

33.

of privacy and because what she knowingly
exposed to the public, even in her own
house, would not be a subject of Fourth
Amendment protection. 427 U.S. at 42.
Thus the last word spoken by the Supreme
Court in this field during its October
1975 Term indicates that in accord with
Ex parte Jackson, supra, the sender or
the recipient of mail does not have a

reasonable expectation of privacy with
respect to the information on the
outside.

Perhaps the closest modern Supreme
Court case is United States v. Van
Leeuwen, 397 U.S. 249. There respondent
sent two packages by first class mail
from Mt. Vernon, Washington, to Van Nuys,
California, and to Nashville, Tennessee.
The postal clerk told a policeman present
in the Post Office that he was suspicious
of the packages and the policeman noticed
that the return address on the packages
was that of a vacant housing area of a
nearby junior college. This information
was transmitted to the Bureau of Customs
in Seattle, Washington, and the Customs
officials then learned that the addressee

34.

of one package was under investigation
in Van Nuys for trafficking in illegal
coins, and that the second addressee
was under investigation ir. Nashville,
Tennessee, for the same crime. This
Court reversed the defendant's convic-
tion on the ground that the coins were
improperly admitted in evidence because
a timely warrant had not been obtained,
but the Supreme Court in turn reversed
us.. Its opinion first noted that as
established in Ex parte Jackson, letters
and sealed packages cannot be opened
without a warrant, although "their out-
ward form and weight" can be inspected.

397 U.S. at 251.

Van Leeuwen pointed out that first
class mail is not beyond reach of inspec-
tion and that a fictitious return ad-
dress plus other suspicious circumstances
justified the retention of the packages
for investigation without a warrant.
Because there had been "no possible inva-
sion of the right 'to be secure' in the
‘persons, houses, papers and effects'
protected by the Fourth amendment against
‘unreasonable searches and seizures'",

35.

the inspection of the outside of the
first class mail was held not to disturb
its privacy. 397 U.S. at 252, 253.
Applying Van Leeuwen to a mail cover

induced by appropriate reasons given by
the requesting agency means that the
mail cover "cannot be said to be ‘un-
reasonable’ within the meaning of the
Fourth Amendment." 397 U.S. at 253.

In his above-mentioned article,
Professor Stone has concluded that a
warrantless search or seizure under the
Fourth Amendment is only unreasonable
"if it poses a relatively serious threat
to [one's] privacy" (Id. at 1212). Here
the senders' placement of their names
and addresses on the mail in question
waives any privacy claim because the
information would foreseeably be avail-
able to postal employees and others look-
ing at the outside of the mail. Cer-
tainly the defendant could not keep that
information invisible, and yet the
Fourth Amendment only bars intrusions
upon a person's "reasonable expectation
of privacy." United States v. Dionisio,
410 U.S. 1, 8, 14. Here it cannot be

36.

said that there was any governmental
intrusion into defendant's home, hotel

room or similar place of solitude.

Senders knowingly exposed the outsides

of the mail to postal employees and |
others, and defendant could not keep

those areas private. This is not a :
situation where an individual has at-

tempted to control information about

himself, nor are all practices of the
Government in seeking information about

a person unreasonable under the Fourth
Amendment. Defendant has not satisfied

us that this particular mail cover was

unreasonable. See note 10, supra.

In supporting affirmance, the earliest
case relied upon by amici is Ex parte
Jackson, supra, but there the Court ex-

cepted the examination and inspection of
the "outward form" of mail from the scope
of the Fourth Amendment. Thus the Court
was protecting the contents of letters
and sealed packages from examination and
inspection. This is made clear because
the opinion stated sealed items were to
remain "closed" against inspection. See
96 U.S. at 733. In addition, Justice

37.

Field stated that postal regulations can-
not "permit an examination into letters

or sealed packages subject to letter post-
age, without warrent" but may be enforced
"as from the parties receiving the letters
or packages * * * (emphasis supplied). 96
U.S. at 935,24 Postal regulations first
authorized the use of mail covers in 1879,
only a year after Ex parte Jackson was de-
cided. Postal Inspection Hearings at 46.
Certainly the draftsmen of those regula-
tions must have intended to fit within the
strictures of that already famous mail
case. Indeed Chief Postal INspector Cotter
recently explained to a House subcommittee
that Ex parte Jackson was interpreted by

the postal authorities from the beginning
as permitting mail covers. Id. at 49. In
his May 1975 testimony to the subcommittee,

il/ At oral argument, counsel for amici
cited United States ex rel. Milwaukee Pub-
lishing Co. v. Burleson, 255 U.S. 407, ap-
parently relying on Justice Holmes dissent
that "while it [the United States] carries
it [postal service] on the use of the mails
is almost as much a part of free speech as
the right to use our tongues ***" (at 437).
Nothing in that passage denigrates from t
the inspection carried on here under the
imprimatur of Ex parte Jackson, supra,
which is twice cited with approval in
Justice Brandeis' companion dissent in
Milwaukee publishing Co. at 420, 431).

38.

Cotter also reviewed the leading court
decisions approving mail covers until
then. Id. at 49, 50.

Throughout their brief, amici en-
deavor to show that mail covers can be
abused. When such a case occurs, the
Fourth Amendment may be implicated, but
as shown elsewhere in this opinion, there
was no such abuse here. Amici also con-
tend that this mail cover violated the
rights of senders of the mail. They fail
to realize that it was requested as part
of the investigation of defendant, not
his correspondents. At any rate, only
the senders would be entitled to raise
any question as to intrusion into their
Fourth Amendment rights. Alderman v.
United States, 394 U.S. 165, 171-172;
United States v. Lisk, 559 F.2d 1108,
1110, 1111 (7th Cir. 1977). And none of

them has complained.

This mail cover was not directed at
the contents of postal cards or the con-
tents of second, third or fourth class

2
mail, as amici fear (Br. 21) 224

12/ The information requested is trans-
~ mitted to the requestor on form
(continued)

39.

Moreover, only an established federal
agency was requesting the mail cover
here, so that amici cannot properly

argue that this mail cover permits snoop-
ing by obscure local agencies (cf. Br.

32) .22/ Likewise, the amici are wrong

12/ (continued) POD 2009. Five columns
of information are given detailing
the information on the outside of mail:
addressee, sender, return address, place
and date of postmark and class of mail.
Photocopies of the exterior service of
the covered mail are not forwarded to
the requestor. Thus amici's concern that
handwriting, fingerprints or other types
of physical evidence could be transmitted
to the requestor is without foundation.

13/ In addition, the only law enforcement
agencies which may request mail

covers are those agencies "one of whose

functions is to investigate the commis-

sion or attempted commission of acts

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

§ 233.2(c) (4).

The amici also bemoan the scope of
those authorized to approve mail covers.
However, a postal inspector in charge can
only delegate his authority to no more
than three designees, and the delegation
must be in writing for mail covers within
his district. The Chief Postal Inspector,
the only person authorized to grant mail
covers (39 C.F.R. § 233.2(f) (3)), also
can only formally delegate authority and
then to a tightly limited number of de-
signees. 39 C.F.R. § 233.2(d) (1).

40.

in asserting that this mail cover would
include mail addressed to a "Mr. Carson"
(Br. 42), for, in addition to Choate, it
was only to apply to mail addressed to
"CARSON AND CHOATE SURFBOARDS,” thus in-
cidentally including Carson only when his
business with Choate was involved. Nor
has Carson protested this measure.

Much of amici's attack on this mail
cover is on the just-dismissed basis that
the postal regulations are unconstitu-
tionally vague and over-broad (Br. 30-42).
To the extent that overbreadth and vague-
ness, Other than what has been raised to
us, might conceivably exist, this matter
was not raised in the district court and
therefore will not be considered on
appeal. Our function is not inquisi-
torial. United States Steel Corp. v.
Train, 556 F.2d 822, 839 (7th Cir. 1977)
However, it should be noted, as even
amici recognize (Br. 30, 44, 45), that
the postal regulations were tightened in

1965 as a result of Congressional hear-
ings that year. After the more rigid
regulations issued in 1965, Senator Long,
chairman of the subcommittee that had

41.

considered mail covers, expressed his
satisfaction with them, while warning
that his subcommittee would renew its
push to outlaw mail covers completely

if the new regulations were ignored,
violated or abolished. Long, The Right
to Privacy: The Case Against the
Government, 10 St. Louis Univ. L.J. l,
25 (1965). Through that warning and

the routine introduction of bills there-
after threatening to abolish this inves-
tigative tool, Congress has in effect
established itself as a watch-dog to
prevent mail cover abuse.

Amici quote from a Note entitled
Invasion of Privacy: Use and Abuse of
Mail Covers in 4 Columbia Journal of Law
and Social Problems 165, 175-176 (1968)
(Br. 23-24), but that passage concerns
whether mail covers violate statutory
prohibitions against delaying the mail
(18 U.S.C. §§ 1701, 1702 and 1703), a
matter not raised here. The Note does
say that the monthly number of mail
covers "is now low" and that the 1965
revisions in the postal regulations
"covered virtually all objections that

42.

had been theretofore raised," thus
stifling prior Senatorial criticism
(id. at 165, 173-174).

Throughout their brief, amici rely
on the Hearings on Invasions of Privacy
(Government Agencies) before the Senate
Judiciary Subcommittee on Administrative
Practice and Procedure, 89th Cong., lst
Sess. (1965) (Invasions of Privacy).
Instead of supporting amici, those hear-
ings actually support the Government's
position. Thus H.B. Montague, then Chief
Postal Inspector of the Post Office
Department, testified that the Post
Office Department tries to restrict mail
covers to 30 days and encourages outside
agencies to restrict them to 15 days.
Id. at 88. Montague said that he be-
lieved requesting agencies were not on
fishing expeditions because:

"There has to be some trust

and mutual understanding among

enforcement agencies or you would

never get your work done. We

have confidence in these other

agencies. Up to now I have had

no reason to question or distrust
any of them.

zxkeke*rkeitk

43.

"I think any law enforcement
agency, when they make an inves-
tigation, has a good reason for
doing it and that there is some
suspicion a crime has been com-
mitted. They don't just go out
without having some idea that a
violation has been committed."
Montague also told the Senate sub-

committee that the Post Office had not
received complaints of mail cover abuses,
probably because the requesting agencies
are in law enforcement work and "are
dedicated to the same principles we are.
They take the same oath of office that
we take, and we have found no reason to
not have confidence and trust in them,
and we do." He added that law enforce-
ment agencies do not put in indiscrimi-
nate requests for mail covers. (Id. at
89.) In a table covering the period of
1960 through 1965 supplied by the Post-
master General to subcommittee Chairman
Long on May 3, 1965, it was stated that
postal inspectors denied a Bureau of
Customs request for a mail cover in 1960
and two such requests in 1964 (id. at 341)
The table does not cover July 1972 when
the instant mail cover was issued. Far
from seeking a plethora of mail covers,
44.

the Bureau of Customs sought only one

mail cover in July 1973 and five in July
1974,24/ Hearings on Surveillance be-

fore the House Judiciary Subcommittee on
Courts, Civil Liberties and the Adminis-
tration of Justice, 94th Cong., lst Sess.

(1975) (Surveillance) 332, 334.

In May 1965 the Postmaster General
sent the Senate subcommittee excerpts
from confidential instructions to postal
inspectors relating to mail covers,
providing as follows:

"OUTSIDE AGENCIES

"It is important that agents
of outside agencies fully under-
stand that the purpose of a mail
cover is to assist them in appre-
hending fugitives or to give them
leads in other cases in which
they are investigating violations
of law and that mail cover infor-
mation is restrictive and must
be treated confidentially.

Mail cover information must
not be given to private investi-
gators nor furnished in civil
action cases. Mail covers are
not permitted in routine security

14/ We have not been cited to any statis-~-
—~ tics for July 1972, when the present
mail cover was authorized.

45.

investigations for clearance of
an individual, but are allowed
in suspected espionage cases or
on other matters inimical to the
interests of the United States.

Refer all requests for mail
covers or extension of existing
covers from outside agencies to
division headquarters for consi-
deration and action by the in-
spector in charge or his imme-
diate designee. If a verbal
request is received direct the

requestor to submit it in writing.

POSTAL INVESTIGATIONS

"Prior approval by inspectors
in charge is not required in our
own investigations; however, good
judgment must be exercised. The
number of mail covers in effect
must be reduced to the absolute
minimum, and must be strictly
controlled. Confine requests to
a 30-day period or less. Avoid
indiscriminate use of this im-
portant investigative technique.

"SECTION 831.44, POSTAL MANUAL

-44 MAIL COVER. Requests by
postal inspectors in charge and
postal inspectors for information
regarding the addresses, return
addresses, or postmarks on mail
must be treated in strict confi-
dence and complied with carefully
and accurately. In obtaining the

information, do not delay delivery

of the mail. (See 311.6 and
311.7.)" Invasions of Privacy at
339.

46.

These excerpts tend to show that the
abuses conjured up by amici are more
ephemeral than real.

In an effort to show mail cover
abuses, amici have been able to find
only one example, and this is a mail
cover in the nebulous field of national
security rather than the more specific
area of gathering information concerning
a crime. Thus in Paton v. La Prade,
524 F.2d 862 (3d Cir. 1975), plaintiff,
Lori Paton, wrote a letter intended for
the Socialist Labor Party and addressed
to the Socialist Workers Party on whom

a mail cover was in effect, resulting

in an abortive investigation of that
plaintiff by an FBI agent, but clearing
her of any wrongdoing. The Third Circuit
did not pass upon the validity of the
mail cover (at 872), and Chief Postal
Inspector Cottor explained that the mixup
occurred from "human error" (Surveillance
at 320). Nobody has asserted that human
error or any kind of error was invovled
in defendant's mail cover.

Similarly inapt is Stanford Daily v.
Zurcher, 353 F.Supp. 124 (N.D. Ca. 1972),
47.

affirmed, 550 F.2d 464 (9th Cir. 1977),
certiorari granted, 46 LW 3214, ' relied
upon by amici (Br. 12-13). There a
warrant to search the premises of a
university newspaper for photographs of
demonstrations was invalidated because
the newspaper was not suspected of any
offense. Here the mail cover target was
reasonably thought to be importing
cocaine from South America, thus justify-
ing the 30-day mail inspection. In
Piazolla v. Watkins, 442 F.2d 284 (5th
Cir. 1971) (Amici's Br. 15 n. 12), Troy
State University officials searched for
narcotics in the college rooms of the
two student plaintiffs without warrants
or consent. By no stretch of the imagi-
nation can such a search be analogized

to this mail cover. See also Stoner v.
California, 376 U.S. 483. Finally, in
United States v. United States District
Court, 407 U.S. 297 (Amici's Br. 37-38),
government agents had engaged in wiretaps
involving the domestic national security.
Quite foreseeably, the Court applied
Katz and held that search warrants were
required because of “the potential danger
posed by unreasonable surveillance to

48.

individual privacy and free expression"

(at 315). As shown, those factors are

simply not present here .22/

15/ Amici, in hornbook fashion, summarize
—~ the elaborate legal framework sur-
rounding the issuance of search warrants
(Br. 34-36):

(1) the requirement that the fac-
tual basis for the search be
set forth under oath;

(2) any precise calculus for asses-
sing the accuracy, reliability
and sufficiency of the "reason-
able grounds" which must be
established to support the
search;

(3) the requirement that the "rea-
sonable grounds" which "demon-
strate [that] the mail cover
would ... assist in obtaining
information concerning the
commission or attempted com-
mision of a crime" consist of
timely and not stale informa-
tion;

(4) the requirement that the "rea-
sonable grounds" which factually
support the search constitute
the nexus between the nature
and scope of things to be seized
and the underlying criminality,
so as to avoid the inherently
unreasonable "general search";
and

(continued)

49.

This Mail Cover Does Not Violate the
First Amendment

The dissenting opinion rests on the
Fourth Amendment insofar as the Consti-
tution is concerned. The opinion below
also never relied on the First Amendment,
probably because it was only peripherally
relied upon in the district court by
defendant. Similarly, in this Court,
defendant stresses his Fourth Amendment
rights. Apparently taking that cue,
amici also rely principally on the Fourth
Amendment. In mentioning the First
Amendment, neither defendant nor amici
have cited any mail case in their favor
apart from Paton supra. [In any event,
no First Amendment rights of defendant
were violated. As seen, the only infor-
mation being gleaned by the Bureau of

15/ (continued)

(5) the requirement of a proper
return and inventory of the
fruits of the search.
(Footnotes omitted.)

But here this framework is of course a
red herring. These elements of the legal
mechanism which have been constructed to
implement the Fourth Amendment are, of
course, wholly irrelevant when the Fourth
Amendment does not apply in the first
instance. United States v. Lisk, supra.

50.

Customs was material on the outside of
Choate's incoming mail and packages.
Such material certainly would not ab-
ridge Choate's freedom of speech. In-
deed, like any other reasonable citizen,
he could expect no privacy as to the
outside of his incoming mail, and any
"Chill" on the exercise of First Amend-
ment rights resulting from that "lack of
privacy" is not significant enough to
be constitutionally impermissible when,
as here, the challenged activity does
not concern the substance of a communi-
cation and fits within regulatory re-
strictions. See United States v. Ramsey,
U.S. ’ , 45 LW 4577, 4581;
generally Laird v. Tatum, 408 U.S. 1, 1l;
Donohoe v. Duling, 465 F.2d 196 (4th
Cir. 1972). Speech thought to promote
a criminal scheme, such as emcompassed
by this mail cover, is hardly within the
ambit of the First Amendment. Moreover,
the practice of associating with com-
patriots in crime is not a protected
associational right. See Runyon v.
McCrary, 427 U.S. 160, 176.

51.

Nor may the associational rights of
the senders be raised by Choate.
N.A.A.C.P. v. Alabama, 357 U.S. 449,
458-460. Even if he could do so, there
is absolutely no support in the record
that an equality of interest between
Choate and the senders would be anything
other than a false equivalency. Paton,
Supra, at 873-874. This is because there
is no support in the record for the
theory that any of the senders who were
actually subject to the mail cover, and
whose identity was actually used in pre-
paring the tax case against Choate,
would, in fact, care that others knew of
the fact of their “association with
Choate". In any event, the record dis-
closes that defendant did not raise
senders' First Amendment rights in the
district court2§/ and therefore we need
not squarely pass on his ability to
raise the senders' First Amendment
rights in a purely jus tertii manner.

16/ Consequently, amici are also barred
from advancing this ground.

52.

¥
Bb

This Mail Cover Does Not Violate the
Ninth Amendment.

Rather than covering necessary aids
to criminal investigation, such as mail
covers, the cases which recognize the
right to privacy at least partially on
Ninth Amendment grounds, have been des-
cribed as neatly categorized into mat-
ters involving family and procreational
activities. See generally, Wilkinson &
White, Constitutional Protection for
Personal Lifestyles, 62 Cornell L.Rev.
563 (1977). This case appears to fit
into neither category. Rights under the
Ninth Amendment are only those "so basic
and fundamental and so deep-rooted in
our society" to be truly "essential
rights," and which nevertheless, cannot
find direct support elsewhere in the
Constitution. Griswold v. Connecticut
381 U.S. 479, 488-489, 491 (Goldberg,
J., concurring).

Perhaps that is why in her Cardozo
lecture on "The Directions and Mis-
directions of a Constitutional Right of

17/

Privacy" our colleague Judge
Hufstedler initiated her search for the
constitutional guarantees of that right
with a specific constitutional provision:
the Fourth Amendment (id. at 551-558).

As there noted, the pertinent words from
that Amendment guarantee that people
shall be "secure in their * * * papers

* * * against unreasonable searches * * *,"
It may be doubted whether the material
collected from mail addressed to defen-
dant before delivery to him was really
from his papers. Even assuming so, only
unreasonable searches are interdicted.

As seen, this was not such a search. As
Judge Hufstedler has stated:

"The right to protect the autonomy
of one's personality cannot be
abolute, but it is nevertheless a
fundamental constitutional right.
In striking the balance between
public interest and fundamental
private rights, the weight is on
the side of the private right un-
less there is strong justification
in favor of the Government action,
and the Government has chosen rea-
sonable means for vindicating its

17/ 26 The Record, Ass'n of the Bar of the

City of New York 546 (1971). The lec-
ture concentrated on First and Fourth
Amendment rights.

overriding interest. When govern-
mental action consists of protect-
ing the constitutional rights of one
group of private citizens against
the competing rights to privacy of
others of its citizens, the socie-
tal interests of each are similarly
weighed against the other, except
that the scale is not initially
tipped as it is when the interests
that are opposed are fundamental
private rights and general public
interest." Id. at 562.

From the information in the possession
of the Bureau of Customs, there was
"strong justification in favor of the
Government action" in permitting this
mail cover. Moreover, the Government
"has chosen reasonable means for vindi-
cating its overriding interest" in en-
forcing the narcotics laws. Therefore,
assuming his standing, we cannot conclude
that defendant's right of privacy, stem-
ming from any provision of the Bill o5/

Rights, was impermissibly overborne.—

The Supreme Court's 1976 October Term

We are reinforced in our conclusion
that the mail cover on Choate was

18/ The balancing undertaken herein ac-
cords with Craven, Personhood: The Right
to Be Let Alone, 1976 Duke Law Journal 699.

55.

constitutional by cases decided by the
Supreme Court at its past Term. Thus the
inspections here are less intrusive than
the screening of former President Nixon's
papers which was recently upheld over
right of privacy arguments based on the
First, Fourth and Fifth Amendments. Nixon
v. Administrator of General Services,
__U.S. ’ , 45 L.W. 4917, 4925-4929,
They are also less intrusive than the
opening of international mail that just
survived First and Fourth Amendment at~.9/
tacks. United States v. Ramsey, supra.
As in Ramsey, we conclude that any "chill"
to defendant and his correspondents is
not only minimal but wholly subjective in
the light of the safeguards provided by
the postal authorities. The information
on the outside of envelopes and packages
normally passes through so many hands,
public and private, that a mail cover can-
not be said to invade any constitutionally
protected zone of privacy. Thus it is
akin to the statutory drug patient

19/ This Supreme Court opinion reversed

United States v. Ramsey, 538 F.2d
415 (D.C. Cir. 1976) on which amici
relied at oral argument.

56.

identification requirement sustained in
Whalen v. Roe, 429 U.S. 589, 599-600,
where the Court discussed and distin-
guished its prior cases in the various

right of privacy areas.

Unlike the situation in United States
v. Chadwick, U.S. ’ , 45 LW.
4797, 4800, the notations on the outside
of this mail were not made with "an
expectation that the [exterior] contents
would remain free from public examina-
tion," thus placing defendant outside the
right of privacy protections in the
Constitution. 29/ No family sanctity
problem exists here such as in Moore
v. East Cleveland, 431 U.S. 494, 498-500
where a municipal ordinance which pre-
vented a grandchild from living in his
grandmother's home was invalidated under
the Due Process Clause of the Fourteenth

20/ For a detailed discussion of Chadwick,

see United States v. Berry, 560 F.2d
861, 863-8604 (7th Cir. 1977). Not being
retroactive, Chadwick is inapplicable
here. United States v. Berry, F.2d

(7th Cir. 1978, on rehearing) ;
United States v. Reda, 563 F.2d ca (2d
Cir. 1977); United States v. Montgomery,
558 F.2d 311 (5th Cir. 1977).

57.

21/

Amendment .— Nor is the mail cover
analogous to cases invalidating statutes
that "burden the freedom to make [child-
bearing] decisions" such as involved in
Carey v. Population Services Interna-

tional, U.S. _, 45 LW 4601, 4603.22/

In this case, the record shows that
the information being gleaned from the
mail cover on defendant was being used
only for legitimate government purposes,
namely for enforcement of the narcotics
and later the income tax laws. The mail
cover was not an attempt to garner a
complete profile of defendant. As with
most people's mail, inspection of the
exterior of envelopes and packages for
thirty days would not enable the request-
ing authority to build up such a complete

21/ But compare Smith v. Organization of

Foster Families, U.S. , 45 LW
4638, upholding a statutory and regula-
tory procedure for removal of foster
children from foster homes.

22/ But compare Maher v. Roe, U.S. ,

45 LW 4789, upholding a state regu-
lation which prevented two indigent
women from obtaining abortions.

58.

picture of the subject that it could be
used to invade such intimately personal
rights as protected by Griswold v.
Connecticut, 381 U.S. 479, and its

spawn.

The order granting the motion to
suppress is reversed and the cause is
remanded for further proceedings.

39.

United States v. Choate - No. 76-3486

HUFSTEDLER, Circuit Judge, concurring
and dissenting:

In an August 21, 1974 indictment,
Choate was charged with income tax eva-
sion for understating his income in 1970
and 1971, in violation of 26 U.S.C.

§ 7201. The Government intended to offer
at trial Choate's amended returns for
those years, which he filed in October,
1972, and documentary evidence tending

to prove that Choate's expenditures were
greatly in excess of his originally-

1/

reported income.—

1/ Choate admitted the underpayment and
paid his back taxes. He initially
moved to dismiss the indictment on
November 1, 1974, for "discriminatory
law enforcement" on the ground that the
usual IRS policy is not to prosecute
taxpayers who have voluntarily filed
amended returns and paid their taxes
prior to the institution of prosecution.
The district judge instead dismissed the
indictment because testimony at that hear-
ing revealed that the government had
attempted to elicit information about
Choate from his attorney through the
agency of an undercover informant in
August, 1972. This court reversed,
(continued)

Choate moved to suppress "all physi-
cal evidence sought to be introduced
against him" on the theory that it was
tainted by illegal searches of his home
conducted by a government informant in
1971. After an evidentiary hearing, the
district court found that the Government
had sustained its burden of proving that
the taint of the illegal searches had
been dissipated. The testimony at the
hearing, however, revealed that during
1972, Choate had been subjected to a
mail cover of all of his correspondence.
The district court held that the mail
cover was conducted in violation of ap-
plicable Postal Service regulations,
that it constituted an unreasonable
search and seizure in violation of the
Fourth Amendment, and that the evidence

must be suppressed. (United States v.

1l/ (continued) finding no denial of

~ the effective assistance of counsel
because the informant told the attorney
at the time of his covert purpose and
offered to supply him with information
about the government investigation.
Thus Choate was not prejudiced. United
States v. Choate (9th Cir. 1975) 527
F.2d 748, 751-52.

.

Choate (N.D. Cal. 1976) 422 F.Supp. 261,
263.) The district court also found,
and the Government concedes on this
appeal, that "all evidence sought to be
introduced against the defendant in this
case was derived from exploitation of
leads derived from the illegal mail
cover." (Id. at 271.)

The case presents singularly sensi-
tive and difficult statutory and consti-
tutional issues, involving as it does
the extent to which the applicable statu-
tes and the Constitution protect persons
from searches invisible to the persons
whose effects are searched and from the
seizures of intangibles that lead to the
discovery of tangible evidence. If
Choate is unshielded by the Fourth Amend-
ment from the Government's illegal and
oppressive conduct in this case, none of
us can be secure from similar, unan-
nounced governmental invasions of areas
in which we have a reasonable expectation

of privacy.

The mail cover was secured by inten-
tionally false statements made by the

3.

Customs officer who wrote the request

for the cover. The searches and seizures
that followed were obtained in violation
of the Fourth Amendment because no judi-
cial warrant was obtained to authorize
the intrusion into the privacy of
Choate's mail, none of the jealously
guarded exceptions to the warrant re-
quirement exist, and the search was over-
broad and thus in violation of the rea-
sonableness clause of the Fourth
Amendment.

I concur with the majority opinion
only on the point that the taint of the
illegal searches of Choate's home was
sufficiently dissipated by intervening
events to permit the use of the evidence
thus obtained.

Some detail respecting the factual
background of this case is essential to
an understanding of the legal issues.
According to a 1971 report of the
California State Bureau of Narcotics
Enforcement (BNE), Choate first came to
the attention of law enforcement autho-
rities when an undercover informant for

the BNE, one Thompson, alleged that
Choate was involved in importing cocaine
from Peru. Thompson was about to be
indicted for his own narcotics dealings,
and he later asserted that he was pro-
mised leniency if he could "make a case"
against Choate. 2/ During April, 1971,
he made a series of illegal entries into
Choate's home to obtain evidence and
also reported on Choate's alleged drug
dealing.2/ He produced a tin containing

2/ Thompson was ultimately prosecuted

and convicted in December, 1972. In
a subsequent habeas corpus petition he
alleged that his prosecution and imprison-
ment was unlawful as government agents
had promised him that he would receive
different treatment if he assisted them.
He cited as an example of his compliance
with his end of the bargain the tax pro-
secution of Choate, claiming he had been
told he could "take credit" for it. He
asserted he had first brought Choate to
their attention. Agent Orosco of the
BNE also testified that he knew the pur-
pose of Thompson's assistance was to
"buy some insurance" for himself.

3/ He reported that Choate had brought
a large quantity of cocaine from
Peru in early April 1971 and had re-
turned for more, but was arrested while
trying to exchange money on the black
market. Thompson also informed the BNE
(continued)

5.

some marijuana and a bank statement from
the Farmers and Merchants Bank. The
latter was in the name of Choate's wife,
whom he was then living prior to their
marriage, but Thompson alleged that
Choate used it for his own transactions.
Shortly thereafter, Thompson's services
as an informant were terminated because
his credibility was questioned due to
his own legal difficulties. The case on
Choate was then closed.

The 1971 BNE report was transmitted
to the Federal Bureau of Customs, and on
April 3, 1972, Agent Williams of Customs
reopened its investigation of Choate. 4/

3/ (continued) that Choate had nothing

to do with cocaine seized in the
possession of a passenger on a flight
viet ai to San Diego during the same
month.

4/ Williams testified that he had been

given the file to review upon joining
the Bureau of Customs in March, 1972. He
also stated that he had become interested
in Choate because of the allegations of
drug dealing in the BNE report. His des-
cription of the file's contents indicated
that it contained the only substantive
allegations of drug dealing

It appears that Williams contacted
Thompson at this time, but he reported
that he had no information on Choate in

addition to that in the 1971 report.2/

5/ Williams gave conflicting versions of
~ his contacts with Thompson and their
dates. In one affidavit he testified he
first learned of Thompson "after May l,
1972" and used him for narcotics investi-
gations unrelated to Choate. (Affidavit
of Lynn Williams, dated March 6, 1976.)
In a second, he stated that he discussed
Choate with Thompson in April, 1972.
(Affidavit of Lynn Williams, dated July
12, 1976.) At the hearing on July 13,
1976, he stated that his first conversa-
tions with Thompson occurred in early
1973 and that the earlier affidavits and
prior testimony was erroneous. However,
his testimony was that, whenever they
spoke, Thompson told him he had no addi-
tional information to that in the BNE
report. The version which has these
events occurring in 1973 is less than
credible as Thompson was then in federal
prison, and Williams' role in the Choate
inquiry was apparently over. It appears
to be a later fabrication to bolster the
government's contention at the hearing
that the IRS investigation was unblemished
by contacts with Thompson.

Viewed from the perspective of wheth-
er Williams' institution of the mail
cover was justified, neither version
assists the government: either Williams

(continued)

Williams began an investigation of the
extent of Choate's assets to see if they
"coincided" with the amount of cocaine
purportedly involved. He testified that
one of his first steps was to investigate
the Farmers and Merchants Bank account,
but he discontinued this avenue of in-
quiry immediately upon learning that
Choate was not in fact an authorized
Signatory on the account. Williams ra-
pidly concluded that while he had found
"lots of assets," he was "not having
much luck in getting a seizure or coming
up with a substantive case against Mr.
Choate." Therefore, he went to the
Internal Revenue Service (rs) &/ and

5/ (continued) made no attempt to up-

date the 1971 BNE report prior to
asserting that Choate was "currently"
smuggling cocaine in 1972 or he in fact
learned prior to making the request that
the sole source of such reports knew of
no new developments.

6/ Mr. Williams testified that he "went
to [Sherrard] because I was having

trouble with the investigation. I was
having trouble determining how Mr. Choate
was smuggling the cocaine into the United
States. I was not having much luck in
getting a seizure or progressing with a
substantive case against Mr. Choate and I'd
come up with a lot of assets and soI went to

IRS to see if they could have luck in the case."

8.

attempted to interest IRS Agent uel

in investigating Choate for tax evasion-—

Sherrard, however, declined to become
involved in the case until after the
Customs investigation ceased. There-
after Williams continued his asset in-
vestigation and instituted a mail cover
of all Choate's correspondence. 2/ The
mail cover revealed the identity of
Choate's personal bank account and at
least two creditors, Diner's Club and
Carte Blanche. From these sources,
Williams was able to obtain a great deal
of information about Choate's expenditures

which was ultimately turned over to the IRS.

7/ Again there is a conflict as to the

~ precise date of this meeting.
Sherrard testified at an earlier hearing
that it occurred in April, 1972. This
information was confirmed in an affidavit
by IRS Agent Emmett T. Roach, Sherrard's
successor in the Choate investigation.

At the hearing, Williams said he first
met with Sherrard in "July or August of
1972" or “June or July of 1972". In
either event, his testimony was that the
meeting occurred prior to his instituting
the mail cover.

8/ The cover was requested on July 19,
~ 1972, and ran from July 25 - August
25, 1972.

9.

In September of 1972, an official IRS
investigation was opened with Agent Roach
in charge. Roach testified that he made
use of the information obtained through
the mail cover, but that the Farmers and
Merchants Bank account was of little use.
The latter was used only after the fact
that expenditures were made had been in-
dependently verified to ascertain that
the payments had been made from checks

drawn on that account. Those expenditures

amounted to less than $500, while total
expenditures by Choate for the period in
9/

question were over $60,000.=

pk
Taint of Thompson's Illegal Searches

Choate presses the point that “all"
the Government's evidence should be

9/ Roach also testified that most of
Choate's expenditures were in cash
and that some of the information respect-
ing these expenditures had been obtained

through investigation not derived from
the mail cover--for example, the purchase
of cars and a boat. Thus, in 1970 per-
sonal checks accounted for $3,400 in
expenditures against total expenditures
of $11,736, and in 1971 checks accounted
for $6,639 while total expenditures were
over $50,000.

10.

suppressed because of Thompson's illegal
searches. We may assume for present pur-
poses that the entries were illegal and
the product of governmental misconduct.
The question is whether the primary il-
legality led to the discovery of the
evidence sought to be introduced or
whether it was obtained through indepen-
dent means. (Wong Sun v. United States
(1963) 371 U.S. 471, 487-88.)

A simple examination of the facts as
previously set forth demonstrates the
remote relationship between the fruits
of Thompson's illegal entries as embodied
in the BNE report, and this tax evasion
prosecution. The BNE report may well
have contributed to Agent Williams' de-
cision to reopen the narcotics investiga-
tion of Choate, as it suggested that he
was a major trafficker in cocaine. How-
ever, the sole lead used by Williams was
the bank statement which quickly proved
unproductive. That bank statement was
used again only after Choate's expendi-
tures were known to the IRS to verify
the mode of payment.

1l.

Choate's primary contention is that,
if the BNE report provided the impetus
for reopening the investigation of Choate

and contributed to its vigor, all evidence

obtained in succeeding investigations is
tainted. This Circuit has consistently
rejected such arguments and has held that
only evidence specifically derived from
illegal leads can be deemed tainted.
Where the succeeding investigations pro-
duce evidence from independent sources,
it may be introduced despite the original
illegality. (E.g., United States v.
Cella (9th Cir. Dec. 9, 1977) _ F.2d___
[Slip Op'n 3179, 3200-02] (mere fact
investigation is intensified not enough) ;
United States v. Sand (9th Cir. 1976)

541 F.2d 1370, 1375-76 (nexus between
illegally seized evidence and that

sought to be suppressed must be shown
irrespective of the degree of police il-
legality); United States v. Cales (9th
Cir. 1974) 493 F.2d 1215, 1215-16;
United States v. Brandon (9th Cir. 1972)
467 F.2d 1008, 1010 (test is not whether
a "but for" relationship exists between
the illegal search and later investiga-

tion but whether its fruits tended to
Ade

tended to significantly direct that in-
vestigation to the evidence in question) ;
United States v. Bacall (9th Cir. 1971)
443 F.2d 1050, 1055-61 (original ille-
gality must "in fact" lead to specific
evidence contested); Durham v. United
States (9th Cir. 1968) 403 F.2d 190.

See also United States v. Pike (5th Cir.
1975) 523 F.2d 734; United States v.
Friedland (2d Cir. 1971) 441 F.2d 855.)

While the ultimate burden of proof
is on the Government to show the absence
of taint, the defendant must first
establish a factual nexus between the
illegality and the challenged evidence.
The mere establishment of an illegal
search does not place upon the Government
the burden of affirmatively proving that
each and every piece of evidence is free
from taint. (United Stetes v. Tella
//// / supra, contains a thorough dis-
cussion of this point.) Choate did not
establish any factual or logical nexus
between the BNE report and the subse-
quent evidence uncovered by Williams and
Roach as to Choate's assets and expendi-
tures, except for the Farmers and

ko

Merchants Bank statement. (Alderman v.
United States (1969) 394 U.S. 165, 183;
United States v. Cella, supra, Slip Op'n
at 3200; United States v. Sand, supra,
541 F.2d at 1375-76.) While that bank
statement should, of course, be sup-

pressed, and any evidence as to that
account's use as a source of Choate's
expenditures, it cannot be deemed to
taint the other evidence of Choate's
expenditures which was independently
discovered through the mail cover, state
motor vehicle records, and other sources.

II
The Mail Cover

A Mail cover is a procedure by which
the United States Postal Service segre-
gates all mail sent to a particular ad-
dressee and records all information which
appears on its outside cover and, in some
cases, identifies the contents of second,
third, and fourth class mai1.+0/

10/ 39 C.F.R. § 233.2(c) (1) (1977):

""Mail cover' is the process
by which a record is made of any
data appearing on the outside

(continued)

14,

The recording in Choate's case was
accomplished by a postal employee's
listing on a form, for all first and

10/ (continued) cover of any class

~~ of mail matter, including check-
ing the contents of any second-,
third-, or fourth-class mail
matter as now sanctioned by law,
in order to obtain information
in the interest of (i) protect-
ing the national security, (ii)
locating a fugitive, or (iii)
obtaining evidence of commission
or attempted commission of a
crime."

Mail covers may also be instituted of
persons believed to be engaged in viola-
tions of postal statutes. (Id. § 233.2(d)
(2) (1).) The crimes being investigated
must be felonies. (Id. § 233.2(c) (3).)
The present appeal involves only subsec-
tion (c) (1) (iii). The present regula-
tions were promulgated on March 12, 1975.
They do not differ, however, in any
material substantive respect from those
applicable at the time of the Choate mail
cover--June and July, 1972. (See The
Matter of Wiretapping, Electronic Eaves-
dropping, and other Surveillance: Hear-
ings before the Subcomm. on Courts, Civil
Liberties and the Administration of
Justice of the House Comm. on the Judi-
ciary, 94th Cong. lst Sess., Ser. No. 26,
Part 1 at 326, 352-54 (1975) (hereinafter
cited as "Hearings on Surveillance").

See also 40 Fed. Reg. 11579, 11580 (March
I2, 1975).) For a detailed history of

15.

fourth class mail received over a thirty-

1l/

day period,— the addressee (three

10/ (continued) mail cover regulations
see Postal Inspection Service's
Monitoring and Control of Mail Surveil-
lance and Cover Programs: Hearings be-
fore the Subcomm. on Postal Facilities,
Mail and Labor Management of the House
Comm. on Post Office and Civil Service,
94th Cong., lst Sess., Ser. No. 94-39 at
46 (1975) (hereinafter cited as "hearings
On Postal Inspection Service"); Invasions
of Privacy (Government Agencies): Hear-
ings before the Subcomm. on Admin. Prac-
tice and Procedure of the Senate Comm.
on the Judiciary, 89th Cong., lst Sess.
at 67-69 (1965) (hereinafter cited as
"Hearings on Invasions of Privacy").
See also Note, Invasion of Privacy: Use
and Abuse of Mail Covers, 4 Colum. J. L.
Soc. Problems 155, 170-75 (1968).

1l1/ Thirty days is the maximum period for

which a mail cover may be requested
initially in cases other than those in-
volving national security or breach of
postal regulations (39 C.F.R. § 233.2(f)
(4)), but they may be extended by renewal
of the request. However, 120 days is
ordinarily the maximum. (39 C.F.R. §
233.2(f)(5).) Statistics prepared by the
Postal Service for 1973 and 1974 reveal
that most domestic mail covers averaged
30 days while national security mail
covers averaged as many as 119.4 days.
Letter of William J. Cotter, Chief Postal
Inspector (March 14, 1975) Exhibits A & B
in Hearings on Surveillance, supra note
a0, at 332.35.

16.

locations were covered), sender, return
address, place and date of postmark, and
class of mail. = (See 39 C.F.R. § 233.2
(c) (1).) The information obtained through
mail cover surveillance provides a data
bank which is a potent investigative tool.

It is possible to learn the identities,
addresses and frequency of contact of most
of a person's correspondents through a one-
month mail cover--including banks, credi-
tors, affiliations with religious, politi-
cal, educational, and voluntary organiza-
tions, publications received, accountants,

13/

and friends.— Because many of these

12/ In other cases, a record has been

~~ made by photocopying the exterior
(United States v. Leonard (2d Cir. 1975)
524 F.2d 1076, 1085 & n.4). This dis-
tinction is without a difference for
Fourth Amendment purposes--see discussion
infra at 26-27. However, we need not
consider, as amici suggest, the possible
use of fingerprints or other data on the
surface of mail revealed by photocopying
because it was not employed against
Choate.

13/ The only correspondent exempted from
— a mail cover is the subject's attor-
ney. However, his identity must be known
in advance and identified to the Postal
Service. (39 C.F.R. § 233.2(f) (2).)
(continued)

17.

correspondents maintain files on the
addressee which can be discovered and
used by the investigating agency (e.g.,
bank accounts, United States v. Miller
(1976) 425 U.S. 435), the mail cover used
in combination with other techniques
quickly makes the subject's life an open
book to investigators.

Mail covers are unique in other res-
pects. The subject of a mail cover is
never apprised of the existence of this
surveillance unless it is revealed to
him in discovery proceedings. (39 C.F.R.
§ 233.2(g)(4).) In Choate's case, de-
spite ample pretrial discovery motions,
the mail cover's existence was revealed
only inadvertently in the course of a

hearing on a motion to suppress .+4/

13/ (continued) Other legal correspon-
dence would presumably be covered.
Choate's attorney noted at the hearing
that he had not filed an appearance at
that time and questioned how the govern-
ment had gone about identifying him.

14/ 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--
(continued)

18,

os, i ee

Many mail cover subjects will never

learn of the existence of this surveil-
lance because it will not result in liti-
gation. (See United States v. United
States District Court (1972) 407 U.S.
297, 318.) The request, authorization,

undertaking, and use of results of a mail
cover occur wholly within the executive
branch. This procedure, neither autho-
rized nor controlled by any act of
Congress, is articulated and controlled
in the discretion of the Postal Service.
No judicial officer is involved at any
stage of the proceeding, and records are

: 15
kept by the Postal Service only. +2/

14/ (continued) despite 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."). Agent Williams sponta-
neously revealed the existence of the
mail cover in order to show that the
cover, not Thompson's illegal searches,
was the source of most of his investiga-
tory leads.

15/ Prior to 1965 reforms, these records
~~ were destroyed after two years. Sub-
sequently the period has been extended

to five and now eight years. 39 C.F.R.

§ 233.2(g) (5).

19.

Postal regulations provide that any
"law enforcement agency "2/ may obtain
a mail cover by direct written applica-
tion to members of the Postal Service's
investigative divisiont//~_-the Inspector

16/ Law enforcement agencies include any
- federal, state, or local unit "one
of whose functions is to investigate the
commission or attempted commission of
acts constituting a crime." (39 C.F.R.
§ 233.2(c)(4).) Thus, requests have
been honored from such entities as the
U.S. Coast Guard, the Department of
Interior, the Royal Canadian Mounted
Police, and the Departments of Labor,
HEW, and Agriculture in addition to
agencies more traditionally associated
with law enforcement. (Hearings on
Surveillance, Supra note 10, at 334.)

17/ The Postal Inspection Service is
responsible for postal security (see
39 C.F.R. §§ 231-233), and it is the
Postal Service's own law enforcement
division and the oldest federal investi-
gative agency. Its primary activities
are investigation, arrest, and prosecu-
tion of those who break the postal laws.
Thus, in 1964, the division made 12,006
arrests, resulting in 10,485 convictions.
(Testimony of H.B. Montague, Chief Postal
Inspector, Post Office Department in

Hearings on Invasions of Privacy, supra
note 10, at 66-67.)

20.

General or 72 designees about the
country. (Hearings on Surveillance, / /
/ / / supra, n. 10, at 331.) The re-
questing agency is required to recite
"the reasonable grounds that exist which
demonstrate the mail cover is necessary
to . . . obtain information regarding
the commission or attempted commission
of a crime." (39 C.F.R. § 223.2(d) (2)
(ii).) There is no requirement that the
requesting agency attest to the truth of
these grounds or produce evidence sup-
porting them. Granting or denying a re-
quest is in the discretion of the
Inspector General or his designee.
(Hearings on Postal Inspection Service,
supra n. 10 at 52.) The meaning of
reasonable grounds is undefined (see n.
25 infra) and it appears that most re-
quests are routinely granted if they
seem to state reasons why a mail cover
will prove helpful to the requesting

agency .+2/ Information is obtained on

18/ The Inspector General testified that
~ ag to national security mail covers,
there are no standards whatsoever and
that the Postal Service would welcome
Congressional "guiciance" in that regard.
(continued)

ane

all correspondence--not just mail direc-
tly related to the stated purpose of the
surveillance. Thus, in Choate's case,
while the request was purportedly for
purposes of identifying a South American
return address, the Bureau of Customs
was furnished with mail cover data as to
Choate's domestic correspondents. +2/
Finally, the information obtained is
forwarded directly to the requesting
agency, and postal records are destroyed
after a period of eight years.

18/ (continued) (Hearings on Surveil-

lance, supra note 10, at 314.)
Mail cover disapprovals and approvals
were as follows for 1973-75:

Disapprovals Total Approved

apie: i37 5,171
1974 122 4,609
1975 191* 3,699

(*three quarters only)
(Hearings on Postal Inspection
Service, supra note 10, at 18, 238.)

19/ Indeed, of all the information
obtained, not one return address
was outside the United States.

22.

Far from being few in number, there
were 4,528 other mail covers in effect
during 1972 when Choate's was requested
and 5,171 in 1973. The Bureau of
Customs alone obtained 220 in 1973.
(Hearings on Surveillance, supra n. 10,
at 332, 334.) 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.
(E.g., Paton v. La Prade (3d Cir. 1965)
524 F.2d 862 (FBI investigated everyone
who wrote to Socialist Workers Party);
Lustiger v. United States (9th Cir. 1967)
386 F.2d 132 and United States v.
Schwartz (3d Cir. 1960) 283 F.2d 107
(Post Office contacted all correspondents
with mail fraud suspects to see if they
had been defrauded).) United States v.
Leonard (2d Cir. 1975) 524 F.2d 1076,
revealed that approximately 150 persons
who received mail from Switzerland with-

out a return address were investigated
by the IRS for possible income tax eva-~
sion and that the mail of many thousands

was covered.

23.

l. Postal Service Power to Institute
Mail Cover Procedure

A preliminary question is whether the
Postal Service has unconstitutionally
exceeded its delegated powers in insti-
tuting the mail cover procedure and
promulgating postal regulations, when
the practice is unauthorized by any act
of Congress22/ However, we need not

20/ In its promulgation of postal regula-
_tions relating to mail covers, the
Postal Service recites that it finds
statutory authority for this and other
activities of the Postal Inspection
Service (Posting of Wanted Posters and
Rewards, Withdrawal of Mail Privileges
from Abusers of the Mails) in 39 U.S.C.
§§ 401, 404, 410. (See 39 C.F.R. at
§ 233 56 (1977).) None of these statu-
tes purports to give any express autho-
rity for mail covers. Indeed, counsel
for the Postal Service has admitted that
no statutory authority exists for the
practice. (Hearings on Invasion of
Privacy, supra note 10, at 82: "There
is no statutory authority for mail cover
nor is there any prohibition in the law
against them." (Testimony of Louis J.
Doyle, General Counsel fo the Post
Office).) The Postal Service has simply
relied upon its general authority and
upon its long-time practice in undertak-
ing mail covers. Unauthorized and il-
legal assumptions of power become neither
authorized nor legal by reason of
(continued)

24.

here resolve this important and diffi-

cult question. 22/

The Fourth Amendment aside, it is
apparent here that the Government failed
to comply with the applicable postal
regulations. As this provides a basis
for suppressing the evidence obtained
from the mail cover, we need not reach
the question of the validity of the
regulations' pormulgation as they afford
no shield to the challenged conduct.

20/ (continued) habitual assertions of
“~ guch power, even when the habit is
long-standing. (See, e.g., Almeida-
Sanchez v. United States (1973) 413 U.S.
266; United States v Ortiz (1975) 422
U.S. 891.) "“[A]n agency may not boot-
strap itself into an area in which it
has no jurisdiction by repeatedly viola-
ting its statutory mandate." (FMC v.
Seatrain Lines, Inc. (1973) 411 U.S. 726,
745.) No court has yet had occasion to
consider whether the mail cover proce-
dure exceeds the statutory authority of
the post office.

21/ It poses substantial issues with
~~ proad ramifications for a variety
of agency practices. (See discussion in
notes 10 and 20, supra.) Of course, the
Congress cannot by acquiescence render
constitutional an unauthorized assumption
of power by the executive. (Cf. Almeida-
Sanchez v. United States, supra, 413 U.S.
266.)

25.

From the Fourth Amendment perspective,
even where a practice is authorized by
statute, if it purports to authorize a
warrantless search, the constitution-
ality of the actual search is evaluated
in terms of the Fourth Amendment. The
statute's specifics become immaterial.
(Sibron v. New York (1968) 392 U.S. 40,
59-62 (no need to consider facial con-
stitutionality of statute authorizing
warrantless stop and frisks; rather
Court will examine actual incident in
light of Fourth Amendment). See also
United States v. United States District
Court, supra, 403 U.S. 297, 308-09,
(applying Fourth Amendment to search un-
authorized by statute without reaching
question whether executive branch has

inherent authority to order warrantless
wiretaps for national security purposes). )
As I find the instant mail cover consti-
tuted an unreasonable search and seizure
in violation of the Fourth Amendment, I
have no occasion to reach the question of
the validity of the postal regulations .2¥

22/ In my view, even if the regulations

had been authorized by Congress they
would be void as violative of the Fourth
Amendment. 26

2. Compliance with Postal
Regulations

In order to institute the mail cover
of Choate, Agent Williams prepared a
letter sent over the signature of his
supervisor on July 19, 1972, which
recited in pertinent part:

"([Choate] is currently under
investigation by this office
for the suspected smuggling of
large quantities of narcotics
into the United States. CHOATE
is currently organizing 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 would
be of aid in identifying the
source in South America and
other members of the smuggling
ring."

On the basis of this letter, the
Postal Service instituted the mail cover,
which lasted from July 25 through August
25, 1972. Choate contends that this
request failed to comply with 39 C.F.R.
§ 233.2(da) (2) (ii) (1977) because on its
face it does not state "reasonable
grounds that exist which demonstrate the
mail cover is necessary to. . . obtain
information regarding the commission or

27.

attempted commission of a crime" and
because the recitations were untrue and
known by Agent Williams to be untrue at
the time he made the request. I am
aware of no prior challenge to a mail
cover's validity based upon failure to
comply with postal regulations. We must
therefore determine whether the asserted
grounds may serve to vitiate the mail
cover, and if so, what evidentiary
consequences follow.

There is no provision in the regula-
tions for collateral attack on a mail
cover request by a subject. 23/ However,

23/ The Postal Regulations do provide

that "[i]f£ the Chief Postal Inspector,
or his designee, determines a mail cover
was improperly ordered by a Postal In-
spector in Charge or his designee all
data acquired while the cover was in
force shall be destroyed, and the re-
questing authority notified of the dis-
continuance of the mail cover and the
reasons therefor." (39 C.F.R. § 233.2
(g)(3).) This appears however to allow
only for internal postal review of im-
providently granted requests prior to
conveying the information to the re-
questing agency. Similarly the review
procedures in id. § 233.2(h) (i) appear
directed toward limitation of requesting
authority appeals from adverse responses
to mail cover requests, not to later
attacks by subjects.

28.

in a statement submitted to the House of
Representatives' Committee on Post Office
and Civil Service, which was investiga-
ting the use of mail covers, the Chief
Postal Inspector for the United States
Postal Service said:

". ,. . The grounds upon which the
need for a mail cover is based
must be specific in order to per-
mit a determination that the
essential requirement is met.
Mail covers cannot be authorized
for exploratory purposes.

"The sufficiency of a mail
cover request is the heart of the
mail cover regulations. It is
the Postal Service and, in parti-
cular, the Chief Inspector who
bears all responsibility as to
whether approved requests are in
keeping with the regulations.

The request becomes a permanent
part of the mail cover file which
must be made available through
appropriate discovery procedures
in any legal action. The subject
of the mail cover would thus be
able to challenge not only the
propriety of the judgment of the
postal official imposing the mail
cover, but also the truthfulness
and sufficiency of the statements
filed by the authority requesting
the mail cover.” 24/

24/ Hearings on Postal Inspection
Service, supra note 10, at 52.
(continued)
29.

The Inspector General's statement
suggests that while there is no prior
judicial review of mail cover requests,
they are challengeable in subsequent
judicial proceedings on grounds that (1)
the averments did not on their face
state "reasonable grounds" and (2) the
averments were untruthful. (See also
Oliver v. United States (8th Cir. 1957)
239 F.2d 818, 823 ("The question of un-
reasonable search and seizure in postal
inspecrion is entitled to be resolved,
where legislative measures or administra-
tive regulations exist, by such valid
limits as have been fixed and held out
thereunder as constituting the extent of
mail opening and examination in which
the Post Office Department will engage.").)

For present purposes, I am content to
assume without deciding that the Choate
mail cover request states reasonable

24/ (continued) (Statement of William J.
Cotter, Chief Postal Inspector,

United States Postal Service j

30.

grounds22/ within the meaning of 39 C.F.R.

25/ The question of whether the aver-
ments facially complied with 39
C.F.R. § 233.2 is made difficult by the
fact that “reasonable grounds” are no-
where defined. It is clear that they
were not viewed as the equivalent of
"probable cause," because the Post
Office has continuingly opposed institu-
tion of such a requirement on the grounds
that probable cause could not ordinarily
be shown. (Hearings on Surveillance,
supra note 10, at 302, 310-11, 327 (mail
covers enable the development of probable
cause); Hearings on Postal Inspection
Service, supra note 10, at 49-52, 196-97
(Justice Department asserts its opposi-
tion to probable cause requirements.) .)
On the other hand, the tightening of mail
cover procedures following the 1965 hear-
ings and recent statements by the Chief
Postal Inspector indicate that they are
no longer to be used for mere fishing
expeditions and the government's asser-
tion that a request need merely state
"that reasonable grounds exist" is with-
out merit. (See Hearings on Postal
Inspection Service, supra note 10, at
51-52; Hearings on Surveillance, supra
note 10, at 304-05 ("mail covers cannot
be authorized for exploratory purposes.")
See also id. at 324-27 (discussing his-
tory of 1965 changes) .)

It would appear that at minimum the
request must allege the commission or
attempted commission of a specific felony
and that a mail cover would logically
assist in obtaining evidence relevent to
its solution. The district judge

(continued)

31.

§ 233.2(d) (2) (ii) , 29/ as in my view a
mail cover request may be collaterally

25/ (continued) apparently believed

that in addition the agency must
specify the factual grounds underlying
its allegations. (United States v.
Choate (C.D. Cal. 1976) 422 F.Supp. 261,
266-67 (insufficient to recite mere
"feeling" mail cover would be productive
in view of history of Congressional con-
cern leading to tightening of postal
regulations).) This position is under-
cut by the fact that such specification
has not been reauired during the ten
years that the regulations have been
effective, and by the fact that legisla-
tion which would require such a showing
has been introduced in Congress.

26/ I do not agree that our review of
the facial validity of the request
would be limited under the rationale of
United States v. Ventresca (1965) 380
U.S. 102; or United States v. Spearman
(9th Cir. 1976) 532 F.2d 132. That
doctrine of liberal construction is
justified in the search warrant context
by a desire to defer to the magistrate
who has previously reviewed the request.
This follows form hesitation to reverse
On appeal his finding of probable cause
On which the government has relied. It
is inapplicable to review the judgment
of a law enforcement agent of the Post
Office who is reviewing the self-serving
averments of another law enforcement
officer. To the extent that a liberal
construction is warranted, it is because
(continued)

32.

attacked for untruthfulness on the same
basis as an affidavit in support of a
search warrant .2_/ The facts developed
at the evidentiary hearing in the dis-
trict court clearly reveal that the
statements in the request were false and
known by Williams to be false when made.
Hence, I would hold that the underlying
falsity vitiates the mail cover request
irrespective of its facial validity and
that this renders the resulting surveil-
lance illegal and requires suppression
of the evidence under the compulsion of
authority in this Circuit. (United

26/ (continued) there is no reason to
“expect the laymen who review mail
cover requests to act as if they were
neutral magistrates or as if they had
training which should lead them to dis-
tinguish "it is felt" form "facts lead
us to believe." This in turn reveals
the inadequacy of the current procedure
for Fourth Amendment purposes.

27/ We should not spend this court's
~~ time analyzing the meaning of the
term "reasonable grounds" in postal
regulations which purport to authorize
conduct violative of the Fourth Amend-
ment. (See Sibron v. New York, supra,
392 U.S. at 59-62.)

33.

States v. Caceres (9th Cir. 1976) 545
F.2d 1182.) 28/

A prepared statement of the Inspector
General at Senate hearings cannot control
our view of the grounds on which a cri-
minal defendant may attack the validity
of a mail cover request. It does not
constitute an authoritative interpreta-
tion, nor do the regulations themselves
provide for collateral attack. However,
it is highly persuasive as an opinion of
the sole entity involved with the autho-
rization and review of mail covers,
particularly as it suggests its own

28/ The district judge did not thus
characterize his holding that the
Choate mail cover request failed to state
reasonable grounds. However, implicit in
his discussion of the fact the 1965 regu-
lation tightening was intended to prevent

fishing expeditions and that here the
request was “without tangible justifica-
tion," is the notion that the request was
inadequate because it was in fact a fish-
ing expedition. 422 F.Supp. at 264-67,
271. United States v. New York Telephone
Co. (1977) __ U.S. ’ n.8 ("The pre-
vailing part may defend a judgment on any
ground which the law and the record
permit that would not expand the relief
it has been granted.").

34.

belief that Postal Service approval is
not intended to be a conclusive deter-
mination that a mail cover request is

valid.

Some review of the veracity of the
"reasonable grounds" stated in a mail
cover request is dictated by similar
considerations to those which have led
most courts of appeals to authorize at-
tacks on the validity of search warrants
because of false statements by govern-
ment agents in the supporting affidavits

which led to their issuance: 22/

29/ All courts of appeals have assumed or
decided that a defendant is entitled
to a hearing at which he may attack the
validity of governmental affidavits.
Differences of opinion exist, however,
as to whether negligent and material or
non-material but intentional misstatements
may vitiate the warrant. The Supreme
Court has not ruled on the question.
(See Rugendorf v. United States (1964)
376 U.S. 528, 531-33 (need not decide if
Court can look behind facial validity of
search warrant where there was no showing
of bad faith or misrepresentations) ;
United States v. Branch (D.C. Cir. 1976)
545 F.2d 177, 180 & n.2 (hearing below
found evidence of falsity non-credible;
unnecessary to determine rule for cir-
cuit); United States v. Belculfine
(continued)

35.

", . . it must be recognized
that law enforcement agents
presenting evidence to magis-
trates could make a mockery of

29/ (continued) (lst Cir. 1974) 508 F.2d
58, 60-64 (hearing required when
defendant makes preliminary showing of
knowing misstatements; "no supportable
alternative to suppression of evidence
° - based on an affidavit containing
an intentional, relevant, and nontrivial
misstatement."); United States v.
Gonzales (2d Cir. 1973) 488 F.2d 833,
837-38 (misstatement was non-material
and, at worst, negligent; unnecessary to
resolve applicable standard); United
States v. Vento (3rd Cir. 1976) 533 F.2d
838, 858-59 (immaterjal and unintentional
misstatement; unnecessary to chose be-
tween applicable standards); United
States v. Lee (4th Cir. 1976) 540 F.2d
1205, 1208-09 (where officer perjures
himself or proceeds in reckless disregard
of true facts and affidavit is materially
inaccurate, it may be attacked); United
States v. Astroff (5th Cir. 1977) 556
F.2d 1369, 1371-74 (5th Cir.
rule permits attack even if material
misstatements made negligently); United
States v. Luna (6th Cir. 1975) 525 F.2d
4, 6-9 (affidavit may be impeached for
"knowing use of a false statement with
intent to deceive" whether or not mate-
rial; not for negligent material misre~-
presentation); United States v.
Carmichael (7th Cir. 1972) 489 F.2d 983,
988-89 (en banc) (can impeach affidavit
upon a showing of misrepresentation of a
(continued)

36.

the magistrate's role if, in the
necessarily ex parte proceeding,
they could freely employ false
allegations in order to secure
the warrant. The same would
likewise be true if the agents
could, with impunity, draft af-
fidavits with utter recklessness
as to truth or falsity. In
either instance there would be

a lack of good faith in the per-
formance of the agent's duty to
the judicial office."

(United States v. Luna (6th Cir. 1975)
525 F.2d 4, 8.)

As this Circuit has recognized, col-
lateral attacks on the veracity of affi-
davits in the search warrant context are
necessary to further "a basic purpose of
the [Fourth] Amendment and the exclusion-
ary rule, namely the deterrence of law-
less police action." (United States v.
Damitz (9th Cir. 1974) 495 F.2d 50,

29/ (continued) material fact or any
~~ intentional misrepresentation) ;
United States v. Marihart (8th Cir.
1974) 492 F.2d 897, 899-902 (adopting
Seventh Circuit standard), accord:
United States v. Luciow (8th Cir. 1975)
518 F.2d 298, 301; United States v.
Harwood (10th Cir. 1972) 470 F.2d 322,
324-25 (material misstatement will
vitiate warrant) .)

37.

55-56.) 20/ This is true despite the fact

that the affidavits have been scrutinized
by a neutral magistrate prior to issuance
of the warrant because of the ex parte
nature of the proceeding and the impos-
sibility of otherwise preserving the
defendant's rights.

In the context of the Postal Service
mail cover procedure, the need for post-
surveillance judicial review is even
more pronounced, because no judicial
officer has ever previously been inter-
posed to evaluate the governmental

30/ In this Circuit, a defendant is en-
titled to an evidentiary hearing
upon making a substantial showing of
falsehoods in the affidavit. (United
States v. Damitz, supra, 495 F.2d at 53-
54. Accord: United States v. Taxe (9th
Cir. 1976) 540 F.2d 961, 967; United
States v. Moore (9th Cir. 1975) 522 F.2d
1068, 1072; United States v. Harris (9th
Cir. 1974) 501 F.2d l, 5-6 & n.7.) It
has not been necessary to reach the ques-
tion of what type of misstatement will
invalidate the warrant. (Damitz, supra,
495 F.2d at 55 (where misstatements were
made by an informer and were not material,
warrant is valid if remainder of affida-
vit is true and suffices to show probable
cause) .)

38.

averments as to the need for a search,
The ex parte procedure has consisted
solely of one government law enforcement
agency representing to another that the
surveillance will likely produce useful
evidence.

In most cases, the representations

are accepted without question, based on
the trust reposed by the Postal Inspec-
tion Service in coordinate law enforce-
ment agencies. (Hearings on Postal
Inspection Service, supra, n. 10 at 16
(no evidence required, just “assurances"
of coordinate agencies); see also Hearing

on Surveillance, supra, n. 10 at 322
(testimony of Chief Postal Inspector
Cotter).) While I do not believe that
such review suffices to validate the pro-
cedure for Fourth Amendment purposes, it
is patently a minimal requirement. (See
Terry v. Ohio (1968) 392 U.S. 1, 12-13,
noting that application of the exclu-
sionary rule in review of the manner of
obtaining evidence serves the dual pur-
poses of deterring government misbehavior
and of preserving the "imperative of
judicial integrity" as a "ruling

39

admitting evidence in a criminal trial

- » »« has the necessary effect of legiti-
mizing the conduct which produced the
evidence.")

We need not concern ourselves with
the questions whether a mail cover re-
quest could be attacked upon a less
stringent showing than a search warrant
affidavit, or about what standard of
scienter and materiality is required,
because facts established at the eviden-
tiary hearing previously held show that
all the material representations in the

mail cover request were intentionally
falsified by Williams.24/ tn all the

31/ The district judge found:

"Agent Williams specifically
stated he ‘was not having much
luck getting a seizure or progres-
sing with a substantive case
against Mr. Choate.' Absent prob-
able cause, therefore, he turned
to the use of a mail cover for a
warrantless fishing expedition.
Before requesting the mail cover,
he had approached the IRS with in-
formation he had been gathering so
that a tax investigation could be
undertaken. The IRS did not wish
to proceed at that time, but in-
vited him to return later following

(continued)
40.

circuits which have reached the issue,
intentional misstatement of material
facts in an affidavit by a government
agent serves to vitiate a search
warrant ,22/ and misstatements of the
same nature in the mail cover request
must render similarly illegal this mail

31/ (continued)

further investigation. It is
clear that he was very interested
in information on Mr. Choate's
assets, although that justifica-
tion was not given to the postal
authorities." (422 F.Supp. at
2743)

32/ The First, Fourth, Sixth, Seventh
~~ and Eighth Circuits will suppress
evidence based upon a materially and in-
tentionally inaccurate warrant (see
generally United States v. Belculfine

/ 777; United States v. Lee / / / / /;
United States v. Luna, all supra note
29); while the Fifth and Tenth Circuits
will suppress even if the material mis-
statements were negligent (see cases dis-
cussed in note 29), supra). While this
Circuit has not reached the issue, the
reasoning in United States v. Damitz,
supra, makes it clear that if no portion
of the affidavit is true, the warrant
cannot stand. (495 F.2d at 54-55.)

4l.

cover. 33/

The mail cover request contained

34/

three material-— representations: (1)
that the requesting authority had reason
to believe Choate was "currently" organi-~
zing a narcotics smuggling ring with a
South American source, (2) that it fur-
ther believed that the source and Choate
corresponded by mail, and thus (3) that

a mail cover would aid in identifying

the source,

Williams had no "current" information
on which he could assert that Choate was

33/ The fact that Williams did not per-
sonally attest to the truthfulness
of the request does not render the
search warrant rule inapplicable. While
the fact that the government agent has
perjured himself in an affidavit has con-
tributed to the willingness of courts to
suppress evidence (e.g., United States
v. Belculfine, supra, 508 F.2d at 62-63),
it is the intentional abuse of process,
rather than the breach of oath, which
triggers application of the exclusionary
rule.

34/ The assertions that Choate was being
investigated by the Bureau of Customs
and that the crime involved was a felony
were essential to obtain the mail cover,
but were not material to the question
whether reasonable grounds existed.

42.

organizing a narcotics smuggling ring

when he requested the mail cover on July
19, 1972. The only information to that
effect was contained in Thompson's April,
1971, reports to the BNE which had been
passed along to Customs. All efforts by
Williams to obtain current information
that would connect Choate with cocaine

trafficking had failed (see notes and
text at nn. 4-7, supra) ,22/ and Thompson
had informed Williams that he possessed
no more recent information than that in
the 1971 report .2°/ Most significant is
the fact that Williams felt he could not
"make a substantive case" against Choate

for drug dealing, and this actually
caused him to take the step of going to
Sherrard of the IRS before instituting
the mail cover and suggesting a tax

35/ The fact that Choate had "many assets"
~~ gould not logically prove current
dealings as they could have been pur-
chased with funds obtained at any time.

36/ See note 5 supra. Even if Williams’
testimony that he did not contact
Thompson until 1973 is believed, it merely
shows that prior to obtaining the mail
cover Williams had not even attempted

to update this year old information.

43.

37/

investigation.— Williams, in fact,
testified that his reason for instituting
the mail cover was to look for more as-
sets; he said nothing about a purported

South American connection. 20/ Williams'

37/ Williams testified: "I went to
[Sherrard] because I was having trou-
ble with the investigation. I was having
trouble determing how Choate was smuggl-
ing the cocaine into the United States.
I was not having much luck in getting a
seizure or progressing with a substantive
case against Mr. Choate and I'd come up
with a lot of assets and so I went to IRS

to see if they could have luck in the
case."

38/ Williams' testimony on direct respect-

ing his investigations after the
Sherrard meeting was as follows:

"Q. And did you also attempt to
track further assets’ and
expenditures of Mr. Choate?

A. Yes, I did.
And how did you do that?

A. Let's see. I believe -- yes.
I requested a mail cover be
placed on Mr. Choate.

Q. Which is what?

A. That's when we submit a letter
to the Postal Inspector re-
questing they advise who is
sending mail to Mr. Choate...
I believe I requested a 30-day

(continued)

2)

44,

testimony thus clearly revealed that he
was fully aware at the time he made the
mail cover request that he had no cur-
rent information which indicated that

Choate was organizing a smuggling ring.

There was no indication in any of the
information in Williams' possession that
Choate had ever corresponded by mail with
a South American contact. The averment
to this effect was pure speculation based
upon the initial misstatement of fact.22/
Thompson's report indicated only that
Choate had traveled to South America.

Finally, the essential predicate for
the mail cover was the statement that it
was expected that it would aid in identi-
fying the South American source.

38/ (continued)

mail cover on Mr. Choate. From
that I determined that he was re-
ceiving mail from the United
States National Bank. .. ."

39/ The government states that it is

"obvious" that if a person is engaged
in international drug smuggling, he com-
municates by mail with his contact. It
is equally obvious that where there is no
evidence of smuggling there is no reason
to believe mail contacts are then in

force.
45.

Williams' own testimony revealed, how-
ever, that prior to instituting the mail
cover he had turned his attention fully
to "asset tracing" and had given up any
attempt to make a substantive case
against Choate. (See nn. 31 & 38, supra.)
This was the purpose of the mail cover--
not finding a South American address.
Thus, each material representation in
the request was false and known to be
false by Williams at the time it was
made. It was a bare-faced abuse of the
mail cover procedure to obtain informa-
tion and pursue an investigation appar-
ently outside his jurisdiction--asset
tracing to establish a basis for an IRS
prosecution--by reciting false material
facts which, if true, would logically
have justified the surveillance. (See
422 F.Supp, at 271.)

But for the false averments in the
Choate mail cover request, the Postal
Service would not have instituted the
mail cover, and the resulting investiga-
tive leads would not have come to light.
In this Circuit, where federal investiga-
tors intentionally fail to comply with

46.

applicable regulations governing a search,
the evidence obtained from the search
and its fruits must be suppressed.
(United States v. Caceres (9th Cir.

1976) 545 F.2d 1182, 1187-88, as amended
on denial of rehearing en banc (1977);
see also United States v. Sourapas (9th
Cir. 1975) 515 F.2d 295, 298.) The
Government argues that this precedent

should not apply on the ground that the
request here in issue was made in "good
faith" and that the Caceres doctrine
should be held inapplicable to uninten-
tional, good faith breach of federal
regulations governing administrative
searches. The misconduct here is much
more excessive than the non-compliance
in Caceres, which involved failure to
obtain prior authorization for the

40/

search from proper parties. Here

40/ While Caceres and Sourpas involved
ayy failure of agencies to comply with
their own regulations, the suppression
doctrine should be equally applicable
when one government agency intentionally
circumvents the regulations of another.
See also United States v. Basurto (9th
Cir. 1974) 497 F.2d 781, 793-94
(Hufstedler, J. concurring specially)
(continued)

47,

Williams misled the Postal Service into
conducting the search by false repre-
sentations, thereby abusing the process
and circumventing the precise purpose of
tightening of the regulations in 1965 to
prevent "fishing expeditions." On this
ground the evidence obtained from the
mail cover leads must be suppressed.

Despite my conclusion that non-
compliance with applicable postal regu-
lations constitutes a valid alternative
basis for suppression of the evidence
obtained from the mail cover, I find it
necessary to reach the Fourth Amendment
question. The Fourth Amendment was
violated, whether or not there were
reasonable grounds, because no warrant
was obtained and the search was a

40/ (continued) (circuit court supervi-
sory power to assure that integrity
is maintained in administration of
justice). In addition to the Bureau of
Customs misconduct, the I.R.S. breached
39 C.F.R. § 233.2(g) (4) by failing to
disclose the existence of the cover to
Choate during discovery proceedings
(see note 14 supra).

48.

general one. 42/ In effect, the absence

of compliance with the Fourth Amendment
permitted the governmental duplicity to
occur. This violation was effectuated
by the Postal Service, not the Bureau of
Customs, and the illegality of its con-
duct cannot be ignored simply because
there was preceding i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1324%3A2. Public record. Not legal advice.