Petition — Richards v. United States
Supreme Court brief1981
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Office -Supreme Court, U.S.
\ P iba k i)
81-69 | JUL 13 1981
No. ——— ALEX: . STEVAS,
IN THE
Supreme Court of the United States
OctToBerR TERM, 1980
——
RAYMOND RICHARDS,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
——
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NEAL R. SonneEtT?T, Esquire
Counsel of Record
BeEneEpDict P. KuEHNE, Esquire
BIERMAN, SONNETT, BEILEY
& SHouat, P.A.
200 S.E. First Street, #500
Miami, Florida 33131
(305) 358-7477
Counsel for Petitioner
Passs or Byron S. ADAMS PRINTING, INc., WASHINGTON, D. C.
i
QUESTIONS PRES: NTED FOR REVIEW
WHETHER THE FourtH AMENDMENT TO THE UNITED
STATES CONSTITUTION REQUIRES A WARRANT IN ORDER
To ConpucT A SEARCH OF INTERNATIONAL Mar THat
Has Been DELIVERED TO THE ADDRESSEE PRIOR TO THE
SEARCH OF THE MAIL?
WHETHER A DruG ENFORCEMENT ADMINISTRATION
AGENT Has THE AUTHORITY TO ConpUCT A WARRANT-
LESS BorpER SEARCH IN THE ABSENCE OF SPECIFIC Con-
GRESSIONAL DELEGATION TO THE Drua ENFORCEMENT
ADMINISTRATION ?
LIST OF INTERESTED PARTIES
The only persons having an interest in this case are
the Petitioner, his family, and the United States of
America.
TABLE OF CONTENTS
Page
ee eas shige awe hee i a ode eee es 1
I Ta ie srloha es cng 6 0.9 bb 00 0% Chee deen oe 2
CONSTITUTIONAL AND Statutory Provisions Invotvep.. 2
TEE Ut UN MINED odin vc ccc sadedcededeecesevas 4
Reasons ror GRanTING THE WRIT ...........-.000005 8
I. The Fourth Amendment to the United States
Constitution Requires the Obtaining of a War-
rant in Order to Justify the Search of Sealed
Mail That Has Been Delivered to the Addressee;
a Warrantless Search Is Permissible Only Where
Probable Cause and Exigent Circumstances Are
BRE Se ren rr ey ret Perr rr 8
II. A Drug Enforcement Administration Agent, in
the Absence of Specific Congressional Delegation,
Has No Authority To Conduct a Warrantless
Seizure and Search Under the Guise of the Border
Search Doctrine, Particularly Where the Prop-
_ erty Subject to the Search Was Physically and
Temporally Distant From the Border Crossing.. 18
a is peneseeeseebesewnecueess 22
TABLE OF AUTHORITIES
Alexander v. United States, 362 F.2d 379 (9th Cir.)
cert. denied, 385 U.S. 977, 87 S.Ct. 519 (1966) .... 20
Almeida-Sanchez v. United States, 413 U.S. 266, 93
Ss EE ORUUIEE bidaS decccescecccevescacseseds 16
Arkansas vy. Sanders, 442 U.S. 753, 99 S.Ct. 2586
TL ds bo SEGRadab ceseeescedeeasesdens bons 9, i4
California v. Riegler, Case No. 80-1421, 29 Crim. Law
4012, —— U.S. ——, 101 S.Ct. 832 (1981) ...... 10, 11
iv
Table of Authorities (Continued)
Page
Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280
ERE. Mo kdus ocraeeneceiecbcubsagsisaeseatedes 11
Ez Parte Jackson, 96 U.S. 727 (1878) ........00.0005 13
Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408 (1978).. 18
People v. Riegler, 111 Cal.App. 3d 580, 168 Cal. Rptr.
Uy NUE, Wane sGehechissecscccueneees sogeness
Rawlings v. Kentucky, —— U.S. ——, 100 S.Ct. 2556
Be ne Pr rr pes rae 14
SE SNE -ceeeachivededeckepecc¥hewonaeesess 4
United States v. Anton, 547 F.2d 493 (9th Cir. 1976).. 16
United States v. Calandrella, 605 F.2d 236 (6th Cir.),
cert. denied, 444 U.S. 991, 100 S.Ct. 522 (1979).. 15
United States v. Chadwick, 443 U.S. 1, 97 S.Ct. 2476
CREE oda cbnawese valnsce hs ous dpuettessass 9, 12, 14
United States v. Davis, 461 F.2d 83 (5th Cir.) cert.
GOUGE, GOS Tas We CHES) ic cnccsccecteccserses 16
United States v. Fogelman, 586 F.2d 337 (5th Cir.
PONE odscdddaceVeoakevisns cvasvenvacsbedinues 17
United States v. Guillen-Linares, 636 F.2d 78 (5th Cir.
PE Ficwasecae vids pissse dss cecemuawnous veins 21
United States v. King, 517 F.2d 350 (5th Cir. 1975)
cert. denied, —— U.S. ——, 100 S.Ct. 2943 (1980). 15
United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585
ERED nvdeedeandebsbendvepesu ves sekevenevases 16
United States v. Payner, —— U.S. ——, 100 8.Ct. 2439
SEE dacs uhai dea need caved ameceeaeneresve 17
United States v. Ramos, 645 F.2d 318 (5th Cir. 1981).. 16
United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972
SEGRE Asktbrkpudedeubwanesciuneeanabderesveae 11
United States v. Rengifo-Castro, 620 F.2d 230 (10th
EE, vac kapuekseesctuucsyes sueusngrerees 15
v
Table of Authorities (Continued)
Page
United States v. Richards, 638 F.2d 765 (5th Cir.),
rehearing denied, 646 F.2d 962 (1981) ...........
United States v. Rigales, 630 F.2d 364 (Sth Cir. 1980). 15
United States v. ee -— U.S. —, 100 S.Ct. 2547
SEE Abb ckseaWsRUeesiscs seb caedvekebsavensce 17
United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978). 15
United States v. Thompson, 475 F.2d 1359 (5th Cir.
DEE Sa.au> od Uswdae bib ene s 640416550 6000488355 19
United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct.
SCRE SEL MuUwadedes bcans se csUa dens aexe ey 13
United States v. Walters, 591 F.2d 1195 (5th Cir.)
cert. denied, 442 U.S, 945 (1979) ...........0005. 17
Walter v. United States, —— U.S. ——, 100 S.Ct. 2395
SEE Su awehias sve bene sr dhs casorevebslecunces 8,13
ConsTITUTIONAL Provisions AND STatuTES
United States Constitution
PGES TE, OT So ki ii cds cde rcaccececccecs 21
United States Constitution
NN REE SE pa er AE rene 2
Cee ee es ke a ea meee 2
a MED Coco pac acecscdeseceacne 19
ae oan ook phic sees 68a oe 3,19
De Meee, SUEIEED coi 0s Sacdeecpncncecse 5
Se a UT vlna sve ncn cnseboe vs eacenss 3,19
ee aes ED 0.5 Fis cad scenes vbene'cats 2
19 C.F.R. § 145.2
BP GLP QRS sccccccccnscccccccnsctece 19
No. ——
IN THE
Supreme Court of the United States
OctToBEeR TERM, 1980
RAYMOND RICHARDS,
Petitioner,
Vv.
Unitep STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioner, RayMonp RicHarps, respectfully prays
that a Writ of Certiorari issue to review the judgment,
opinion, and order on rehearing of the United States
Court of Appeals for the Fifth Circuit entered in this
proceeding on March 2, 1981, and June 1, 1981.
OPINIONS BELOW
The opinion of the Court of Appeals is reproduced
in the Appendix attached hereto and is reported as
United States v. Richards, 638 F.2d 765 (5th Cir.
1981). The majority opinion was authorized by Circuit
Judge Rubin, in which Judge Gee concurred and filed
a separate opinion. Chief Judge Godbold dissented
from the majority in a written opinion. The appellate
court denied a petition for rehearing and petition for
rehearing en banc in a per curiam order entered June
1, 1981. This ruling is also reproduced in the Appendix
and can be found at 646 F.2d 962.
2
JURISDICTION
The judgment of the Court of Appeals for the Fifth
Circuit was entered on March 2, 1981. A timely peti-
tion for rehearing and petition for rehearing en banc
was denied in a brief per curiam opinion on June 1,
1981. The appellate court then entered an order staying
issuance of the mandate pending the timely filing of a
certiorari petition and disposition thereof by this
Court. This petition is filed within the authorized time
period. Jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. Constitution, Amendment IV:
The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreason-
able searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and par-
ticularly describing the place to be searched, and
the persons or things to be seized.
19 U.S.C. § 482:
Any of the officers or persons authorized to board
or search vessels may stop, search, and examine,
as well without as within their respective districts,
any vehicle, beast, or person, on which or whom he
or they shall suspect there is merchandise which is
subject to duty, or shall have been introduced into
the United States in any manner contrary to law,
whether by the person in possession or charge, or
by, in, or upon such vehicle or beast, or otherwise,
and to search any trunk or envelope, wherever
found, in which he may have a reasonable cause
to suspect there is merchandise which was im-
ported contrary to law, and if any such officer
3
or other person so authorized shall find any mer-
chandise on or about any such vehicle, beast, or
person, or in any such trunk or envelope, which
he shall have reasonable cause to believe is sub-
ject to duty, or to have been unlawfully intro-
duced into the United States, whether by the per-
son in possession or charge, or by, in, or upon such
vehicle, beast, or otherwise, he shall seize and se-
cure the same for trial.
19 U.S.C. § 1582:
The Secretary of the Treasury may prescribe
regulations for the search of persons and baggage
and he is authorized to employ female inspectors
for the examination and search of persons of their
own sex; and all persons coming into the United
States from foreign countries shall be liable to de-
tention and search by authorized officers or agents
of the Government under such regulations.
21 U.S.C. § 878:
Any officer or employee of the Drug Enforcement
Administration designated by the Attorney Gen-
eral may—
(1) carry firearms;
(2) execute and serve search warrants, arrest
warrants, administrative inspection warrants,
subpenas, and summonses issued under the
authority of the United States;
(3) make arrests without warrant (A) for
any offense against the United States com-
mitted in his presence or (B) for any felony,
cognizable under the laws of the United
States, if he has probable cause to believe that
the person to be arrested has committed or is
committing a felony ;
(4) make seizures of property pursuant to the
provisions of this subchapter ; and
(5) perform such other law enforcement du-
ties as the Attorney General may designate.
4
STATEMENT OF THE CASE
On December 5, 1977, RaymMonp RicHarps, an airline
steward stationed at the Miami International Airport,
applied for a post office box at the Miami Springs,
Florida, post office, which was located near the airport.
He designated the boxholder as Mehling Arts & Crafts,
furnished identification showing that he was Christo-
pher Thompson, and signed the application in that
name. The application was approved, and a box as-
asigned to Mehling was opened for use on December 15,
1977 (T 67).
On March 2, 1978, a sealed parcel addressed to Mehl-
ing Arts & Crafts at the Miami Springs box number
arrived at the Foreign Mail Center in New York. The
customs declaration stated that the package contained
Thai silk and uncut stones. The parcel was opened and
inspected by William Graham, an employee of the
United States Customs Service, who found ten cigar-
ette packages inside. Mr. Graham initially inspected
the package because he was suspicious of its contents.
He opened one of these, found cigarettes, and sent the
parcel to another officer for further inspection because
it appeared to contain a tobacco product. The second
officer opened two more cigarette packages; each con-
tained vials of material that on field test was found to
be heroin. (T 128-129, 156). Neither the amount of her-
oin nor its strength was established in New York.
The parcel was reassembled, resealed and forwarded
to the postal inspector in Miami in a locked pouch for
controlled delivery. Postal Inspector Madux delivered
the package to the Miami Springs post office on March
13, 1978, with instructions to put a notice of arrival in
the Mehling box. A postal employee testified that she
had never seen mail in the Mehling box until this pack-
5
age arrived. Drug Enforcement Administration agents
set up surveillance of the box and waited for someone
to claim the parcel. (T 162-163, 167, 173).
RIcHARDs arrived thereafter, received the notice, and
asked for the package. There was a slight delay because
he had no identification showing a connection with
Mehling, but the package was nevertheless given to
him. Drug Enforcement Administration agents
watched RicHarps take the package. They continued
to observe him as he walked out of the building, down
a side street, and into a parking lot behind the post
office. The agents exercised care to assure that RicH-
arDs had no opportunity to leave the scene with the
parcel. They arrested him as he entered his car. The
agents addressed him as Christopher Thompson and
he responded by giving his correct name. The agents
gave Ricuarps Miranda warnings and asked him why
he had picked up the package. He replied by asking
the agents what was in the parcel. When they told him
it contained narcotics, RicHArDs said he knew nothing
about it. He explained that someone had telephoned
him, asked him to pick up the package, and promised
to pay him for doing so. (T 90-104).
The DEA agents took RicHarps to a police facility
several blocks away. He was processed for booking and
placed in a holding cell. While there, the sealed pack-
age was opened without a warrant outside of Ricu-
Arps’ presence. Its contents were later analyzed by a
chemist who found 27.4 grams of 93% heroin hydro-
chloride, which when cut would produce 12,000 street
level doses. (T 58, 93-94, 98-99).
RIcHARDS was indicted for possession of heroin with
intent to distribute it, in violation of 21 U.S.C. § 841
6
(a)(1). At his trial, he testified that he operated a mail
order business importing and selling uncut gems and
maintained a postal box at the Miami post office in con-
nection with that business. RicHAkrps stated that he had
recently started Mehling Arts & Crafts as a mail order
export-import business and needed a separate post of-
fice box for it, but none was available at the Miami post
office. He used a false name to apply for the Miami
Springs box because he feared that operating two out-
side enterprises might jeopardize his job as a steward.
A personnel administrator for the airline testified that
it was permissible for employees to have outside jobs
and that many held other jobs, but he acknowledged
that in some circumstances outside employment might
have an adverse effect on an employee’s job. (T 201-
203, 229).
RayMonpD RicHarpbs was found guilty by a jury of
possession of heroin with intent to distribute it, and
sentenced to seven (7) years imprisonment followed
by a five (5) year special parole term. (R 421, 442).
RicHarpDs appealed his conviction to the Fifth Circuit
Court of Appeals, raising two issues as grounds for
reversal, towit: (1) the propriety of the warrantless
search of the parcel by DEA agents after it had been
delivered to RicHarps; and (2) the insufficiency of the
evidence to support the conviction for possession with
intent to distribute heroin. The Fifth Circuit addressed
both issues in its written opinion. 638 F.2d 765, Re-
garding the search and seizure question, the majority,
writing through Judge Rubin, held that the search was
reasonable :
Nob apply this circuit’s extended border search
octrine to searches of mail and conclude that such
a warrantless search is reasonable (a) when it is
established by a preponderance of the evidence
7
that the mail has crossed the border; (b) when it
appears with reasonable certainty that the mail’s
contents have not been altered since it entered the
United States and, (c) if the search occurs after
delivery of the mail to the addressee, when the gov-
ernment agents who made the search had a reason-
able suspicion of smuggling activity. While these
requisites have not been exacted in every Fifth
Cireuit extended-border-search decision, and
while, even in those of our decisions requiring
them, each has not been separately set forth with
this specificity, each of them has been implicitly or
explicitly demanded in many of our prior decis-
ions. Thus summarized, they are distillate of a
variety of decisions. Each of them has been satis-
fied here.
Id. at 733 (footnote omitted).
Circuit Judge Gee, concurring in the majority opin-
ion, filed a special concurrence, in which he offered two
additional reasons for upholding the warrantless
search and seizure. First, Judge Gee suggested that the
‘*plain view’’ exception to the warrant requirement
should control where law enforcement officers have ef-
fected a valid initial search of a package containing
contraband which is then resealed and delivered to an
individual under controlled supervision, and thereaf-
ter subjected to a second warrantless opening. In addi-
tion, Judge Gee stated that
where an initial intrusion into a container has
taken place—one not prohibited by the fourth
amendment—and has disclosed the presence in it
of contraband, and where the container remains
under surveillance, a second intrusion made by
governments agents who know the results of the
initial search is not proscribed by the fourth
amendment.
638 F.2d at 774.
8
The third member of the panel, Circuit Judge God-
bold, authored a reasoned dissent in which he vehem-
ently articulated that once a mailed parcel has been
delivered to its addressee, the Fourth Amendment’s
warrant requirement is essential to justify a search of
the package:
. + I would draw a bright, sharp line between
mail that remains undelivered in the hands of or
under the control of the mail service and mail that
has been delivered to the addressee. For sealed
mail that has been delivered I would require the
usual probable cause and exigent circumstances to
support a warrantless search. Sealed mail has sev-
eral qualities that cause me to reach this decision.
638 F.2d at 774.
On rehearing, it was pointed out to the Court that
the basis for the panel’s opinion— that a valid border
search oceurred—was negated by the fact that agents
of the DEA, and not the Customs Service, conducted
the search. Because the DEA has no authority to con-
duct warrantless extended border searches, the border
search doctrine could not be used to justify the govern-
mental intrusion. The Fifth Cireuit denied the rehear-
ing request. Chief Judge Godbold again dissented from
the majority action. 646 F.2d 962.
REASONS FOR GRANTING THE WRIT
L The Fourth Amendment to the United States Constitution
Requires the Obiaining of a Warrant in Order to Justify
the Search of Sealed Mail That Has Been Delivered to the
Addressee; a Warrantless Search Is Permissible Only Where
Probable Cause and Exigeni Circumstances Are Present.
On the basis of this Court’s opinions in Walter v.
United States, —— U.S. ——, 100 S.Ct. 2395 (1980),
9
Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586
(1979), and United States v. Chadwick, 433 U.S. 1, 97
S.Ct. 2476 (1977), as well as decisions of other appel-
late courts, Petitioner maintains that the Fifth Circuit
Court of Appeals has erroneously concluded that re-
cipients of international mail have absolutely no right
of privacy and freedom from governmental intrusion
in the context of a law enforcement search and seizure
of mail after delivery to the addressee. Petitioner fur-
ther maintains that the Fourth Amendment to the
United States Constitution mandates the presence of
a warrant to search the contents of mail after delivery
unless the existence of exigent circumstances prevents
the timely application for a warrant.
A majority of the Fifth Circuit Court of Appeals
held in this case that the seizure by agents of the
United States Customs Service before delivery of a
mailed package found to contain heroin was valid, as
was the subsequent warrantless reopening of the parcel
at the police station by representatives of the Drug En-
forcement Administration after delivery to the ad-
dressee, Chief Judge Godbold dissented from the panel
opinion, being of the view that once mail has been de-
livered to and is in the hands of the addressee, a war-
rant to search the package is required unless the pres-
ence of exigent circumstances prevents law enforce-
ment officers from obtaining the necessary authoriza-
tion.
It is submitted that the Fifth Circuit’s holding in-
volves a very substantial question of law which impacts
on the everyday activities of government agents and
persons entitled to the protection of our Constitution.
The decision sought to be reviewed by this Court is a
very narrowly defined one: whether foreign mail that
10
has been delivered to an addressee within the United
States may be seized, opened, and searched without a
warrant, provided that (1) there is a reasonable sus-
picion, supported by articulable facts, that the item
searched contained contraband’ and (2) it is estab-
lished with reasonable certainty that, when searched,
the mail was in the same condition as when the border
was crossed. Under the decision presented for review,
it matters not whether the parcel was the subject of a
prior valid ‘‘customs search’’ because such initial in-
trusion goes merely to the degree of suspicion that the
parcel contains contraband. Petitioner submits that
this is a question of sufficient importance to warrant
review by this Court.
This question now raised in this petition is presently
pending before the Court on a certiorari petition to the
Court of Appeal of the State of California, Fifth Ap-
pellate District, in California v. Riegler, Case No, 80-
1421, 29 Crim. Law 4012. In the Ricgler decision, how-
ever, that Court reached what this Petitioner main-
tains is the correct result, namely that a recipient of a
package containing contraband sent through the inter-
national mails has a reasonable expectation of privacy
in that parcel after receipt even though the item may
have been previously subjected to a lawful Customs
search and delivered under controlled circumstances
and constant surveillance. People v. Riegler, 111 Cal.
App. 3d 580, 168 Cal. Rptr. 816 (1980). As recognized
by Mr. Justice Rehnquist on an application for stay of
‘In the present case, law enforcement officers had abundant
probable cause to believe that the parcel contained contraband
due to its prior search at the Foreign Mail Center in New York.
638 F.2d at 773.
11
the California judgment, the Riegler issue, which is
identical to that involved in the present case,
presents important issues regarding the level of
expectation of privacy a recipient of a package
containing contraband sent through the interna-
tional mails may have when the packages have
been previously subjected to a lawful Customs
search and delivered under controlled conditions
and constant surveillance. None of our prior cases
have directly addressed this oft recurring situa-
tion and cert. ‘nly none of the three opinions in
Walter v. United States provides a ready answer.
In my opinion, the case presents issues which are
of sufficient importance that four Justices of this
Jourt would likely vote to grant the State’s peti-
tion for certiorari.
California v. Riegler, —— U.S. ——, 101 8.Ct. 882,
834-835 (1981).
Petitioner has no disagreement with the fact that
warrantless Customs searches of letters and parcels
sent through the international mails are permissible
when conducted without delay at the border, United
States v. Ramsey, 431 U.S. 606, 615, 97 S.Ct. 1972, 1978
(1977). The rationale behind this rule of law is simply
that the government’s interest in protecting the inte-
grity of its borders is sufficiently strong so as to justify
said searches on reasonableness grounds, /d, at 616-617,
97 S.Ct. at 1978-1979; Carroll v. United States, 267
U.S. 132, 153-154, 45 S.Ct. 280, 285 (1925). This is not
to say, however, that once the mail has passed through
the Customs process and is in the hands of its ultimate
recipient, the same government interest is involved, In-
deed, the Government’s paramount protective concern
is greatly reduced at that juncture, while the individu-
12
al’s privacy interest becomes exceedingly strong and
legitimate once the mail is reduced to his possession.
Our Constitution demands that careful scrutiny be
paid to such intrusions. In the present case, the indi-
vidual’s privacy rights were discarded without suffi-
cient cause.
Sealed mail which has been delivered to its addressee
has several unique qualities which mandate judicial
intervention prior to governmental intrusion therein.
Delivered mail is essentially private, and is often the
repository of confidential correspondence, intimate
gifts, and closely guarded secrets. Permitting uncon-
trolled entry into this most private of all property is
an unparalleled affront to one’s ordinary notions of
privacy.
Perhaps even more important than one’s historical
concepts of personal rights in mail is the fact that
where a package is s« \led and the contents hidden from
public view, there is an objective expectation of pri-
vacy that is accepted by society in general. This was
the very point recognized in United States v. Chad-
wick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483 (1977) :
By placing personal effects inside a double-locked
footlocker, respondents manifested an expectation
that the contents would remain free from public
examination. No less than one who locks the doors
of his home against the intruders, one who safe-
7 his personal possessions in this manner is
ue the protection of the Fourth Amendment
Warrant Clause.
The objective evidence in the present case shows that
the parcel, when received by Petitioner, was wrapped
and sealed precisely as it had been prior to the Customs
13
search, ostensibly in an effort to not alert the recipient
that the package had been opened. The parcel had no
outer labels or markings which indicated the character
of its contents. As this Court stated in Walter v.
United States, —— U.S. ——, 100 8.Ct. 2395, 2402 n.12
(1980) (per Stevens, J.) :
. . it is difficult to understand how petitioners’
subjective expectation of privacy could have been
altered in any way by the subsequent events of
which they were unaware.
Due in part to the Government’s act of fostering an
expectation of privacy by rewrapping and resealing
the parcel, there was a legitimate expectation that
when the package arrived at the Miami Springs ad-
dress and was picked up, its contents would remain
private. The partial invasion of privacy by the Cus-
toms Service did not, and could not, automatically
justify a total, complete, and recurring invasion.
Again, the language in Walter v. United States, supra
at 2403, is pertinent:
It did not simply strip the remaining unfrustrated
portion of [the] expectation of all Fourth Amend-
ment protection. (footnote omitted).
Because sealed items in the mail historically have
been considered to have a high degree of privacy, gov-
ernment intrusion into such parcels has met with fre-
quent Fourth Amendment criticism. United States v.
Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029 (1970); Ez
parts Jackson, 96 U.S. 727 (1878). That criticism is
particularly real in the present case, where the expec-
tation of privacy possessed by Petitioner is, under all
14
the circumstances, reasonable and justified.’ Moreover,
there has never been any showing in this case that ju-
dicial intervention in the form of reviewing a request
for a search warrant posed any serious problem.
At the time of the DEA search, Petitioner was in
lawful possession of the mailed parcel. The package,
while admittedly under continuous surveillance by
Government agents, had been turned over to the cus-
tody of Petitioner. Although it is not questioned that
an initial search of the package was proper it was in
the lawful possession of the Government, it is incredi-
ble to assume, as the lower tribunal did, that once
seized, property is forever after subject to a further
search even when it is returned to its rightful recipient.
There is little doubt that the concept of a continuous
right to search is not a valid rule of law, if ever it was.
This Court has recognized that where an individual has
a legitimate expectation of privacy in a piece of prop-
erty,’ as delineated in Rawlings v. Kentucky, —— U.S.
——, 100 S.Ct. 2556 (1980), and Rakas v. Illinois, 439
U.S. 128, 99 S.Ct. 421 (1978), law enforcement officers
cannot conduct warrantless searches thereof unless the
exigencies of the situation demand such. United States
v. Chadwick, supra; Arkansas v. Sanders, 442 U.S. 753,
99 S.Ct. 2586 (1979) (in the absence of exigent cireum-
stances, even though police had probable cause to
*It is noteworthy that the majority opinion of Judge Rubin
expressly finds that Ricnarps ‘‘had a legitimate expectation that
the contents of the package were private . . .’’ 638 F.2d at 770.
The Court’s ultimate approbation of the law enforcement conduct
was due to application of the extended border search doctrine.
* As recognized in note 2, supra, all members of the Fifth Cir-
cuit panel agreed that RicHarps possessed a legitimate expectation
of privacy.
15
search a suitcase for marijuana after seizing it from
the trunk of a taxicab in which the accused was a pas-
senger, they could not search it without first obtaining
a warrant). Appellate courts have recognized this
principle in numerous decisions which declare uncon-
stitutional warrantless searches of private property
after seizure by the Government. United States v. Ri-
gales, 630 F.2d 364 (5th Cir. 1980); United States v.
Rengifo-Castro, 620 F.2d 230 (10th Cir. 1980) ; United
States v. Calandrella, 605 F.2d 236 (6th Cir.), cert.
denied, 444 U.S. 991, 100 S.Ct. 522 (1979) (agents had
no right to search seized briefcase once it was reduced
to their exclusive control); United States v. Schleis,
582 F.2d 1166 (8th Cir. 1978). The search in question
took place herein only after Petitioner had been taken
to a police station and questioned. This was at least one
hour after Petitioner picked up the mailed parcel. Con-
sequently, the lower tribunal’s apparent approval of a
continuing right to search a parcel of mail without a
warrant is an erroneous rule of law which runs afoul
of this Court’s pronouncements on the subject.
' Petitioner further submits that the ‘‘extended bor-
der search’’ rationale utilized by the Fifth Circuit is
erroneous and warrants review by this Court. There is
no general authority to make a warrantless search of
sealed mail that is in the interior of this country and
in the hands of the addressee. See United States v.
King, 517 F.2d 350, 354 (5th Cir. 1975), cert. denied,
— US. —, 100 S.Ct. 2943 (1980) (search of inter-
national mail at inland post office prior to delivery to
addressee is permissible because mail was still in the
process of being delivered). Such a search is no more
a product of the Government's interest in policing its
borders than an inland search of an automobile would
be. This is precisely the rationale of the decision in
16
Almeida-Sanchez v. United States, 413 U.S. 266, 93
S.Ct. 2555 (1973), which held that a warrantless search
of a motor vehicle situated on a road within the United
States at least twently miles from the Mexican border
without probable cause of consent violates the Fourth
Amendment. See also United States v. Ortiz, 422 U.S.
891, 95 S.Ct. 2585 (1975) (searches at traffic points
away from border do not qualify as border searches).
In the instant case it simply cannot be maintained that
a package which is processed by Customs in New York
is subject to a ‘“‘border search’’ after its delivery to a
Miami Springs addressee some eleven days later. Quite
clearly, when the mail was delivered to its ultimate
destination, Governmental responsibility over that
package ended, as did the Government’s ability to in-
trude without judicial authorization. See United States
v. Anton, 547 F.2d 493 (9th Cir. 1976) (once item is de-
livered to addressee, it ceases to be in the mail) ; United
States v. Davis, 461 F.2d 83 (5th Cir.), cert. denied,
409 U.S. 921 (1972) (under theft of mail statute, the
authority of the Postal Service over mail ends with
delivery to addressee).
The extended border search doctrine has been the
subject of repeated analysis by appellate courts. Those
examinations, however, do not suggest that the doctrine
is applicable to the present circumstances. Most re-
cently, the Fifth Circuit, in United States v. Ramos,
645 F.2d 318 (5th Cir. 1981), conducted a detailed re-
view of extended border searches within the context of
an approach of an individual by Customs officials at
the Miami International Airport some thirty minutes
after that individual had departed from the Customs
enclosure. The accused had gone to the hotel located at
the airport, but there was no indication that he had
checked into his room. The Court held on such facts
17
that because the individual was not significantly re-
moved physically or temporarily from the border and
had not been ‘‘assimilated into the mainstream of do-
mestic activities’’, he was not shielded from appropri-
ate border examinations and searches. Jd. at 320-321.
Manifestly, the circumstances in this case pale by
comparison to the rule of law utilized in Ramos and
other extended border cases. E.g., United States v.
Walters, 591 F.2d 1195 (5th Cir.), cert. denied, 442
U.S. 945 (1979) ; United States v. Fogelman, 586 F.2d
337 (5th Cir. 1979). Petitioner’s parcel had been
thoroughly processed at the border almost two weeks
before the search at issue herein. Moreover, that search
occured more than one thousand miles from where the
package crossed the border. Finally, it was within the
possession of RayMonp RIcHARDs, an individual who
had absolutely no contact with any border and was,
without question, an individual fully assimilated into
the mainstream of domestic activities. Because the
Fourth Amendment protects people and not places,
United States v. Salvuccit, —— U.S. , 100 S.Ct.
2547 (1980) ; United States v. Payner, —— U.S. ——,
100 S.Ct. 2439 (1980), the lower tribunal severely erred
in attempting to validate the search at issue herein as
a border search when the person from whom the prop-
erty was taken could not himself have been the subject
of any border search, no matter how minimally in-
trusive.
The Fifth Circuit’s ruling in this case constitutes a
dangerous expansion of pervasive governmental in-
trusion while needlessly reducing an individual’s rea-
sonable reliance on the Fourth Amendment’s protec-
tion against unreasonable searches and seizures. A war-
18
rantless search must be “strictly circumscribed by the
exigencies which justify its initiation.’’ Mincey v.
Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413 (1978).
No exigencies are present which could possible justify
the intrusion initiated by DEA agents in this case. The
opinion sought to be reviewed is neither legally sound
nor practically sensible. Besides erroneously applying
the law announced by this Court in the cited cases, the
opinion further fashions an unworkable and unreason-
able rule which will cause confusion to members of the
law enforcement community. A review of this decision
should convince this Court that a ‘“‘bright line’’ stand-
ard is necessary which permits warrantless searches
and seizures of mail still in possession of government
authorities but requires warrants whenever the mail
has been delivered to and is in the possession of the
addressee, unless exigent circumstances absolutely pre-
vent the obtaining of a warrant. This standard would
free law enforcement officers of unwarranted confusion
and technical analysis implicit in a determination of
whether an ‘‘extended border search’’ is permissible in
a given case, which is precisely the situation now con-
fronting those officials. A more workable rule, which
recognizes the competing interests and achieves the
necessary constitutional balance, is in order.
Il. A Drug Enforcement Administration Agent, in the Absence
of Specific Congressional Delegation. Has No Authority To
Conduct a Warrantless Seizure and Search Under the Guise
of the Border Search Doctrine, Particularly Where the Property
Subject ty the Search Was Physically and Temporally Distant
From the Border Crossing.
The Fifth Circuit’s opinion in this case validated a
warrantless extended border search conducted by
agents of the Drug Enforcement Administration de-
19
spite the fact that the DEA has absolutely no statutory
authority to participate in border searches or police
this nation’s boundaries, as do members of the United
States Customs Service. There is no doubt that Cus-
toms is authorized to examine international mail enter-
ing the United States, under the border search theory.
19 U.S.C. §§ 482 1582; 19 C.F.R. §§ 145.2, 145.3. The
same cannot be said, however, of agents in the Drug
Enforcement Administration, whose authority is de-
fined by 21 U.S.C, § 878. That DEA agents conducted
an ultra vires exercise in an area over which they have
no control deals a shattering blow to the opinion of the
Fifth Cireuit that a valid border search was conducted.
Appellate courts have recognized that powers of -
government agencies and express statutory delegations
of authority are not freely exchangeable so as to be
exercised at the discretion or wiiim of a particular of-
ficial. For example, in United States v. Thompson, 475
F.2d 1359 (5th Cir. 1973), the Court discussed the au-
thority of border patrol officers of the Immigration
and Naturalization Service (INS) to conduct Customs
border searches for contraband. The Court first noted
that the authority and power of particular investiga-
tive officers must necessarily be identified by congres-
sional mandate. Border patrol agents of the INS are
authorized to search vehicles in which it is believed
aliens are being brought into the United States, but
have no power under immigration laws to search items
and property too small to conceal aliens. See, e.g., Roa-
Rodriguez v. United States, 410 F.2d 1206 (5th Cir.
1969). Nevertheless, by a series of proper delegations,
border patrol officers have been designated by the
Treasury Secretary as Customs agents having the abil-
ity to conduct border searches. 19 U.S.C, § 1401(i).
20
Consequently, a border patrol officer can validly act
simultaneously as a Customs agent. Given such express
authority, the Fifth Circuit correctly concluded in
Thompson that property seized by a border patrol of-
ficer in the course of a Customs border search was per-
missible. The result would have been very different
had there been no authority to act as a Customs officer,
as recognized by other courts.
This principle is present in the Ninth Cireuit opin-
ion of United States v. Soto-Soto, 598 F.2d 545 (9th
Cir. 1979), which involved a single agent of the Fed-
eral Bureau of Investigation (FB1) who conducted a
border search which resulted in the discovery of con-
traband. After canvassing the statutory provisions
governing Customs border searches and examining the
judicial decisions regarding those searches, the Ninth
Circuit concluded that the FBI agent had neither ex-
press nor implied authority to conduct a Customs bor-
der search. Nor could the search be justified as a gen-
eral law enforcement activity in the area of the border.
The Court then quoted from its earlier decision in
Alexander v. United States, 362 F.2d 379, 381 (9th
Cir.), cert. denied, 385 U.S, 977, 87 S.Ct. 519 (1966) :
In conferring upon customs officers such broad
authority, circumscribed only by Constitutional
limitations of the Fourth Amendment, the Con-
gress has in effect declared that a search which
would be ‘unreasonable’ within the meaning of the
Fourth Amendment, if conducted by police officers
in the ordinary case, would be a reasonable search
if conducted by Customs officials in lawful pursuit
of unlawful imports. Judicial recognition of this
distinction has given rise to the term ‘border
search,’ in order to distinguish official searches
which are reasonable because made solely in the
21
enforcement of Customs laws from other official
searches made in connection with general law en-
forcement. (emphasis added).
As a result, evidence seized by the FBI in violation of
that defendant’s constitutional rights was ordered sup-
pressed,
The Fifth Cireuit’s failure to grasp this critical con-
cept has resulted in a very serious conflict between the
circuits. The DEA agents in the present case had no
authority, either express or implied, to conduct a Cus-
toms border search, They were not acting in joint con-
cert with agents properly entitled to perform that
function. United States v. Guillen-Linares, 636 F.2d
78 (5th Cir. 1981) (remand ordered to determine
whether Coast Guard boarded vessel as agents of the
Customs Service). Only Congress, and not the courts,
is empowered to vest authority in particular officers,
agencies, and branches of government, Article II, Sec-
tion 2, United States Constitution. The exercise of a
police power authorized by Congress—here, the power
to conduct border searches—cannot be constitutionally
transferred from one agency to another.
Important statutory limitations which protect the
balance between sovereign power and constitutional
rights were violated in this case. Petitioner was griev-
ously injured by reason of this violation. Statutory
law was disregarded, and the Fifth Circuit failed to
recognize this default in its jaste to rule on an un-
necessary constitutional issue. The remedy for this se-
rious injustice is for this Court to mandate strict eom-
pliance with statutes authorizing the exercise of the
police power. Only in this way will law enforcement
agencies closely scrutinize their activities so as to en-
99
-——
sure full use of only that authority delegated by Con-
gress.
CONCLUSION
The decision of the Fifth Cireuit Court of Appeals
is a serious erosion of the rights most revered by peo-
ple in a free society—to be free from unreasonable
government intrusion into their private lives and pos-
sessions, The rule forged by the panel is needlessly
broad, and serves only to grant law enforcement offi-
cers unbridled authority to inconvenience citizens and
interfere with their personal property. The proper re-
sult in a case like this, which can only be crafted by
this Court, is to declare a bright line between mail that
remains undelivered and mail that is in the hands of
the addressee. Such a rule would free law enforcement
officers from technical rules concerning the permissible
extension of a border search, matters which are admit-
tedly difficult for the judiciary and which no doubt
cause hopeless confusion to enforcement personnel.
The privacy interests at stake here are legitimate and
worthy of protection by this Court. Petitioner respect-
fully submits that a writ of certiorari should issue to
review the decision of the Fifth Circuit.
Respectfully submitted,
Nea. R. Sonnert, Esquire
Counsel of Record
Benepict P. Kuenne, Esquire
BIieRMAN, SONNETT, BEILEY
& SHonat, P.A.
200 S.E. First Street, #500
Miami, Florida 33131
(305) 358-7477
Counsel for Petitioner
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
March 2, 1981.
No. 78-5728
Unitep States or Amenica, Plaintiff-Appellee,
v.
Raymonp Ricuarns, Defendant-Appellant.
Rehearing Denied June 1, 1981.
Before Gopnotp, Chief Judge, Ger and Rusin, Cireuit
Judges.
Auvin B. Rusty, Circuit Judge:
Under the border search doctrine, federal agents may
without a warrant inspect mail arriving in this nation from
abroad. We here consider whether the foreign mail may be
followed into the hands of its addressee and, immediately
after delivery, be seized and searched without a warrant,
Concluding that such a search is permitted by the border
search rule when there has been continuous surveillance
of the mail and reasonable suspicion that it contains con-
traband, we deny a motion to suppress the results of the
search and affirm the conviction of the recipient for posses-
sion of heroin with intent to distribute it.
I. The Facts
On December 5, 1977, Raymond Richards, an airline
steward stationed at the Miami International Airport, ap-
plied for a post office box at the Miami Springs, Florida
post office, located near the airport. He designated the box-
holder as Mehling Arts & Crafts, furnished identification
2a
showing that he was Christopher Thompson and signed the
application in that name. he application was approved
and a box assigned to Mehling was opened for use on De-
cember 15.
On March 2, 1978, a sealed parcel addressed to Mehling
Arts & Crafts at the Miami Springs box number arrived at
the Foreign Mail Center in New York, The customs decla-
ration stated that it contained Thai silk and uncut stones,
The parcel was opened and inspected by a customs agent
who found 10 cigarette packages. He opened one of these,
found cigarettes and sent the parcel to another oflicer for
further inspection because it appeared to contain a tobacco
product, The second officer opened two more cigarette
packages; each contained vials of material that on field
test was found to be heroin, Neither the amount of heroin
in the parcel nor its strength was established in New York,
The parcel was reassembled, resealed and sent to the
postal inspector in Miami in a locked pouch for controlled
delivery. Government agents delivered it to the Miami
Springs post office on March 13 with instructions to put a
notice of arrival in the Mehling box. A posta! employee
testified she had never seen mail in the Mehling box until
this parcel arrived. Drug Enforcement Administration
agents set up surveillance of the box and waited for some-
one to claim the parcel,
Richards arrived in a half hour or less, received the no-
tice and asked for the package. There was a slight delay
because he had no identification showing a connection with
Mehling, but the package was given to him. Government
agents watched Richards take the package, They continued
to observe him as he walked out of the building, down a
side street for a short distance and into a parking lot be-
hind the post office, The agents exercised care to assure
that he had no opportunity to leave the scene with the par-
cel. They arrested him just as, or just after, he entered his
3a
ear. The agents addressed Richards as Christopher Thomp-
son and ho responded by giving his correct name. The
agents gave him Miranda warnings and asked him why he
had picked up the package. He replied by asking the agents
what was in the parcel. When they told him that it con-
tained narcotics, Richards said he knew nothing about it.
He explained that someone had telephoned him, asked hin
to pick up the package and promised to pay him for doing
80.
The government agents took Richards to a police facility
a few blocks away. He was fingerprinted, photographed,
booked and placed in a holding cell. While he was there,
the sealed parcel was opened without a warrant outside of
his presence. Later its contents were analyzed by a chemist,
who found 27.4 grams of 93% heroin hydrochloride. He
estimated that, when ‘‘cut,’’ it would produce 12,000 street
level doses.
Richards was indicted for possession of heroin with the
intent to distribute it, in violation of 21 U.S.C. § 841(a)(1).
At his trial, he testified that he operated a mail order busi-
ness importing and selling uncut gems and maintained a
postal box at the Miami post office in connection with that
business. According to his testimony, Richards had recently
started Mehling Arts & Crafts as a mail order export-im-
port business and needed a separate post office box for it,
but none was available at the Miami post office. He testified
that he used a false name to apply for the Miami Springs
box because he feared that operating two outside enter-
prises might affect his job as a steward. A personnel ad-
ministrator for the airline testified that it was permissible
for the company’s employees to have outside jobs and that
many held other jobs, but he acknowledged that in some
circumstances outside employment might have an adverse
affect on an employee’s job.
4a
Il. Sufficiency of the Evidence
To prove commission of the crime of possession of
heroin with intent to distribute it, the government must
establish three essential elements: (1) knowing (2) posses-
sion of heroin (3) with intent to distribute it. United States
v. Johnson, 469 F.2d 973, 976 (Sth Cir. 1972) ; United States
v. James, 555 F.2d 992, 999 (D.C.Cir.1977). Richards con-
tends the evidence was insufficient to prove either that he
knew the parcel contained a controlled substance or that
he had the intention of distributing it.
Our review of the jury verdict is limited to determin-
ing whether the trier of fact could reasonably conclude that
the evidence excludes every reasonable hypothesis, except
that of guilt. United States v. Hawkins, 614 F.2d 85, 87 (5th
Cir.), cert. denied, 446 U.S. 955, 100 S.Ct. 2926, 64 L.Ed.2d
814 (1980), United States v. Squella-Avendano, 478 F.2d
433, 436 (Sth Cir. 1973). The issue of guill remains a ques-
tion for the jury unless we conclude that the jury must
necessarily have had a reasonable doubt. United States v.
Shaw, 555 F.2d 1295, 1300 (5th Cir. 1977); United States
v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404
U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). The supporting
evidence may be direct or circumstantial and we do not
discriminate against sufficiently probative evidence because
it is indirect. 7d. at 825.
The evidence, examined in the light most favorable to
the government, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), establishes that:
(1) Richards opened the post office box in a false name and
had no convincing explanation for doing so; (2) no mail
except the parcel containing heroin had come to the post
office box in the three months during which it was rented;
and (3) the excuse Richards advanced after he was ar-
rested, that someone else had asked him to pick up the
package, was in truth inculpatory and indicated guilty
5a
knowledge because the package was addressed to his com-
pany and he had rented the box.
These facts are circumstantial evidence on the issue of
knowledge. Because no one has a window to a man’s mind,
knowledge must often be proved by indirect evidence. John-
son v. Wright, 509 F.2d 828, 831 (Sth Cir.), cert. denied,
423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 384 (1975) ; Jackson
v. United States, 330 F.2d 679, 681 (Sth Cir.), cert. denied,
379 U.S. 855, 85 S.Ct. 105, 13 L.Ed.2d 58 (1964). The evi-
dence was sufficient to permit the jury to infer that Rich-
ards knew from what he said and did that the package
contained narcotics. See also United States v. Squella-
Avendano, 478 F.2d 433 (5th Cir. 1973) (similar amount of
evidence held sufficient).
Richards having indisputably possessed heroin when he
was arrested, we are left only with the question whether
the evidence was sufficient to support the jury’s conclusion
that he intended to distribute it. That intention may not be
inferred from possession alone, for contraband may be
destined for personal use, not distribution. However, the
possession of a quantity of narcotics so large that it could
not be used by the possessor alone justifies the conclusion
that he had an inventory for distribution rather than per-
sonal consumption. See United States v. Grayson, 625 F.2d
66 (5th Cir. 1980); United States v. Soto, 591 F.2d 1091,
1103 (5th Cir.), cert. denied, 442 U.S. 930, 99 S.Ct. 2862,
61 L.Ed.2d 298 (1979); United States v. Raffo, 587 F.2d
199, 201 (5th Cir. 1979) ; United States v. Johnson, 469 F.2d
973, 977 (Sth Cir. 1972). The jury was warranted in con-
cluding that one who possessed 12,000 doses of heroin did
not intend to use the supply merely for j,crsonal euphoria.
If, therefore, the warrantless post-delivery search was con-
stitutionally proper and the evidence derived from it was
properly admitted, the essential elements of the crime were
proved.
6a
III. Search of the Package
Richards does not challenge the admissibility of evidence
obtained from the initial search of the package in New
York and the field test that first disclosed its contents.
He stipulated that the package contained heroin when
searched in New York and that the chain of custody be-
tween New York and Miami Springs was complete. Because
the initial test did not establish the quantity of heroin in
the package, however, the second search was crucial to
proving his intent to distribute.
A. Standing to Assert Fourth Amendment Rights
The question of Richards’ standing to contest the search
was not raised in the court below. On appeal the govern-
ment argued proleptically that the Supreme Court decision
in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d
387 (1978), foretold the coming demise of the concept of
“automatic standing” for possessory crimes. In United
States v. Salvucci, —— U.S. , 100 S.Ct. 2547, 65 L.Ed.
2d 619 (1980), the Court followed the intimations of Rakas
v. Illinois, 439 U.S, at 135 n.4, 99 S.Ct. at 426 n.4, 58 L.Ed.
2d at 396 n.4, and Brown v. United States, 411 U.S, 223,
229, 93 S.Ct. 1565, 1568-69, 36 L.Ed.2d 208, 214 (1973), and
held that automatic standing does not justify the assertion
of fourth amendment protection.
Fourth amendment protection is accorded only to a
person who has a privacy interest in the area searched,
Rawlings v. Kentucky, —— U.S. , 100 S.Ct. 2556, 65
L.Ed.2d 633 (1980), Rakas v. Illinois, 439 U.S. 128, 99 S.Ct.
421, 58 L.Ed.2d 387 (1978), a rubric adopted from a phrase
used in Katz v. United States, 389 U.S. 347, 353, 88 S.Ct.
507, 512, 19 L.Ed.2d 576, 583 (1967). Instead of conducting
a separate inquiry into standing, we now focus directly on
whether the defendant possesses a legitimate expectation
of privacy in the area searched. Rawlings v. Kentucky,
— US. —, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980);
7a
Rakas v, Illinois, 439 U.S, 128, 99 S.Ct. 421, 58 L.Ed.2d
387 (1978).
The package was sealed and addressed to Mehling,
which, in effect, was Richards. These facts alone indicate
“an expectation that the contents would remain free from
public examination.” United States v. Chadwick, 433 U.S.
1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538, 548 (1977). See
generally Katz v. United States, 389 U.S, at 352, 88 S.Ct.
at 511-12, 19 L.Ed.2d at 582. Moreover, sealed mail his-
torically has been considered to have a high degree of
privacy, and government intrusion into mailed parcels is
limited by the fourth amendment. See United States v. Van
Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282
(1970); Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878).
Although the Supreme Court has rejected the importa-
tion into search and seizure law of arcane distinctions
evolved in property law, Rakas v. Illinois, 439 U.S. at 149-
50 n.17, 99 S.Ct. at 434, n. 17, 58 L.Ed.2d at 405 n.17, we
note that Richards was in lawful possession of the package
when it was seized. Cf. Rakas v. Illinois, 439 U.S. at 153,
99 S.Ct. at 435, 58 L.Ed.2d at 407 (Powell, J., coneurring)
(“property rights reflect society's explicit recognition of a
person's authority to act as he wishes in certain areas, and
therefore should be considered in determining whether an
individual's expectations of privacy are reasonable”), It is,
therefore, not dispositive that Richards denied ownership
of the package. Considering all the circumstances, we con-
clude that he had a legitimate expectation that the contents
of the package were private,' and has standing to assert
fourth amendment protection.
* Because a defendant cannot challenge the search or seizure of
abandoned property, sce United States v. Canady, 615 F.2d 694
(5th Cir. 1980), United States v. Anderson, 500 F.2d 1311 (5th
Cir. 1974), the government urges that Richards had abandoned
the package. In the cases cited, however, the defendant had aban-
doned all claim to the property. In contrast, while Richa « denied
8a
B. Border Search
Under the fourth amendment, all warrantless searches
and seizures are unreasonable except those conducted in a
few narrowly defined situations where the circumstances
justifying the search outweigh privacy rights. Coolidge v.
New Hampshire, 403 U.S. 448, 91 S.Ct. 2022, 29 L.Ed.2d
564 (1971); United States v. Sink, 586 F.2d 1041 (5th Cir.
1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d
876 (1979). Because the fourth amendment expressly pro-
hibits only unreasonable warrantless searches, it patently
incorporates a balancing test, weighing in one measure the
level of intrusion into individual privacy and in the other
the public interest to be served. United States v. Martinez-
Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d
1116, 1126-1127 (1976); United States v. Himmelwright,
551 F.2d 991, 994 (5th Cir.) cert. denied, 434 U.S. 902, 98
S.Ct. 298, 54 L.Ed.2d 189 (1977). Thus, a warrantless
search is justified when it is incident to a lawful arrest,
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23
L.Ed.2d 685 (1969); when it is conducted with probable
cause under exigent circumstances, Schmerber v. Califor-
nia, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ;
when it involves a vehicle, Chambers v. Maroney, 399 U.S.
42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); or when it is
made for administrative purposes to satisfy a special gov-
ernmental need and necessity outweights the invasion en-
tailed, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.
1727, 18 L.Ed.2d 930 (1967).
Warrantless searches may also be made at the border.
These searches, undertaken pursuant to the historical right
someone else. This amounted to assertion of a lawful possessory
claim. While not alone sufficient to establish a legitimate expecta-
tion of privacy, the claim does demonstrate that Richards mani-
fested no intention of abandoning the package that he held under
his arm.
9a
of the sovereign to protect itself by stopping and examin-
ing persons and property crossing into this country, are
deemed reasonable simply by virtue of the fact that they
occur at the border. United States v, Ramsey, 431 U.S, 606.
97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); Carroll v. United
States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (199").
This sovereign right was recognized by the First Congress,
Act of July 31, 1789, ch. 5, 1 Stat. 29 (1789), and statutes
exempting border searches from warrant and probable
cause requirements have been in force in this country ever
since?
A border search need not take place at the actual border.
It may be conducted at a place considered “the functional
equivalent of the border,” such as the port where a ship
docks in this country after entering our territorial waters
from abroad, United States v. Prince, 491 F.2d 655 (Sth
Cir. 1974), or the airport where an international fight
lands, United States v. Klein, 592 F.2d 909 (5th Cir. 1979).
While the mere fact that a person or thing has once
crossed the border does not sanction a search of it forever
after, we have also recognized that the need to protect
personality and property against warrantless invasion
must be balanced against the myriad difficulties facing
customs and immigration officials who are charged with the
enforcement of smuggling and immigration laws. We have,
therefore, recognized in the doctrine of “extended border
search,” the government’s power, under certain circum-
* See Barnett, A Report on Search and Seizure at the Border,
1 Am.Crim.L.Q. 36 (1963); 3 W. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment 276 (1978). See also 19
U.S.C. § 1582; 19 C.F.R. § 145.2 (‘‘All mail arriving from out-
side the Customs territory of the United States which is to be
delivered within the Customs territory of the United Staes .. . is
subject to customs examination’’). Cf. 19 C.F.R. § 145.3 (sealed
letter-class mail is authorized to be opened without a warrant only
if the customs officials have reasonable cause to suspect the presence
of merchandise other than correspondence).
10a
stances, to search without a warrant persons and things
after they have entered the country.’
Various panels of this court have described the requi-
sites for a warrantless extended border search in terms
that are not reconcilable, At its most permissive, the stand-
ard has been phrased as requiring only a “reasonable sus-
picion of a customs agent” if the search oceurs in the
“border area.” See, e.g., United States v, Hill, 430 F.2d 129,
130-31 (Sth Cir, 1970). We have also phrased the standard
as requiring either “direct contact” or “nexus” with the
border area coupled with a reasonable suspicion of se-
creted contraband, See, ¢.g., United States v. Salinas, 439
F.2d 376, 379 (Sth Cir. 1971); United States v. Bowman,
502 F.2d 1215, 1219 (5th Cir, 1974).
On several occasions, however, this court has exacted
stricter criteria and has required the government to show
both a likelihood that the person or thing has crossed the
border and reasonably certainty that any contraband dis-
covered by the search was present when the border was
crossed, See, e.9., United States v. Fogelman, 586 F.2d 337
(5th Cir, 1978); United States v. Martinez, 481 F.2d 214
(Sth Cir. 1973), cert. denieed, 415 U.S. 931, 94 S.Ct. 1444,
39 L.Ed.2d 489 (1974). Because the primary justification
"See, e. g., United States v. Kenney, 601 F.2d 211 (5th Cir.
1979). United States v. Walters, 591 F.2d 1195 (5th Cir.), cert.
denied, 442 U.S. 945, 99 8.Ct. 2892, 61 L.Ed.2d 317 (1979) ; United
States v. Johnson, 588 F.2d 147 (5th Cir. 1979) ; United States v.
Fogelman, 586 ¥'.2d 337 (Sth Cir, 1978); United States v. Ivey,
546 F.2d 139 (5th Cir. 1977), cert. denied, 431 U.S, 948, 97 S.Ct.
2662, 53 L.Ed.2d 263 (1977) ; United States v. Brom, 542 F.2d 281
(5th Cir. 1976) ; United States v. Brennan, 538 F.2d 711 (5th Cir.
1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Rd.2d 538
(1977) ; United States v. Bowman, 502 F.2d 1215 (Sth Cir, 1974) ;
United States v. Steinkoening, 487 F.2d 225 (5th Cir, 1973);
United States v. Martinez, 481 F.2d 214 (5th Cir. 1973), cert.
denied, 415 U.S. 931, 94 8.Ct. 1444, 39 L.Ed.2d 489 (1974) ; United
States v. Salinas, 439 F.2d 376 (Sth Cir. 1971); United States v.
Hill, 430 F.2d 129 (5th Cir. 1970).
lla
for the relaxation of fourth amendment standards in these
situations is the crossing of a border, these constraints are
warranted and the less exacting standards of Hill, Salinas,
and Bowman have been criticized. See, e.g., Note, From
Bags to Body Cavities: The Law of Border Search, 74
Colum.L.Rev, 53, 60-61 (1974); 3 W. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment 298 (1978).
In United States v, Johnson, 588 F.2d 147 (5th Cir.
1979), this court rejected the bare requirement of “border
nexus” as being inconsistent with the decision of the
Supreme Court in Almeida-Sanchez v. United States, 413
U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1976), and held
that “[a] search is not a valid border search unless it ap-
pears by a preponderance of the evidence, direct or cir-
cumstantial, that a border crossing has occurred.” United
States v. Johnson, 588 F.2d at 154 (footnote omitted).
The government must also be able to show, with reason-
able certajnty, that conditions remained unchanged from
the time of the border crossing until the subsequent war-
rantless search. United States v. Fogelman, 586 F.2d 337,
343 (Sth Cir. 1978); Cf. United States v. Walters, 591 F.2d
1195, 1198 (5th Cir. 1979) (extended border search doc-
trine, requiring unchanged conditions, applied to strip
search). In other words, it must be established with reason-
able certainty that, when searched, the person or thing was
in the same condition as when the border was crossed. This
requirement is usually met by proving either that the ob-
ject searched was subject to constant surveillance from
the time it crossed the border or that, under the circum-
stances, the contraband was not likely to have been intro-
duced during any breaks in the surveillance. See, e.g.,
United States v. Martinez, 481 F.2d 214, 218-19 (5th Cir.
1973), cert. denied, 415 U.S, 931, 94 S.Ct. 1444, 39 L.Ed.2d
489 (1974) (35 minute break in surveillance held insuffi-
cient to establish changed circumstances in view of the fact
that it took the authorities two hours to unload the 628
12a
pounds of marijuana hidden in a secret compartment of a
truck). Finally, before conducting a warrantless extended
border search, the government agents must possess a rea-
sonable suspicion, supported by articulable facts, that the
person or thing searched is involved in illegal activity, such
as smuggling contraband.’ United States v. Kennedy, 601
F.2d 211, 213 (5th Cir. 1979); United States v. Martinez,
481 F.2d 214, 219 (5th Cir. 1973), cert. denied, 415 U.S.
931, 94 S.Ct. 1444, 39 L.Ed.2d 489 (1974).
There appears to be no sound reason to distinguish be-
tween incoming mail and other property that crosses our
border. Affixing a postage stamp to a parcel should not
grant it immunity that would not be accorded a package
carried by a traveller.’ In United States v. Ramsey, 431
* This additional requirement, which is more than is required of
a search conducted at the actual border, is exacted because ex-
tended border searches usually occur after an initial, routine
search and, unlike those routine searches, may stigmatize the indi-
vidual searched, are unexpected and involve a greater invasion of
privacy.
* See also Von Cotzhausen v. Narzo, 107 U.S, 215, 2 8.Ct. 503,
27 L.Ed. 540 (1883). In Von Cotzhausen the Supreme Court up-
held a warrantless seizure of a woolen scarf by a customs collector.
Although the Court did not discuss the affect that the fourth
amendment had upon the seizure, it did note carefully the adverse
implications of distinguishing between mail and other modes of
ingress :
Of what avail would it be that every passenger, citizen and
foreigner, without distinction of country or sex, is compelled
to sign a declaration before landing, either that his trunks and
satchels in hand contain nothing liable to duty, or, if they do,
to state what it is, and even the person may be subjected to a
rigid examination, if the mail is to be left unwatched, and all
its sealed contents, even after delivery to the person to whom
addressed, are to be exempt from seizure, though laces, jewels,
and other dutiable matter of great value may thus be intro-
duced from foreign countries.
Id. at 218, 2 S.Ct. at 505 (emphasis added).
13a
U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977), the Supreme
Court held that a search by custom officials of incoming
international letter-class mail without a warrant was con-
stitutionally permissible. While the Court reserved the
question of the validity of such a search if conducted at
a point distant from the border, 431 U.S. at 615 n.11, 97
S.Ct. at 1978, n.11, 52 L.Ed.2d at 626 n.11, it rejected the
argument that mail should be treated differently from and
receive more constitutional protection than incoming per-
sons or vehicles: “It is clear that there is nothing in the
rationale behind the border-search exception which sug-
gests that the mode of entry will be critical.” 431 U.S, at
620, 97 S.Ct. at 1980, 52 L.Md.2d at 629, “The critical fact
is that the envelopes cross the border and enter this coun-
try, not that they are brought in by some mode of trans-
portation rather than another. It is their entry into this
country from without it that makes a resulting search ‘rea-
sonable.’ ” 431 U.S. at 620, 97 S.Ct. at 1980-81, 52 L.Ed.2d
at 629. The Court found no historical or constitutional rea-
son for treating mail differently from persons or vehicles
entering the country. See also United States v, King, 517
F.2d 350 (5th Cir. 1975), cert. denied sub nom. Pearson v.
United States, 446 U.S, 966, 100 S.Ct. 29438, 64 L.Ed.2d 825
(1980) (approving a search of mail that was made prior
to delivery to the addressee at an inland post office),
Extending the doctrine of Ramsey and King, we see no
reason to prohibit to extended border search of interna-
tional mail under the same conditions that would properly
permit one to be made of persons or other property that
has crossed the border, See also United States v. Pringle,
576 F.2d 1114, 1117 (Sth Cir. 1978). There is no more rea-
son to draw a bright line at the moment mail is delivered
than there is to draw it after the incoming parcel crosses
the border.
Thus, we apply this circuit’s extended border search doc-
trine to searches of mail and conclude that such a warrant-
l4a
less search is reasonable (a) when it is established by a
preponderance of the evidence that the mail has crossed
the border; (b) when it appears with reasonable certainty
that the mail’s contents have not been altered since it
entered the United States and, (c) if the search occurs
after delivery of the mail to the addressee, when the gov-
ernment agents who made the search had a reasonable sus-
picion of smuggling activity. While these requisites have
not been exacted in every Fifth Circuit extended-border-
search decision, and while, even in those of our decisions
requiring them, each has not been separately set forth with
this specificity, eac hof them has been implicitly or ex-
plicitly demanded in many of our prier decisions. Thus
summarized, they are distillate of a variety of decisions.
Each of them has been satisfied here.*
The search was conducted with respect to a package that
had undeniably crossed our international border and re-
mained unchanged subsequent to that crossing. In addition,
although reasonable suspicion is ordinarily sufficient to
warrant such inland searches, even of mail, the government
officials were certain that contraband was being smuggled
in the package. Therefore, all the criteria that sanction
* We note that in a similar fact situation the California Court
of Appeal held that a warrant was required before the police could
search, after delivery to the addressee, two packages that had been
mailed from abroad. People v. Riegler, 111 Cal.App.3d 580, 168
Cal.Rptr. 816 (5th Dist. 1980). As a result of an earlier customs
search, the packages were known to contain cocaine. The court
rejected the arguments that the defendant had a decreased ex-
pectation of privacy in the packages because of the customs search
and that the authorities were entitled to search the packages be-
eause the contents were known. Relying on another California
decision, People v. Whyte, 90 Cal.App.3d 235, 152 Cal.Rptr. 280
(1979), the court reasoned that the act of delivery terminated the
government's power to search the package without a warrant. The
court did not, however, analyze the search under the extended
border search doctrine that we adopt here.
15a
warrantless border searches are met and we hold that the
search was not unreasonable.’
Accordingly, the judgment of the district court is
AFFIRMED.
Ger, Circuit Judge, concuring:
In my view there are at least two, and probably three,
reasons why this ‘‘search’’ was valid. The first is well stated
in Judge Rubin’s opinion, in which I concur.
The second is that where, as here, an undisputedly valid
initial search has established the presence of contraband
in a container and the container remains under uninter-
rupted supervision and surveillance until delivery, a second
opening of the container after delivery does not seem to
me a search at all. What was in this package at the time
Richards was apprehended with it was not suspected, was
not believed with probable cause, but rather was known.
The wrappings around it had no effect whatever to impeach
that knowledge; in the circumstances of this case, they
might as well have been absent or have been stamped
‘‘Grade A Indochinese Heroin.’? Where certain knowledge
is present, as in the well-recognized ‘‘ plain view’’ exception,
1 think it exalts form over susbtance to follow a Chadwick*
analysis. Such an analysis is appropriate where probable
cause is in play and where something remains to be dis-
covered. Here it is true that the exact amount of heroin
present was not known, but what was known was enough:
that Richards stood before the agents holding contraband,
and holding heroin at that—a susbtance illegal for private
citizens to possess at any time and in any mount.
* This decision, of course, does not sanction searching mail that
has been delivered to the addressee and taken into his private
possession beyond the scrutiny of government officials, with the
concomitant possibility that the contents of the package had been
altered.
* United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.
2d 538 (1977).
l6a
Finally, and to whatever extent it may be distinct from
the second reason given above, I believe that where an
initial intrusion into a container has taken place—one not
prohibited by the fourth amendment—and has disclosed
the presence in it of contraband, and where the container
remains under surveillance, a second intrusion made by
government agents who know the results of the intial
search is not proscribed by the fourth amendment. United
States v. McDaniel, 574 F.2d 1224 (5th Cir. 1978); United
_ States v. Blanton, 479 F.2d 327 (Sth Cir. 1973) (both in-
volving initial inspections by airline attendants seeking to
discern the ownership of misrouted or unclaimed luggage).*
For all of the above reasons, I join in affirming the judg-
ment of the court below.
Gopsorn, Chief Judge, dissenting:
The decision of the court is a narrow one: foreign mail
that has been delivered to an addressee within the United
States may be seized, opened and searched without a war-
rant, provided: (a) there is a reasonable suspicion, sup-
ported by articulable facts, that the item searched contains
contraband ;' (b) it is established with reasonable certainty
that, when searched, the mail was in the same condition as
when the border was crossed. Under the court's analysis,
requirement (b) can be established by proof either that the
mail was subject to constant surveillance from the time it
crossed the border, or that under the circumstances no new
?I recognize that the reasoning of these cases may be somewhat
east in doubt by Walter and Sanders v. U. 8., 447 U.S. 649, 100
S.Ct. 2395, 65 L.Ed.2d 410 (1980) ; however, that result is unclear
because of the want of a majority opinion and the reliance of
Justice Stevens’ plurality view on the screening of the obscene
films, an additional step taken by the government agents that has
no analogue in the circumstances of this case.
The opinion by Judge Rubin, note 4, recognizes that this is a
more stringent standard than required for a search of mail at the
actual border.
17a
contents were likely to have been introduced into the pack-
age during any breaks in the surveillance. The rationale
for the majority view is “extended border search.” No fune-
tional equivalent of the border is involved.
I do not differ with respect to requirement (b). Nor do
I differ with requirement (a) as applicable to mail that has
not been delivered to the addressee. But I would draw a
bright, sharp line between mail that remains undelivered
in the hands of or under the control of the mail service
and mail that has been delivered to the addressee. For
sealed mail that has been delivered I would require the
usual probable cause and exigent circumstances to support
a warrantless search. Sealed mail has several qualities that
cause me to reach this decision.
First, the essentially private nature of mail is indisput-
able, we entrust important, confidential and intimate mat-
ters to our letters, and we ship gifts and other personal
items in parcels, with the confidence that contents are
private. Each of us is offended at the affrontery of any one
who without permission opens our letters or our parcels.
Almost every family of even minimal sophistication has
been through the experience of teaching its children that
mail, like a diary, is personal and intimate, not to be
tampered with or scrutinized without authorization.
Second, the package that was seized and later searched
was sealed and the contents hidden from public view. As
the court stated in U.S. v. Chadwick:
By placing personal effects inside a double-locked
footlocker, respondents manifested an expectation that
the contents should remain free from public examina-
tion. No less than one who locks the doors of his home
against intruders, once who safeguards his personal
possessions in this manner is due the protection of the
Fourth Amendment Warrant Clause.
18a
433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538, 548
(1977). See also Katz v. U. S., 389 U.S. 347, 352, 88 S.Ct.
507, 511-512, 19 L.Ed.2d 576, 582 (1967) The objective
evidence shows that Richards sought to preserve his priv-
acy in the package and took normal! precautions to prevent
its exposure to the public.
Third, sealed items in the mail historically have been
considered to have a high degree of privacy, and govern-
ment intrusion into such parcels has been perceived to be
objectionable under the Fourth Amendment. See U.S. v.
Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1049, 25 L.Ed.2d 282
(1970) ; Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878).
In short, Richards’ expectation of privacy was legitimate
in part because of the protection of mail under the Fourth
Amendment. Cf. Chadwick, 433 U.S. at 7-11, 97 S.Ct. at
2481-2483, 53 L.Ed.2d at 545-48 (historical analysis of scope
of Fourth Amendment).
Fourth, Richards was in lawful possession of the pack-
age. As Judge Rubin points out, the “arcane distinctions”
of property law are not controlling but they are to be con-
sidered in determining whether expectations of privacy
are reasonable. It seems to me that it is more of an affront
to the citizen for the government to first seize from his
possession an item essentially private with the purpose
of searching it, and then to search it, than it is to search
an item which without the necessity of seizure is in the
rightful possession of the government and has never come
into the citizen’s possession.’
* The double impact of seizure followed by search is demonstrated
by cases like Chadwick, where is was permissible to invade privacy
by a warrantless seizure but not by a warrantless search of the
seized item. The argument that a valid seizure subsumes a right
to search was rejected in Chadwick. In this case a seizure might
have been justified on the ground of probable cause plus exigent
circumstances but when one applies Chadwick the subsequent
search of the sealed item is not justifiable. Faced with this situa-
tion, the government and the majority find their way to safe
harbor by using ‘‘extended border search.’”’
19a
In general, mail crossing the international boundary is
subject to border search the same as items entering by
other modes of travel. U.S. v. Ramsey, 431 U.S. 606, 620, 97
S.Ct. 1972, 1980, 52 L.Bd.2d 617, 629 (1977). Incoming inter-
national mail may be searched in the interior of the coun-
try while it remains undelivered in the possession of the
Postal Service. U.S. v. King, 517 F.2d 350, 354 (Sth Cir.
1975); U.S. v. Davis, 461 F.2d 83, 89 (5th Cir.), cert.
denied 409 U.S. 921, 93 S.Ct. 250, 34 L.Ed.2d 180 (1972)
(under theft of mail statute authority of Postal Service
over mail ends with delivery to proper addressee), The
issue in Aing was whether a foreign letter received at San
Francisco, not inspected, and routed to Birmingham, Ala-
bama, could be opened for inspection without a warrant
while still in possession of the mail service. We held that
it could, The rationale was three-fold. First, since all in-
coming international mail is potentialy subject to search
there is no reasonable expectation of privacy. Second, a
search of mail that is in the possession of the Postal Service
and has not been delivered takes place without knowledge
of or inconvenience to the addressee. Third, search of mail
prior to delivery is far less intrusive than searches of in-
dividuals or their immediate effects. None of these factors
applies to mail that has reached the hands of the addressee.
The first King factor, the diminution in expectation of
privacy by reason of the government’s power to search,
does not rest upon any change in the confidential and pri-
vate nature of mail but in its exposure to a governmental
power to inspect. The governmental power exists at the
border and continues until delivery. But once mail is de-
livered to the addressee he is entitled to enjoy the expecta-
tion of privacy, free from governmental power to inspect,
that inures from the nature of mail that has been placed
in the hands of the person entitled to receive and retain it.
There is no general authority to make a warrantless search
of sealed mail that is in the interior of the country and
is in the hands of the addressee. It is specious to find such
20a
authority on the basis of the government's right to search
mail that has never left its hands.
Looking to a second and third rationales of King, a
search after delivery usually will occur with knowledge of
and inconvenience to the addressee and in most cases will
be more intrusive than a search prior to delivery and may
be at a point distant from the place of delivery.’ Allowing
a search of mail after delivery to be justified as a border
search greatly increases the potential for interfering with
the rights of persons lawfully in the country. See Carroll v.
U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). As
we have stated recently,
Instead of drawing formalistic rules based on how long
or how far a person has penetrated itno the country,
we will continue to determine whether a search is at
the border based on whether the rationale for border
searches is vindicated without impinging the rights of
persons “lawfully within the country .. .”
U.S. v. Walters, 591 F.2d 1195, 1198 (5th Cir.) (quoting
Carroll), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.
2d 317 (1979).
The interests that the government seeks to vindicate in
this case can be protected by less stringent procedures than
the majority permit. Since the government can control time
and place of delivery, it can secure a warrant to be served
when delivery occurs. If this is not possible it may seize
based upon probable cause and the exigency of the ad-
dressee’s taking the item away, and then comply with
Chadwick.
I respectfully dissent.
* This case might well have come out differently if the interval
between delivery and seizure had not been so transitory. It is the
brevity of this time interval that causes this to be a hard case
that makes bad law.
2la
APPENDIX B .
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
June 1, 1981
No, 78-5728
Untrep States or America, Plaintiff-A ppellee,
v.
Raymonp Ricuarps, Defendant-A ppellant.
Appeal from the United States District Court for the
Southern District of Florida.
On Petition for Rehearing and Petition
for Rehearing En Banc
(Opinion April 2, 1981, 5 Cir., 1981, 638 F.2d 765)
Before Gopsovn, Chief Judge, and Gee and Rust, Circuit
Judges.
Per Curiam:
In his application for rehearing, Richards questions the
statutory authority of the DEA agcnts to make a warrant-
less extended border search. Whether the search was valid
as a border search was an issue raised in the trial court, in
the briefs filed in this Court and before the panel on oral
argument. The district court, relying in part on the concept
of border searches, upheld the warrantless search. Similar-
ly, the panel opinion upheld the search as a valid extended
border search. At no time before filing his application for
rehearing did Richards question the statutory authority of
the DEA agents to conduct a border search.
Generally, an appellate court does not consider issues
raised for the first time on appeal. In the Matter of Novak,
639 F.2d 1274, 1276 (5th Cir. 1981). Moreover, absent ex-
22a
ceptional circumstances we do not consider issues that are
first presented in an application for rehearing. Moore v.
United States, 598 F.2d 439 (5th Cir. 1979); United States
v. Sutherland, 428 F.2d 1152, 1158 (1970), appeal after re-
mand, 463 F.2d 641 (5th Cir.), cert. denied, 409 U.S. 1078,
93 S.Ct. 698, 34 L.Ed.2d 668 (1977) (“Having tried and
appealed its case on one theory, an unsuccessful party
may not then use a petition for rehearing as a device to
test a new theory.”) In light of the repeated opportunities
to raise the issue of the statutory validity of the search and
the nature of the claim, no exceptional circumstances are
here presented.
Therefore, the petition for rehearing is DENIED.
Gopsoup, Chief Judge, dissents.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.