538 F.2d 415 (D.C. Cir. 1976), 75-1275, United States v. Ramsey
|Docket Nº:||75-1275, 75-1276 and 75-1691.|
|Citation:||538 F.2d 415|
|Party Name:||UNITED STATES of America v. Charles W. RAMSEY, Appellant. UNITED STATES of America v. James W. KELLY, Appellant.|
|Case Date:||June 10, 1976|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
[Copyrighted Material Omitted]
Argued Dec. 10, 1975.
Allan M. Palmer, Washington, D.C., for appellant in Nos. 75-1275 and 75-1276.
Irving R. M. Panzer, Washington, D.C. (appointed by this court), for appellant in No. 75-1691.
John W. Polk, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Timothy J. Reardon III, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before McGOWAN, TAMM and ROBB, Circuit Judges.
Opinion for the Court filed by Circuit Judge McGOWAN.
Dissenting opinion filed by Circuit Judge ROBB.
McGOWAN, Circuit Judge:
Appellant Ramsey was convicted in the District Court on one count of unlawful importation of heroin (21 U.S.C. § 952(a) (1970)); three counts of unlawful use of a communication facility (21 U.S.C. § 843(b) (1970)); one count of possession of heroin with intent to distribute (21 U.S.C. § 841(a) (1970)); one count of unlawful receipt and possession of a firearm (18 U.S.C.App. § 1202(a) (1) (1970)) and one count of unlawful possession of a pistol (22 D.C. Code § 3203 (1973)). Appellant Kelly was convicted on one count of unlawful importation, one count of unlawful use of a communication facility, and one count of possession with intent to distribute. On appeal, a number of allegations of error are made, one of which we find to be of merit, and we therefore reverse the convictions.
The case was tried to the District Judge on the basis of a lengthy stipulated record which we need summarize only in broad outline. In November of 1973, Sylvia Bailey and William Ward, 1 who resided in West Germany, were engaged in international
narcotics trafficking. They were subjected to electronic surveillance pursuant to a West German court order, and the wiretap led to a search of Ward at the Munich Airport in December of 1973, which turned up no drugs but $10,000 in cash. The wiretap was reactivated in January of 1974, and among the calls intercepted were incriminating trans-Atlantic conversations concerning narcotics between Bailey and appellant Ramsey.
Ward and Bailey travelled to Thailand in late January of 1974, and Thai officials were alerted to their presence by West German agents. The Thai officials placed them under surveillance, and observed Ward mailing letter-sized envelopes in six different mail boxes. Five of these envelopes were recovered, and among the addresses they bore was a mail drop in Washington, D.C. later linked to appellants. On February 2, 1974, Bailey and Ward were arrested in their hotel room in Thailand, and seized in the raid were all the ingredients for the narcotics importation scheme. Among the items so obtained were numerous sealed, heroin-filled envelopes, eleven of which bore Washington, D.C. addresses with which appellants were later found to have a connection.
Two days later in New York independently and without any knowledge of the foregoing Customs Inspector George Kallnischkies seized and, proceeding without a warrant, opened eight envelopes found to contain heroin. The envelopes had been mailed from Thailand and were destined for four addresses in the Washington area. These envelopes were resealed and forwarded to Washington, and six were delivered to three addresses. Federal agents witnessed Kelly retrieve all six envelopes, rendezvous with Ramsey at the latter's residence, and transfer to Ramsey a brown paper bag. The agents moved in and arrested both men. The paper bag was found to contain the six letters, $1,100 in cash, and cutting material. Also seized from Ramsey was a notepad with Bailey's phone numbers and addresses. The next day, in executing a search warrant on Ramsey's residence, the agents recovered, inter alia, the two pistols for whose unlawful possession Ramsey stands convicted and a cardboard sheet with Sylvia Bailey's phone numbers.
The critical issue in this case, in our view, is the warrantless search of the eight envelopes at the New York Post Office. Those envelopes, and a great deal of evidence deriving from their seizure, were presented before the trier, and no attempt is or could fairly be made by the Government to argue that, if the seizure was illegal under the Fourth Amendment, the error was harmless as to any of the counts. As we proceed to develop, we believe that the opening of these letters without resort to a warrant procedure was a constitutional violation, and the use at trial, over the objection of appellants, of evidence obtained thereby requires overturning the convictions. 2
Inspector Kallnischkies was a supervisor of Customs Service Inspectors dealing with international letter class mail (the category closest to domestic first class mail). He testified that foreign airmail mail coming to the New York General Post Office is placed on a conveyor belt for sorting, and during that process he would remove any items that looked "suspicious." Tr. of October 25, 1974 Hearing, at 6. In this instance, he removed eight envelopes from the belt because they were from Thailand a known source of heroin and were bulky. 3 Id. at 7. He weighed one of the envelopes and
found it to weigh 42 grams, roughly three times the weight of a normal letter. Id. at 8-9. The envelope also "felt like there was something in there. . . ." Id. at 9. He then opened one envelope and found a plastic bag containing white powder between some pieces of cardboard. Upon testing, the powder was found to be heroin. The other envelopes also were found to contain heroin.
The Government would place this search within the border search exception to the warrant requirement. The view that packages moving through international mail fall within the border search exception has been uniformly adopted by courts confronting that question. E. g., United States v. Doe,472 F.2d 982, 984 (2d Cir.), cert. denied, 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691 (1973); United States v. Galvez, 465 F.2d 681, 687 (10th Cir. 1972); United States v. Beckley, 335 F.2d 86, 88-89 (6th Cir. 1964), cert. denied, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965); United States v. Swede, 326 F.Supp. 533, 535-36 (S.D.N.Y.1971); United States v. Sohnen,298 F.Supp. 51, 54-55 (E.D.N.Y.1969). The last-mentioned court, (Weinstein, J.), indicated that it might reach a different result where letters, rather than packages were involved. United States v. Sohnen, supra, at 55.
However, two circuits have squarely ruled that international letter mail, like international package mail, does fall within the border search exception. United States v. Bolin, 514 F.2d 554, 557 (7th Cir. 1975), citing United States v. Odland, 502 F.2d 148, 151 (7th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed.2d 680 (1974); United States v. Barclift, 514 F.2d 1073, 1074-75 (9th Cir.) (per curiam), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 63 (1975). See also United States v. Francis, 487 F.2d 968 (5th Cir. 1973), cert. denied, 416 U.S. 908, 94 S.Ct. 1615, 40 L.Ed.2d 113 (1974). 4 Both of these circuits rested their analysis on nothing more than the assertion that no meaningful difference could be drawn between the entry of mail into the United States and the entry of automobiles, baggage, individuals, or packages.
In our view, that assertion is sustainable only by embracing the most sweeping concept that the "integrity of our borders" requires that all objects crossing them may be searched at the whim of the Government. If, in fact, we look to the rationale of the border search exception, we find that it is based upon (1) the impracticability of requiring a warrant given the huge volume of items moving across the border likely to contain contraband, e. g., United States v. Doe, supra, at 982-83; Morales v. United States, 378 F.2d 187, 190 (5th Cir. 1967), and (2) the difficulty of obtaining a warrant when the subject of the search is mobile, as a car or person, Carroll v. United States,267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). 5
When we compare letters to persons or automobiles it becomes apparent how little force this rationale carries when applied
to letters. There are limited kinds of contraband that can be concealed within a letter-sized envelope; the decided cases appear to involve almost exclusively narcotics, although it is perhaps conceivable that small pieces of jewelry, small quantities of precious metals, or currency might also be concealed. There is, therefore, a smaller likelihood in the first instance that a letter, rather than an automobile or a suitcase, contains contraband. Moreover, as far as the central problem of narcotics is concerned, the Customs Service can effectively use trained dogs who can detect the smell of contraband drugs. See, e. g., United States v. Mitchell, 525 F.2d 1275, 1277 (5th Cir. 1976); United States v. Fulero, 162 U.S.App.D.C. 206, 498 F.2d 748 (1974) (per curiam); United States v. Feldman, 366 F.Supp. 356, 358 (D.Hawaii 1973). Similarly, X-ray examination, or metal detectors like those currently in use at airports, could detect precious metals or jewelry. See, e. g., United States v. Chiarito, 507 F.2d 1098, 1099 (5th Cir.) (per curiam), cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975); United States v. Sohnen, supra, at 53. These techniques could screen out a large percentage of otherwise suspicious mail that, under current practice, is routinely opened. The dimensions of the remaining problem of smuggling in letter-sized envelopes are of a different order than...
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