Petition for a Writ of Certiorari — White v. United States

Supreme Court brief1958

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STE STATES oF AMERICA,

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PETITION FOR A WRIT OF CERTIORART

to the-United States Court of Appeals,

for the Ninth Circuit.

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Opinien below ..... eer eg as fe Neate let DER ee oe ee

Jurisdictional statement ..... SPER ae ne renee nt ee aa

Questions presented’ ............... pet aee Pag easp aan eas rita -

| Statutes involved ...:..... awe wae oe aa eens cae owe

e Statement of the case ....+.°.. Oe ret eee eee ee +)

Reasons for granting the writ .....:......05. ee eee ero a

1." The Court of Appeals for the Ninth - Chaewit in this

ease has, in effect, decided a Federal question in a way

in conflict with applicable decisions of this court —....10

2. The result of the decision of the Court of Appeals for

* the Ninth Circuit sought to.be reviewed is in conflict ~

with a decision of the ‘Court of Appeals for the

Eighth Circuit on the-same matter: ................ 19

eer The decision of the Court.of Appeals here sought to be

reviewed appears to have so- far sanctioned a de-

-parture from the accepted and usual course of judicial __——-—-—

_ 3 \ proceedings;” as-to-calt for an exercise of ‘this Court's

power of supery eee Sedae akin PPE PeeeP 22

¢ Conclusion ..........¢. Mare eevee ee re ee poe ..

rs .

\ im ot

“~ t 2 ; , ’ . 2 ‘ ,

Table of Authorities Cited —_.

Cases - Pages

“Amos v. United States (1921), 255 U.S. 313, 41 S.Ct. 266,

bo I. ed. 654 i ma ee . 12

Boyd v. U hie States (1886), 116 US. 616, 6 S.Ct, 524, 29

L. ed. See Ree ee wk oa Re ee ke eR ak Re hers Rk MRS © 5K REC 12 :

Miopang * United States (C.CLA, 6th, 1933), 67 F.2d 843 13°

: —

rte Jacksoff (1878), 96 U.S. 734, 24 L.A. 877.11, 14, 15,1

. Ex Pa

, 16, 20°

a — Tasce or Avtuorities CITED

(ianei v. United States (C.CLA. 2d, 1923), 287 F. 60 2 ...... 10

(io-Bart Importing €o. v. United States (1981), 282 U.S. F

344, 52 S.Ct.-153, 75 Led. ae 2 PEE FOE Pe eT SP ee 13,17

Giouled v. United States (1921), 255 c. S. 298, 41 S,Ct. 261,

TE Ee ere renee Seales eres = oS

Harris v. United States (1947), 331 U.S. 145, 67 S.Ct. 1098),

91 Led. 1399, reh. den. 331 U.S. at 67 S.Ct. 1527, 91

Lede 187] Tae ey ey Tou cx Tus et te ey te ee tees seeanges 17

——-Marron v. United States (1927), 275 US. 192, 48 S.Ct. 74,

IN eee dti ye tsiccuspasnamegucean) vt yee

Nelson y. United States (CLA. D.C., 1953). 208 F.2d 55... .B

Nueslein’ vy. Distriet of Columbia (C.A. D.C., 1940), 115

2... Serene Sungatlt icici detec, ae 19

Oliver v. United States. (CA. 8th, 1957), 239 F.2d.8 .19, 20

—-otnstead v. United States (1928), 277 U.S. 438, % S.Ct. |

564, 72 Lied. 944, 66 A.L.R. 376 . 2.020060... ciieeeas ee 11

Spverthorne Lumber Co: v. United States (1920), 251 U.S.

385, 40 S.Ct. 182, 64\L.ed. 319, 29 ALR. (1426 J uuchne se 17,18

United States v. Jeffers (1951), 342 U.S. 48, 72 S.Ct. 93,

96 -L.ed. ‘59-...... ve bieene cde ese DaeT ee Saat aia tat) ae

‘United States y. Kirsehenblaft (C.C.A. 2d, 1926), 16. F.2d

UN MMMM sc Ss Ae Sb vee s 13.

United States. v. Lefkovitz (1932), 285 U.S. 452, 52S. =

ee Oe Oe Ore Ee TN, nevi nn cs cdudnwnnens 13,17

United States v. Poller (C.C.A. 2d, 1930), 43 F.2d 911, ‘74 ;

Ns TO oe te seu ca ar snedaas Cheba anes aa

United States v. Thomson (C.C.A. 7th. 1940). lis F. 2d 643,

Se ac ws oacs as hens EP eT PT Tere 13

Von Cotzhausen v. Nazro (188%), 107 U.S. 215, 2 S.Ct. 503,

97 .L.ed. 40 °...... eka Mow eneas ieee cota anes 11

“Webster v. United States (CC A. 6th, 1937), 92 F.2d 462 21

Weeks v. United States (1914), 232 U.S: 483, 43 S.Ct. 341,

5S Led. 652, L.R.A. M15B 834, Ann.Cas. 1915C 1177 . ye 7 12,

eS - vai

—— .

. . ° . Os ?

(

TasLteor AutHoritiesCiTep = 5 © sd

Constitutions - ws

F : a 2 -% 7 : ac

Constitution of the United States: ial Say Tai, Pages

Fourth Amendment ...... errerere vee ne 3811, 12, 19, 21

Fifth’ Amendment ......... oa e eee P Ty ee rey Apr 3. 4,41-~

| Rules - .- -*.

Federal Rules of Criminal Procedure, Rule 41(e) --3-..... 10

Rules of United States Court of Appeals, ‘Ninth Cireuit : ;

Rule 18 . ...... Br tee eee e ee eee eine ese ees \, 24

Rule 18(2)(d) ........ eae aces CENTS EERO RE MS 22.

"i peereeer rere Posen NIRS te nS > Bere ean yt 23, 24 :

~ Rule 38. Pearie Lwtesnastnsnyeceed EP EPSP PTR ear Oy a" ;

| Statutes .

“Act of Lune 29, 148, 62 Stat. 1097, 39 U S.C: £15 ak cae 4,13, 14 |

Aet ot “March 3, 1879, ¢. 180, 20 Stat. 358. . Gs: ce eweras es “14 ;

Air Mail Act of February 2, 1925, 43 Stat. 805, a9 is vg oe

. Je 8. Seeeerrrerrrrr Gk tseaeuhaekeses seated paten i4

Internal Revenue Code of 1954 : - |

Section 4724(b) (26 U.S.C. 4724(b)) Ee REEL a

Section 7237 (26 U t | ot eres | h Pere rces rey ee nese. 2

ae COE A ie EG kes Precedesnass rere.

TRUS CT 1716 UPSETS ee Fey Pe TL ee 4,5

18 USC. 8772 ol cdr wickannes og Ka tenel tenes oom

BUR Me 8 ckhocnx eect eevee TRAM is ad

ME VBE TIE Bde lissiseees Lesaunci sea aras eee

2 ESC 1291 And PI pdacect Pegere eee he nies Seas

48 U i eee Piricusnnwks caereee eens pats. 5°

Miscellaneeus

U.S. Postal Manual, Scetion 331.21 .........0..0..00. tan ee

the Supreme Court

2 i OF THE

ited States

| | Mf OCTOBER TERM, 1958

a 7 No.

LORENZO WHITE, JOYCE HARPER and |

Rusy,FIE.ps,

ie Petitioners,

YS.

UNITED-STATES OF AMERICA,

Respondent.

‘ 1Rehearing denied, June 25, 1958.

PETITION FOR A WRIT OF CERTIORARI

~ to the United States Court of Appeals °

for the-Ninth Circuit.

Petitioners ae pray that_a writ of cer-

\tiorari issue to review the judgment of the United

States Court of Appeals for-the Ninth Circuit, entered

in the above-entifled CASE on April 11, 1958." : ;

. ' OPINION BELOW. |

No opinion wi as rendered by the District Court for.

the District of Alaska, Fourth Judicial: Division; in

this case. The opinion of the Court of Appeals, af-

firming judgments filed and entered in said Iistrict

‘Court on June 6, 1957, was rendered: and filed) on

April 11, 1958, It is reported in 254. F. 2d 137°and

‘is s printed 1 in Appe ndix A hereto.

. |

_ JURISDICTIONAL STATEMENT.

(a) The judgment of the Court of. Appeals for the

Ninth Cireuit, affirming three judgments of* convic-

- tion entered on June 6, 1957, by the, District Court for

- the District of Alaska, Fourth Judicial Division, and

here sought to be reviewed, was dated and entered on

April 11, 1958. It is printed in Appendix B hereto.

(b) ° Petition for Rehearing and fora hearing en

banc, timely filed on May 8, 1958, was: denied by the

said Court of Appeals on June 25, 1958. The Court

of Appeals has stayed: its. mandate pending: the filing

_. and consideration of this petition for writ of. cer-

- tiorari. - aati o | 4

(e) Jurisdiction is conferred upon this Honorable es

Court to review the judgement of the Court of Appeals

by 28 U.S.C. 1254(1), this petition for certiorari being

‘filed within the time-preseribed by ale 38. of this:

Court, pursuant to 18 U.S.C. 3772... 1:

ae —

: ‘QUESTIONS PRESENTED.

1. Does tnterception cn route and cutting open of

a sealed and insured air mail parcel and the removal

of its conte nts by federal law. enforcement officers,

without a warrdnt, constitute an unreasonable search —

and seizure in violation of the Fourth Amendment to

the Constitution of the United States? |

: 2. Where federal officers incident to an arrest,

without warrant, on a charge of violating federal nar-

cotics laws, conduct a search, without a search war-

-rant,-of a dwelling then occupied by the accused, and,

without consent, take into their possession certain

cleaning labels, not directly connected with the charged

‘offense, but to be used-as circumstantial evidence (for

purposes of identification of the accused), does such

conduct constitute a violation of rights protected: by

‘the Fourth and — Amendments to the Constitu-

tion? | y | cee

3.. Does refusal of the trial court to return the

articles seized as above stated and. permitting them in

evidence amount to a denial of the immunity from

unreasonable searches and seizures and the protection

against self- incrimination afforded by the Fourth and

Fifth oe s to the Constitution of the nited.

States?

STATUTES INVOLVED, ===

The constitutional and statutor ¥ provisions involve d

* are as follows:

(a) > The Fourth Athendnient to the Constitution’ of

the U nited States, whieh reads:

“The right of the people to be secure’in then,

persons, houses, papers, and effects, against un-

“reasonable searches atid seizures, shall not) be

violated, and no Warrants shall issue, but upon

‘probable cause, sup ported by Oath or affirmation,

se arched, and the persons or things to be seized.’

(hb) The Fifth Ainendme nt to the Constitution of

the United, States? which reads in pertinent ‘part:

-* * * nor shall any person * * * be compelled

in any eriminal ease’to be au Witness against him-

Pee ee

6, 8

(©) 3 Of ot. 475 (Net of June 29, 1948, 62 Stat.

1097), which reads-in pertinent part as follows:

sel

“Air parcel-post services rates; rules and vegula-

trons; adjustinent | of weryht limits, zones, and

rates, ele. The rate of postage on mailable matter

execedinge eight ounces in weight, but not weigh-

ing more than seventy gpounds nor measuring

more than one hundred inches i inJength-and girth

combined, when > carried hy air and ‘including

other transportation to and from: air-mail routes,

| shall, eyeegt as otherwise provided in this See-

tion, b ‘

postal zones establishe al for fourth-class matter,

as follews: * * *.”°

(dd) an ities under which petitioners were

convicted, bat which are not. directly involved herein,

are Sections’ '$724(b) and 7237 of the Intertial Rev:

* enue Code af 1954 (Title?26, USC): 18 USC. 3d

and 1716; nd 21 v S.C. 174. *- | | a

yHermined on the basis of. the eight -

rie

; | _ STATEMENT OF THE CASE.

~ The jurisdiction of the District Court be low. was

based upon 48 U.S.C. 101. ~The jurisdiction of the -

Court of Appeals for the’ Ninth Circuit was invoked

pursuant ‘te 28 US .C. 1291 and 1294.

_ Petitioners . we re jointly indicted, tried. and con-

“Vieted, based upon the following charges: :

¢° ‘ i iolation-of Section 4724(b) of the Internal

Revenue Code of 1954, 26 U.S.C. 47 24(b)—trans-

portation ofg narcotic drug;

2. Violation of 21 US, C. 174—importation of

a narcoti¢e drug; irs eae

3. Violation ofS 8 US. C. 371 2 counts adh)

‘ ~

—conspiracy; and’

4. Violation of 18 U. Ss, C. 1716. (as to petitioner

““ Fields only)—mailing of a poisonous drug. —

In the coursé of the trial the District Court denied

‘motions to suppress, and overruled objections against

admission of, the following deserihed exhibits. (see Ap-

pendix C, infra), tric h were thereafter admitted into

evidence and whieh represent. virtually. all of the: case |

of ‘the® government against petitioners I's (defendants

below) » s |

(1) Gove vament’ s'E xhibit F—a wiaieoank bie

and brown paper pon 8 constituting the outer

coyeings of ia sled: ar mail package sent

through the mail by petitione Y Fields. -

(2) Goxernment? s Exhibit Apart. of ay yess

“(with identriying cleaning label attached) nis

“2

. .

. *?

Z .

6 e . ¢

. ‘ . .

tainéd. iti the aforementioned package and re-

moved therefrom by federal officers. iS

(3) Government's Exhibit I—the other part

of the dréss ‘offerecdeas Government's Exhibit H,

above. Se Listing ee

(4+). Government's Exhibit J—two glassine en-

velopes alleged to have been found in the pack: ge,

wre upped, in the fold of the dress,

(9): Gavernment’ s Exhibit K—a box eontain-

ng a small quantity? of heroin, (TR 158) atleged

to have been removed by Federal‘agents from the

elassine envelopes (Government's Fxiibit > J,

~ above).

— (6) Government's Exhibit O—a_ velvet belt.

Ee ala identifying cleaning ticket attached), be-

_ longing to. petitner Ruby Fie lds, and taken from

he home by federal Office TS.

(7) Government’ s Exhibit -P—a_ detached

cleaning tac: taken from such home by federal

officers,

(8) Governme ent's E xhibit © daothed rT detached

cicaning. tag taken from -such home by: federal

officers. | 0 ‘ goats

A tabulation showing the aforementioned. exhibits,

their nature, use im evidence, manner of obtention by

federal officers and pertinent motions of petitioners

(defendants below), together with disposition thereof

af 63 grams, or the’ egnivailont of sli zhtly over 14 ounce.

i ee

| a

by the District Court, are set forth as Appendix Cc

hereto.

The evide nee given at the trial, built around: these -

tangible xhibits, may be summarized as follows:

During Pecember 1955, petitioner White operated

a night elub in Fairbanks, Alaska, known as the Mo-

rocco Club (Ttanseript of: Reeord,. Qve 41). Peti- |

tioners Harper and Fields were employe ed at this club

and Petitioner Harper also roomed at a house located

at 721 Sixteenth Street, Fairbanks, Alaska, which was

owned by White (TR 41, 42, 232). Oi December 11,

1955, petitioner Fields, an- admitted narcotics addéet,

left Fairbanks and returned to the home of her mother

in Los Angeles, California. WW hile there, she mailed a

, sealed and ‘insured di mail pac kage, addressed to, one

Myrtle Hicks, containing:a dress in the folds of which,

it is alleged, iene was contained a glassine envelope

or envelopes containing a small quantity of hereoin

(TR 220-223). On December 14, -1955, one ~ rn

Thompson, a Deputy United States Marshal, requested

the postmistress of Fairbanks, Alaska, a Mrs. Boyle,

- to look fora package mailed from Los Angeles to’‘*a

fictitious person” in Fairbanks (TR 45). On Decem- ©

ber 15, Mrs. Bovle- examined all the parcels that came

from Los Angeles and because the name Myrtle Hicks .

was unknown to’ her? she assumed it to be fietitious

;

sThe . 1955 offiei al collate ot the population of Fairbanks.

Alaska (exeluding the military and their dependents). is 10,500,

aeeording to the Eneyelopedia Britannica. The record does not

disclose whether or not there is a My rtle Hi¢ks.

? 8

—° (FR 71, 72). Accordingly, Mrs. Boyle, together with

. Deputy U.S. Marshal Thompson, U.S. Marshal Al

Dorsh and a postal official named Brady, opened the

package with a knife. Deputy Marshal Thompson

‘ took out its contents, eynsisting of a blue satin dress.

While this was examined, it is alleged, a small packet

fell out containing the small quantity of heroin men-

tioned above (TR 74, 84). The dress was also. found

to contain an identifying cleaning tag, later offered

in evidence as Government's Exhibit H (TR 49, 133,

134, 201). During the exammation Deputy Marshal

Thompson tasted the powder contained in the pack-

age and “it appeared ‘to be a substance. known as

heroin, to me” (TR-48). : cs | |

After Deputy Marshal -Thompson had tasted the

contents of the package and had examined the clean-.

ing label, the paekage was re-wrapped and placed in:

the post office vault. Thereafter, on December 20, a

search warrant was obtained by the U.S. Marshal's °

office for the package, on the strength of which it was

faken. from the post office and forwarded to the E. BAL.

laboratorieS in Washington. where: it) was examined

and analyzed and returned to Fairbanks for use aitgthe

trial (TR 48, 49, 52, 53). ‘There is no contention that |

any search warrant was obtained pwier to December —

20 by anyone,,noer that there was any other author

ization for the interception, cutting open, inspection,

and seizure of the contents, of the package, on De-

eember 15, except fora telephone call to a postal in-

spector i Seattle (TR 52. 84). "On December 27,

1955, two Federal, Treasury agents, named (Goodman

and Car vente r, called at the home then ‘occupied by

_petitione Ruby Fields, in Los Angeles, and, without®

a warrant, placed petitioner Fields under arrest (TR.

182-185, 194, 195). °W ithout the owner's consent, they

searched the premises, and found. and seized -a_ belt

with a dry cle aning labe | attached to it, and two clean-

ing. tags, one on top. of a dresse r, and the other in a

“je wel, ease on a night stand located in the home where ~

Ruby Fie Ids Was arrested (TR 190, 193, 198, 199).

= the time the arresting officers had ne ‘ither a war-

‘ant for petitioner's arrest nora seareh: warrant, al-

though a warrant for her arrest was alleged to have

been issued and to be ¢ HW route from Farrbanks (TR

195). The items so seized were subsequently adinitted

Inte’ evidence, oxer oh jee thon, “as Governme t's Ex-

hibits QO, Po and QU, for the | purpose of linking peti-

tioner with the ‘contents: of the package previously

seized, referred to above (see Appendix C hereto),

There was no evidence linking petitioners White and

Harper te the corpus delicti other than testimony

that Harper and Fields were emploved by White and

that Harper lived in the property owned by hin and’

threat. ond lkecember 15, 1955. a cab driver recetrved a eal]

to vo to 721 Sixteenth Street, Fairbanks, where de-

fendants White and Haury ier were alleged to be living.

Also, thet Harper asked the eab driver te pick ip) the

mail aut gave hima nete with the name Myrtle Hicks

writtenjon uM whieh he was to present at the post offive

when he ¢ salted for the mail Pt is claime “] that an De-

cember 16, 1955, another cab drive roWwas strt Wy: White

= port office to pick upra pve kage for My rth: Hicks

10 ©

and attempted te deliver it to 73L (sie) Sixteenth

Street at Fairbanks (the address on the pareel) but

Was unable to tind the place CTR 106), when he went

ooking for it, accompanied by another ULS. Deputy

Marshal, named MeRoberts. The eab driver and the

Deputy Marshal next proceeded to 721° Sixteenth

Street, where an attempt was «made te deliver the

ee to petitioner Harper, who refused to accept.

Tn factyno delivery was ever made and the pack-

awe was refame ined “by Taw i coment authorities. until

its use at the trial (TR 75). - From the foregoing it

Will be seen that convietion ‘of all the defendants he-

low -¢ petitioners herein) was hased Virtually entirely

upon ithe government's ability to introduce inte evi-

dence the items obtained, as petitioners contend,

unlawful searches and seizures. Timely motions’ for

the suppréssion of this evidenee were denied and ob-

jections to their admission in evidence Ke Te Ove rruls “ad

( Appe ndix C).

+ REASONS FOR GRANTING THE WRIT.

1. THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN THIS

CASE HAS, IN EFFECT, DECIDED A FEDERAL QUESTION IN

‘A WAY IN CONFLICT WITH APPLICABLE DECISIONS OF

THIS COURT.

Although it does not appear from the por Senviam

opititon She Kew; the net meet of the devis eu here

See Gani . United States, (CON 2d, 1923), 287 FL 60: and

cf. Rule Flces, FRC r Bs ! NB. thi it the trial court did, Indeed,

“entertain” the motions @nd denied them on the merits).

sought to be reviewed Is to let stand convictions ob:

tained in vielation of- sconstitutional rights of peti.

_. Toners guaranteed by the Fourth and Fifth Amend-

-ments to the Constitution of the United States, and

In direct contliet with the decision of this Honorable:

Court In kr Parte Jackson, (ISTS), 96 ULS. 724, 24 1.

ed. 877. In thaf-ease this Court. said explic ‘itly that

*TettEs and sealed packages (subject to letter post-

age) in the mail are as fully guarded from examina-

tion and Inspection, except as. to their outward form:

and weight, as if retained by thei ih se nde ‘vs In their own

donticils, * * *)Whilst-in the mail, they can only be

opened ai examined unde Y Like w arrant, issued upon

oO similar oath or affirmation, particularly deser ihing the

thing to be seized, as is ‘required when papers, are

Beet to search in one’s own household, . No law

~ Congress can hive in the hands of officials con-

, oh with this postal service any authority to ine

vade ther see reey ‘of letters and ~weh se led pure kaves in

the mails; and all regdlations adopted as te bactil mat.

ter of this kind must be i subordination te the erent

principle embodied in the fourth Amendment of the

“Constitution.” The holding in this case is cited with

apparent. approval Cby both the majority. and the

minority ) nn Olmstead vo United States, (1928), 277

US. 458. 460, 464, 475. 19 OS.01 564, 3 Led, O44,

HH ALAR. 376. |

/And compare: :

Von ¢ ol? thausencv, Nato, -1S883 10% . s, 285

a2 MA: 0, 25 Led, 340 (for an one UX-

pression of thas Court pointing to the proper

method to he mused in_seizing contr: hand. se nt

through the mi ull).

a»

— This Court in the elebeuted Weeks. CaNe, Cupra);

on facts not dissitiitir to those in the present case,

ae <tdtished “firmly the constitutional principle that re-

-fusal on the part of the trial court to return illegally

seized articles and permitting them in’ evidence

amounts to a demal of the immunity from aumreason-_,

able searches and seizutes afforded by the Fourth

Amendment to the. Federal Constitution.

Weeks vr. United States, A914), 232 U.S. 483,

43 S.Ct. DHL, OS Lied: 652, LARVAL 191 BBR N34,

Ann.Cas. I915C 1177. a

Morever, it has been held that i ee of evidence

obtained by an unreasonable sexreh and seizure te

conviet an aeeused, violates: his privilege against self.

incrimination provided in t&e Fifth Amendnrent te

‘the Constitution. — . |

| Geulgl v. United States, 1921), 255 US. 298,

4b S.Ct. POL, 65 Lied. 647,

“And see also: | re ;

. Boyd ve United States, (ASS6), 116 ULS. 616,

6S.Ct. w+. PY Sod, T4665.

and: - . | a

Amos ve Viited States, (W921), 255 US. 313,

41 S.C 266.65 Leed. 654. de

Even a lawful seareh dy federal officers is restrieted,

by the standards of fair play dmplieit in the constitue

Hhonal guarantges te the seizure of contraband or

teins bearing directly upen the commission of the

Cerime: it may not be abused for the sole purpose. of

fishing for circumstantial evidence to be used against

\ ;

)

ve | 13

the accused at. a later trial, without violating bis

—privileg ve against self-imerimination. |

Gouled ve United States, (supra); ;

United States -v. Le flovitz m (1932), * 285 U.S.

.. 452, 52 S.Ct. 420, 72 -L ed. 877, 82 ALR.

_ 175; | | |

— Go: Bart Importing (a. v. United States,

(1931), 282 Us, M4. SI S.Ct. 153, 75 Lied.

| B74; ; |

Marron v. U nite d netic cine, 275 U. S. 192,

; 4s S.Ct. “4, 7 72 Lied. |

These cases have been conse lentiously followed, thus ;

far, se the various Circuits avhich have ruled on the-

issues oP ee oie Ne

United States ve Polls 7; (€. C.A. 2d, 1930), 43 ©

F.2d 914, 74 ALL.R. 1382; a

United Statés v: Thomson, (C CA A. 7th, 1940),

113 F.2d 643, 129 ALR, 1291 (se arch with-

out Search warrant, inéide nt to lawful ar-

Test) : | seg.

United States v. Kirsch nblatt, (GEA, 2d, -

Bushouse ve United Slates, (CC, A. 6th, 1933),

OF F 2d 843. |

The government in the present case seeks umi®age

under hice distinctions, adopted for PULrposes of

postal raté making, between tirst class letter mail and

insured air mail packages, based on the quoted: provi-

; Slops of 39-0 SCL ATI Crick supra), Because this

statute provides that ‘the rate of postay re on\Mailable

(air parcel-post) matter exceeding «ight ounces in

weight * * * shall * * * he determined on the basis of

the eight: postal zones -established for fourth- -Class,

matter pe, ” (italics, supplied), it ix areued that >

therefore suclr_a parcel becomes fourth-class matter,

which under postal’ regulations may be opened for in-

spection” *Lhis specious reasoning flies directly into

the face of the express language of this Court in Kir

Parte Jackson, (supra), where it was said that ,

the enforce ‘ment of yegulations excluding matter mea

* the mail 5a distinction has to. be made between what

is inte nded to be he pt free from inspection, such as:

le tte rsaand sealed pac ‘hages subject to: ‘lette 'r postage,

and what is open to inspection, such’ as newspapers,

magazines, pamphlets, and other printed matter, pur-

poscly left in a condition to be eramined.”? (Italics

supplied.) ,

loc. cit., at p. 733.0 7°’

And again, in denying the writ:in the Jackson ease,

-on the basis of the limited issue then before this

Court, respecting the constitutional validity of the \

coutroverted statute, the Court, per Mr. Justice Field,

observed: | ,

“There is no question before us as to the evi-

dence upon which the) convic ‘tion of the petitroner

was had, nor does it appe ar whether the envelope

in which the prohibited cirenlar was deposited in

the mail was sealed or lett opien for eramination.,

(Italies supplied). -

loc. eit., at pp. 736," gH

For purposes of surface mail, taailable matter is elassified in

four categories, by the Act of Mareh 3. IS79, e. 180, 20 Stat. 3s,

‘as amended. No sueh classifieation is, however.acontained in the —

Air Mail Act of Feb. 2, 1925, (43 Stat. 805, 39 U.S.C. 461, é¢

seq.), nor in the Act of June 29, 1948, cited to the text.

4\jusy

thus ‘dee laripg the true nature of the testubeyond any

| possible, doubt. |

The governme ent seeks to read into the words **Sub-

ject. to letter ‘postage a spec ial meaning which

would nullify. the clear import of the <quoted) lan-

guage, to the effect that the true test of. the protected |

privacy. in the mails is the intention of the sender, as

expresse ‘d'by his choice of ‘a mode of transmission. At

most, a person who mails printed matter ina wrapper.

especially’ designed to he conveniently opened for in-

spection and so designated, may be said to have im-

pliedly,-consented to the search and thus to have -

waived the constitutional protection. But is it reason-

able to make this claim for the person who sends mat-

tes through the mails inva sealed and insured -pareel,

merely because applicable postal. regulations limit

‘first class” air parcel-post rates, so called, to mailable

‘matter not ex¢ ceding eight ounces in weight, and apply

‘ates “determined on the basis of the eight postal

Zones established for fourth-class: matter” to packages

weighing In excess of this limit ?° | |

Clearly the test applied in the Jac¢hkson case ap-

pears to be whether or not the letter or package. is

sealed, indieating an intent that it be kept free from.

inspection, rather than “purposely left ina condition

6The purpose would appear to be the collection: of higher rates

for greater. distances, instead of the tlat. “subsidized”, letter rate.

In this connection it should be noted that the classification: of this

parcel as other than ‘first: ¢lass mail rests. on the Unsupported .

speculation of the witness Boyle with respeet to the amount “ol

postage on the (illegibles meterstrip wid what it might represent

in terms of weight and insurances. TR 75, 76). Neither the court

nor-counsel evinced curiosity at the claim that a dress, ‘cardboard

hox and brown paper wrapping TR 47) supposedly weighed

three, pounds! — : . :

to be examined"’, thus possibly implying a consent or.

waiver.on the part of the sender. ‘The words “subject

to letter postage’, thus read in context, are easily

understood ini the light of postal conditions and regu; -

lations as they existed at the time of the decision in

the Jackson case, (1S78), when air mail or air parcel

post were no more than an object of curious specu-

lation in “Century, Magazine’ (on the *‘aeronon. of

the Twentieth Century”) and anything sent sealed)

became subject. to the letter rate, while any person

desiring to take advantage of lower mail rates ap-

plicable to “tnewspapers, magazmes, pamphlets, and

other printed matter™* was, by law of Congress, re-

quired-to permit such matter to he inspected for the

purpose of ascertaining its eligibility to enjoy the -

lower rate. Even. under those conditions this: Court

said that the Constitution limits: the congressional

power to exclude such matters from the mail and that

no law of Congress can place in the hands of officials

connected with the postal service aty authority to

invade the secrecy of letters and ‘sealed packages**

in the: mail. .

Ex Parte Jackson, (supra), at p. 733.

To the extent that the decision here appealed from

, AC HIeSCOS In the use of collateral evidence, in itself

uneffending and obtained without seareh warrant, |

incident to the arrest of the petitioner Fields. (alse

-- Without warrant), namely, the belt and clearing tags

. (Government's Exhibits ©. Pand Q) taken from the

premises in which the arrest was made, it is alse in

conflict with the decisions of this Honorable Court in

Gouled v. United States, and United States v. Lefko-

vitz, (supra), which hold that even aevalid) search

warrant may not -be used as a nieans of securing ¢vi-

dence ‘to be used against an accused in criminal -pro-

“> ecedings, ats distinguished frome articles connected Ww ith *

the crime as its fruits, er the means by which it

“was conmnitted, and ‘also that an arrest may not be

used as a pretext to seareh for such evidence.

See, to the same effect: . Oe

Marron ve U nited panied (supra); !

Gio-Bart Importing Co. v.. United States, (su-

pra); 1 Ms

*. v United States s, (1947), 331 U.S. 145.

S.Ct. 1098, 91 Lied. 1399; reh, den, 331

a sig 67 S.Ct. 1527, 91 Led. Is71.

“And see also decisions of various Courts of Appeals,

cited’ supra, at page 1:3. : | ie

To the exte at that the deci ision sought te he re-

viewed seyms to acquiesce in the position of the gov-

ernment, impliedly upheld. by the trial court, that the

unlawful cearch- and seizure jef the sealed package .

‘intercepted from the mails was sanctioned by the sub-

seque nt obtention (tive di Ws later yo f av se arch war--

‘ant. it also conflicts with a holding of this Court, to

the effect that where property has heen se ‘iged ial: We

fully without.a warrant, the subsequent issu mee aA a

search warrant and retention, of property thereunder

‘does riot make ‘the previous seareh and se izure lawful.

Silverthorne Lumber Con ue U nited States;

(1920) 2 251 US. 385, 40 S.Ct. 182, it Led.

B19, 24 ALR 1426.

ee ee on

2 %

Mr. Justice Hoknes, in the case just cited, clearly

stated what petitioners compre ‘hend to be spill the law

of the land, when’ he sfruck down the | Fovernme ut’ s

atte mpt: to cure, belatedly, ‘Its lawless seizure of eVi-

dence, with this state ment : Poe .

Sa as , ; - by

It shanld be noted that m the presenflease the govern. -

ment to a form of words:

provision fowbiddine the acquisition of evide 2

iIn’a certain way is that, ‘ot merely evidence *so -

“This ‘proposition could Hot he presented. more

nakedly. It is that although of coitrse its seizure

WAS an outrage which the. govermmnent now ‘1e-

egrets, itymay study the papers before it returns

them, copKthem, and then may Use the knowledge

that it has gained to eall upon the owners in a

more. regula? form to produc them: that the pro-

tection of the Constitution covers the physical

possesgion but not any advantages ‘that the gov-

ernment: éan gain over the object of Ajts pursuit

by doing the forbidden act.* ** In our opinion

such is not the law. It reduces the Fourth Amend-

** *® The essencecof a

acquired shall not he use d before the court but it

shall, not. be used at all, Of course it does’ not

mean that the fagts thus obtaimed become saer red

sand inaccessible, “Tf knowledge of them is eained

‘from an- independent source they may be proved

like-any others, but the knowledge gained by the

covernment’s: own Wrong cannot be used by it in

the way proposed.’

doe. cit, at pp. 391, 892.

‘4

ment’ dtd not even take the trouble of pretending to

restore the property to its owner and then to seize it

hack by lawful warrant, in-order to take advantage.

pas ‘ a ;

PN Se , ; yp -

19:

—

of its improperly gained ree dge, but simply?went r

through. the pro fora motions of the warrant to

. transfer POSSessian from one governwuent agent to an- .°

othe . Petitioners respectfully submit, that” no ‘such

ad hoc maneuver could satisfy the tbolmesian stand- |

ardsof law sebidling federal law onforegment. It is”

true, that a the citirse ‘of the trial petitioner F ields

‘virtually confessed to mailing a small quantity of the, —

narcotie for her own use (T R 219-232). But this evi- »

dently dogs Hot eradieate the prejudicial fect on her

co-de fraud: ints nor does it validate a search egal in

its inception? . : ;

Nelson v. United States, (CA DE, 1953), 208

So ae 505 ; ae °. |

Nueslom v. Distréct of Columbia, (CA. pe,

9 . 1940), 115 F.2d 690.

/ j ‘ go ¢ < . oot

& : | ) ’ :

2, THE RESULT OF THE DECISION OF THE’ COURT OF AP.

PEALS FOR .THE . NINTH CIRCUIT SOUGHT TO BE RE-

VIEWED IS IN CONFLICT WITH A DECISION OF THE COURT

-OF APPEALS FOR THE EIGHTH. CIRCUIT. ON THE. SAME

> MATTER.. .

In Oliver " a nited’s Slates, (C A sth. 1957), 239 F.

2d 818,. it was held that, the attempted seizure from

‘the mails. without warr we of anoalr mail letter or

package, alleged to have cont: sined heroin, constituted

on unreasonable se areh and se ize i): viol ition of the

Fourth Amendm nt. Tere again, the vovernme ont

sevks to escape the clear impli ation of the Oliver

ain

\. ‘ -\ = i =

ease, Which is virtually onal fours with the present

ease on the facts, by asserting a subtle distinetion be-

‘tween first-class air mail andyinsured “air mail pack-

ages sent at fourtheckiss rates because of overweight.’

There is nothing in the Olives case whieh would SUp-

port this distinetion,® but on the contrary, its holding

is*expressly founde d upon the doctrine established: in

the Jackson case, (supra), Which, as has been shown |

abote, applies a far more basic test and does not seem:

to sanction such technical distinetions bereft of sub-_

stance and contrary te logic.” Surely, this Court never

intended — that’ the’ vital constitutional safeguards

' ?

But compare Footnote 3, supra. And note, that See. 831.21 of

‘the’ Postat Manual (cited in the Oliver opinion, supra, at pp. 822,

823) specifically oe “Matter sealed of closed aeyinst Inspec-

tion” in its definition’ of first-class mail.

“SEven the government conceded, ti the Ohver CASO, (supra),

_ that “letters and other scaled matter” ave not subject to inspee-

tion, regardless of weight or classification. Lue. cil., at-p. 820.

(Italig¢s supplied). ;

XJOLTINSON, -T., speaking for the court in the Oliver case,

(supra), points this out in the following Janguage: °* * * the dis-

cussion in (Ex parte Jackson, supra) was primarily purposed to

-make it doctrinally clear that, in the Government'y monopolistie

right to provide the publie with mail facilities, it could not eseape

the guaranties of the Bill of Rightse and that as to the seareh-.

and- -seizure guaranty of the’ Fourth Amendment it would de re-

quired, in. its dealing with mail. to recognize a distinction: he-

tween Manes is intended to be keptetree from inspection” and

“what is open to inspection” . We thus read the words, “such as

letters; And sealed. packi®es subject t® letter postage”, which im-

mediately follow the first expression quoted, and the words “sueh

as Newspapers, pamphlets, and other printed matter, purposely

left in a condition to be examined”, which immedi: itwly follow the

second expression quoted, as having been. used in each instanee —

simply in practical “illustration and not in attempted judicial

formula.” Loc, cit., at p. 821.

ures, and the federal ‘police y against lawles: police

activities,. should hang precariously in the balatuce of

a postal scale, .

The brief niling in W tag U"; t nited States, (cc A

6th, 1937), 92 F. Yd 462. relied on by the govern-

ment, seems only to strengthen petitioners’ contention,

by holding that postal inspection of ‘tan unsealed

package’ * (sie) does not constitute an unreasonable

search and seizure. “Tf is certainly a fax ery from

countenancing the interéeption of a sealed air mail

pareel and cutting it open with a-knife to enable

federal law enforcement officers to seize incriminating

articles) These they could. have just as easily obtained

by lawful means, except for the very attitude of con-"

tempt for legitimate ie edures and law abiding prac- |

‘tices, prevention of which appea s to be the raison

Uetre of the federal judicial. noliey established and

followed in the long line of decisighs (cited above) of

this Court; whieh ‘tover and again * * * has empha-’

sized that the mandate of the (Fourth) Amendment

requires adherence to ‘ial processes". ~~

United States ve Jeffers, ‘(1951), 342 US. 48,

51, 72 S.Ct. 93, 96 Leeds 59, 64. |

; | ae

3, THE DECISION OF THE COURT OF APPEALS HERE SOUGHT

TO BE. REVIEWED APPEARS TO HAVE SO FAR SANC-

TIONED A DEPARTURE FROM THE ACCEPTED AND USUAL

COURSE OF JUDICIAL PROCEEDINGS,-AS TO CALL FOR AN

EXERCISE OF THIS COURT’S POWER OF SUPERVISION.

This case is somewhat unusual in that the Court of

“Appeals here’ disposes of what petitioners believe are

Substantial constitutional issues by means of: a per

curiam, opinion which, except for a brief recital of

preceding procedural steps, consists of these: two sen-:

_tences: © -

‘Appellants’ brief contains no specification of

- errors.’? We have examined the record and have |

; found no reversible error.”

It should be admitted that the brief submitted for

appellants in the Court of Appeals was somewhat

artlessly drawn and did? indeed, fail to contain a

‘specification of errors”’ so designated. However, it

did incorporate, by reference, the spéeifications eon-

tained in appellants’ ‘statement of points on ‘appeal”’

which was part ef the, record before the Court of

Appeals" and it discussed, perhaps not ‘too lucidly but

MRule 18(2) (d) of the Rules of the U. S..Court of Appeals for

the Ninth Cireuit reads in pertinent: part, as follows: ‘( Appel-

tants’) ‘brief shall contain * * * (d) In all cases a specification of

errors relied upon. whieh shall be numbered and. shall set. out

separately and particularly gach error intended to be urged”.

Appellants’ brief contained the following statement: “For the:

purposes of this brief, appellants will divide and argue the State-

ment of Points on Appeal (TR 37) as follows: Conspiracy Ques-

‘tion * * *.-Constitutional Question * * *, The lower court erred

in denying appellants’ motion to suppress the evidence contained

in Exhibits D, E, F. G. HW. 1. J. and -K, and erred in admitting’

the same into evidence.” One wonders if Sentence No. 1 of the -

"quoted per curiam opinion does not overstate the teclmieal ease

for -affirmance?

certainly scenes the important constitutional -

questions involved. The three judges who heard the

appeal would seem to have been unduly impresse d by

the importance of this technical deficiency, summa--

rized in the first sentence of thei opinion, Otherwise

it is doubtful that the second. sentence would have been

stated, without at least a “CUPSOry discussion of the

substantive questions of law clearly invelved in ‘the

case.’?

Maybe" this ee Court, if it henrs this ‘ase,

might ultimately agree with the finding of the Court’

of Appeals that there. was no re versible error in the.

trial record. Yet it does not seem unreasonable to ex-

press the wish that the learned. panel below had seen

fit to express their views on the important constitu-

‘tional issttes affecting the vultim: ite destiny of these

petitioners, despite the failure of their -counsel to

make literal compliance with a local, procedural rule.

In the proceedings had below, upon a petition for

‘rehearing and for hearing cn baie, the appe ‘Nants (on.

May. 8, 1958) submitted another brief, conti uning a

-proper (as to form) specific ation of errors and dis-

CUSSIng More specifically the applicable: decisions of

this Honorable Court. Yet this: petition Was consid-.

ered and denied, without opinion, hy only two remain-

ing’ judges of the original panel” a third unfoytu-

‘tT he learned panel ‘te low deemed it appropriates however. to

devote a full sentence (in a footnote) to a Listing of the alleged ’

aliases of one of the petitioners.

Rule 23 of the United States Court of Appeals for Qo Ninth

Cirenit provides in pe rtinent part °*.* * All, petitions for rehear-,

ing *# * shall Ie addressed to. and he determined by the court as

nate ly havin heen ¢ eliminated by the untimely passing

of the late Judge Dal, M. Le ‘amon, on April 26, 1958,

Thus, summarizing, we find the Distriet Court ad-_

mitting evidence leading to a conviction, in apparent

violation of cleat constitutional mandates as inter-

preteg by several ‘leading decisions of this Honorable

Court. and. entering, tts judgments without, . even in

passing, expressing any opinion upon the constitue -

tional questions and rights of the petitioners here

gv.

| Unyolved; followed by a two-sentence per curiam opine +

‘lontzot the Court of Appea Is,-affirmine the convictions,

‘gain. without reference to the important fede ral que Ne

tions ‘involved ; and finally, only two judges conside r-

“ing and de nying e, once more without comment, rehear-

ing, thus precluding discussion for the first time of the’

_ important issues petitioners believe to have been raised

by this record.) One would suppose that under our

cherished judicial svstem these petitioners should ‘at

Jeast. have been. privileged, before the prison: doors

‘= a ees Bose

constituted. in the original hearing, Ss bicli lia mia jority of the court

as so constituted grant a rehearing, ete. * * *° CTtaltes supp lied),

While the. Court of Appeals thus appears to have held petitioners

to a, striet application of its Rule Ts, (supra), it seems to have

had no diffienlty in glossing over the unavoidable denial of the

obvious benefits to-petitioners which would. flow {Penn strict appli

eation of Rule 23. Having refused, in effect. to consider on ori

inal hearing the issues raised by the appeal. beeause of all

* technical non-compliance with Rule 1S. the court below, when pre-

vented by force majeure from itself complying with the require:

ments of Rule 23, ought in fairness to have granted a rehearing,

on the possibility that the deceased member-of the original panel

might have so voted, and persuaded one of the other two to con-

eur. As it is, one: judge (instead of the majority required by the

Rule) eould (and may) have prevented rehearing.

Because of the dearth of cpinion below, the issues prese nted

have been treated somewhat more fully in this -petition,

q 3

~elang shut be hind them, te he enlightened: by aay? pros

priate judicial discussion, — ever brief, as to the

“reasons why it was deemed their appeal to sacred

constitational . rights must be in vain. [tis respect-

fully submittedy that. mo Man tn this country should

3 he deprived of his liberty, erying ‘aloud for the shield

of the” Bill of Rights, amidst such judicial silence.

‘It is hoped that this Honorable Court will grant, per-

haps for the ‘first. time in this ease, an opportunity

for that serious consiser ation of the constitutional

rights of these “petitioners which it as earnestly, con-

tended they daeescl ne matter what the ultimate

“outcome sisi he on the merit, Nothing. we submit,

could more quickly nndermind the foundations of eon-

-stitutional vovernme nt than: for the courts to answe r

the: ple as of these in the toils of relentless eriminal

prosecution: hy CUPSOryV reference toa procedural rule

hook. As was xaid by this: Court in Gouled vv. United

States, (supra): | “

‘Acrule of practice must net i sical for any

can reason te pre ail aver a constitutional

lo, wit., at |). ata.

Nor ecoaba it be pe caida to became a substitute for

| forthright judic ‘dal se rutiny of an asserted invasion of

sue sh right.

CONCLUSION.

For the foregoing reasons, this petition for a writ

of certiorari should be granted. ;

. Dated, San Franciseo, California,

July 14, 1958.

Respectfully submitted,

Epaar Pate BoyKxo,

Attorney for Petitioners.

all

Bovko, TarBot & TULin,

McNEaLy & MERDEs,

Of Counsel.

; : (Appendices A, B and C Follow.)

_- no reversible error.

‘Criminal Law 1182)

Appendix A

U nited States Court of ‘Appeals

Ninth Circuit a

) g.)~—sONo. 15,667,

Lorenzo White, Joyce Harper and |

Ruby Fields, - - |

: pe ny are eth

VS. . ae eee ay

‘eeu eet ee Me

United States of America, |

2 : Appellee. ;

7 April 11, 1998. °

_ Defendants were convicted in the United States

District Court for the Territory of Alaska, Fourth

Division, Vernon. D. Forbes, J., for unlawful trans-

portation of narcotic drugs, unlawful Import ition of

narcotic drugs and conspiracy to defraud the govern. :

ment, and they appealed. The Court of Appeals found

Affirmed. \

Convictions, for unlawful transportation of narcotic

drugs, unlawful importation. of narcotic drugs’ and

conspiracy to defraud the government, were affirmed.

26 US.CIAL (LR.C. 1954) 86 4724(b). 7237(a) ; 18

ULS.CLAL 08 371, 1716: Nareotic Drugs Impoyt and: ~~

Export Act, &:2(¢) as ame nded\2 21 US.CLAL 8 174;

U.S.CtApp. 9th Cir. Rule 18. <thds. 1, 2(d), 28

Sw OD

ii a

Robert J. MeNealy, Everett W. Hepp, Fairbanks,

Alaska, for appellants. ‘ .

‘George M, Yeager, U.S. Atty., Paula A. Tennant,

Asst. U.S. /Atty., Fairbanks, Alaska, for appellee.

Before MATHEW Ss, HEAL Y and LEMMON, Cir-

cuit J udges.

—

PER CURIAM. | 2 =

On May 25, 195 06, appellants (Lorenzo Ww hite, Joyes

Harper and Ruby Fields'): and others were indicted —

in the District Court for the Territory of Alaska. The

indictment was in seven counts. Count’1 charged ap-

pellants with having violated § 4724(b) of the Internal

Revenue Code of 1954, 26 U.S.C.A. § 4724(b)2 Count’

2 charged appellants with» having violated 21

US.CA § 174. Counts 3 and 7 charged appellants with.

having violated 18 U.S.C.A. § 371. Counts 4 and 5 did

not charge any of the appellants with any offense.

~ Count 6 charged Fields with having violated 18

U.S.C.A, § 1716, but did not. charge White or Harper

with any offense, Appe ‘lants were arraigned, ple ‘aded.

het guilty, had a jury (trial, were found guilty ‘as.

charged, were.sentenced*® ard have appealed. Appel- -

lants’ brief contains rio specification of errors.4 We

have examined the’ record and have found no re-

-versible error. .

Judgments affirmed.

1Also known as Ruby’ Jeanette Fields, as Ruby Mayfield. and as

Pearline Adams.

Penalties for violating § 4724(b) are preseribed in § 7237 (0)

of the Internal Reventie Code of 1954. |

Three judgments were entered—one sentencing w hite, one’

sentencing Harper. one sentencing Fields.

‘Footnote indicated, but apparently omitted.

a ; : ill

_ Appendix B

United States en of Appe ‘als for the

Ninth Circuit

{ ~ No. 15,667

‘Lorenzo White, Joyee Harper and |

Ruby Fields, :

ree Appellants, |

VS f

United States of Ameriea, | :

Appellee. J

JUDGMENT “©. °

Appeal from the District Court for the Territory

-of Alaska, Fourth Division.

This cause came on to be heard on the Transeript

ofthe Record from the District Court for the Terri-

tory. of Alaska, Fourth Division, and was duly sub-

‘mitted. | yr

“On consideration whereof, it is now here ordered

and adjudged by this. Court, that the Judgments of

the said District Court in this cause be, and cach of

~ them hereby is affirmed. |

_ (ENDORSED). Judgment

Filed and entered: April 11, 1958

PAUL: P. O'BRIEN, Clerk.

Q f

; . « , . Appendix C |

as ries y : rans Defeyidants’

os eee | : See Sate “"_. Objections to

| ut : . | . ee 2 _ Defendants’ §$_Admission and

Government’s Government’s) : : — ' How Obtained by .- Motion to ’ Admission in

Exhibit No. Ident. No * Description . Federal Officers. | | Suppress Evidence

j F. ae ae Ca dboard ‘box and brown pap %, Intercepted en route and cut

_ Wfapper sent through mail open, without warrant _ TR 136-153 TR 125-127, 131

, _ Petitioner Fields | Sy ies a ae ae

H : 3. . Part of dress ine to Peti- Taken from Gov’t’s Exh. F, , ! ee

; Z 7 cy tioner Fields, with cleaning tag . (supra), without warrant | » TR 136-153 TR 125-127; 132, 134

ihe rex aes Che 2 Other part of dress belonging ’ Taken: ..from .Gov’t’s Exh. -F, .' eee ‘ve ras

Ne Nore Bae to Petitioner Fields acai (supra), without warrant =. . TR 136-153 TR 125-127, 134, 135 .

i << a Two glassine - envelopes alleged Taken from Gov’t's Exh. F, ee.

: “+. to have contained approx. % oz. (supra), without warrant / ‘TR 155, 157 TR 157

; ~«<. of heroin teers a , -

*. K ee 14 Box containing heroin, trans- See Gov’t’s Exh. J, (supra) - TR159 TR 159...

| : ; ferred .by. Gov't - agents CO Ra as, Sat

. Exh. J Ae | a,

Oo ae Velvet belt. belo: die: to Peti- Seized from accused’s home after ;

| , tioner Fields, with 'eaning ticket search incident to arrest without’,

: | ' attached — : warrant pees TR 188 TR 188, 189,

Pp 20-A Detached cleaning tag, belonging ‘Seized from top of dresser in ae- i,

Lane. » to Petitioner. Fields * eused’s home as in ease of Gov’ Us s | |

: aad oes Exh. O, (supra) hoe TRI193 |

_@ 20-B Detached sua tag, belonging . Seized ‘from inside: a jewel box ie ae

to Petitioner Fields in-aceused’s home, as in casé of 3

iat

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