United States v. Dennis Roy Choate

CUMMINGS*, dаte, Before HUFSTEDLER appealed ruling Government WALLACE, Judges. Circuit evidence, granting suppress the motion to 7, 1976, and on December the Government CUMMINGS, Judge. Circuit filed an appeal amended notice of to include August On a two-count indict- Judge Ferguson’s memorandum decision. defendant, ment was returned then properly lodged Jurisdiction in the dis- Long Beach, a resident of California. trict court under 26 7201 and 18 U.S.C. § charged Count One that defendant filed a the appeal U.S.C. of the order § false individual income tax return for granting the motion to was taken dismiss listing $4,681 his adjusted gross income as pursuant to 18 U.S.C. § $32,581, figure instead the correct court, In the initially district defendant of 26 violation U.S.C. 7201. Count Two § argued govern- now-deceased state charged year similar violation Thompson ment informant named Carl had adjusted with defendant listing obtained substantial information from an $5,306 gross proper income as instead of the illegal residence, of sup- search defendant’s figure $64,744. posedly providing impetus for the entire later, Two and one-half months defend- income tax investigation that in culminated ant filed a motion to dismiss indictment defendant’s indictment and prosecution. on ground that it was “the result of However, Judge Ferguson held that impermissably discriminatory law en- [sic] Government prepon- had established a unequal application forcement and derance of the any evidence that such ille- denying equal law protection the defendant gality “did not taint the evidence in this 6, 1974, of the law.” On December case more a than de minimis manner” granted motion was and the case dismissed 263). F.Supp. at ground on govern- that the activities of Concerning issue,” the “mail cover ment informer Gordon Tony had violated court found that had ini- Government right defendant’s Sixth Amendment tiated a mail cover on defendant’s mail appeal counsel. On this Court held that the 31, 1972, July August 1972.1 attempted Government’s use Gordon had permitted This mail cover the recording of defendant, prejudiced so that the case on appearing data cover of outside was remanded for trial. United States v. incoming defendant’s first fourth class Choate, 527 1975). F.2d 748 addresses, mail at three listed two in Balboa remand, Upon defendant filed a motion Beach, one Newport California. The 12,1976, on suppress March all physi- mail, data consisted of the class the name cal items of sought evidence be intro- (occasionally piece addressees against duced him. hearing After first evi- mail addressed to Choate and another 13, 1976, on dence July Judge Ferguson person), name and return addresses of the granted the suppress motion to “as to mail place senders and of postmarks and date hearing argument issue” after oral going mail to defendant. October opinion 1976. A memorandum was filed on November is now through The mail cover was obtained Bu- reported in F.Supp. 261. On the same Special Agent reau Customs Melvin C. Cummings, protecting *The (i) Honorable Walter J. information in the interest Judge, Circuit, sitting by States Circuit designation. security, Seventh (ii) locating fugitive, the national (iii) obtaining of commission or evidence attempted commission of crime. C.F.R. postal regulations, 1. Under the a mail cover is (1975). 233.2(c)(1) § defined as: 233.2(c)(3), § Under C.F.R. “crime” is process by “Mail cover” is the which a “any of an act or defined as commission any appearing record is made of data on the attempted punish- commission of an act that any matter, outside cover of class by imprisonment able law for a term ex- including checking any contents ceeding year.” second-, third-, or fourth-class mail matter as law, now sanctioned in order obtain knowledge of any office have does this postal inspector letter to the Johnson’s pending The let- indictments Angeles, California. other charge Los as that CHOATE ter read follows: It is believed CHOATE. Sturman, Attor- has retained Sherman &

July Law, Blvd., Suite neys 8500 Wilshire LA06R0692701 legal Hills, Beverly California as H. Jenson Stanley Mr. counsel. Charge Inspector Postal cooperation in this matter would be Your Box P.O. appreciated. Angeles, Los California yours, Sincerely Dear Sir: MELVIN A cover for First and Class C. JOHNSON Charge following Agent names requested Special addresses: cc; SUI Roy Dennis CHOATE [Lynn] WILLIAMS/ab St., A Bay Apt. W. (emphasis n. 5”. F.Supp. “422 at 264-265 Balboa, California supplied.) AND CHOATE SURF- CARSON Special Agent letter was initiated This BOARDERS Drug Enforcement Lynn Williams of Blvd. Newport working special Agency who then Beach, Newport California Customs, assigned agent for Bureau Roy Dennis CHOATE In or unit. March to its hard narcotics P.O. Box 886 assigned had been April Williams Balboa, California he was sus- investigate defendant because is un- subject currently

The above listed large of co- importing quantities pected of the this for investigation by office der the United States. caine into quantities smuggling large of suspected that the fore- Judge Ferguson first held into the United States. of narcotics specify “the reasonable letter did not going organizing large a currently CHOATE is requesting a mail that exist” grounds ring primary smuggling narcotic 1965, postal required by July, a cover as is in America. It located South source postal provides that all regulation, which in source that and the felt CHOATE mail covers charge order inspectors Re- correspond by mail. South America district, viz.: within their at on mail received turn addresses received from request is “Where written aid in identi- would be of above addresses the Fed- agency of any law enforcement America and in South fying source eral, State, wherein governments, or local ring. It smuggling other members stipulates and authority requesting placed be requested that a mail cover grounds that ex- specifies the reasonable period for a the above addresses at mail cover ist which demonstrate all requested that is further days. fugitive, of a aid in the location would Special Agent Lynn be replies directed obtaining informa- that it would assist P. Williams. or at- the commission concerning into the United Smuggling narcotics (39 a crime” tempted commission of of Title 21 is in violation USC emphasis sup- 233.2(e)(l)(ii); § C.F.R. under Title 21 USC penalty carries a plied). imprisonment or a 960(a)(1) years that the use next held The district court $25,000 both. CHOATE fine and/or early nar- part cover as the mail any indictment a result of not under un- was investigation of defendant nor cotics investigation conducted this office regulations republished change 2. The mail cover were without substantial in March 1975. 40 12, 1975). (March Fed.Reg. 11579 (422 a de F.Supp. than minimis under the Fourth Amend- manner” constitutional ment, States, citing Katz United 263). holding, In it un- attacking this was 19 L.Ed.2d 576. The necessary cross-ap- a for defendant file identity it was opinion noted that peal endeavoring support because he was sender was to the law that of interest en- judgment this his favor on issue a forcement authorities here and that rea- the claim he that had advanсed below. person posted piece sonable who of mail Campbell, United States “(1) would expectation privacy have 1961).3 We are in accord with that the information contained in the re- disposition the district mat- court’s postal turn address will be used for ter. purposes, be that it will utilized in only mechanical fashion without rec- Thomp Carl record shows that (422 being kept” F.Supp. 270). ords son, May who as an died used Judge Ferguson compelling find no could April May undercover informer in governmental justify interest which could Agent Narcotics Orosco to California the incursion on what he viewed to be a help build state case against narcotics privacy substantial interest. defendant exchange favorable treat In closing, the district court concluded in potential inquiry Thompson’s ment into all evidence the Government importation. own connections with narcotics sought to introduce the defendant report May for the Orosco’s exploitation “was derived from of leads de- Enforce California Bureau of Narcotics illegal rived from mail cover” ment, he noted bank statement F.Supp. 271), so no part of the Thompson had obtained from defendant’s evidence purged could taint of the April residence in 1971 was for an account principal In its cover. brief (later Sylvester the name of Suzanne Government admitted that could not Choate) Thompson Mrs. and that indi had prove the absence taint if the mail cover cated she and defendant were autho (Br. 8), illegal argument and at oral sign her rized account at Farmers the Government conceded that it could not Beach, in Long Merchants Bank Cali proceed sup- with the trial if motion to fornia. press properly granted. evidence was We Spe- report Orosco’s turned over to was reverse. Agent Lynn cial Williams of Federal early April Bureau of Customs in of The Government’s Evidence Was Not Fa- tally by Entry give feeling Tainted In order to Williams a for the Informant’s into work, Defendant’s Home. gave hard narcotic unit’s the Bureau study. Williams some closed files to Believ- The district court found that Carl ing that there was sufficient information in Thompson, an informer for Primo T. Orosco investigation, Choate’s file to warrant fuller of the California Bureau of Narcotics En reopened an Williams had earlier federal forcement, burglarized had defendant’s California, investigation of narcotics defendant closed Beach, Huntington residence in in April report 1971. Orosco’s in was 1971 and April had obtained Choate’s future Choate’s file. Williams had discussions wife’s Farmers and Merchants Bank state during Thompson Spring of 1972 period ment for the 15-April March concerning However, relationship his Dennis the court held that deriving Choate and his nar- preponderance Government established involvement in of the any illegality intelligence regarding evidence that such cotics Choate “did During not taint agencies. ensuing the evidence in this case in his more state narcotic Milwaukee, Reese, Chicago, 1974); (9th 3. See also Tiedeman St. F.2d 325 Cir. James Co., 1976); Paul & Pacific R. 204.- F.2d 1272-1273 Cir. 9 Moore’s Federal Practice fl 1975); (8th Olympic Systems, Fastening [3], Cir. Textron, Inc., (6th Inc. v. 617-618 F.2d defendant, investigation Wil- documented records narcotics was first recipients developed regarding information de- from the credit card liams assets, in order to see if statemеnt. Since fendant’s later verified the bank $500, cocaine re- these to less than payments coincided with amount of amounted involved, Judge justified in Ferguson certainly which was later commu- was portedly obtaining of concluding Thompson’s nicated to the Internal Revenue Service corroborating one-month bank present prosecution. merely tax part used in “did taint the evidence May determined that statement On Williams on, in than a de minimis man- signatory was not a and had this case more defendant 263). in, (422 F.Supp. at Merchants ner” no interest Farmers and report in Orosco’s Bank account mentioned Hunt- entry into defendant’s Thompson’s account in no further use of that and made was to learn de- ington Beach residence tracing Williams defendant’s assets. When activity, defendant fendant’s narcotics relating to de- turned over his information De- being charged with tax evasion. is now the Internal Revenue fendant’s assets to expenditures modest credit fendant’s Service, none of that information emanated through the Farmers companies card made Sylvester’s bank account. from Suzanne in 1971 were as- and Merchants Bank Special Agent Raymond Sherrard through the three credit card certained Revenue commenced a Internal Service companies before recourse to bank investigation criminal tax defendant extremely statement. was amount being after Spring the late contact- comparison small in with the understate- Agent ed Williams. Williams Customs alleged ments of income the indictment. outspending told was Sherrard Choate Consequently, under the various standards apparent over some his means and turned Bacall, developed United States v. his to the Internal information on Choate 1971), (9th Thompson F.2d 1050 had not Revenue Service since Williams upon preponderance of evi- burglary, a substantive narcotics been able build Cales, (United dence in the record case Choate. Sherrard ceased his 1974), did not he was investigation July when fatally taint the evidence Government’s Agent replaced by Special IRS unofficially require suppression. Because did not its Emmett Roach. S. proof in the district court the standard evidence, may we preponderance officially Roach September re- judge the district overturn charge investigation involv- placed conclusion was clear- gard unless factual income ing defendant's violation tax above, it As demonstrated ly erroneous. him gave May laws. Williams Orosco’s was not. the report. verify- Roach had task of ing expenditures made defendant in Compliance Reg- with Postal There Was the years the tax included in 1970 and two ulations. this was made indictment. No reference noted, and As 39 C.F.R. 232.- already § Farmers Merchants Bank account requesting authority 2(i)(l)(ii) requires in 1970 when verifying expenditures for reasonable However, specify “the began investigation. stipulate Roach his and grounds examining that exist which demonstrate when he was defendant’s ex- * ** obtaining that aid in penditures for he discovered out cover would or $50,000 concerning the commission expenditures of in for information defendant’s $432.59,4 Here $500, commission a crime.” year, precisely attempted that under that account, authority stated requesting while through was that over made investigating de- $44,000 in cash Bureau of Customs expended without refer- smuggling of susрected in fendant for the ence to bank account. The $432.59 payments $118.72 $71.33 Carte $117.60 to Diner’s Club $432.59 4. The consisted of Charge, $70.36 $54.58 to Master Blanche. large narcotics into ter written one quantities layman the United to another is “currently He was to be replete grounds” States. said or- with “reasonable demon ganizing large smuggling a narcotics ring strating that the mail cover would aid primary with the source located in South obtaining Bureau of in Customs informa letter, key special America.” In concerning attempt or the commission agent charge in the Bureau of Customs crime, required by ed commission of a Angeles office Los then stated “It is felt regulation. regulations this Neither the CHOATE and the source requests [defendant] governing for mail covers nor the America correspond by South mail.” postal interpretation proce of mail cover Johnson next wrote that return addresses dures or require probable finding cause on mail received defendant’s listed three judicial aby determination officer.6 Ac addresses in identifying “would be aid cording testimony to House of William J. the source in South America and other Cotter, Inspector, Chief Postal United smuggling ring.” members of the Johnson States Postal Service in which we smuggling noted that narcotics into the must take as an authoritative construction States violated U.S.C. § regulations (Udall Tallman, penalty years’ imprisonment fifteen or 616), $25,000, both, a fine under 21 U.S.C. “mail covers were to be instituted 960(a)(1). He added that defendant § was upon speci request stipulating written not under indictment as a result of any fying a reasonable need investigation office, conducted Johnson’s a proper reason for its Postal use.” and that Johnson’s office knew of no other Hearings Inspection regulations at 47. The defendant, pending against indictments require simply specification do whose lawyer was then identified so predicate upon the factual which the re customary practice accordance with under questing agency basis its conclusion that 233.2(f)(2), 39 C.F.R. there would be no § subject the mail cover is involved in the correspondence mail cover of between or attempted commission commission Choate and his counsel.5 specify predicate crime. Failure to Judge Ferguson proper regulations. decided that the letter under the Whether a was defective because Johnson used the mail cover sustain constitutional mus phrase “It is felt” that the defendant and ter will be addressed infra. “Mail covers the source in America correspond by South cannot be authorized exploratory pur mail: poses” grounds where reasonable are not put forth should, therefore, to show the cover will aid [regulation]

“The be investigation having Inspection of a crime. Postal signifi- read as some substantial Hearings agency’s ‘feeling’ cance—if an mere activity criminal is afoot is sufficient to course, Stanley Jenson, postal Of H. provide showing, the needed it will have inspector charge designee or his had been read out of F.Supp. existence" regulations satisfied under 266). request Bureau of Customs’ set forth rea- judgment In our this was too strict grounds an sonable to demonstrate that interpretation regulations. obtaining The let- mail cover assist would infor- Thompson represented Hearings Inspection 5. Since was 6. on Postal Service’s Mоn- lawyer earlier, itoring same as defendant in 1971 or and Control of Mail Surveillance and probably relayed Thompson lawyer's Programs name Mail Cover before the House Sub- Facilities, to Orosco. It also should noted that be and committee Postal Mail Labor secretary lawyer previously for Management defendant’s had of the House Committee on Post employed by Thompson. Thompson Service, Sess., been Cong., was Office and Civil 94th 1st conspiracy import 94-39, 49, (hereinafter convicted of to narcotics Ser. No. 51-52 country into in 1970. See United Inspection States v. Hearings”) “Postal Thompson, (9th 1974), 493 F.2d 305 certio- denied, rari 419 U.S. 42 S.Ct. L.Ed.2d letter, Viewing the drafted Jenson attempted mation about the commission (39 233.- not nonlawyer, “practical a crime C.F.R. in a and by §§ commission of * * * Moreover, 233.2(e)(2)). 2(e)(l)(ii) and and realis- abstract commonsense in Inspector Postal must be convinced Chief fashion,” applicable regu- tic it satisfies the postal inspec- his review of actions taken lations, Supreme held with as the Court report submission of a on a upon tors initial warrants in respect to affidavits for search regula- cover that request a mail Ventresca, United States have satisfied. 39 C.F.R. 233.- § tions been 741, 746, As 13 L.Ed.2d 684. S.Ct. 2(i). requesting The letter stated de- stated, Goldberg Justice there “Technical currently large organizing fendant was specificity once requirements elaborate ring primary with its smuggling narcotics pleadings have exacted under common law source in America and that was South (Id.) proper place no this area.” Since quantities suspected smuggling large not hypertechnical ap- niceties should be Based on narcotics into the United States. to plied request,7 this mail cover we hold requesting prior experience, spe- their applicable that there was no violation of the agent his associates would know cial Accordingly, there is no postal regulations. his American that defendant and South the ground to the evidence on suppress need probably correspond would mail. source circumvention of administra- of intentional Justice and the The Committee for Public regulations tive States v. Ca- United American Liberties Union Foundation Civil 1977). ceres, F.2d 1182 joint (amid) filed a of Southern California argument participated in the oral brief of the district court’s

urging affirmance The Does Not Violate the Con- Mail Cover grounds of their is that there decision. One stitution regula- postal with the noncompliance was protection person’s gen of a “[T]he Agent requesting Special Jen- tions because right let right privacy eral be —his 19, 1972, July wrongfully son stated his people is, protec like the alone other — inspector in Angeles postal to the Los letter very life, property and of his left currently organiz- charge that “CHOATE largely the law the individual States.” ring large smuggling ing a narcotics States, 350- Katz 389 U.S. Ameri- primary source located South 507, 510, (foot attack this (emphasis supplied). Amici ca” only omitted). tautologically, n.9, 2737, Maryland, 478-479 49 L.Ed.2d 627. 427 U.S. See Andresen 174 not,

phatically course, of suggest does a is by mail cover conducted the Postal Ser- circumscription specific strict furnishing requesting various vice’s govern- guarantees constitutional in the Bill agency appear- of ment with the information Rights. guarantee Each still has its Gris- ing envelope packages the face of the or penumbras wоld and emanations. But if it suspect. addressed to a given Information is addressee, demonstrated seriatim that none of the includes the name of the specific guarantees priva postmark, creates a zone of name and address of case, cy given in a then simply (if there is not sender appears), and the class of mail. a “right privacy” constitutional in that The mail promptly itself is delivered to case. any question synergis addressee, Nor is there and the Postal Service furnishes tic coupling the several Bill only between this confidential information to the Rights guarantees opera to create requesting agency. A crime has to be a felony all together permitted of them before a constitutional mail cover will be right 233.2(e)(l)(ii).9 not locatable one 39 upon any of them. under C.F.R. See note § Roe, supra. 1 Whalen See U.S. 598-599 n.

23, 97 869, 51 S.Ct. L.Ed.2d 64. This follows all, First there is some from the text of the Ninth Amendment whether this mail cover even constituted a itself: “The enumeration in the Constitu “search” within the Fourth Amendment tion, rights, of certain shall not be con for, as explained this Court in United deny disparage strued to or others retained Solis, States v. 536 F.2d Connecticut, people.” Griswold 1976): 479, 491-492, U.S. S.Ct. “Generally acquired by evidence unaided J., (Goldberg, L.Ed.2d 510 concurring). protected human senses from without analyze So posed, our task is to the sever- area illegal is not considered an invasion specific al provisions Rights in the Bill of privacy, but is usable under doctrines privacy emanating see if the zones of there- plain open view equiva- view or the encompass right Choate’s claimed lent.” placed have a mail cover on his mail. here, Assuming search was involved since case, Clearly, under the facts of this 1878, it is settled that the Fourth Amend- Third Amendment be dismissed protection ment’s against “unreasonable ipse dixit. Nor need the Fifth Amendment protects searches and seizures” a citizen give pause us since defendants and the ami- opening the warrantless of sealed ci concede that mail cover information de- packages letters and addressed to him rives inspection from an exterior when the order examine the parte contents. Ex mail matter still under the sender’s con- Jackson, L.Ed. 877. A trol.8 Indeed neither the Third nor the recent article Geoffrey Professor R. Fifth Amendments anywhere were raised scope Stone discussed the Only the record below. the Fourth and time, Amendment since that Scope First Amendments have been upon. relied Privacy the Fourth Amendment: Policy Spies, Use of Agents Secret In- This Mail Cover Does Not Violate the formers, Re- American Bar Foundation Fourth Amendment (1976). search Journal 1195 As shown We therein, now turn in analysis inquire our important case most relevant whether the Fourth Amendment was vio- since Ex parte Jackson Katz v. United lated by States, the mail cover. explained by As Seventh Circuit States v. L.Ed.2d 576. Supreme There the Court

Balistrieri, (1968), 475 n. 2 held that because of the Fourth Amend- 8. The conceivable substantive Fifth 51 L.Ed.2d 64. Choate does protection standing would be over self-in- not have to raise either one. liberty crimination or fundamental interests. Roe, See Whalen v. 598-599 Hearings, n. Inspection 9. Postal

175 case, However, Lustiger supra. ap- not does prosecution could introduce ment telephone post- of a instant case is the first pear evidence of сontents that the defendant, which was constitutionality conversation Katz where the situation placing a device on the outside squarely heard device has been mail cover telephone public booth requiring extended presented in a manner speaking, an individual was since defendant analysis. respect tions. (Justice Harlan office, poses g., United States

speaking to someone ment protects people, tionally protected.” 389 to accessible held a “reasonable cided that has S.Ct. 881 presented has been whether S.Ct. at outside of certiorari which would post-Katz decisions S.Ct. 1967), States, inspecting tion that ground that there is have 1042, 19 L.Ed.2d 1142. ed unobserved. United States grounds, v. United tiorari 1975); F.2d v. United States Prior to Subsequent preserve Leonard, L.Ed.2d States, (2d at 511. 217, 19 to the protection,” whereas “what he seeks (N.D.Ill.1972), again certiorari denied, 354 389 U.S. at reasonable to the contents United constitutionality 493 F.2d 1124 not a Cir. to the denied, “[w]hat States, 378 F.2d 751 Katz, such information F.2d 849 information contained on the 386 F.2d 132 public, 1146. Less sustained L.Ed.2d prevent (2d expectation 1958); Canaday “[T]he concurring). The Court de- subject private, addressed Katz, denied, the courts public, Cir. v. Isaacs, 390 U.S. even expectation except places.” over the Costello, no (8th 360, 215; person the Government from affirmed 1976); Fourth Amendment mail covers on the the crucial reasonable of Fourth Amend- U.S. than Cir. even in an area 389 U.S. 897 Balistrieri, 88 S.Ct. Lustiger v. Unit his own home (9th those this, to him. mail covers. E. knowingly ex- uniformly v. at privacy” telephone has Id. United States 1966); three months F.Supp. will remain be constitu- Bianco, Cir. the courts v. 1974), on other individual conversa- (9th 88 S.Ct. expecta (2d at 516. privacy 351, United supra; Cohen In all 1967), ‍‌​‌‌‌‌‌‌​​​​​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‌​​​‌​​​‌​‌​​​​‌​‌‍cer Cir. up 534 , 88 88 88 expressly passed on the recent clude that exterior data bank other addressee tion of unconstitutional veyed In United States employees nal checks and “contain ness.” 425 U.S. at fendant. voluntarily Here S.Ct. apt: tice mailer the Government. ing ing of information revealed has held mation will be Amendment does not ment party and ^[293] Lopez v. United be used 1122; the confidence will not be White, Powell’s Miller “The ordinary exposed revealed on the packages 1619, customer too the information in than the to the banks and While privacy” analogous opinions lead for the 28 L.Ed.2d 453 authorities, Hoffa only affairs depositor takes 401 U.S. nor the sender in the it would not hold conveyed to the Postal to its repeatedly that conveyed betrayed. course of from the senders information is following passage 87 S.Ct. has proper depositor, deposit in the contents for a limited conveyed even v. placed being Supreme ordinary employees opinion, States, no another, Miller, even assumption that it will 442, 96 71, legitimate routing though neither 408, 17 L.Ed.2d stubs because prohibit (1971). This Court United used for passage of letters Id. mail cover in the if the information it was held that a is exposed seems States, 425 U.S. voluntarily con him substituting the course aware that Court that the infor risk, in S.Ct. and others question purpose 752, 91 the Fourth of his third the obtain us to to a third singularly “expecta person purposes 91 has to their at 1624. govern the de System 435, device, reveal covers origi party mail. busi S.Ct. con Jus 374; 96 v. (Foot- 1381, 10 (1963).” Katz, after certiorari denied in our L.Ed.2d wen, omitted, 1029, emphasis 397 90 supplied.) note U.S. S.Ct. 25 L.Ed.2d U.S. at at respondent packages 282. There two sent Vernon, by first class mail Wash- from Mt. of portion This Miller concluded even that California, acting solely ington, Nuys, the were Van to if banks as Govern- to and in agents transcribing ment Nashville, the information postal told Tennessee. clerk complying subpoenas, and with the there policeman present a the Post Office that upon would be no the depositors’ intrusion suspicious packages he was the the of and rights. Applying Amendment Id. policeman that return noticed the address Miller here transcription would mean the packages that a hous- of vacant question by information in the postal ing nearby junior area of a college. This transmitting authorities of it to information was transmitted the Bureau to the Bureau Customs would not violate Seattle, Washington, of Customs and the the Fourth Amendment.10 Customs officials then learned that the ad- Subsequently, in United v. States Santa- package dressee of one under investi- na, 427 U.S. 96 S.Ct. 49 L.Ed.2d gation Nuys trafficking illegal in Van for 300, the Court held that the warrantless coins, and that addressee was second arrest of Mrs. upon Santana the threshold Nashville, Tennessee, investigation under her dwelling-house would not violate the for same crime. This Court reversed Fourth Amendment because she was not in the defendant’s conviction on the ground area expectation where she had any improperly that the coins were admitted privacy knowingly what because she timely evidence because a warrant had not exposed public, to even in her own obtained, the Supreme been but Court in house, would not a subject be of Fourth opinion turn reversed Its us. first noted protection. at Jackson, parte that as established Ex S.Ct. 2406. Thus last spoken by word letters packages sealed cannot be Supreme during Court in this field its warrant, opened although without a “there October 1975 Term that in indicates accord weight” inspect- outward form and can be Jackson, with Ex parte supra, the or sender ed. 397 recipient of mail does have rea- not sonable expectation respect privacy pointed Van Leeuwen that out first class to the information on the outside. beyond inspection mail is reach

Perhaps plus fictitious return other Supreme closest modern address Court case United v. suspicious justified Van Leeu- circumstances the reten- below, Therefore, 10. As the plea district court noted “Cir- this we find the district court’s expec- society, cuit has held there is no reasonable “in a free citizens should be left at privacy telephone tation of as to the fact least one means unfettered of communication placed particular particu- calls showing were dates to which cannot be invaded without the * * * phone lar probable numbers from a home tele- necessary cause search war- phone” (422 19). F.Supp. at 270 n. United F.Supp. rant” to have a defective Baxter, (9th States v. F.2d assumptive premise. Cir. 1973), denied, certiorari telephonic pen registers, As with the con- 292; Fithian, disclosed, tents of the letters are not nor does a 1971). (9th 452 F.2d Cir. The district upon upon privacy mail cover encroach following court drew the distinction between justifiably Therefore, which one relies. there telephones desiring and the mail: “While one has been no search or at least no unreasonable protect privacy may put to a choice as meaning search within the the Fourth telephone, whether install a there Hodge Amendment. Tel. Mountain States & (422 F.Supp. are few alternatives to the mail” Co., 254, 256-257, 266, Tel. 555 270-271). But if a sender wishes to avoid 1977) (majority concurring opinions). cover, simply the mail using he refrain certainly plausible expect privacy It is more Moreover, his return address. since to be invaded when communication must subject regulations (and mail covers are pass through many hands than when it is trans- Congressional have been the theme three system. pen register mitted an electronic hearings decade), pre- in a the sender must be Baxter, See also United States (9th possible sumed to know of the mail cover of a existence 1973). upon the mail of his addressee. particular mail cover us that with- satisfied packages investigation tion of 10, supra. note was unreasonable. See there had been “no a warrant. Because out right ‘to be secure’ possible invasion affirmance, the earliest supporting houses, papers and effects’ ‘persons, in the parte is Ex Jack case relied amid upon the Fourth amendment protected son, excepted there the supra, but Court ‘unreasonable searches and sei- of the “outward inspection examination and ”, inspection zures’ of the outside of the Fourth scope from the form” of mail its first class mail was held not to disturb protect Thus the Court Amendment. 252, 253, at at 90 S.Ct. privacy. 397 U.S. pack and sealed ing the contents of letters mail Van Leeuwen to a Applying 1032. inspection. ages from examination and given reasons by appropriate cover induced opinion stat clear because This made means that requesting agency to remain “closed” ed sealed items were ‘unreason- mail cover “cannot be said to be 733. In 96 U.S. at against inspection. See the Fourth meaning able’ within the postal addition, stated that Justice Field at at 90 S.Ct. Amendment.” “permit an examination regulations cannot 1033. subject packages into letters or sealed may but without warrant” postage, letter article, Pro In his above-mentioned parties receiving enforced “as from be warrant- has concluded that a fessor Stone * * * packages (emphasis the letters or the Fourth less search or seizure under regula Postal supplied). 96 U.S. at 835.11 po “if it only Amendment unreasonable the use of mail covers tions first authorized serious threat relatively ses a [one’s] parte Ex Jack only year one after (id. 1212). Here the senders’ privacy” Inspection Postal Hear son was decided. and addresses placement of their names Certainly the draftsmen ings at 46. any privacy waives the mail in intended to fit regulations those must have information would fore claim because the already famous the strictures of that within postal employees be available to seeably Inspector Chief Postal mail case. Indeed looking at the outside of the and others House sub recently explained to a Cotter the defendant could Certainly mail. Jackson was inter parte that Ex committee invisible, yet keep that information from the postal authorities preted by the only bars intrusions Fourth Amendment covers. Id. at beginning permitting as expectation of “reasonable upon person’s testimony to the sub May In his 49. Dionisio, 410 privacy.” United States leading committee, also reviewed Cotter 1, 8, 14, 35 L.Ed.2d 67. 93 S.Ct. until mail covers approving decisions court any there was Here it cannot be said 49, 50. then. Id. at governmental intrusion into defendant’s brief, amici en Throughout their home, place soli or similar hotel room covers can be to show that mail the out deavor knowingly exposed tude. Senders occurs, case When such a employees and abused. postal of the mail to sides but implicated, Fourth Amendment others, keep could not those and defendant opinion, there elsewhere in a situation where as shown private. areas This is not Amici also con abuse here. to control in was no such attempted an individual has rights cover violated himself, tend that this mail prac nor are all formation about fail to realize They of senders of the mail. informa seeking tices Government of the investi part requested that it was person unreasonable under tion about correspondents. defendant, gation has not Fourth Amendment. Defendant ” * * * (at tongues 41 S.Ct. argument, to use our counsel for amici cited 11. At oral denigrates passage 363.). Nothing in that Publishing Co. United States ex rel. Milwaukee inspection here under the Burleson, carried L.Ed. 255 U.S. 41 S.Ct. Jackson, supra, parte imprimatur of Ex relying apparently dis- on Justice Holmes’ approval Brandeis’ in Justice cited with is twice carries it “while it United States] sent that [the Publishing companion in Milwaukee dissent [postal the mails is al- on the use of service] 430, 431, Co., right part speech of free as the most as much a rate, only At the senders would be 1965 as a result Congressional hearings any question entitled raise as to intrusion year. rigid After regulations the more rights. Al into their Long, issued in Senator chairman of States, derman v. United the subcommittee that had considered 171—172, 176; L.Ed.2d covers, expressed his satisfaction with Lisk, them, warning while that his subcommittee 1977). And none them has would push renew its to outlaw mail covers complained. regulations ig- if new completely were nored, Long, This mail cover was not at the violated or The directed abolished. postal contents or the contents of Right Privacy: Against cards Case second, mail, Government, third fourth class as amici Louis L.J. St. Univ. (Br. Moreover, 21).12 fear an estab- (1965). warning Through that and the rou- agency requesting lished federal tine introduction of bills thereafter threat- here, prop- mail cover so that amici cannot tool, ening investigative to abolish this Con- erly argue permits this mail cover gress has effect established itself as a snooping by (cf. agencies obscure local Br. to watch-dog prevent mail cover abuse. 32).13 Likewise, are wrong the amici quote Amici from Note entitled Inva asserting that this mail cover would include Privacy: sion of Use and Abuse Mail mail (Br. 42), addressed to a “Mr. Carson” Covers in Journal of Law and Columbia for, Choate, only addition to it was (1968) (Br. Social Problems 175—176 apply to mail addressed to “CARSON AND 23-24), passage but that whether concerns SURFBOARDS,” CHOATE thus incidental- mail statutory prohibitions covers violate ly including only Carson when his business (18 delaying the mail U.S.C. with Choate was involved. Nor has Carson 1701, 1702 1703), a matter not raised §§ protested this measure. say monthly here. The Note does that Much of amici’s attack on this mail number of mail now covers “is low” and just-dismissed cover is on the basis that the postal regula that the 1965 revisions in the postal regulations are unconstitutionally virtually objections tions “covered all that vague (Br. 30-42). and over-broad To the raised,” had been stifling theretofore thus extent that vagueness, overbreadth and (id. prior Senatorial criticism 173- us, other than what has been raised to 174). exist, might conceivably this matter was brief, Throughout rely their amici on the not raised the district court and there Hearings Privacy (Govern- on Invasions of fore will be appeal. considered on Our Agencies) ment before the Judiciary function is not Senate inquisitorial. United States Train, Steel Subcommittee Corp. on Administrative Practice However, 1977). noted, Procedure, (1965) it Cong., should 89th 1st Sess. (Br. even recognize 45), (Invasions amici Privacy). that of support- Instead postal regulations tightened ing amici, support were hearings actually those requested gate 12. attempted The information is transmitted to the commission commission requestor constituting form POD 2009. Five col- of acts § crime." C.F.R. 233.- given detailing umns of 2(c)(4). information are addressee, information on the outside of mail: scope The amici also bemoan the of those sender, address, place post- return and date of However, approve authorized to mail covers. Photocopies mark and class of mail. postal inspector only delegate charge can exterior service of the covered mail are not authority designees, more than three no requestor. forwarded to the Thus amici’s con- delegation writing and the must be in for mail handwriting, fingerprints cern that or other covers within his district. The Postal Chief types physical evidence could be transmitted Inspector, person grant only authorized to requestor to the is without foundation. 233.2(f)(3)), mail covers also can § C.F.R. only formally authority delegate to a and then addition, agen- In law enforcement tightly designees. limited number of 39 C.F.R. may request cies which mail covers are those 233.2(d)(1). § agencies “one of whose is functions to investi- Justice, H. B. Mon- and the position. Thus Liberties Administration the Government’s (Surveillance) Cong., Postal 94th 1st Sess. Inspector then tague, Chief 332, 334. that Department, Office testified Post to restrict Department Post Office tries General sent May 1965 the Postmaster days encourages out- mail covers excerpts subcommittee Senate agencies days. to restrict them to

side postal inspectors instructions to confidential Montague said that he believed Id. at covers, relating providing mail as fol- fishing were requesting agencies not on ex- lows: peditions because: “OUTSIDE AGENCIES “There has to be some trust and mutual important agents “It of outside among agen- understanding enforcement agencies fully pur- understand you get your cies or would never work pose is to assist them in of a cover We in these other done. have confidence give apprehending fugitives or to them I had no agencies. Up to now have rea- they leads in which are in other cases any of them. son to or distrust violations of law and that investigating information is restrictive and cover confidentially. must be treated agency, “I think law enforcement must not be Mail information investigation, has a when make investigators nor fur- given private good doing reason for there nished in civil action cases. Mail covers suspicion a crime has been commit- some security are in- permitted in routine just go without hav- They ted. don’t out vestigations of an for clearance individu- has some violation been ing idea al, suspected espionage are allowed in but committed.” other inimical to the cases or on matters Montague told the subcom- also Senate interests of the United States. Post Office had not received mittee the requests all for mail covers or Refer abuses, probably cover complaints of mail from outside existing covers extension in agencies are law requesting because agencies headquarters to division for con- “are enforcement work and dedicated in inspector sideration and action They are. take the principles same we charge designee. If a or his immediate take, and that we we same oath office re- request direct the verbal received have have found no reason not confi- writing. questor to submit it in them, and in and we do.” He dence trust POSTAL INVESTIGATIONS do agencies added that law enforcement charge approval by inspectors “Prior in mail requests cov- in indiscriminate put investigations; required is not our own covering (Id. In a table ers. however, exer- judgment must be good through supplied period in ef- cised. The number of mail covers to subcommittee Chair- Postmaster General the absolute min- fect must be reduced to 3, 1965, was stated Long May man on strictly imum, must controlled. and a Bureau of postal inspectors denied 30-day period or requests to a Confine request cover in 1960 for mail Customs use of this im- less. Avoid indiscriminate (id. 341). in 1964 requests and two such technique. investigative portant July not cover 1972 when The table does 831.44, POSTAL “SECTION Far instant mail cover was issued. MANUAL covers, seeking plethora of mail sought only Requests by postal one mail Bureau Customs .44 MAIL COVER. July charge postal inspectors July inspectors cover in 1973 and five in 1974.14 addresses, regarding for information Hearings on before House Surveillance addresses, Courts, on postmarks Judiciary Civil return Subcommittee on any July present 14. We have not been cited to statistics when the mail cover was authorized. newspaper suspected must be treated strict because the confidence was not complied carefully and accurately. any target offense. Here the mail cover information, obtaining do not de- reasonably thought importing to be cocaine (See lay delivery of mail. 311.6 and America, from South justifying thus 311.7.)” Privacy Invasions of at 339. 30-day inspection. In Piazzola Wat kins, 442 F.2d 284 excerpts These {Amicis tend show that the abuses 12), Troy Br. 15 n. University State officials conjured up by amid ephemeral are more searched for college narcotics rooms than real. plaintiffs the two student without war abuses, In an effort show mail cover By rants or consent. no stretch of the amid have been able to find one exam imagination analogized can such a search be ple, is a mail cover in the nebulous to this mail cover. also v. Calif See Stoner field security of national rather than the ornia, 889, 11 L.Ed.2d specific more area of gathering information Finally, United concerning a crime. Thus in Paton v. La Court, States District Prade, (3d 1975), plaintiff, 524 F.2d 862 (Amicis 37-38), 32 L.Ed.2d 752 Br. Patón, Lori wrote letter for the intended agents government engaged had in wire Party Labor Socialist and addressed to the taps involving the domestic national securi Party Socialist Workers whom mail Quite ty. foreseeably, applied the Court effect, resulting inwas in an abortive Katz held that search warrants were investigation plaintiff of that FBI required potential danger because of “the agent, clearing any but her of wrongdoing. posed by unreasonable surveillance to indi The pass upon Third Circuit did not privacy expression” (at 315, vidual and free validity (at 872), of the mail cover 2135.). shown, 92 S.Ct. at As those factors Chief Inspector Postal explained Cotter simply present are here.15 mixup occurred from “human er (Surveillance ror” at 320). Nobody has as

serted that human error or kind of Mail Not This Cover Does Violate the First error was involved defendant’s mail cov

er. dissenting opinion rests

Similarly inapt Daily is Stanford v. the Fourth as Amendment insofar the Con Zurcher, F.Supp. (N.D.Cal.1972), 353 124 af- opinion stitution is concerned. The below firmed, (9th 1977), 464 550 F.2d Amendment, certio- never on also relied the First granted,-U.S.-, rari probably only peripherally S.Ct. because it was L.Ed.2d-, (Br. upon by upon relied amid 12- the relied district court defend 13). premis- Court, There a Similarly, warrant search the ant. in this defendant university es of newspaper photo- a rights. stresses his Amendment graphs of cue, demonstrations was Apparently taking invalidated rely amici also Amici, fashion, (4) requirement hornbook summarize the the the “reasonable legal surrounding grounds” elaborate factually support framework the is- which the (Br. 34-36): suance of search warrants search constitute the nexus the between scope things and nature to be seized (1) requirement the that the factual basis for underlying criminality, and the so as to oath; the search be set forth under inherently “gen- avoid the unreasonable (2) precise any assessing calculus for the ac- search”; eral and curacy, reliability sufficiency and (5) requirement proper of a the return and grounds” “reasonable which be must es- inventory of the fruits search. search; support tablished to the (Footnotes omitted.) requirement the “reasonable But here this framework is of course a red grounds” which “demonstrate [that] herring. legal These mecha- elements mail cover would . . . assist in ob- imple- which have nism been constructed to taining concerning information the com- are, course, ment Fourth Amendment attempted mission or commission wholly irrelevant when the Fourth Amendment timely crime” consist of not stale apply first instance. United does information; Lisk, supra. v. In any In their “association with Choate”. principally on the Fourth Amendment. Amendment, event, that defendant mentioning the First neither the record discloses any amid cited not raise First Amendment defendant nor have did senders’ Patón, court16 therefore apart supra. rights in their favor in the district case event, ability his any rights pass no First Amendment we need not on squarely seen, only rights First Amendment were As raise the senders’ defendant violated. purely jus the Bureau of manner. being gleaned by information tertii the outside of was material on Customs Not This Mail Cover Does Violate Ninth packages. incoming mail Choate’s Amendment abridge certainly material would Such Indeed, speech. like Choate’s freedom covering necessary than Rather citizen, he could ex- any other reasonable as investigation, such mail aids to criminal as to outside of pect privacy no covers, recognize right cases mail, exer- incoming “chill” privacy partially least Ninth resulting rights Amendment cise of First grounds, have been described Amendment signifi- is not privacy” from that “lack of involving as into neatly categorized matters constitutionally enough imper- cant procreational fаmily and activities. See here, when, challenged ac- missible as White, generally, Wilkinson & Constitution tivity does not concern the substance of Lifestyles, al Protection for Personal regulatory within communication fits (1977). ap This case Cornell L.Rev. 563 Ramsey, v. restrictions. See pears category. Rights to fit into neither 431 U.S. 97 S.Ct. under the Ninth Amendment are those 617; Tatum, v. generally L.Ed.2d Laird deep- so “so basic and fundamental and 154; 2318, 33 L.Ed.2d 92 S.Ct. truly “essential society” rooted in our to be Duling, Donohoe nevertheless, cannot find rights,” and which 1972). Speech thought promote a crimi- support in the Constitu direct elsewhere scheme, encompassed by nal such Connecticut, 381 U.S. tion. Griswold v. cover, the ambit of hardly within 488-489, 491, 1678, 1685, 14 L.Ed.2d Moreover, the practice First Amendment. J., concurring). (Goldberg, in crime associating compatriots with her why that is Cardozo Perhaps right. protected associational See not a and Misdirec- lecture on “The Directions 160, 176, 96 Runyon McCrary, Right of Priva- of a tions Constitutional 2586, 49 L.Ed.2d 415. cy” colleague Judge Hufstedler initia- our rights Nor the associational guar- her search for constitutional ted the senders be raised Choate. N.A.A. right specific antees of that constitu- 449, 458-60, Alabama, C.P. provision: tional the Fourth Even if he 2 L.Ed.2d 1488. (id. noted, 551-558). perti- As there so, in absolutely support do is no could there guaran- nent words from that Amendment equality record of interest be the that in be “secure their people tee that shall * * * * * * would be papers tween Choate and the senders against unrea- * * equivalency. than false be anything other searches sonable Paton, supra, at 873-874. This because the material collected doubted whether in record the before support there is the from mail addressed defendant no really papers. his were to him was from theory delivery of senders who any the so, unreasonable cover, assuming only and Even actually subject to the seen, was As this are interdicted. prepar used in searches identity actually whose was Judge As Hufstedler Choate, would, a search. not such ing against the tax case fact, the of has stated: care others of fact knew Record, City of The Ass’n of the Bar the Consequently, 17. 26 barred from amici are also (1971). advancing ground. New York The lecture concen- of this rights. on and Fourth Amendment trated First protect arguments First, right autonomy privacy

“The of based on the absolute, personality one’s cannot be but Fifth Amendments. Nixon v. it is nevertheless fundamental constitu- Services, 433 Administrator of General right. striking tional 425, 2777, balance be- 2796-2801, 97 S.Ct. public tween interest fundamental They L.Ed.2d 867. are also less intrusive private rights, weight is on the side of opening than the of international private right unless there is strong just survived First and Fourth Amendment justification favor of Government supra.19 v. Ramsey, attacks. United States action, and the Government has chosen Ramsey, As in we conclude that “chill” means for its vindicating reasonable over- correspondents defendant and his is not riding governmental When interest. ac- wholly subjective minimal but in of protecting consists the constitu- light safeguards provided by rights group private tional of one citi- postal authorities. The information competing rights zens to pri- envelopes outside of packages normally citizens, of others of vacy its the societal passes hands, through many public so interests of each similarly weighed are private, that a mail cover cannot said to other, against the еxcept that the scale is any constitutionally protected invade zone initially tipped is when the inter- privacy. statutory Thus it is akin to the opposed ests that are are fundamental drug patient requirement identification sus- private rights general public inter- Roe, 589, tained Whalen v. 429 U.S. 599- est.” Id. at 562. L.Ed.2d where the From the in the possession information distinguished prior Court discussed and its Customs, there “strong Bureau right privacy cases in various areas. justification in favor Government Unlike the .situation in United permitting action” mail cover. Chadwick, 433 U.S. 97 S.Ct. Moreover, the Government “has chosen rea- the notations on the vindicating sonable means for overriding its outside this mail were not with made “an enforcing interest” in the narcotics laws. expectation that contents [exterior] Therefore, assuming standing, his we can- public would remain free from examina- right conclude that defendant’s of pri- tion,” placing thus defendant outside the vacy, stemming any provision from right of privacy protections in the Constitu- Rights, impermissibly Bill over- family tion.20 No sanctity problem exists borne.18 Cleveland, here such as in Moore v. East The Supreme Court’s October Term 494, 498-500,

We are reinforced our municipal conclusion L.Ed.2d where a ordinance that the mail cover on grandchild Choate was constitu which prevented living Supreme tional grandmother’s cases decided home was invalidated un- Court at its past inspec Term. Thus the der the Due Process Clause of the Four- tions here are less intrusive than the screen is the teenth Amendment.21 Nor mail cover ing of President papers analogous former Nixon’s invalidating cases statutes recently upheld right which was over “burden freedom make [child- balancing inapplicable undertaken herein accords wick here. United States v. Craven, Right Berry, rehearing); Personhood: The to Be Let F.2d 2 Alone, Reda, (2d 1976 Duke Law Journal 699. United States v. 1977); Montgomery, United States v. 558 F.2d Supreme opinion 19. This Court reversed United (5th 1977). 311 Cir. 67, Ramsey, U.S.App.D.C. States v. 176 538 F.2d 415 on which amici relied at oral compare Organization 21. But Smith of Fos- argument. Families, ter 97 53 S.Ct. 14, upholding statutory regula- L.Ed.2d a and Chadwick, 20. For a detailed discussion of see tory procedure for removal of foster children Berry, United States v. 863-864 from homes. foster (7th 1977). retroactive, being Not Chad- his conducted illegal searches of home bearing] as involved in Car- decisions” such After International, government in 1971. an informant Population Services ey v. found evidentiary hearing, the district court 678, 687, 97 52 L.Ed.2d U.S. S.Ct. sustained its bur- that the Government had 675.22 illegal that taint of the proving den of case, that In this the record shows testimo- dissipated. searches had been The being gleaned from the the information however, hearing, revealed that ny at being mail cover on defendant was used subjected during Choate had been to legitimate government purposes, correspondence. all of his mail of namely for enforcement of the narcotics that the mail cover The district court held The and later the income tax laws. applicable was conducted violation attempt garner cover was not com regulations, that it constitut- Postal Service profile with most plete of defendant. As an unreasonable search and seizure ed mail, people’s inspection of the exterior Amendment, and violation the Fourth thirty envelopes packages days and suppressed. must bе evidence requesting authority would not enable the (N.D.Cal.1976) (United v. Choate up complete picture to build such a 261, 263.) F.Supp. The district court also it invade such subject that could be used to found, on this and the Government concedes rights protected by intimately personal to be in- sought “all evidence appeal, that Connecticut, Griswold v. in this case against troduced defendant its spawn. and exploitation from of leads de- was derived granting sup- the motion to The order (Id. illegal mail cover.” rived from the is reversed and the cause is remanded press proceedings.

for further and presents singularly The case sensitive issues, statutory constitutional difficult and HUFSTEDLER, Judge, Circuit concur- involving to which the as it does the extent ring dissenting: and and the Constitution applicable statutes indictment, Choate August 21,1974 protect In an invisible to persons from searches evasion for charged persons with income tax whose effects are searched intangibles that lead to understating his income from the seizures If discovery tangible evidence. 7201. The Govern- violation of U.S.C. § Amend- is unshielded the Fourth trial Choate’s Choate ment intended offer illegal and he ment from the Government’s years, for those which amended returns case, of us in this none October, 1972, conduct documentary oppressive evi- filed similar, from unannounced ex- can be secure tending prove dence that Choate’s in which governmental invasions of areas in excess of his penditures greatly were priva- expectation have reasonable income.1 we originally-reported cy. suppress physical moved to “all Choate secured intention- sought to be introduced cover was

evidence by the Customs tainted false statements made theory ally him” on the government Roe, hearing compare had revealed that 22. But Maher v. 484, upholding attempted a state about Choate L.Ed.2d to elicit information regulation prevented indigent attorney agency through wom- two of an his obtaining August, en from abortions. 1972. This informant undercover reversed, finding effec- no denial of the court paid underpayment admitted the Choate because the infor- counsel tive assistance initially to dismiss his back taxes. He moved attorney told at the time of covert mant 1, 1974, for “dis- on November the indictment supply purpose with infor- offered him criminatory ground on the law enforcement” investigation. government mation about prosecute policy is usual IRS prejudiced. was not Thus Choate voluntarily taxpayers filed amended who have 1975), Choate prior paid their taxes to the institu- returns and 751-52. judge prosecution. The district instead testimony at the indictment because dismissed request who wrote the the promised officer for cover. and he later asserted that he was The searches and seizures that followed leniency if he could “make a case” in violation the were obtained of During Choate.2 made a April, he judicial no because warrant illegal home series of entries into Choate’s was obtained to authorize the intrusion into reported to also obtain evidence and on mail, the none privacy of Choate’s produc- alleged dealing.3 He drug Choate’s jealously exceptions guarded the warrant to containing marijuana ed a tin some and a exist, requirement and the search was over- Mer- bank statement from the Farmers and the broad and thus in violation of reasona- chants Bank. The latter was in the name the bleness clause of Fourth Amendment. wife, of Choate’s with whom he was then majority opinion only I with the concur marriage, Thomp- to living prior their but point the the illegal on the that taint of son that used it his own alleged Choate for home sufficiently searches of Choate’s was thereafter, Shortly Thomp- transactions. intervening dissipated by permit events to termi- son’s services as an informant were evidence the use the thus obtained. credibility questioned nated because his was respecting detail Some factual back- due own legal to his difficulties. The case ground of an this case essential to under- was Choate then closed. standing legal According issues. to a report The 1971 BNE was transmitted to report of the California Bureau State Customs, the Federal Bureau of and on (BNE), Narcotics Enforcement Choate April Agent Williams of Customs first came to the attention of law enforce- reopened its of Choate.4 It investigation ment authorities when an undercover infor- appears Thompson that Williams contacted BNE, mant for one Thompson, alleged time, reported but he that he had no importing that was involved in co- Choate that information oh Choate in addition to Thompson caine from Peru. was about to report.5 began own dealings, indicted for his narcotics the 1971 Williams an inves- Thompson ultimately prosecuted gave conflicting was 5. Williams his con- versions of December, subsequent Thompson convicted 1972. In tacts with their dates. one corpus petition alleged pros- Thomp- habeas he that his affidavit he testified he first learned of imprisonment ‍‌​‌‌‌‌‌‌​​​​​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‌​​​‌​​​‌​‌​​​​‌​‌‍May ecution and unlawful him was as son “after 1972” and used for promised government agents investigations had him that he narcotics (Affidavit unrelated to Choate. Williams, Lynn if would receive different treatment he assisted dated March example compli- second, He them. cited as of his aIn he stated that he discussed bargain prose- April, (Affida- Thompson his ance with end of the tax Choate with Choate, claiming Williams, 12, 1976.) Lynn July cution he had been told he vit of At dated hearing July “take could credit” it. He asserted he had 1976 he that his stated brought Agent Thompson to first Choate their attention. first conversations with early occurred also Orosco the BNE testified that he knew that the earlier affidavits and purpose Thompson’s prior testimony However, was assistance to was erroneous. “buy that, some insurance” for testimony spoke, himself. was whenever Thompson told him he had no additional infor- reported brought large 3. He that Choate had report. that in mation to the BNE The version quantity early April of cocaine from Peru in occurring these which has events in 1973 less more, had returned but was ar- Thompson than prison, was then in federal credible trying exchange money rested while on the inquiry and Williams’ in the role Choate Thompson black market. also informed the appears apparently over. to be a later nothing that BNE Choate had do with co- government’s to bolster conten- fabrication possession passenger caine seized in the of a hearing investigation the IRS flight Diego during on a from Peru San Thompson. was unblemished contacts with same month. perspective Viewed of whether Wil- justi- given liams’ institution of mail cover was 4. Williams testified he had been fied, government: upon joining version file to neither assists review the Bureau of Cus- March, attempt update toms either Williams made no 1972. He also stated he report prior asserting that Choate had become interested in 1971 BNE Choate because of the “currently” allegations drug dealing smuggling report. 1972 or BNE cocaine in in the making request description prior to His of the file’s he in fact learned contents indicated reports allega- contained knew no substantive that the sole source of such drug dealing. developments. tions new ments made checks drawn assets had been tigation of the extent of Choate’s they, expenditures if with the amount of see “coincided” on that account. Those purportedly $500, involved. He testified cocaine while total amounted to less than investigate steps one of first was to that his period expenditures by for the in Choate account, Farmers Bank the and Merchants $60,000.9 over question were he of inquiry but discontinued avenue immediately learning upon that Choate was I signatory not in fact an authorized rapidly concluded that account. Williams Thompson’s Illegal Taint Searches assets,” he while he had found “lots of was presses point Choate that “all” the in having getting “not much luck a seizure sup- should Government’s evidence coming up or with substantive case pressed Thompson’s illegal because Therefore, Mr. he against went Choate.” may present for pur- searches. We assume (IRS)6 to the Internal Revenue Service poses illegal the entries were that attempted Agent to interest IRS Sherrard product governmental misconduct. The investigating in tax evasion.7 Choate for primary illegality is whether the Sherrard, however, to become declined sought evidence discovery led to the in until the Customs involved the case after to be or whether it was obtained introduced investigation Williams ceased. Thereafter (Wong through independent means. Sun investigation and insti- continued his asset 471, 487-88, correspon- tuted a mail cover of all Choate’s 441). L.Ed.2d The cover the identi- dence.8 mail revealed pre- and at the facts as ty personal simple of Choate’s bank account A examination of creditors, and Carte least two Diner’s Club viously forth demonstrates remote set sources, Williams was Blanche. From these Thomp- fruits of relationship between the great information able obtain deal of entries as the BNE illegal son’s embodied expenditures which was ulti- about Choate’s prosecution. tax report, and this evasion mately to the turned over IRS. have report The BNE well contributed reopen Agent Williams’ decision to September official an IRS Choate, investigation sug- as narcotics investigation opened Agent was with Roach major gested that he was a trafficker he charge. made Roach testified However, lead cocaine. the sole used through use of the information obtained the bank statement which Williams was cover, but that the Farmers Mer- bank quickly unproductive. That proved chants Bank account was of little use. The only again statement was used after fact latter was used after known to the indepen- expenditures Choate’s were expenditures were made had been payment. dently pay- verify to ascertain that the mode of verified IRS event, testimony July his he “went to of 1972”. In either [Sher- 6. Mr. Williams testified that prior meeting having I was with the was occurred because trouble rard] investigation. having instituting determin- I was trouble the mail cover. smuggling ing how the cocaine Mr. Choate having I much into the United States. was not requested July 8. getting progressing a seizure or with a luck July 25-August and ran from against case Mr. Choate I’d substantive up I a lot of assets and so went to come most of Choate’s 9. Roach also testified that IRS to see if could have luck the case.” expenditures were in and that some of cash respecting expenditures had information these Again precise is a conflict to the date there through investigation not de- been obtained meeting. of this Sherrard testified at earlier example, rived from the cover —for hearing April, it occurred in 1972. This Thus, purchase in 1970 of cars a boat. information was confirmed in an affidavit $3,400 personal in ex- checks accounted Roach, Agent IRS Emmett T. Sherrard’s suc- $11,- expenditures penditures total investigation. At cessor the Choate $6,639 and in 1971 checks accounted hearing, he met with Sher- Williams said first $50,000. expenditures were over while total “July August rard in of 1972” or “June or that, if factual nexus and the primary illegality Choate’s contention is between report provided impetus challenged BNE for re evidence. The mere establish investigation illegal place ment of an opening the of Choate and search does not vigor, upon to its all the burden of affirm contributed evidence obtain Government succeeding atively proving piece ed investigations every is that each and of tainted. (United rejected This evidence is free taint. consistently Circuit has from States such Cella, supra, v. arguments thorough contains a discus only has held that evidence point.) sion specifically of this did establish illegal derived from leads Choate can be any or logical deemed tainted. factual nexus between the succeeding Where the in BNE vestigations produce report subsequent and the evidence evidence inde sources, pendent uncovered Williams and as to may it be introduced Roach de spite original (E. expenditures, except Choate’s assets and illegality. g., United the Farmers (9th 1977) States v. Cir. and Merchants Bank state Cella 568 F.2d (mere (Alderman (1969) ment. v. United investigation 1284-1286 is inten States fact enough); sified not United States Sand 176; Cella, (9th supra, 368 1976) (nex 541 F.2d United States v. Cir. 1375-76 1284; Sand, supra, us United States illegally between seized evidence and 1375-76.) F.2d at While that bank state sought suppressed to be must be shown course, should, suppressed, ment of be irrespective degree police of the illegali any evidence as to that use as account’s ty); (9th 1974) United v. Cales Cir. States 1215-16; expenditures, source of Choate’s it cannot 493 F.2d United States v. be deemed taint the other evidence of (9th 1972) Brandon Cir. 467 F.2d expenditures indepen Choate’s which was (test is not whether a “but relationship for” dently through cover, discovered the mail illegal exists between the search and later records, state motor vehicle and other investigation but whether its fruits tended sources. to significantly investigation direct that question); evidence in United States v. II 1050, 1055-61 (9th 1971) Bacall Cir. 443 F.2d

(original illegality must “in fact” lead to The Mail Cover specific contested); evidence Durham v. A procedure by mail cover is a which the (9th 1968) United States 403 F.2d 190. United Postal segregates States all Service See also United v. Pike Cir. mail particular sent to addressee rec- 734; 1975) 523 F.2d Fried- on appears ords all information which its (2d land and, cases, outside cover some identifies proof second, third,

While ultimate burden of is on the contents of and fourth the Government to show the absence recording class The mail.10 Choate’s case taint, must accomplished postal defendant first establish a aby employee’s 233.2(c)(1) (1977): They 10. promulgated § C.F.R. were on March do “ differ, however, any material substantive process by ‘Mail cover’ is the which a respect applicable from those at the time of the any appearing record is made of data on the July, (See Choate mail cover —June and any matter, cover outside class of mail Wiretapping, The Matter Electronic Eaves- including checking contents dropping, Hearings and other Surveillance: be- second-, third-, or fourth-class mail matter as Courts, fore the Subcomm. on Civil Liberties law, now sanctioned in order to obtain and the Administration of Justice House (i) protecting information in the interest of Comm, Judiciary, Sess., Cong. on 94th 1st security, (ii) locating fugitive, the national (here- Part 1 Ser. No. 352-54 (iii) obtaining evidence of commission or “Hearings Surveillance”). inafter cited as on attempted commission a crime. Fed.Reg. (March See also 40 persons Mail covers also be instituted 1975).) history For a detailed engaged postal believed to be in violations of regulations Inspection see Postal Service’s (Id. 233.2(d)(2)(l).) statutes. § The crimes be- Monitoring and of Mail Surveillance Control ing investigated (Id. must felonies. 233.- § Programs: Hearings and Cover the Sub- before 2(c)(3).) present appeal only The Facilities, involves sub- Postal Labor comm. on Mail and Comm, (c)(l)(iii). present regulations section The Management Post Of- House form, unique respects. Mail covers are in other on a for all first and fourth listing thirty-day peri- mail received over a class ap- is subject of a mail cover never od,11 (three the addressee locations were prised of this surveillance of the existence covered), sender, address, place return in discovery to him unless revealed (See postmark, class of date mail.12 proceedings. 233.2(gX4).) C.F.R. § 233.2(c)(1).) The information 39 C.F.R. § case, pretrial ample dis- despite Choate’s obtained mail cover through surveillance motions, covery the mail cover’s existence potent provides a data bank is a inadvertently revealed investigative tool. hearing sup- a motion to course of identities, ad- possible to learn the nev- press.14 Many subjects mail will cover most of frequency and of contact of dresses of the existence of surveillance er learn one- person’s through a correspondents (See litigation. will in because it not result banks, including mail credi- month cover— States District United States tors, ed- religious, political, affiliations with Court (1972) 407 ucational, voluntary organizations, pub- and 752.) request, 32 L.Ed.2d The authoriza- received, accountants, and lications tion, use of results of a undertaking, and many of these corre- friends.13 Because within wholly mail cover occur the execu- on spondents maintain files the addressee autho- procedure, tive branch. This neither and by which can be discovered used by any Congress, nоr controlled act of rized accounts, g., bank (e. investigating agency is articulated and controlled the discre- Miller (1976) United States v. judicial of the Postal No offi- tion Service. 71), the mail cover any stage proceed- involved at cer is techniques with other used combination ing, kept by and records are the Postal subject’s open quickly makes the life an only.15 investigators. Service book Sess., consider, Service, Cong., suggest, possible use 94th 1st not as amici fice and Civil (hereinafter (1975) fingerprints No. 94-39 at 46 cited as or data on Ser. “Hearings other the surface Service”); by Inspection photocopying In- on Postal revealed it was mail because Privacy (Government Agencies); employed Choate. vasions Hearings before the Subcomm. on Admin.Prac- Comm, exempted only correspondent and Procedure of the Senate on the from a tice Judiciary, 13. The However, attorney. Cong., subject’s 89th Sess. at 1st 67-69 mail cover is the “Hearings (hereinafter identity cited as on Invasions must be advance and known Note, Privacy: Privacy”). (39 See also Invasion of Service. identified to Postal C.F.R. Covers, 233.2(f)(2).) legal correspondence and Abuse & Use of Mail Colum.J.L. § Other (1968). presumably Soc.Problems 170-75 covered. Choate’s attor- would be hearing ney at the that he had not filed noted days Thirty period 11. the maximum is questioned appearance at how that time may requested initially which a mail be cover identifying government gone about had involving other cases than those national him. security (39 postal regulations or breach of 233.2(f)(4)), but be extended § C.F.R. discovery pre-trial was made 14. A motion for However, days request. renewal on November but the existence of ordinarily (39 maximum. 233.- § C.F.R. July cover was revealed at the mail first 2(f)(5).) prepared Statistics the Postal Ser- 233.2(g)(4) hearing despite 39 C.F.R. § — vice for 1973 1974 reveal most domes- (“Any concerning data mail covers shall days averaged tic mail covers security while national any any subject in available mail cover made many averaged as 119.4 covers as discovery legal proceeding through appropriate Cotter, days. Letter Postal of William J. Chief Agent spontaneously procedures.”). Williams (March 1975), Inspector A B in Exhibits & the existence of the mail cover revealed Surveillance, Hearings supra on note cover, Thompson’s show that the order to illegal 332-35. searches, of his was the source most cases, investigatory leads. In has made 12. other a record been (United photocopying the exterior reforms, (2d these were 1085 & to 1965 records Leonard 15. Prior Subsequently n.4). destroyed years. after two This distinction is without a difference eight purposes period five now has been extended to discus —see 233.2(g)(5). However, years. 39 C.F.R. § sion infra at 201-202. we need regulations provide that Postal “law mail cover data as to Choate’s domes- agency”16 may enforcement obtain a mail tic correspondents.19 Finally, informa- written application direct to mem directly obtained is forwarded to the investigative bers Postal Service’s requesting agency, postal records are Inspector 17—the or 72 division General des destroyed period eight years. after ignees (Hearings the country. about number, being Far few there Surveillance, 331.) supra n.10, at The re 4,528 were other mail in effect dur covers questing agency required to rеcite “the ing requested 1972 when Choate’s was grounds that reasonable exist demon 5,171 in Bureau Customs necessary strate the mail cover is to . alone 220 in (Hearings obtained regarding obtain information the commis Surveillance, supra n.10, attempted sion or of a commission crime.” view of the fact that mail often covers lead 233.2(d)(2)(ii).) C.F.R. § There is no to investigation of senders of as well requirement that the requesting agency at addressees, readily can be seen that test grounds to the truth of pro these or the rights large numbers of citizens are duce supporting evidence them. Granting (E. g., (3d involved. Paton v. La Prade denying request is in the discretion of 1965) (FBI investigated 524 862 every F.2d General Inspector designee. or his one Party); who wrote Socialist Workers Service, on Postal (Hearings Inspection su Lustiger 1967) States Cir. United 386 pra 52.) meaning n.10 at reasonable (3d F.2d 132 and United States v. Schwartz grounds (see infra) undefined is n.25 and it (Post 1960) Office contact appears requests that most are routinely ed correspondents all fraud mail sus granted they seem to state why if reasons a pects to see if defrauded).); had been mail will prove helpful cover to the request (2d Leonard States ing agency.18 Information is obtained on approximately revealed that all correspondence just mail directly —not persons who received mail from Switzer purpose related to stated of the surveil Thus, case, land without a return were lance. in address investi Choate’s while the request gated purportedly purposes possible the IRS for income tax identifying South American return evasion many ad and that mail of thou dress, the Bureau of Customs was sands furnished was covered. agencies

16. Inspector Law enforcement include fed- 18. The General testified that as to eral, state, security covers, or local unit “one whose func- national are there no stan- investigate tions is to the commission or at- dards and whatsoever the Postal Service tempted constituting commission of acts Congressional “guidance” would welcome 233.2(c)(4).) Thus, crime.” C.F.R. § Surveillance, re- regard. (Hearings supra on quests have been honored such entities 314.) as disapprovals note at Mail cover Guard, Department the U.S. Coast of Interi- approvals were follows for 1973-75: or, Royal Police, Canadian Mounted Disapprovals Approved total HEW, Labor, Departments Agricul- agencies traditionally 5,171 ture in addition to more (Hearings 4,609 with law associated enforcement. Surveillance, supra 3,699 note 191* (* quarters only) three Inspection responsible 17. The is Postal Service postal security (see 231-233), Service, (Hearings Inspection supra §§ C.F.R. Postal 18, 238.) and it is the Postal own law Service’s enforce- note ment investiga- division and the oldest federal agency. primary tive Its are activities investi- Indeed, 19. obtained, of all the information gation, arrest, prosecution of those who one return address was outside the United Thus, postal break the laws. the divi- States. 12,006 arrests, resulting 10,485 sion made (Testimony Montague, convictions. of PI. B. Inspector, Department Chief Postal Post Office Hearings Privacy, supra on Invasions of note 66-67.) Amendment). also United See of Fourth to Institute Power Postal Service Court, District su- v. United Mail Cover Procedure 297, 308-09, 92 pra, 407 U.S. preliminary question is whether the A (applying L.Ed.2d 752 unconstitutionally has ex- Postal Service without statute searсh unauthorized delegated instituting powers ceeded its branch reaching question whether executive procedure promulgating authority has to order warrantless inherent regulations, practice when the is un- postal wiretaps security purposes).) for national Congress.20 How- by any act of authorized I mail cover constituted As find the instant ever, impor- we resolve this need here and seizure in viola- an unreasonable search question.21 tant and difficult Amendment, have I no the Fourth aside, ap- it is The Fourth Amendment question reach the of the validi- occasion to failed to parent here that Government postal regulations.22 of the ty postal regula- comply applicable with the suppress- As provides tions. a basis for Regulations with Postal Compliance from the mail ing evidence obtained the mail cover of order institute cover, we need not reach the Choate, prepared a letter Agent Williams regulations’ promulgation as validity of the signature supervisor on over the of his sent challenged con- no shield to the they afford pertinent recited in July duct. part: perspec- From Fourth Amendment currently investigation under is “[Choate] tive, practice even where authorized suspected smuggling by this office for statute, authorize a war- purports if it into quantities of narcotics large search, constitutionality rantless currently or- United States. CHOATE is evaluated terms of the actual search large smuggling ring narcotic ganizing specif- Fourth The statute’s Amendment. in primary with the source located South (Sibron v. ics become immaterial. New is and America. It felt that CHOATE 40, 59-62, (1968) 392 88 S.Ct. correspond York U.S. the in America source South 1889, (no 20 917 need to consider by L.Ed.2d on mail would mail. Return addresses identifying of statute authoriz- source in constitutionality facial be of aid in the frisks; rather members of the ing stop warrantless and South America and other light ring.” in smuggling actual incident Court will examine 596; (1975) regulations postal States v. Ortiz promulgation re- L.Ed.2d United 20. In its of covers, 623.) lating to mail Postal Service recites 95 S.Ct. 45 L.Ed.2d “[A]n the authority statutory bootstrap this and agency it finds for in itself into area Inspection Service jurisdiction by repeatedly other of the Postal activities vio which it has no Rewards, (Posting Posters and of Wanted lating statutory its mandate.” FMC v. Sea- Privileges Mail Abusers of Withdrawal of 726, 745, Lines, (1973) Inc. train Mails) and the in 39 410. §§ U.S.C. 620.) No court (1977).) (See None 233 at 56 of § C.F.R. yet whether the has had occasion to consider give any express purports these statutes statutory procedure au mail exceeds the cover Indeed, authority counsel for for mail covers. post thority the office. of that no statuto- the Postal Service has admitted ry authority practice. (Hearings exists the for poses broad rami substantial issues with 21. Privacy, supra at 82: on Invasion note variety agency practices. fications authority statutory “There is no for mail covers (See supra.) Of discussion in notes any prohibition is law nor there course, Congress by acquiescence cannot (Testimony Doyle, J. them.” of Louis General assump an unauthorized render constitutional Office).) of the Post The Postal Ser- general Counsel by (Cf. power Almeida- tion of the executive. simply upon its vice has relied authori- States, supra, 413 U.S. Sanchez v. United ty long-time upon practice in undertak- its L.Ed.2d illegal ing mail covers. Unauthorized and as- sumptions power becоme neither authorized legal by view, regulations habitual my nor reason of assertions of had if the been even power, long-stand- they the habit is such even when Congress would be void authorized ing. (See, g., e. Almeida-Sanchez v. United Amendment. violative of (1973) 413 letter, basis of this On the the Postal and, It is lations. the Postal Service cover, Service instituted mail particular, Inspector Chief who bears July through August 25, lasted from responsibility approved all as to whether request requests Choate contends that in keeping regula- are with the comply failed to with 39 request permanent C.F.R. 233- tions. The § becomes (1977) part 2(d)(2)(ii) because on the mail file its face does cover which must be grounds through appropriate not state “reasonable made available exist dis- procedures covery the mail is legal which demonstrate cover neces- action. subject The obtain the mail cover would thus sary to . information re- to challenge proprie- able attempted com- garding commission ty judgment postal official of a mission crime” because recita- cover, imposing the also mail but Agent tions were untrue known sufficiency truthfulness and of the state- Williams be untrue at the time he made authority requesting ments filed the request. prior I am aware of no chal- the mail cover.”24 lenge to a mail validity upon cover’s based postal regulations. failure to comply Inspector The General’s statement sug- We must therefore determine whether the gests judicial while prior there no grounds may asserted serve vitiate review mail requests, are cover, so, evidentiary and if what con- challengeable subsequent judicial pro- sequences follow. grounds ceedings (1) the averments did «not their face state “reasonable is no provision regulations There in the grounds” averments were un- collateral on a request attack mail cover (See truthful. also subject.23 However, Oliver United States in a statement (“The ques- submitted to Representatives’ the House of tion of unreasonable search and Service, seizure Committee Post Office and Civil on. postal inspection resolved, is entitled to be which was investigating the use covers, where legislative measures or administra- Inspector Chief Postal for the regulations exist, by tive such valid limits States Postal Service said: as have been fixed and held out thereunder “. . . grounds upon which the as constituting the opening extent of mail

need for a mail cover is based must be and examination in which the Post Office specific permit order a determina- Department will engage.”).) tion that requirement the essential met. Mail covers cannot be authorized present For I purposes, am content to for exploratory purposes. deciding assume without that the Choate “The of sufficiency a cover request mail re- mail cover states reasonable quest is the of heart the cover regu- grounds mail meaning within the of 39 C.F.R. Regulations provide Inspector, The Postal do that Chief “[i]f Postal United States Postal Inspector, designee, the Chief Postal Service) (emphasis added). his de- a improperly termines mail cover was ordered by Inspector Charge designee in Postal or his 25. The of the whether averments fa- acquired all data while the cover was in force complied cially is 39 C.F.R. 233.2 made § destroyed, requesting shall authоrity be and the grounds” by the difficult fact that “reasonable of notified the discontinuance of the mail cover they are nowhere is clear defined. that were and the reasons therefor.” 233.- § C.F.R. “probable equivalent not as viewed the of 2(g)(3).) appears This however allow to cause,” contirtuing- because the Post Office has postal improvidently internal review of ly opposed requirement institution of such a on granted requests prior conveying to the infor- grounds probable the that not ordi- cause could requesting agency. Similarly mation to the the Surveillance, narily (Hearings be shown. on procedures 233.2(h)(i) appear review in id. § 310-11, (mail supra note at covers requesting directed toward of limitation author- probable cause); development of enable the ity appeals responses from adverse to mail cov- Service, supra Hearings Inspection on Postal by requests, subjects. er later to attacks 49-52, (Justice Department note at 196-97 Hearings Service, Inspection opposition probable supra on Postal re- asserts its cause (Statement Cotter, hand, tighten- quirement.).) note at 52. of J. William On the other validity defendant attack the of a mail 233.2(d)(2)(ii),26 as in view a mail cover my § request may collaterally be attacked It does constitute an request. cover the same basis as an affi untruthfulness on reg- do interpretation, authoritative nor in warrant27 The support davit search provide for ulations themselves collateral evidentiary hearing at the developed facts However, persuasive it is highly attack. clearly in the district court reveal that entity sole involved with opinion of the request were statements false covers, of mail the authorization review by known to be false when made. Williams particularly suggests its own as it belief Hence, underlying I hold that would approval is not intended that Postal Service request mail irre falsity vitiates the cover that a mail to be a conclusive determination spective validity of its facial that request valid. cover is resulting illegal renders surveillance veracity of the of the “rea- Some review of the requires suppression evidence authority grounds” stated in a mail cover compulsion in this sonable under (United v. Caceres Circuit. is dictated considerations request similar 1182.)28 1976) 545 F.2d have most to those which led courts the validity to authorize attacks on appeals prepared Inspector A statement of the of false of search warrants because state- hearings cannot control General Senate government sup- agents ments grounds our view the on which criminal following finding probable ing procedures govern- mail cause which the cover the 1965 hearings inapplicable and recent statements the Chief It is ment has relied. review Inspector they long- indicate judgment agent Postal are no a law enforcement expeditions fishing to be used for mere self-serving er reviewing the Office who is Post request government’s that a need assertion law of another enforcement officer. averments grounds merely state "that reasonable exist” the extent liberal construction To (See Hearings Inspec- without on Postal merit. warranted, is no it is because there reason 51-52; Service, Hearings supra note expect laymen re- who review сover Surveillance, supra note at 304-05 they magis- quests to as if were neutral act explor- (“mail covers cannot authorized for training had or as if which should trates atory (dis- purposes.”) See id. at also 324-27 distinguish “facts them to “it is felt” from lead cussing history changes).) of 1965 in turn lead us to believe.” This reveals request appear that It would at minimum the procedure inadequacy current for Fourth allege attempted must the commission or com- purposes. felony specific mission of a and that a logically obtaining cover would assist evi- spend should not this court’s time ana- 27. We dence relevant to its solution. The district meaning lyzing the of the term “reasonable judge apparently believed addition regulations purport grounds” postal grounds agency specify must factual under- violative of to authorize conduct (United lying allegations. its States v. Choate York, (See supra, Sibron v. New Amendment. (insuf- (C.D.Cal.1976) F.Supp. 266-67 “feeling” mere ficient to recite mail cover productive history would be view of Con- tightening gressional leading judge concern did not thus characterize 28. The district regulations).) postal position is holding request This undercut that the Choate mail specification However, the fact such has not been grounds. reasonable failed state during years regula- required the ten that the implicit fact discussion of the the 1965 his effective, by the fact that have been tions legislation prevent regulation tightening to intended was showing require would such a expeditions request fishing the and that here Congress. been has introduced justification,” tangible no the was “without inadequate agree request that review of the facial because 26. I do not our that the validity request expedition. F.Supp. fishing be under would limited 422 in fact a 67, v. the rationale of United States Ventresca v. New York 271. United States at 264 — 102, 741, (1965) L.Ed.2d 380 13 159, 8, (1977), Telephone 166 98 434 U.S. n. Co. 684; Spearman (9th or United States v. Cir. (“The prevailing 54 L.Ed.2d 376 1976) 532 liberal F.2d That doctrine of any may ground judgment party on defend justified construction is in the search warrant permit and the record which the law magistrate the context a desire to defer to grant expand has been not the relief it would previously request. has This who reviewed ed.”). appeal on follows from hesitation to reverse 192 (United v. (9th States Damitz to Cir.

porting which led their is- tion.” affidavits 1974) 50, 55-56.)30 495 F.2d This is true suance: despite fact have affidavits recognized must “. . .it be law magistrate been scrutinized a neutral agents presenting enforcement evidence of prior to issuance of the warrant because magistrates mockery could make a of parte ex of proceeding nature if, magistrate’s necessarily role in the preserving impossibility of otherwise parte freely could proceeding, ex rights. the defendant’s employ allegations false in order se- cure the warrant. The same would like- In the context of the Postal Service could, agents wise be true if the with procedure, post-surveil- the need for impunity, draft with affidavits utter judicial pro- lance review even more falsity. recklessness to truth or In nounced, judicial because no officer has either instance there of would be lack previously interposed ever been to evaluate good performance faith governmental averments as to the need duty agent’s judicial to the office.” parte procedure ex for a has search. v. (6th Unitеd States Luna 1975) Cir. solely government en- consisted of one law 4, 8.) F.2d agency representing to forcement another produce likely the surveillance will use- recognized, As this Circuit has collateral cases, representa- on of ful evidence. In veracity attacks affidavits in the most accepted question, search warrant are tions are without based necessary context reposed by Inspec- further “a of on the the Postal purpose basic trust [Fourth] rule, exclusionary and the tion Service coordinate law enforcement namely the police lawless ac- agencies. (Hearings Inspection deterrence Postal appeals 29. All courts (5th permits have assumed or decid 1371-74 if Cir. rule attack even hearing ed that a defendant is entitled to negligently); material misstatements made may validity govern which he attack the (6th 1975) v. United States Luna Cir. 525 F.2d exist, opinion mental affidavits. Differences of 4, (affidavit may impeached 6-9 for “know- however, negligent as to whether and material ing use of a false statement intent or non-material but intentional misstatements material; negli- deceive” whether or not not for Supreme vitiate the warrant. The Court gent misrepresentation); material United question. (See Rugendorf has ruled (7th 1972) States v. Carmichael Cir. F.2d 528, (1964) v. United States 983, (en banc) (can impeach 988-89 affidavit 825, (need 11 L.Ed.2d 887 if decide showing upon misrepresentation ma- of a validity Court can look behind facial of search misrepresenta- fact or terial intentional showing warrant where there was no bad tion); (8th 1974) United States v. Marihart Cir. misrepresentations); faith or United (adopting 492 F.2d Cir- 899-902 Seventh U.S.App.D.C. Branch 102 & n. standard), cuit accord: United States v. Luciow (hearing 545 F.2d 180 & n. below found 1975) 301; (8th Cir. 518 F.2d United States falsity non-credible; unnecessary evidence of (10th 1972) v. Harwood 470 F.2d 324- Cir. circuit); to determine rule for United States v. (material misstatement will war- vitiate 1974) (1st Belculfine (hearing required Cir. 508 F.2d 60-64 rant).) pre when defendant makes liminary misstatements; showing knowing Circuit, a defendant is entitled to an supportable suppression “no alternative to making evidentiary hearing upon a substantial evidence taining . . . based on an affidavit con showing (United in the affidavit. intentional, falsehoods relevant, and nontrivial Damitz, supra, misstatement.”); (2d 495 F.2d at 53-54. United States v. Gonzalez (9th 1973) 1976) (misstatement Accord: United States v. Taxe Cir. F.2d Cir. 837-38 and, 961, 967; worst, (9th negligent; was non-material necessary 540 F.2d un United States v. Moore standard); applicable 1975) 1072; to resolve Cir. 522 F.2d United States v. (3rd 1976) (9th n.7.) States Vento Harris 5-6 F.2d & (immaterial 858-59 and unintentional mis necessary has not been reach statement; unnecessary ap to choose between type what of misstatement will invalidate (Damitz, supra, plicable standards); United States v. Lee warrant. 1976) (where 1208-09 offi (where in- were made misstatements perjures proceeds cer himself or in reckless material, valid former and were not warrant is disregard of true facts and affidavit is material to if remainder of affidavit is true suffices inaccurate, ly attacked); probable cause).) show States Astroff Service, issue, n.10, which have reached the supra (no at 16 evidence re- intentional quired, just “assurances” of misstatement of coordinate material facts in an affida- agencies); Surveillance, by government vit Hearing agent see also serves to vitiate n.10, warrant,32 supra (testimony a search and misstatements at 322 of Chief Post- Inspector Cotter).) al thе same nature in the mail request While I do not cover be- similarly illegal must render lieve that such review suffices to this mail cov- validate er.33 procedure pur- for Fourth Amendment poses, it is patently requirement. a minimal request The mail contained three (See Terry (1968) 12-13, v. Ohio representations: material34 (1) re- that the noting questing authority had reason believe application exclusionary rule in “currently” organizing Choate a nar- obtaining review of the manner of evidence smuggling ring cotics with a Ameri- South serves the purposes deterring dual source, (2) can that it further believed that government misbehavior and of preserving corresponded by the source and Choate “imperative judicial integrity” as a mail, and thus that a mail cover would “ruling admitting evidence in a criminal in identifying aid the source. necessary trial . . . has the effect of Williams had no “current” information on legitimizing the which produced conduct the which he could assert that Choate was or- evidence.”) ganizing a narcotics smuggling ring when

We need not concern ourselves with the he requested the mail cover on July questions whether request a mail cover 1972. The information to that effect could be upon attacked a less stringent Thompson’s April, 1971, was contained in showing affidavit, than a search warrant reports to the BNE which had passed been about what standard of scienter and mate- along to Customs. All efforts Williams riality required, because facts established to obtain current information that would at the evidentiary hearing previously held connect with cocaine trafficking Choate had show that representations all the material (see failed notes and text at nn. su- in the mail cover request intentionally pra),35 Thompson were had informed Wil- falsified Williams.31 In all the possessed circuits liams that he no more in- recent Damitz, judge supra, 31. The district found: states v. makes it clear that if true, portion no of the affidavit the warrant “Agent specifically Williams stated he ‘was 54-55.) cannot stand. F.2d at having getting not much luck a seizure or progressing with a substantive case cause, personally probable 33. The fact that Williams did not Mr. Choate.’ Absent fore, there- request he attest turned to the use of a mail cover for truthfulness does fishing expedition. inapplica a warrantless Before re- render search warrant rule cover, questing approached government agent he had ble. While the that the fact gather- the IRS ‍‌​‌‌‌‌‌‌​​​​​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‌​​​‌​​​‌​‌​​​​‌​‌‍with perjured information he had been has himself in an affidavit has contrib ing investigation so that a tax could be un- willingness suppress uted to the of courts to proceed dertaken. The IRS did not wish Belculfine, (e.g., evidence United States v. su time, at that but invited him to return later pra, 62-63), 508 F.2d at it is the intentional following investigation. further is clear process, abuse of rather than the breach of very that he was interested information on oath, triggers application of the exclu assets, although justifica- Mr. Choate’s sionary rule. given postal tion was not to the authorities.” (422 F.Supp. being 34. The assertions that inves- Choate tigated the Bureau of Customs and that First, Fourth, Sixth, Eighth 32. The Seventh and felony crime involved was a were essential suppress upon Circuits will evidence based cover, obtain the mail but were not material materially intentionally inaccurate warrant grounds whether reasonable exist- (see generally Belculfine; United States ed. Lee; Luna, United States v. United States v. all supra 29); note while the Fifth and Tenth Cir- "many suppress had assets” cuits will even if the 35. The fact Choate material mis- logically prove dealings negligent (see could current statements were cases discussed purchased supra). have been with funds note While this Circuit has not could issue, reasoning reached the in United obtained at time. purpose of the mail report.36 supra.) in the 1971 This was the than that formation that significant Most is the fact Williams finding a American cover—not South ad- felt he not “make a substantive case” could Thus, representation dress. each material drug dealing, and this against Choate for in false and known to be request was step him to take the actually caused at the time it was made. false Williams before insti- going to Sherrard IRS of the mail cover was a bare-faced abuse suggesting cover and a tax tuting the mail pursue procedure to obtain information Williams, fact, in testified investigation.37 jur- apparently outside his investigation instituting the mail cov- that his reason for tracing isdiction—asset to establish a basis assets; for more he said er was to look reciting false prosecution by for an IRS — nothing purported a American about South true, which, logical- material facts if would testimony thus connection.38 Williams’ justified (See 422 ly have the surveillance. fully he was aware at clearly revealed that F.Supp. 271.) request the time he made the mail cover But for the false averments the Choate that he had no current information which request, mail cover the Postal Service organizing that was indicated Choate cover, mail would have instituted the ring. smuggling resulting investigative and the leads would There was no indication Circuit, have In this light. come to possession that information Williams’ investigators intentionally where federal corresponded by ever mail with Choate had comply applicable regulations fail to The averment South American contact. search, governing a the evidence obtained speculation pure this effect was based sup- search fruits must be from the and its upon the initial misstatement of fact.39 (United (9th pressed. Caceres Thompson’s report indicated that 1182, 1187-88, 1976) 545 F.2d as amended America. Choate had traveled South (1977); rehearing en banc see denial Finally, predicate the essential for the Sourapas also United it was mail cover was the statement The Government expected identifying it would aid in argues precedent apply that this should not American source. Williams’ own South ground request on the that the here in issue revealed, however, prior testimony “good was made in faith” and that he instituting the mail cover had turned his inapplicable Caceres doctrine should be held fully tracing” attention to “asset and had unintentional, given any attempt good to make a faith breach of feder- up substantive against (See case nn. regulations governing Choate. 31 & al administrative supra. you 36. See note 5 Even if Williams’ testimo- And how did do that? Q. ny Thompson yes. requested that he did not contact until 1973 A. Let’s see. I I believe — believed, merely prior is it shows that to ob- placed mail cover be on Mr. Choate. taining the mail cover Williams had not even Which what? is Q. attempted update year old information. A. That’s when we submit a letter to the Inspector requesting they Postal advise 37. Williams testified: “I wеnt to be- [Sherrard] sending who is mail to Mr. . . . Choate having investiga- I cause was trouble with the 30-day requested I believe I mail cover having determining I tion. was trouble how on Mr. Choate. From that I determined smuggling the cocaine into the Choate receiving he was from the Unit- having I United States. was not much luck Bank. . . ed States National getting progressing a seizure or with a substan- up tive Mr. I’d case Choate and come government states that “obvious” 39. The with a lot of assets and so I went to IRS to see engaged drug person that if a international if could have luck in the case.” smuggling, with his he communicates equally that where there contact. It is obvious testimony respecting direct Williams’ smuggling is no reason is no evidence of there investigations meeting after the Sherrard to believe mail contacts are then force. as follows: you attempt And did also to track fur- “Q. expenditures ther assets of Mr. Choate? Yes, A. I did. searches. The misconduct here is 8. Fourth much Amendment Considerations non-compliance more excessive than the A. Case Law Prior Caceres, which involved failure to obtain argues Government resolution prior authorization for the search from of the constitutional issue is controlled proper parties.40 Here Williams misled the earlier case law. it is While true that mail Postal conducting Service into the search procedures upheld against have been representations, abusing false thereby variety past, of attacks in the I do not process circumventing precise pur- view of those controlling. cases as pose of tightening regulations prevent 1965 to “fishing expeditions.” On The earliest cases did not reach the ground this the evidence obtained from the (See Fourth question. Amendment Cohen mail cover leads suppressed. must be (9th 1967) v. United States Cir. 378 F.2d (defendant alleged 759-60 violation of Despite my non-compli- conclusion that statutes, tampering three mail 18 U.S.C. applicable ance with postal regulations con- inhibition of §§ his First stitutes a sup- valid alternative basis for rights);42 Amendment United States v. pression evidence obtained from the (3d 1960) 107, 107-11 Schwartz Cir. 283 F.2d cover, I necessary find it to reach the (defendant alleged postal regu violation of Fourth question. The Fourth lations comply regula and failure to with violated, Amendment was or whether tion permitting cover);43 there grounds, were reasonable because no (2d 1958) Costello Cir. 255 F.2d warrant was obtained and the search was a (violation 881-82 of 18 U.S.C. 1701- §§ effect, general one.41 In the absence of asserted).)44 compliance with the Fourth Amendment permitted the governmental duplicity Subsequent oc- cases which did reach consti- relied, cur. This violation was simply effectuated tutional issues without discus- Service, Postal Customs, sion, upon not the Bureau of decisions in the earlier cases re- and the illegality its conduct cannot specting alleged violations of statutes and ignored simply because there was preceding regulations. Lustiger Thus in v. United illegality by (9th Customs. 1967) Cir. 386 F.2d this Sourapas unlawfully detaining (id. 40. While delaying Caceres and involved fail- or letters agencies comply regu- 1703). ure of lations, with their statutory own § The Cohen court denied the suppression relying doctrine should be claim on earlier cases and fact that equally applicable government agen- when one practice longstanding the administrative cy intentionally regulations circumvents the postal could not be deemed in violation of stat- another. See also United States v. Basurto summarily rejected utes the First Amend- 1974), (Hufsted- 497 F.2d 793-94 (378 n.18.) ment claim. F.2d & ler, J., (circuit concurring specially) court has supervisory power integrity assure that non-compliance postal 43. The asserted justice). maintained administration of regulations in Schwartz involved a misconduct, addition to the Bureau of Customs information; who was entitled to receive the 233.2(g)(4) the I.R.S. breached 39 § C.F.R. matter not here in issue. failing to disclose existence of the cover to during discovery proceedings (see Choate note 44. The Costello Court stated in dicta its belief supra ). parte that Ex Jackson “implies L.Ed. that without offense to the produced 41. The mail cover no return address- writing appearing Constitution or statute pro- es from outside the United States. If the envelopes may outside be read and cedure were dards, drawn Fourth Amendment stan- However, (255 used.” it does not none the information obtained would appear alleged that the defendant violation of have been over if turned to Williams even his rights, nor constitutional asserted averments had been truthful. implication (See parte exists in Ex Jackson. variously prohibited 42. Those statutes ob- also discussion of dictum in United States structing retarding passage of mail Leonard, supra, F.2d at and in 1701), taking design U.S.C. § letters with (2d United States v. Bianco correspondence pry obstruct or to into the 501, 507-08. And see note 74 infra. 1702); (id. business or secrets of § another The Limits of Katz v. United States: merely that “the Fourth court stated 133; preclude postal Amendment, in- Sup.Ct.Rev. Amendment does information con- copying spectors Formalism, Realism, Note, Legal and Con- envelopes on the outside sealed tained Privacy under the stitutionally Protected mail, delay where no substantial in the Amendments, 90 Harv.L. Fourth and Fifth mail is involved. Cana- delivery of the See 945, (1977).) Similarly, before Rev. 961-68 Cir., 849, States, F.2d day v. 8 354 United Hayden, the could Warden v. Government earlier been the first Canaday 856.” had which only seize evidence the nature of “constitutional case to reach asserted rights— property vitiated the defendant’s simply it that Schwartz rights,” but stated contraband, property. The crit- e.g., stolen Costello, supra, “unquestionably vali- of the October Term 1966 recognition ical in this the mail watch conducted date legitimacy governmental of all was that myself I would believe bound case.”45 must be reference intrusions determined dealing its with an im- despite Lustiger,46 “ laid down to the ‘fundamental criteria’ constitutional law as if portant issue of it- the Fourth Amendment” concerns line, throw-away but for the fact were a privacy with the of the individual self jurisprudence has that Fourth Amendment of constitutional very which is “the essence Lustiger was decid- been transformed since York, (Berger v. liberty security” New Supreme Court’s decision in Katz ed 49, 50-53, 87 at supra, 388 S.Ct. U.S. 347, (1967) v. United 389 U.S. 88 1878), rights. property not 576, 507, spawn. and its 19 L.Ed.2d S.Ct. (1975) (See, e.g., Zweibon v. Mitchell 170 deciding Lustiger prior Thus in to the 1, (en banc) F.2d 594 U.S.App.D.C. 516 Katz, might court well have decision in (practices must be re-exam- pre-Katz valid concluded that while the contents of mail holding).) in light ined of its investigated could not be absent Fourth Hayden (1967) v. In Katz and in Warden (Ex parte Jackson protections Amendment 782, 294, 1642, 18 L.Ed.2d 387 U.S. 727, 877), (1878) 24 L.Ed. a mail 96 U.S. term, same the Court moved decided area upon protected not intrude did concepts from the which had away property por- penetrate because it did not sealed application of previously restricted piece correspondence. tion of a Katz and (see Berger Fourth Amendment also v. however, indicated, progeny its have 41, 1873, (1967) 388 87 New York U.S. S.Ct. Amendment can- “the reach of [the Fourth] Katz, 1040.) Before the Fourth 18 L.Ed.2d of a upon presence turn or absence not thought apply only Amendment was any given into enclosure.” physical intrusion governmental intrusions which constituted 353, 512.) 88 U.S. S.Ct. property rights of the trespass on the This view has been reiterated subse- Amsterdam, (See generally, defendant.47 have viewed the Fourth Amendment, quent cases which Perspectives on the Fourth implicated as even where sei- (1974); Kitch, Amendment Minn.L.Rev. 356-58 1977) (8th 1966) spe- (9th 856. Tel. Tel. 555 F.2d 45. Cir. The & Co. Cir. J., provisions (Hufstedler, specially concurring).) in issue cific constitutional were 265-67 mentioned, appear right but it would privacy and Fourth Amendment were involved. (1971) E.g., White 401 U.S. United States v. Canaday (See 856-57.) spent id. at The court 745, 748-50, 91 S.Ct. 28 L.Ed.2d 453 considerably considering more time defend- (Katz overruled Lee v. United States On regulation ant’s claims that the mail cover L.Ed. to the S.Ct. tampering violated that mail statutes were trespass vio- to establish effect one must show (See id. at violated. Amendment). also Fourth See lation of the 1975) Magana United States v. Cir. dealing Lustiger, I also consider (reasonable expectation privacy F.2d 1169 post person suspected office watch of scope rights govern permissible property fraud, distinguishable in- of mail from the Note, Property search); Types of Seizable Un- to discover stant issue of use of a mail cover Amendment, L.Rev. 23 U.C.L.A. the Fourth der completely evidence of a unrelated to use crime (1976). (See Hodge v. Mountain States mails. privacy it trenches inter- public g., upon in the Ter see whether zures occur streets —e. Ohio, supra, v. ry ests which are at heart of Fourth v. York New Sibron Amendment. 1889, 20 40, 88 (1968), 392 L.Ed.2d Katz, appeals court Since (seizure con person on street must applicability of Fourth consider requirements form “reasonableness” has been the to mail covers Amendment); Fourth United States Leonard, Circuit United States Second (1st 1977) (use Moore F.2d 106 (See also supra, 524 F.2d 1076.48 beeper implicates to trace car (2d Bianco cause requires probable Amendment which 507-08.49) Leonard use case involved committed). The being Supreme crime is incoming a mail cover to monitor all air recently has reaffirmed this view Court from without return ad- (1977) United States v. 433 U.S. mail Switzerland Chadwick rejecting 97 S.Ct. Photocopies of covers of such dresses. the the Government’s contention that “the compare postmarks were to their mail used protects only Fourth Amendment interests banks, with those used and where Swiss identified with the home.” traditionally matched, of sample recipi- a random 2480.) 6-7, (Id. 97 S.Ct. at The Court at investigated pos- the ents of letters was protects that the Amendment stated there sible income tax use of secret evasion offices, homes, private beyond interests and (524 1085.50) bank F.2d at Swiss accounts. communications, Ex inter alia on relying case, investigation an was In Leonard’s IRS standing as for “the settled parte Jackson his already way, under but the fact that principle . . . that a constitutional cover led to an up name came in the mail the Fourth Amend purpose fundamental of to show that attempt eventual at trial un from safeguard ment to individuals executing stating lied affidavit he had an legiti government reasonable invasions foreign account and that he had no bank interests, those simply and not privacy mate his tax evasion was thus willful fraud. that home.” the four walls the found inside 1086.)51 (Id. rejected at The Second Circuit 9-11, (citation (Id. 97 2483 omit at S.Ct. at that the mail cover Leonard’s assertion necessary to ted).) therefore examine violation of the to unreasonable search in procedure mail in some detail an the cover (N.D.Ill.1972) cover was itself violative Fourth In v. 347 mail 48. United States Isaacs certainly F.Supp. (7th grounds did not and the court aff’d other 1974) judge F.2d summari the issue. 493 district discuss ly rejected the former United assertion Appeals Judge that States Court of Otto Kemer Bianco, found that the In the Second 49. Circuit surveying mail mail received in his cover all any objection to waived the defendant had Amendment. chambers violated the Fourth approxi- cover which had been maintained more, judge upon Without the district relied 507), mately years (534 at and that F.2d precedent previously 42- the discussed at notes Leonard, supra, had not so their decision 46, supra, nothing re stated in Katz that significantly changed the of the circuit as law reconsideration, quired citing United Hoffa v. bring the defendant within rule to (1966) U.S. objection ignored if at trial will be waiver 750.) (347 F.Supp. at Hoffa L.Ed.2d 374. futile. would have been very prior Katz with the decided and deals infor different issue of use of a confidential Huge envelopes were involved numbers of event, of district courts mant. In decisions only investigated. sample was a random binding here. The in other circuits are not 1085.) (524 F.2d at involving a case Seventh Circuit 1968) v. was United States Balistrieri photocopies from the mail cov- obtained 51. The alia, held, There the court inter evidence, introduced in er were not proffered free at the trial was evidence directly appear proofs no were would illegal searches because from the taint of trial. used at from it which were obtained subsequent independent developed aas leads Thus, might prosecution been have investigations. result of a mail cover and other tainted, ille- if cover had been found even 475-77.) appear anywhere (Id. at It does not gal. argued opinion that the that the defendant alia, Mail Light Covers of Katz and inter B. by stating, Fourth Amendment its Progeny expectation there is no reasonable privacy respect with to information on the States, Katz v. United the Court stat- In (Id. covers of international mail. at preserve person] ed that “what seeks [a 1087.)52 an private, even in area accessible may protected” public, constitutionally be any view on wis- expressing Without searches Govern- warrantless dom of the Leonard decision, its conclusion ment. U.S. at respect cannot our controlling decisions, subsequent has vari- Court consideration the Fourth Amendment’s ously protections defined the applicability mail covers of domestic applying Amendment as “wherever indi- mail.53 The search in Leonard falls within ‘expectation vidual harbor a reasonable excep- rationale “border search” ” Ohio, (Terry supra, privacy’ tion to warrant “ clause the Fourth ‘right S.Ct. at as the Very Amendment. different considerations private the individual to be free in his af- (Compаre apply to domestic mail. governmental fairs from surveillance Ramsey 616- (Whalen Roe, supra, intrusion.’” 52 L.Ed.2d 617 where 599, n.24, 876.)54 S.Ct. at Rhenquist emphasized Justice “the distinc- recurring “privacy” use of the word country, tion between searches within this defining sphere personal protected by cause, requiring probable and border perhaps the Fourth Amendment tends to searches” of international mail which were obscure the issues critical to a determina- protected by the Fourth Amendment particular of government whether (id. 618, 97 at practice upon and trenches violates Fourth States v. Van Leeuwen 249, (1970) 397 U.S. privacy protect- Amendment interests. The 282, 90 S.Ct. not- the ed Fourth Amendment is related to ing required warrant is where search liberty preclude govern- the which interests domestic mail intrudes into area protected highly personal mental interference with Amendment.) Fourth decisions55 and to the right keep per- Leonard, significance type allegedly being the court also found of mail ed to gated investi- (communications the fact the information from obtained with a South American respecting that mail eign address), the existence for- applied only return it would have subsequently bank accounts was made might international mail and have fallen within agencies law available to enforcement via Leonard/Ramsey rationale. An additional Secrecy constitutionality “Bank Act” whose is distinction that Leonard involved a massive upheld in California Bankers Association emanating single surveillance of all mail from a (1974), v. Schultz 416 U.S. 94 S.Ct. 39 source, extremely which involved different (See 1087.) L.Ed.2d 812. question 524 As questions particu- Fourth Amendment from the pri- in California Bankers Ass’n was single larized of all mail to a surveillance sent marily whether such information was absolute- suspect criminal here issue. ly privileged government scrutiny, from rather permit- than whether Fourth Amendment Kurland, I, Quoting private The The Univer- warrant, ted it to be obtained without a sity Chicago Magazine (Autumn, 1976) 8 opinion upon Leonard focused re- absolute distinguishing “priva- and Fourth Amendment government straints on searches reason- cy” respecting concerns from those non-disclo- Amendment, ableness clause of the Fourth private govern- from sure facts freedom clause, upon the warrant which I view as compulsion thoughts mental and decisions. primary here. determinative That this was the Judge Friendly suggested by concern of is also g., Population Carey 55. E. Services Interna- his dictum to the effect that surveillance of (1977) (sales tional 97 S.Ct. every piece by every of mail received citizen advertising contraceptives). See Whal- might right (Id.) privacy. violate the Roe, n.23, supra, en v. 429 U.S. at 598-599 during gen- 53. All of 869 n.23 cited therein. See received Choate S.Ct. erally and cases period Henkin, Privacy Autonomy, the sources, of the cover came domestic Clark, (1974); and it Colum.L.Rev. the cover of mail from Ninth Choate’s Privacy, local bank led to most of Amendment and Constitutional (1973); Lusky, contested evidence. Had the cover been limit- L.Rev. 83 Toledo Invasion of facts and, sonal oneself.56 But is both since the United States Post Of- rights. more and less than those It is more fice.57 It is irrelevant therefore for Fourth may pro- because the Fourth Amendment purposes the intrusion oc- tect citizens even in areas in which none of curs in an might (both area which one exist, the other “privacy” interests and it objectively and subjectively) reasonably ex- less increasingly because pect governmental snooping surveillance or Amendment has been a procedur- viewed as to occur.58 unpersuasive is also shield, al but not as an absolute bar to some or many citizens know that such governmental intervention. As the Court practices actually Therefore, exist.59 wisely Katz, so protections stated in persons fact may realize that unau- very Fourth Amendment “often have snooping thorized in their may occur, nothing privacy do with at all.” or even that mail covers are used as law 88 S.Ct. at techniques, enforcement surveillance makes expectation Fourth Amendment pri- Thus, protects Fourth Amendment vacy here asserted less no reasonable.60 governmental unreasonable intru- when person property sions one’s is in many Unlike privacy interests which area in which one has neither a property present absolute barriers governmental interest, any personal nor stake or claim —e. by regulation “intrusion” or forced disclo- g., public booth, street, telephone public facts, private sure of the Fourth Amend- Privacy: Concepts, A Clarification of Court (1972). Colum.L.Rev. (housing inspections); Terry L.Ed.2d 930 Ohio, supra (“stop frisks”). See also Am- Miller, generally, 56. See A. R. The Assault on sterdam, Perspectives on the Fourth Amend- Privacy (1971); Symposium, Surveillance, Da- ment, Note, (1974); 58 Minn.L.Rev. taveillance and Personal Freedoms: Use and Types Property Seizable Under the Fourth Technology (Colum. Abuse of Informational Amendment, 23 U.S.L.A.L.Rev. 970-71 Rights 1973); Human L.Rev. eds. K. Greena- (1976). walt, Legal Privacy (1975) (Re- Protections of port to the President’s Office of Telecommuni- 59. See Nixon v. Admin. of General Services Miller, Policy); Privacy cations Personal in the (1977) 425; n.20, 2777, 433 U.S. 458 97 S.Ct. 53 Computer Age: Challenge of a New Tech- (whether privacy L.Ed.2d 867 interests or do do nology Society, in an Information-Oriented 67 upon prior governmen not exist does not turn (1969). Mich.L.Rev. 1091 respect them). Ortiz, tal United States v. supra, 895, (great 422 U.S. at 95 S.Ct. 2585 States, Ohio, supra; Terry 57. Katz v. United v. regularity mitigate does not the invasion of Jackson, supra; parte supra; Ex United States privacy); Mitchell, supra, Zweibon v. Moore, supra “beeper” (placing on car tra n.54, App.D.C. at 23 & 516 F.2d at 616 & n.54 versing public implicates roads Fourth Amend (no practice, matter how inveterate the it can ment; probable also, required). cause See e. judicial scrutiny); not be immunized from g., Brignoni-Ponce (1975) United States v. 422 (9th 1973) United States v. Davis 482 F.2d 2574, U.S. 95 S.Ct. 45 L.Ed.2d and (reasonable expectation privacy 905 of Ortiz, supra, United States v. 422 U.S. at by frequency governmental not vitiated in (automobile 95 S.Ct. 2585 be in seizures cannot trusions). discriminate); Phillips (5th United States v. 743; United States v. Soh government 60. The can take little comfort in (E.D.N.Y.1969) F.Supp. nen 298 51 amend Congressional hearings may the fact that have applies opening mail); ment of domestic and generated degree publicity a certain about (D.D.C.1970) see Williams v. Blount practice is, definition, by when it current F.Supp. (3-judge court) (Post may Office secrecy conducted in absolute will and never be summary process not resort impound to detain or legal proceedings discovered unless ensue. mail). domestic The Fourth Amend actual, subjective expectation privacy “An implicated person ment is in other searches of obviously place theory has no in a . . . possessions governmental custody g., al in —e. protects what the fourth amendment .... If Chadwick, (trunk supra United States v. in could, government it could diminish each police custody). person’s rights] merely by an- [constitutional half-hourly nouncing on television that . Thus, past placed the Court has in the placed being we were all forthwith under com- govern- Fourth Amendment shield between the prehensive electronic surveillance.” Amster- privacy previously ment and areas invaded dam, supra note at 384. impunity g., Municipal Camara v. —e. (But applies Fisher there is seldom absolute. see Amendment whenever ment is n.9, (1975) government activity which constitutes United States U.S. regulates (there may be a search and the manner in which 48 L.Ed.2d 39 totally pro items whose seizure is is conducted.63 core of Amendment).) by the Thus hibited Fourth what question then becomes The critical incrimi “when State’s reason to believe procedural are justification safeguards and evidence will be suf nating found becomes search, accompany the required to ficiently great, comes, be privacy invasion of imposes “the maximum Fourth Amendment search justified and a warrant upon power organized restrictions (Id. will issue.” 96 S.Ct. at seize compati- the individual .that are society over warrant proper Armed with a or soci- organized ble with the maintenance of “jealously with sufficient cause in the As Mr. Justice said ety itself.” Stewart warrant guarded” situations which a Coolidge Hampshire New may required, the Government invade not any area in search evidence of almost 564: activity.61 apparent criminal unrest, “In times whether caused with the procedures comply conflict or internal crime or racial fear of may employed Fourth Amendment subversion, this basic law and the values type obtain the of data seized from Choate’s may represents appear that it unrealistic Leeuwen, (see United States v. Van ‘extravagant’ or to some. But the values supra, of the authors funda- were those of our (“even beyond first-class mail is not times concepts. mental constitutional In inspection.”).) reach all not I do assert won— altogether they unlike our own absolutely that the cover of an envelope is by legal Eng- constitutional means privileged government scrutiny. land, revolution on conti- view, pro- right my personal security Fourth Amendment nent —a bodies, posses- in their If arbitrary power. tects citizens their intrusions official sions, information, changed, reducing their everyman’s whether times have home, public, pleases are at or in as he in an governmental scope to do urban world, context in custody. operative changes It is made industrial have expect which a citizen reasonably the values served the Fourth Amend- more, less, gov- (cita- his affairs will be free important.” from intrusive ment scrutiny62 speaking, omitted.) ernmental Practically mail, home, g., papers inquiry considering 61. E. the contents of fundamental consigned attorney to one’s accountant issues is whether or not a search (Fisher States, supra), v. United records bank circum- or seizure reasonable under all the (United Miller, supra), States v. even and stances.”) (Burger, J.).C. body. (Schmerber of the interior v. California 1826, (1966) 757, 61, (1949) 49, 384 64. U.S. 86 16 Watts v. Indiana S.Ct. L.Ed.2d 338 U.S. 69 Tribe, 1357, 1347, J., See (Jackson, also American Constitutional S.Ct. 93 L.Ed. 1801 15-9, (1978). generally Law at 913-17 concurring dissenting). Thus, § See and while even Note, Formalism, Legal Realism, and Constitu- bank, attorney, file with records on one’s and tionally Privacy Protected Under may by govern- accountant be obtained Amendments, and Fifth 90 Harv.L.Rev. ment, judicial process required some —either (1977) (noting 968 the historical shift from the subpoena party. or consent Fur- third view the Fourth Amendment as absolute police may person ther while the “seize" the protector bar to certain searches to a an individual without a or she warrant when he conducted). in which manner all searches are public place (United is in a States v. Santana 38, 42, (1976) 427 U.S. 96 49 S.Ct. Ortiz, supra, 62. 422 See United States v. U.S. at 300), probable (id.) required, L.Ed.2d cause is (“the concern S.Ct. central (Ter- prohibited and indiscriminate seizures are liberty protect the Fourth Amendment is to Ohio, ry supra, 392 U.S. 88 S.Ct. privacy arbitrary oppressive interfer- 889). L.Ed.2d by government officials.”). ence (1977) 63. United States v. Chadwick 2476, 2483, (“Our 53 L.Ed.2d 538 must, therefore, 376),

We examine detail a mail cover in- instant mail cover to determine whether trudes into a channel of communication and seizure, constituted a search and whether it being seizes evidence of who is communicat- upon personal trenches protected interests ed with.68 Amendment, so, the Fourth and if The fact the information is on the whether the procedure accepta- followed is envelope may affect the rea- ble under its standards. sonableness of the invasion but it renders

the activity no less a search.69 But for the cover, the information would have a (1) The Mail Cover Was Search been only momentarily noticed and certain- Mail and a Choate’s Seizure ly Further, unrecorded. import of critical Information on its Surface. is the fact that the information was doubt- the mail cover re- In order to execute less “seized” in that the Government made required to employee was quest, postal a permanent record of what was written on being all mail through segregate search the surface of the mail. subject ad- posted sent to find that recording carefully He then scrutinized here is similar to dressee.65 the sei- zure of intangibles wiretap first- and fourth-class in the bug- covers of categories of requested ging order to record the areas which have been held within patently (See information.66 This scope of the Fourth Amendment. mail67 and a “seizure” of Choate’s id. (Rule 41, Crim.Proc., “search” Fed.Rules also Like the on its cover. the information also applies to intangibles.) seizures of See which has been pen register utilization of a Alderman v. United telephone of a a search held to constitute 165, 176-80, 961, 22 89 S.Ct. L.Ed.2d produced thereby and a seizure of evidence (nothing seen or found in the course Telephone New York (United of an unlawful intrusion is admissible 159, 167, 98 Company (1977) 434 U.S. Katz evidence, conversations); including searched, although permitted postal 65. A certain amount of confusion has been this is sugges regulation. supra. introduced into the discussion See note impact tion that of mail covers on the rights of senders of mail is here issue. dictionary, usually Even standard apparent While it is may adversely that certain mail covers definition, penetrating source of subtleties of rights affect the of senders —e. Thus, recognize would this as a “search.” LaPrade, g., supra, Paton v. there Webster defines search as follows: “to look here, suggestion is no that such is the situation carefully thoroughly in an into or over effort nor that senders of mail will not be able tо to find or discover ... look into with Therefore, proper in a raise the issue case. we thorough scrutiny rigorous objective exam- not deal with the need “troublesome” Webster’s Third New International ination” (See rights. whether Choate can assert those Dictionary (1968). (1965) 381 Lamont v. Postmaster General L.Ed.2d Indeed, the seizure is more instructive than J., (Brennan, concurring) (whether addressees pen register merely records that a call rights po assert constitutional of senders specific to a number. A mail cover was made questions). See also Note ses “troublesome” sent, piece actually that a of mail was reveals usually Rights Asserting the on Persons, Constitutional Other identity well as address of the Wechsler, in Hart The Federal & information, correspondent, includ- and other System (2d and the Federal Note, at 184 ed. Courts ing the contents thereof in some classes of 1973); Standing to Raise Constitutional mail. Tertii, (1974)), Jus 88 Harv.L.Rev. 423 and we ques need not address those constitutional States, (1953) supra, tions. See Barrows v. Jackson 249, 254-60, 346 U.S. Katz v. United 389 U.S. at See 352-53, (fact physical penetra- 73 S.Ct. 97 L.Ed. 1586. no 88 S.Ct. required sig- “can have no constitutional tion nificance”). recording by 66. The case was made Choate’s ‍‌​‌‌‌‌‌‌​​​​​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‌​​​‌​​​‌​‌​​​​‌​‌‍Ohio, supra, Terry See also v. addressee, sender, listing on a form the return n.15, (rather U.S. at 18 88 S.Ct. 1868 than address, place postmark, and date of and class belabor the definition of search sound applied of mail. The cover to three locations: recognize government all in- course is to office, home, post office box. Be- Choate’s upon personal security governed trusions by are made, cause no record was we must assume Amendment). the Fourth the contents of fourth class mail were not States, aside, supra, v. United 389 U.S. at Mail covers it is information which 507; 352-53, v. Berger only by questioning New can be obtained S.Ct. recipient searching pri- his mail box or York, 51-53, supra, 388 S.Ct. papers. may vate While an individual real- (capture verbal evidence has been treat- piece may ize that an isolated of mail at- Wong ed since as a seizure Sun United postal tract the attention of employees, he States, 485-86, supra, 371 U.S. at 83 S.Ct. knows that ordinarily no one would have 407); Hayden, supra, Warden 387 U.S. at ability or inclination to remember who 304-05, 87 S.Ct. That the informa- writes to him.70 As Professor Greenawalt captured by recording rather than tion report stated in a to the President’s Office by retaining the letters makes themselves Policy: of Telecommunications practice per- no less a seizure from the (E. important original “Even more than re- spective g., of the Fourth Amendment. cording ‘public’ is what is activities (1969) Mississippi Davis v. 394 U.S. done with the information recorded. . 1394, 22 (taking L.Ed.2d 676 systematically If information anything “evidentiary value” is within , stored . . . is ‘obtained’ in a Amendment); Lumber Silverthorne permanent much more sense obtained Co. v. United way may person in a bother a who (rejecting 64 L.Ed. 319 objection being has no to its known in the suggestion Fourth Amendment “covers the Moreover, pieces trivial sense. if of simi- physical possession any advantages but not lar systemati- information . . . are government gain” by copying pa- can collated, cally stored and ‘new’ informa- pers illegally seized).) protect- is no less may be obtained . . . by ed the Fourth Amendment because the any people would unavailable to process the clumsy used was one of trans- who have learned one or a few of ferring by the information hand to a form pieces of information.” using high technology rather than that of making (See (Greenawalt, methods of an exact likeness. Legal Privacy Protections of Leonard, (in supra (Report some 39 to the President’s Office of photocopying used).) Thus, covers 1975).) Choice Telecommunications Policy cannot technology practice immunize a I might while concede that a sender or may when obtain identical the Government recipient impliedly of mail consents to the either information route. inspection visual of the exterior of in- piece purpose

dividual of mail for a con- nected postal activities,71 service (2) A Mail he Recipient of has a Reasonable cannot acquiesce be said to thereby in Expectation Privacy in the storage information, creates Information its Surface. a “data bank” usable him which identity correspondents, of one’s would not otherwise exist.72 location, frequency their and the and dates of one’s noted, communications with them is ordi- previously compilation As narily information private to the individual. through data obtained a mail cover ex- telephone parcel gives It is thus unlike bank records and 71. When a letter or itself rise to company regular- suspicion post records which one knows are it can be retained office ly (E. g., States, (Unit- recorded. Miller v. United while a warrant to search it is obtained. supra; Hodge Tel., Leeuwen, maybe supra); v. Mountain States Tel. & ed States v. Van or it supra, 555 F.2d at 266. The mail cover is itself searched without a warrant if it falls with- data, exception); the sole source of this and it is obtained in the border search warrant government private Ramsey, supra. and recorded United States v. —not party. persons buy Unlike even the who dan- gerous drugs Roe, supra, in Whalen v. 429 U.S. 72. Senders of mail reveal the details of correspondence particular the addressee of their own in- with a opt Jackson, cannot choice out collection (see supra, data parte Ex dividual system. 735), the identities of all but none know other. personal subject life poses against to their papers unreasonable enforcement agencies law in a manner searches and seizures extends to their through unobtainable even surveillance of papers, against inspection, thus closed his movements.73 Because data will they may wherever be. Whilst in the much relationships “reveal about his mail, they only opened can be and exam- organizations” both individuals and warrant, upon ined under like issued simi- First Amendment “freedom association affirmation, lar particularly oath or de- implicated.” (Nixon is also v. Administra- seized, scribing to be thing as is re- Services, supra, tion General at quired subjected when are to papers J., C. (Burger, dissenting), S.Ct. search in one’s own household. No law citing NAACP v. Alabama Congress place can in the hands of offi- 1488.) postal cials connected with service certainly The data is information which one any authority invade the secrecy to ordinarily expect keep would to to oneself. packages letters and such sealed If it is not which data in one has a mail; regulations adopted and all toas expectation privacy reasonable mail matter оf kind must be in subor- purposes, Fourth Amendment this must be great principle dination to the embodied because of the location in which it sur- in the Fourth Amendment of the Consti- veyed: piece on the cover of a of mail (96 733.74) tution.” at consigned matter to the United States Post- A justifications series of for warrantless al for delivery. Service mail by analogy covers have been asserted begin with teaching parte We of Ex to cases involving Fourth Amendment ex- Jackson that: ceptions to requirement. the warrant “Letters ... in the mail are as The first is that the information seized fully guarded from examination and in- “plain view” because the outside of the spection, except as to their outward form envelope subject is in postal an area to weight, they as if were retained inspection therefore, purposes; parties them in their forwarding own can be seized at guaranty domiciles. The constitutional searched and will. This right to people analogy fundamentally be secure in misconceives the issue, transport lottery 728.) In addition to the data here in tickets. U.S. at The identifying permissible covers include the content of Court held that it was to exclude Thus, anything open inspection law. stated, such mails items from the but in dic- inspectors postal photocopy messages could tum, that of the ban be enforcement could not postcards and the contents of 2nd-4th class infringed upon carried out a manner which mail, permitting agencies law enforcement Thus, rights. (Id. 732.) other constitutional at communications, personal read etc. See Fisher packages a search of sealed letters for such States, supra, v. United 425 U.S. at Amendment; items would violate (Brennan, J., concurring) (“Per- while evidence could derived from other integral aspect sonal letters constitute an of a by testimony recipient if sources — —or person’s private enclave.”) (Id. open found in mail examination. 735-36.) As no indication there was government 74. The makes much of the distinc- by an conviction in issue had been attained parte in Ex Jackson “between different mail, opening matter, of sealed the writ of habeas cor- kinds of mail what is intend- —between pus (Id. kept inspection, to be denied. ed letters, free from such as packages subject and sealed to letter The in Jackson was distinction made postage; open inspection, and what such if mail in- matter was not sealed newspapers, magazines, pamphlets, as and oth- spection contents, prohibited contained matter, printed purposely er left a condition Fourth Amendment would not restrain the be examined.” Id. The distinction was also prosecution Postal Service from under the stat- mentioned Circuit Second ute. It could not been intended to deal have Leonard, supra, F.2d at 1087. very with the of the uses different that, implication is return addresses are essentially which could make of the Post Office kept inspection, intended to be free from private place in a information located can be Postal collected Service at inspect. postal employees may constitutionality its will. Jackson involved statute of a which banned use of the mails to 204 466, 2038.) important at 91 S.Ct. at Most Coolidge

plain view doctrine as described in 464-73, supra, Hampshire, New 403 holding U.S. Coolidge here is the Court’s that 91 In Justice Coolidge, 2022. Mr. justify to the doctrine cannot be used majority “in the vast Stewart noted that the law en- warrantless seizure of evidence cases, will any police evidence seized advance will be agency forcement knows in view, plain be in at least at the moment of (Id. seize. there and which it intends to at problem ‘plain The seizure. 470-71, 2022.) 91 S.Ct. view’ been the cir- identify doctrine has to light Coolidge, in the it can Viewed legal which plain cumstances in view has readily be seen that mail cannot be covers significance being simply than rather justified by the doctrine. plain view The search, legal normal concomitant of or unsuspicious mail is itself and un involved 465, illegal.” (Id. 2037.) (em- at 91 S.Ct. at Thus, cause, cogni remarkable. there is no phasis original.) in Amendment, zable the Fourth which “plain justify He stated that view” will warrants its detention or examina detailed seizure of when two prerequisites evidence (Compare v. Van tion. United Leeu States first, are a prior satisfied: there must be wen, v. Wolff supra. See also Collins justification Fourth the ini Amendment (D.Neb.1972) 114, F.Supp. 117, aff'd (8th police tial or stop “plain intrusion view 1972) (holding post Cir. 467 F.2d 359 office enough justify alone is never the war plain use could not view doctrine to justify (id. 468, rantless of evidence” seizure parcel seizure and examination of whose con 2039), (emphasis original) S.Ct. at in second, in question postal negli the evidence must be tents were revealed due to 469-71, inadvertently. (Id. at discovered gence breaking open wrapping).75) its S.Ct. 2022. Accord United v. Basur States The sole cause for the search and seizure is 1974) 787-88; (9th 781, Cir. 497 F.2d agen advice prior law enforcement (9th 1974) United States v. Sedillo particular cy category may that this of mail (Hufstedler, J., F.2d 152-53 dissent contain useful evidence. thus falls with ing).) justification prior intru for the obtaining the set cases as to which sion be a need not warrant if it meets present will problem warrant no substantial Fourth (403 Amendment criteria. U.S. plain justificat and for which view offers no (e. g., pursuit”). 91 S.Ct. 2022 “hot See (Coolidge, supra, ion.76 403 U.S. at also United v. Gunn States 2022.77) 91 S.Ct. 1057, 1060-61; Coates United proffered justification A second on a U.S.App.D.C. theory by analogy of consent to the cases (car validly wallet stopped; which hold that one reasonable ex- has no dashboard).) visible on The evidence seized pectation of privacy in that which one must be of a character “it party (e. immediately apparent knowingly g., reveals to a third police Miller, have evidence before them.” supra, public place, suspect Information on surface of mail matter is arrest in a warrantless pub- may expedient “by area located in an “accessible to the defeat the arrest States, (Katz supra), (Id. private lic” escaping place.” v. United to law to a agencies general. prior enforcement It is in an S.Ct. at Critical was postal employees area accessible be- justification seizure of the for the consigned cause the mail has been them person. Nothing suggests any- Santana delivery paying on a fee basis. The mails are public thing view be seized at will privacy thus an area in which interests are police officers. greater public telephone than a street or even a booth, postal employees but as none can ordi- Moreover, postal employees when executed narily see them. cover, they in effect as Choate acted Customs, agents the Bureau of and there can Santana, supra, 76. United States v. the surface of be no claim information point. 49 L.Ed.2d is not ordinarily Choate’s would their Santana, simply the Court when a held “plain view.” police probable officer has effect a cause to 71; importantly, Finally, and most compiled. the in v. is not akin former eases—Osborn United States the United States Postal Service 323, 429, (1966) 17 L.Ed.2d 385 U.S. S.Ct. is the to a bank or a secret informer —it 394; (1966) Hoffa v. United 385 U.S. States Scrutiny itself. of federal Government 374; 408, 17 L.Ed.2d Lewis v. S.Ct. agent subjected very to a differ- behavior is (1966) United 385 U.S. 87 S.Ct. private parties. ent standard from matter, 424, 17 312). L.Ed.2d As a first (See v. Lumber Co. Silverthorne difficult to see how even a constructive States, supra, 251 at U.S. S.Ct. consent to search mail can be deemed to 182, (“the knowledge case is not that of mail. Ar recipient exist on behalf of a act a acquired through wrongful mail, guably, a sender of his choice of stranger, but it must be assumed the cover placed class and the material rati- planned or at all events Government something by and to send his decision performance.”). fied whole also Bi- See ordinary consents to the place, the first Agents v. vens Six Unknown Named However, en route. inspection incidents of (1971) Investigation Federal Bureau of recipient has no choice in most of what is 388, 391-92, 1999, 29 91 S.Ct. L.Ed.2d U.S. him sent to him. Mail sent to is delivered 619.) Service, and, as by the United States Postal justification The final is that of consent a constitu practical purposes it is for most (E. g., revelation to Government. monopoly, there can be lit tionally created Roe, supra, 429 Whalen v. S.Ct. mail in an alter tle or no choice to receive 64.) Whalen held that 51 L.Ed.2d native fashion.78 conjunction power regu- police with its rely cases on the Miller and the informer dangerous drugs, late the distribution knowingly when reveals theory that one of New could maintain a York State party, he assumes the information to third prescription data bank of sales of such all conveyed that it will to the risk Govern- drugs against recording a claim that such a (1971) (United White ment. impermissible right was an invasion 745, 752, 453.) S.Ct. privacy. The Whalen noted that Court is that allow- theory The essence of the “affirmative, the case did not involve your- respecting or records ing information unannounced, narrowly focused intrusions of another possession self to come into the by the privacy” protected into individual party, you privacy rights waive private (Id. at n. Amendment. your reveal secrets. they must realize only that a state was It held a number of reasons. Mail covers differ for collecting infor- absolutely barred from above, recipient does As noted reasonably related to mation which was on its knowingly anything reveal —mail public purpose regulating dan- important examined be- surreptitiously him is way to protected against dis- gerous drugs and possession. his More- fore it ever enters 605-606, (Id. closure. 869. See over, in the form collected the information of General Serv- Nixon Administration anywhere nor known him to exist is not ices, at 2835 supra, 433 U.S. at Thus, in compilation. he consent to its does J., (“No personal, dissenting) (Burger, C. cases, suspects the informant Miller and business, confidences private political to have a bank could have decided not involved.”).) Thus, choose persons if were revealing to refrain their account or pre- drugs doctors purchase such to a secret informant. enterprises criminal them, to com- required could be scribe (See also knew the supra.) They n. banking. The data Here, plete the forms used for rea- there is no existed. information justifica- provides no in Whalen to assume that rationale suspect son for a mail cover sug- procedure. been the mail cover correspondents all has a list of System America, g., v. Ind. Postal National Assoc. of Letter Carriers Inc. 78. E.

gests require (a) state can The Warrant Clause making pur of a record as a condition of begin premise We with the that “there is chasing dangerous and controlled sub no more basic rule in constitutional stance violating right without Fourth Amendment area than that which purchaser privacy drugs choice of makes warrantless search unreasonable his doctor-patient relationship. The Court in a except ‘jealously carefully few emphasized also the tight controls on securi (United exceptional drawn’ circumstances” ty use of data. U.S. at States Watson 600-603.) (Powell, J., 46 L.Ed.2d 598 S.Ct. “ is apparent that mail covers fall concurring)), that ‘searches conducted squarely Supreme within Court Fourth judicial process, prior outside the without precedents which hold or approval judge magistrate, per are se implicated Amendment is when the Govern- unreasonable under Fourth Amend- ” ment private objects searches and seizes v. (Coolidge Hampshire, ment.’ New su- information, though even they are tem- 454-55, pra, 403 at at U.S. porarily public custody, pub- or even in a States, supra, also Katz United See v. (United Chadwick, place. lic v. States 356-59, 507; Aguilar U.S. 88 S.Ct. v. Ohio, supra; Terry supra.) v. (1964) 108, 110-11, Texas 84 S.Ct. 723.) (3) Validity Mail Cover Procedures in Supreme recently Court reiterated Light Fourth Amendment. Chadwick, this rule in United States su- v. Given the conclusion that the interests 6-11, pra, 433 U.S. S.Ct. 2476 in which invaded a mail cover are protected by it per held that se requiring rule a Amendment, it necessary to applied warrant to searches outside the examine in light the Choate search of its home —there to the trunk search of a seized procedural requirements. (See v. Sibron in the course police arrest and in York, 59-62, New supra, 392 U.S. at custody. doing, upon so it relied Ex (holding S.Ct. 1889 it is unnecessary to first parte Jackson, supra, and United States v. examine facial validity statutory au- Leeuwen, supra, standing Van as for the thority for a warrantless search in light proposition that searches of mail while in Amendment; the Fourth concern is rather postal custody a require warrant. search).) with facts of the actual As earlier 9-11, 97 S.Ct. noted, a letter was sent the Bureau of Chadwick, theAs Court noted in war- Inspector Customs Charge to the Postal routinely are required rants for searches in Choate’s area. It requested a cover of (See conducted outside home. Id. at first- and mail sent fourth-class to him at and cases therein cit- (home, office, three addresses post of- ed.) Moreover, there has been box) fice never thirty days grounds it question raised a law would but where en- likely reveal the return of a address forcement seeks agency require South to a American third “connection.” On party suspect to a or showing, Inspector conduct surveillance of Charge authoriz- ed, assembled, divulge private records that a warrant— and sent to the Bureau of judicial subpoena or equivalent, Customs a its a cover of all mail received —is (E. required. pen register Choate surveil- g., at those during peri- addresses lance, York od—none of which United New Tele- had as return address phone location outside Co. the United States. Two aspects (all judicial sides of the Fourth Amendment im- 54 L.Ed.2d 376 assumed are plicated necessary; power warrant clause and the rea- order was issue was —the it);79 records, sonableness clause. grant in bank Tel., Hodge supra, Telephone Company v. Mountain States Tel. & had on its own motion contrary. identify pen register F.2d 254 is not to the numbers There installed “These Fourth Amendment freedoms Miller, supra; California Bankers Ass’n guaranteed if . cannot be records, properly Schultz, lawyer’s supra; and in may solely surveillances be conducted States, supra.) v. United In our Fisher the Executive within discretion cover, in a of mail the Postal Service is type The Fourth Amendment does Branch. position telephone to a bank or the similar contemplate the executive officers to institute mail company requested when and disinterested Government as neutral aby cover surveillance law enforcement duty responsibili- magistrates. Their suspect, It has reason to agency. no laws, investigate, are ty to -enforce received regard unique, otherwise . . . But those prosecute. and to subject It is by the addressee. because prose- charged investigative with this segre- agency of the needs of the be the duty should not sole cutorial gates his and collects the data. The judges constitutionally when to utilize even judicial great- need for intervention is pursuing means in their tasks. sensitive er than the aforementioned situations con- The Fourth Amendment hope because there is some that a third templates prior judicial judgment, party comply improp- will with an refuse discretion the risk that executive request. (E. g., er Bankers Ass’n California judicial reasonably exercised. This role Schultz, supra.) v. with our basic constitutional doc- accords trine will be that individual freedoms to a request Here the is made coordinate separation of preserved through a best law enforcement branch of an executive “ among of functions powers and division the agency engaged which is ‘often also and levels of the different branches ferreting out competitive enterprise of ” independent . . The . Government. Texas, supra, (Aguilar v. crime’ is not upon executive discretion check 1512) agency at and the has at 84 S.Ct. by post- satisfied to those it views as every reason assist Indeed, post-surveil- review. surveillance if pursuit. similar Even we engaged a review would never reach sur- lance Inspectors diligently that the assume Postal prose- which to result in veillances failed requests for “reasonable inspect received review a neutral and cutions. Prior seek to discard those which grounds” and is the magistrate time-tested detached fishing expeditions, amount to the constitu- effectuating means of Fourth Amend- mag- a neutral tional determination (Id. (citations omitted).) rights.” ment istrate, officer, per- not an should executive guarded exceptions” “jealously There are form this task. (United requirement to States the warrant problem The crux of the for сonstitution- Watson, supra, 423 U.S. at al purposes well stated we must examine them to decide Court, v. United District su- exempted. whether the mail cover should 316-18, at pra, 407 U.S. at 92 S.Ct. has not addressed As the Government that warrants were I clarity, judicial the Court held take notice of point with security the Post required wiretaps for national contentions raised the two-fold hearings support congressional Office at territory: domestic investigate making a is unrelated to suspected crime that person ob- a called (Id. delivery telephone at 267 service.” phone investi- After considerable calls. scene Hodge J., concurring).) (Hufstedler, In the cir- brought police. gation, The in the it cumstance, facts, it to reach being would be absurd on the we difficult of state action telephone company telephone could simply com- a other result as that where concluded register pen pany own to inves- a warrant to install such a device on its not obtain installs problem deceptively tigate the Fourth Amend- similar of its service own lines. A abuse its implicated ieave for if involved Postal was not the instant case “[w]e ment would arise There, challenge day investigation to fraud. a Fourth Amendment of mail another Service pen telephone company’s however, government of a installation which under- it request register at of the Government the search. takes procedure: obtaining of this Fourth Amend- which make a warrant unworka- ment requirements (E. warrant should not be g., Hampshire, ble. Coolidge New applied “investigatory” the mere activity supra, 2022.) 403 U.S. at impossi- of a mail cover and that it will be Indeed, procedure the mail itself con- many ble in instances obtain warrant templates a Postal Service review which “probable because there is often no cause” require would time less than review (See the time mail cover is instituted. Further, a magistrate.81 not appear does 25, supra.) n. majority opinion The also time was of the essence —a cover of proffers the suggestions that mail covers any thirty-day period would have sufficed. might come within rationale of the only meaningful The frustration which “plain exceptions view” “consent” to the might through ordinary requi- occur is requirement persons warrant because who probable site showing of a In cause. send and receive letters know that their circumstance, present we think the Govern- by postal covers will be employees looked requiring ment’s fears that a showing such during ordinary delivery course of impossible would make mail covers is illuso- inspection. thus impliedly consent to its requirement ry.82 showing probable The (But (2), see discussion in supra.) section not require requesting agen- cause does place, I the first note argue that “to cy certainty prove beyond that the Fourth Amendment apply does not sought. search will reveal the items to the investigatory state is fundamentally magistrate “The is not required to de- purposes misconceive the termine whether in fact the items to be (Davis Mississippi, Amendment.” supra, premises searched for are located at the 89 S.Ct. at searched, to be but whether there is Fourth Amendment is routinely applied to ground reasonable to believe are such g., searches —e. suspicious detention of (United Damitz, there.” supra, States v. persons, wiretapping, investiga and other 55.) (emphasis 495 F.2d at original). tive techniques.80 stage The and circum “ investigation stances of the may affect the deny does not ‘law enforcement degree necessary permit of cause support of the usual which inferences rea- search, but away cannot do with the sonable men pro- draw from evidence. Its requirement. (Camara warrant v. Munici tection requiring consists in those in- pal Court, supra, 533, 87 387 U.S. at S.Ct. be ferences drawn a neutral and de- ” 1727.) significant More to that issue is the magistrate.’ (Aguilar Texas, tached v. su- question “whether the burden obtaining pra, 1512.) 378 U.S. at at S.Ct. likely warrant govern to frustrate the Where a law agency enforcement has rea- purpose (Id. mental behind the search.” at grounds person sonable that a believe has 1733.) at S.Ct. attempting committed or is to commit a herein, crime and that will the circumstances cover reveal the Govern- ment cannot assert that there was evidence useful investigation, exi- to its it will gency or need for instantaneous be probable results able to establish cause for the Department 80. argued case, six-day The Justice has also In Choate’s there was a inter- imposition requirement request of a warrant val between the would and institution of the “destroy utility” by requiring prior ample its mail cover. This was show- time which to ing However, probable obtain a cause. warrant. . “conduct which violates the fourth amendment is not Inspector legal merely Postal admitted in helps made General Cotter because it ferret out Surveillance, supra Hearings (United Moore, the 1975 note supra, crime.” requiring orders would not be 111.) court F.2d at It is obvious that warrantless (id. end of the world at would retard probable searches without would cause often Inspection efficiency only the Postal Service’s great utility They be of to law enforcement. protection in the areas of consumer and mail are, nonetheless, constitutionally prohibited. g., investigations its own of abuses fraud —e. mails, subject not here in issue. judicial authorization requirement of a mail cover.83 the additional scope that “the required, What will be unlike procedure ‘strictly search must be tied to and used, currently is that the underlying justified facts by’ the circumstances which ren- agency’s for the belief be attested to and permissible.” dered its initiation (Terry v. veracity subject their be exploration Ohio, at supra, at at U.S. Further, the time and (warrantless frisk”). thereafter. an order Accord “stop will be drawn permitting capture only of (1969) Chimel v. California 395 U.S. logically information related to the (search L.Ed.2d 685 request obtain, agent may so that no arrest); York, incident v. New Sibron did, Agent Williams wholly supra, 65-66, information col- 88 S.Ct. 1889. See lateral to the purpose asserted of the mail also Stanford Texas 379 U.S. Finally, judicial cover. 431.) Thus, records of returns 85 S.Ct. even are subject with, warrants to destruction may dispensed where a warrant be every eight years and the may addressee the reasonableness clause is deemed to re- able to avail himself of the information quire exclusion of evidence seized regarding the mail cover in any subsequent Ohio, (Terry overbroad search. supra, old, proceeding. (E. g., two-year under the 1868.) 392 U.S. at 88 S.Ct. cycle, Choate would have found that all Here, justification the sole for the mail records of the mail request cоver had been cover was the identify need to a South destroyed prior to his indictment over two American addressee. information later; years undoubtedly other criminal de- seized, however, searched and was not limit- fendants find records have been de- foreign ed to correspon- South American stroyed pre-indictment investigation when dence. It was respecting information do- (See eight years. exceeds United States v. correspondents mestic such as banks and Bianco, (mail supra, 534 F.2d at 507 having creditors no relationship conceivable ten-year period).) extended over We need “goal to the justified inception” its the question address of whether notice which was turned over to the Bureau of (See to the required. addressee is ever investiga- Customs and used in its further Mississippi, Davis v. supra, 394 (Sibron York, supra, tions. v. New (where attempt S.Ct. 1394 no was made Where “the nature comply Fourth Amendment court scope of the search conducted . will speculate precise procedures not on the justifica- clearly so unrelated to that [are] it).) satisfy which would inadmis- [it] render[s] [item seized] (Id.; Ohio, Terry supra, sible.” 392 (b) The Reasonableness Clause 28-29, 1868, 1878.) 88 S.Ct. Even if I agree could that a warrant was reasons, covers, For required for mail I all of these I would order would find suppression the instant search which unreasonable under the evidence was the cover, fruit illegal Amendment because the and I would scope of the search unreasonably pur- accordingly exceeded the affirm the district court. pose justified Supreme it. The Court recognized

has two sets of circumstances in

which the may Government intrude into the first,

private spheres of citizens: with a

warrant, and war- secondly, the area of view, exceptions plain exigent

rant such as

circumstances and searches incident ‍‌​‌‌‌‌‌‌​​​​​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‌​​​‌​​​‌​‌​​​​‌​‌‍to ar- both, however, recognized

rest. it has Court, (Camara Municipal supra, 387 83. When mail covers are used not to fied. investi- gate specific suspects potential This but to detect U.S. at Leonard, herein, suspects supra, presented as in and I do not use of different the facts probable justi- standards than it. cause address notes Almost the federal ground statement on the the Constitution specific “provisions if had investigation narcotic of defendant other forms privacy from protect personal However, it was April closed in been (id. governmental invasion” Agent Lynn Williams reopened by Special person will a be able to raise 3,1972, April because of additional infor- of the Constitution shield received the Bureau Customs. mation specific sources zones practice. The investigation continuing narcotics That seem privacy in the Constitution July time of October even Fourth, First, Third, Fifth and Therefore, include the amici below. can- hearings v. Connecti request mail cover on the Ninth Amendments. Griswold not fault a closed matter. cut, it related to ground appar- Although requesting letter be privacy If a zone of cannot L.Ed.2d 510. Agent Williams ently prepared by principles neutral rooted grounded on 264), appeal F.Supp. at defendant on sources, it simply one of these constitutional Williams’ judge the district did protection. enjoy constitutional veracity, inappropriate it is for us as Right to Be Craven, Personhood: See reviewing his truthful- judges impugn 699, 704. Alone, Duke L.J. Let that can ness on the basis of cold record right constitutional Requiring contents of consistently be read with the em- most Constitution locatable the letter.

Case Details

Case Name: United States v. Dennis Roy Choate

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 6, 1978

Citation: 576 F.2d 165

Docket Number: 76-3486

Court Abbreviation: 9th Cir.