Brief for the US in Opposition — White v. United States

ete

WU. Sao 2 Fe 2B) 1950

ae No. 206 | JAMSS A G2CWIING, Clerk -?

a

In the Supreme Court of the auited Ptates

OCTOBER TERM, 1958

‘LORENZO WHITE, Joyce HARPER AND. RUBY FIELDS,

i . PETITIONERS

vw,

’ “UNITED STATES OF AMERICA:

On Petition for a Writ of Certiorari to the United States

Court of —— for the Ninth Circuit

BRIEF FOR THE UNITED Ha OPPOSITION

J

J. LEE RANKIN, :

Solicitor General,

MALCOLM ANDERSON,

Assistant Attorney General,

BEATRICE ROSENBERG,

* KIRBY W. PATTERSON,

Attorneys;

"Department of Justice,

y Washinaton 27. D.C. oe 5

Opinion below

Jurisdiction

| Questions presented:

* Statutes involved

' Statement’

| Argument

Conclusion —

CITATIONS

Cases:

Pilodeau V. United States, 14 F.2d 582, certiorari

denied, 275 U.S. 737

Chubb Vv. Upton, 95 US. 665

Jackson, Biv part?, 96 U.S. 727k...

Arveinbring Vo United States, 216 F, 2d 671

Oliver V. Uniicd States, 239 F. 2d 818

Palno V. United States, 58 F.2d 111

Peters Vv. United States, 97 F.2d 5007

Rose V. United States, WW F.2d 755.2.

Sandoz Vo. United States, 239 F. 24 239

Sceqgurola V. United States, 275 U.S. 106

United States V. Salli, WS F. 2d 292

Statutes and rule:

IX U.S.C. 1716

1S USC. 1717

a 2.30. 221 _ ;

39 U.S.C. 213 2 fees

39 ULS:C. 204 |

39 U.S.C. 250

38 US.C. 175 “

twe PH, Paragraph (e), F. R. Crim. P.

- : . f

Miscellaneous:

- WDeycgeay] NPeaspapeal “SGortinn de? 19

Page

12

» 10

14)

rs

In the Superme Court of the Huited States

OCTOBER: TERM, 1958

No. 206

— WHITE, JOYCE HARPER AND RUBY FIELDS,

ae PETITIONERS _

” ee ie

UNITED STATES OF AMERICA

On Petition for-a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

’

«

BRIEF ‘FOR THE UNITED ST ATES IN OPPOSITION

OPINION BELOW |

The opinion ‘of the Court of Appeals (Pet. “App. A)

is repor ted in 254 F, 2d 137. |

JURISDICTION

The judgment of the Court of Appeals was entered

on April 11, 1958, and a petition i rehearing was

denied on June 25, 1958. The peti ion ‘for.a writ of

certiorari Was filed on July 23, 1958. The jurisdic-

‘tion of this Court is invoked under 2s U.S.C. 91254

(1). ay

A)

eo

)

QUESTIONS PRESENTED

1. Whether the trial court proper ly denied peti-

tioner’s motion to suppress evidence seized under a

' search warrant after the postmaster, acting pursuant —

to postal regulations, opened fourth-class mail matter

and found heroin therein. 7 |

2. Whether the trial court committed yeversible er-

ror in admitting certain evidence obtained from the |

home of me nur Fields at the time of her

arrest. |

: - STATUTES INVOLVED

39 US. C. 221 provides:

Mailable. matter: shall be divided into four

Classes: - sate

First, written matter;

Second, periodical publications;

Third, miscellaneous printed matter and other

-mailable matter not in the first, second or fourth

classes; .

Fourth, merchandise and hen mailable mat-

ter w eighing not less than: Bon ounces and not

in any other class. :

39 U.S.C. 475, relating to. air _parcel-post Service,

provides in per tinent part:

The rate: of postage on mailable matter ex- |

ceeding eight ounces in weight, but not weighing

more than seventy pounds nor measuring more

than one hundred inches in length and girth

combined, when carried by air and including:

_ Other transportation to and from air-mail routes,

® /shall, except as otherwise provided in this sec-

‘ tion, be determined on the basis of the eight pos-

tal zones est —— for fourth-class matter,

/

e /

pit).

x * * —_

‘ * ,

ee : ; . ay

~-

"ii

39 U.S.C. 244 provides: Ae Oa

The Postmaster General shall make pre ovision

‘by regulation for the indemnification of shippers-

‘ of articles sent by fourth-class mail or third-

class domestic mail,. for- shipments injured or,

lost, by insurance or othérwise, and, when de-

sired, for the collection on delivery of the postage _

and price. of the article shipped, fixing such ©

. Charges as may be | necessary to pay the cost of

such additional services.

The Postal Manual, Section 162. 12, provides in

pertinent: part:

You may insure only third: _ fourth-class

mail. or. airmail which contains third- or fourth-

class matter. ‘+s

: 39. U.S.C. 243 pr was in pertinent part:

- All matter. of the fourth class shall be subject

to examination. * * * ;

39 U.S.C. 250 provides i in’ per binoud ast:

The , Postmaster General may prescribe, by

‘ regulation, the manner’ of wrapping and secur-

ing for the mails .all packages of matter not

charged with first-class postage, so that the con-

tents of such papaae may be easily examined;

Se

18 U. S.C. 1716qpr ovides in sieii part:

‘All -kinds of poison, and all articles and com-

positions containing poison * * * are nonmail-

able matter and shall not- be convéyed in the

mails or.delivered from any post office -o or station

thereof, nor by any letter carrier.

* * * *

;

The transmission jn the mails of poisonous

drugs and medicines may be limited by the Post-

master General to shipments of such articles

from the manufacturer thereof or dealer therein

to licensed physicians, surgeons, dentists, phar-

macists, druggists, cosmetologists, barbers, and

veterinarians, under such rules and regulations

as he shall prescribe. - |

* * * *

8.U.S.C. 1717, paragraph (c), provides:

No person. other thah a duly authorized em-

ployee of the Dead Lettér Office, or other person .

upon a search warrant ere by law, shall

open any letter not addressed to himself.

Rule 41, paragraph (ce), F. R. Crim. P., provides

in pertinent part: .

A person aggrieved by an unlawful search

_ and seizure may move the district court for the

. district in which the property was seized for the

return of the property and to suppress for use

-as evidence anything so obtained * * *. The

motion shall be made before trial or hearing un-

less opportunity therefor did not- exist or the

defendant was hot aware of the grounds for the’

motion, but the court in its discretion may. en-

tertain the motion at the trial or hearing.

STATEMENT

Petitioners were convicted in the District Court

for Alaska on four counts (1, 2, 3, and 7) charging

transportation of narcotics through the mail, receipt .

and concealment of narcotics, and conspiracy to do

so. * They were senteneed to imprisonment for. five

years on each count, the sentences to run concur-

i)

rently: (R. 12-14, 18-23).'. The Court of Appeals

affirmed per curiam. The issues raised concern the

admissibility of evidence allegedly illegally obtained.

.--1. The major contention relates to the admissibility

of the contents.of the mailed: package upon which the

charges of the indictment were based. On this issue, —

the pertinent evidence may be summarized as follows:

Petitioner White operated.a bar in South Fairbanks,

Alaska, where petitioners Ruby Fields and Joyce Har-

per worked as hostesses. Ruby Fields left for the conti-

~ nental United States on December 11, 1955 (R. 41-

42). eS a lee tee

A former deputy United States marshal testified

that he-had been investigating petitioners in connec-

tion with narcotics since September, 1955. On Decem-

ber 14.of that year, he requested the postmaster at

Fairbanks, ‘a Mrs. Boyle, to look for-a package which

he thought would be coming in and which he had rea-

_ son to believe contained heroin. He said it would

_ probably be addressed to a fictitious person, would be

mailed from some place in‘the Los Angeles area, and

_would probably be picked up by a cab driver or some- -

body. that did not know its contents (R. 42-45).

He re¢eived a call from Mrs’ Boyle a day iater that

a package which might be the one sought had come

in: The package was approximately 18” x 15” x 4”,

addressed to Myrtle Hicks, General Delivery, Fair-

banks, Alaska, ‘and’ carried a return address of

' Petitioner Luby Fields was also convicted on ‘count 6

charging the mailing of a poisonous drug and was sentenced

° > >

to two vears on that count’ to run concurrently with her

sentence on the other counts.

6 ‘

9

- Pearline Adams at some place on 60th Street, Los ,

‘Angeles (R. 46, 73)....Neither the postmaster nor

the girl at the general fidtvae window knew anyone

: .by the name of the addressee (R.'72). The package,

* 4

which weighed more than eight ounces and was in--

, sured, was. four th-class mail (R. 75-76, 83-84).°

On December 16, the District Oper ations Manager:

of the Post Office Depar tment, after ascertaining that

the package was fourth-class mail, authorized: the —

postmistress to open jit (R..849, ‘The deputy United

States: marshal was aso present (R..45)..

Mrs. Boyle-opened the package and.found that it

contained a woman’s’ dress. She lifted it up and a

small. glassine envelope fell to the floor, -whichathe

deputy picked up. It contained a white powder, -

which the deputy tasted and found to be ‘like heroin

-. (R. 46-48). The package was. resealed and returned ©

to the General Deliver y window (R. 51-52).

“On December 17, petitioner White, w ho lived with

‘dae Harper at 721 1¢th.Street in Fairbanks (R. 91-

92), asked one Jenkins to pick up from the post office

a package addressed to Myrtle Hicks at 731 16th

Street ¢R. fetes antes However, Jenkins was unable

5 4)

—

Seo 39 U.S.C. 221, 475, supra, p.

©*On December 15, Joyce Harper had asked a taxi driver to

pick up some dog food and some mail, and had given him a

‘irie with the name-of. the addressee, Myrtle Hicks, on it.

~The postmaster teld him there was no mail for a person of

‘thiit name, so he returned with the dog. oie and the note to

. Mrs. Harper (R. 91-95). é

The’ next attempt -was aks the following dav, When _an-

otuer cab driver was directed-to pick up a pair of stockings

and also to pick up a package at the post office for Myrtle

ef

q

to make the call and anothei: cab driver named Tay lor

was dispatched (R. 101-102). Taylor asked. for and.

received the package, but. was immediately taken

. upstairs by a deputy United States marshal. ‘Taylor

and the officer left together (R. 102-103). They met

Jenkins, the driver who had originally received the

call (R.. 86-87). The officer transferred to Jenkins’

_eab and they drove,¢first in search of 731 16th Street,

’. which Jenkins could: not find, and then to 721 16th

Street. At the deputy’s instruction, Jenkins todk the

package to the door and knocked. The officer could

not see what happened at the door, ‘but Jenkins testi-

fied that, when petitioner Harper had answered the

door, he told her in a low voice that there were of-

ficers with him and that she then, refused: the pack-

age. _They returned with the package to the post

Office (R. 88-89, 107- 108). *

On December 20, a search warrant was obtained for

the: package (R. 52, 75). It was later sent to the

F. B, I. laboratories (R.. 49), where the contents of 7

the glassine envelope were found to be heroin (R.

158). Finger prints on the glassine envelope were

identified as those of petitioner Fields (R. 172-174,

-160-164).. )

' None of the petitioners moved to suppress the evi-

dence before trial: On petitioners’ objections tu ad-

missibility, the court heard argument out of the

Hicks, and deliver to 731 16th Street. He did not find that

number but found a house that he guessed was the right

place, delivered the. stockings to a girl he had seen at the

| Morocco Club, and reported that the package was at the post -

office but had not been brought up from the —! yet (R..

99- = .

. 8:

presence of the jury after some of the items had been

introduced (R.. 136, 139-. 5, 146-147, 151/) and then

over-ruled objections to the admissibility of. "the Ye-

maining items (R. 155-159):

2. On the’ dress.in-the package was a cleaning

. ticket marked “Fiel” and followed by some numbers

(R. 51). ‘When narcoties agents arrested petitioner

Fields in Los Angeles, one of the agents told her they:

were going to search her’ belongings, to which she

said “Go right ahead, everything here is mine” (R.

185-186). The agents found and took a cleaning ticket

on a velvet belt on a dress and two tickets marked

“Fiel 04749,” one in a jewel case on a night Stand and’

one on.top of the dresser (R. 187-188, 190-192, 198-

.199). When these items were.offered in evidence, peti-

-tioners’ counsel objected on the ground that they had

been obtained by unlaw ful search, The objection w as

overruled (R. 187-193). ne ) ,

Other evid@nce was introduced by the Government

to show that petitioner Fields had mailed the package.

As already noted, her fingerprint was found on the

glassine envelope. .

The supervisor v{&a cleaning establishment at Fair-

banks stated that pebitioner Fields was one of their

- customers, that their shop tickéts would be identified

by-the name of the chstomer and the number of the |

ticket which the customer signed, and that the ticket

found on the dress contiimed in the package Was one

of theirs (R. 200-201). Pas

Ruby Fields, when she took the tae in her own

behalf, testified that she was a resident of Fairbanks,

Alaska, but had been visiting ‘her family in Los~

Angeles at the time involved. She stated that she was

?

* , . a= :

an addict of heroin and had inailed the package in

question to Fairbanks because she was using the drug

quite heavily at that time. She further said that she

had sent a message to a friend to-have the package

picked up and held for her personal use when she re-

turned. She did not want to name the friend, as

there were already too many people involved, but it

was not anybody ‘present in the court-room (R. 219-—

223, 225, 229). | :

ARGUMENT

1. The attaek on the opening of the package ame

through the mails as a violation of the rights of

privacy of the petitioners is without merit. _

The package in this case was unquestionably fourth-

class mai] matter. It not only weighed more than

eight ounces (see 39_ U.S.C. 475, supra, p..2) but, in

addition, was insuréd as. fourth-class mail (se

U.S.C, 244, supra, p. 3). Congress. has -specifically

~ provided that “All matter of the fourth class shall be

subject to examination” (39 U.S.C. 243, supra, jp.

3), and has authorized the Postmaster General to

prescribe the manner of wrapping packages ‘‘so that

the contents of such packages may be easily’ ex-

amined” (389 U.S.C. 250, supra,.p. 3). Hence, when

the postal authorities opened this fourth-class pack-

age, they were acting in accordance with the’ statute.

in exercise of their power to determine wheth |

. mailable matter (heroin) was contained thefein. And

since the substance found) was reasonably,_believed

to be heroin, ‘it’ was. properly subject: to seizure

under-a search warrant after the peer had proved

to be undeliverable. . —

10

-Petitioner’s reliance on Ex ‘parte Jackson, 96 U.S.

727, 733, is misplaced. y that case specifically recog-

nized a distinction between different kinds of mail |

matter, “betweén what is intended to be kept free

from inspection, such as letters, and.sealed packages

subject to letter postage; and what is open’ to inspec-

tion; such as newspapers, magazines, pamphlets, and

other printed matter, purposely left in a condition to

be examined.” While the court was not there dealing

with parcel post, the distinction it made as to the

. Classes of mail is equally applicable here since, as

noted above, the statute requires that fourth-class

mail be open to inspection.. One who sends fourth-

class mail sends it subject to the ‘statutory provisions,

including the right of inspection. 4

Similarly, petitioner’s reliance on Oliver v. United

States, 239 F. 2d 818 (C.A. 8), fails to take. into

account: the difference between first and fourth class

. mail. It was the Government’s argument in the

Oliver case that, even though the package was sent

-air-mail at first class rates which did not then dis-

tinguish between letters and ‘packages, it was ‘still

parcel post (not first class mail) and therefore sub-

- ject to inspection. It was this argument which the

court rejected, holding, that air-mail packages, subject

to first class rates, were entitled to the benefit of _-

secrecy attached to first class mail.’ The court noted’ -

(239 F. 2d at 823) that: “Provision has, since this

Act, been maue.for air parcel-post service, 62 Stat.

1097, 39 U.S.C.A: $ 475, but this was done by sepa-

rate Act, making the service applicable only to mat- —

ter exceeding 8 ounces in weight and not affecting

1]

the status as first-class mail of matter not eligible for

' such service.” The implication is plain that the-court

considered that different rules would apply if the .

package, as. here, exceeded eight ounces and was sent .

as fourth-class matter. ¥ |

2. Petitioners also attack the admissibility of

cleaning tickets and a belt taken from Ruby Fields

atthe time of her arrest. Although these were taken

_ fromther in the course of a search incident to a valid

arrest, it is. questionable whether they were subject

to seizure since they were not fruits or instrumental-_

ities of the crime. However, despite petitioner’s obvi-

ous awareness of the seizure before trial, she did not :

move to suppress the items until they were actually

_ Introduced in ev idence (R. 188, 199) ; and since the

* court merely denied the motions (R. 188, 193, 199) -

without giving reasons therefor, the motion can, POR |

erly be treated as untimely.’ Rule 4J(e), F.R. Crim.

ty P.; Segurola v. United. States, 275 U.S. 106, 112;

Rose v. United States, 149 F. 2d 755, 760 (C.A. 9);

Peters v, United States, 97 F. 2d 500, 502 (C.A. 9);

United States v. Salli, 115 F. 2d 292, 293 (C.A. 2);

Sandez v. United States, 239 F. 2d 239, 242 (C.A. 9).

Furthermore, these items were not of any yeal con-

: sequence in the case. Their only purpose was to con-

nect up the ‘Fiel” ticket (found in “the dress in the |

package) with*Ruby Fields to show that she was the

sender of the package., T here was other ev idence of- —

fered by the Government to show this very fact (in-

- cluding’ the identification -by the proprietor of the -

'Thes¢@ items were not covered in the motion to suppress

argued during trial (RJ 139-115, 116-147, 151). |

|

12

dry cleaning establishment and the fingerprint of peti-

tioner F As on the glassine-envelope (see the State-

ment, supra; pp. 7, 8)). And, more important, Ruby

Fields took the stand and admitted that’ both the

package and its contents were her own, which she

-said she had mailed from Los Angeles¥(R. 219-223).

- In these circumstances, in the language of Chubb v.

Upton,.95 U.S. 665, 669, “It is not necessary, there-

fore, to inquire. whether or not the evidence was prop-

erly admitted”. See als6 Kreinbring v. United States,

216 F. 2d 671, 673 (C.A. 8); Palno v. United Statés,

58°F. 2d 111, 113 (C.A. 8); and Bilodeau v. United |

States, 14 F. 2d 582, 585 (C.A. 9), certiorari denied,

.

‘273 U.S. 737. | a ee ee

: CONCLUSION

| For the reasons. peited, it is respectfully submitted

that the petition for a writ of certiorari should be’

denied. :

J. LEE RANKIN,

Solicitor. General, .

MALCOLM ANDERSON,

Assistant ‘cade’ General.

’ é a BEATRICE: ROSENBERG,

as KIRBY W. PATTERSON,

. Attorneys.

AUGUST 1958, * - |