Alexander v. United States

Citation390 F.2d 101
Decision Date19 March 1968
Docket NumberNo. 24695.,24695.
PartiesRodney Leon ALEXANDER, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

James R. Gillespie, San Antonio, Tex., for appellant.

Andrew L. Jefferson, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before WISDOM and GOLDBERG, Circuit Judges, and INGRAHAM, District Judge.

GOLDBERG, Circuit Judge:

Rodney Leon Alexander appeals his conviction under a three-count indictment charging him with "stealing, abstracting, and removing" a total of $7.00 from the United States mail in violation of 18 U.S.C.A. § 1709. His appeal challenges the admission into evidence at his trial of six marked one-dollar bills which postal inspectors discovered in Alexander's wallet. We deny the evidentiary acceptability of these bills and reverse.

During 1966 postal inspectors in San Antonio, Texas, were bedeviled by mail thefts. Their investigation subsequently focused on Rodney Leon Alexander, a postal employee, and on August 29, 1966, they noticed the absence of three test letters after Alexander had completed his route. On September 1, 1966, two postal inspectors inserted fluropone, a powder which fluoresces in ultraviolet light, into three additional test letters and placed the letters in the collection box on Alexander's route. All three letters contained marked bills, and one of the three letters also contained an uncommon postage stamp (commemorating Humane Treatment of Animals). After the inspectors had observed Alexander pick up the mail, they reexamined the box and determined that the test letters had been taken in his pickup. The inspectors followed Alexander and noted that between the collection box and the post office he stopped off at a local grocery store. They entered the store after he had departed, purchased an item, and received in change one bill which, though not one of the marked bills, did have on it fluropone powder. Alexander's bag was examined when he arrived at the post office, and the test letters were missing.

The postal inspectors then approached Alexander as he was preparing to leave the post office in his automobile. After identifying themselves, the inspectors asked him if they could have a postage stamp which had been observed on the dash board of his car and which apparently was one commemorating Humane Treatment of Animals. Alexander agreed to let the inspectors have the stamp, which stamp later was found to fluoresce under light. Next the inspectors told him that they wished to talk to him in their office, and he agreed. At that time no statement had been made about the inspectors' purpose.1

Upon reaching the office Alexander was advised that the inspectors were investigating general theft of the mails, including jewelry. After this admittedly misleading purpose2 was revealed, the inspectors warned Alexander regarding his constitutional rights, and he signed a written acknowledgment that he had received the warning. When the inspectors asked him if he wanted an attorney, he replied that he had not stolen anything, particularly not jewelry, and that he did not want an attorney. Upon request, Alexander emptied his front pockets to show the absence of stolen items. The inspectors then told him that the missing items were small enough to be concealed in a wallet, and they asked him to show them the contents of his wallet. He complied, and the marked money was discovered. Alexander then confessed to his crime and took the inspectors to his car where the three test envelopes were found. The inspectors then asked Alexander if he would report back to them the next morning. He agreed to do so and did in fact comply.

Prior to trial Alexander's counsel filed a motion to suppress all evidence obtained by the postal inspectors on September 1. The colloquy at the pre-trial hearing indicated that the trial court would grant the motion, but in a later, written decision mailed to both counsel the judge admitted the physical evidence, stating that the bills "were obtained as an incident of a legal arrest made upon probable cause." The trial court's letter postures three issues for our resolution: First, what are the predicates of a postal inspector's arresting authority? Secondly, in what custodial status had the inspectors placed Alexander when the bills were obtained? And thirdly, did the voluntary production of the bills render them admissible regardless of other considerations?3

The government contends that postal inspectors have statutory authority to make arrests, and it cites 39 U.S.C. § 3523(a) (2) (C) and (K):

"§ 3523. Positions in salary level 12 (a) Postal Inspector (KP-32)
(1) Basic function. — * * *
(2) Duties and responsibilities — assigned territory.
* * * * * *
(C) Investigates violation of postal laws, including, but not limited to, on robbery, mailing of bombs, burglary, theft of mail, embezzlements, obscene literature and pictures, and mail fraud.
* * * * * *
(K) In any criminal investigation, develops evidence, locates witnesses and suspects; apprehends and effects arrest of postal offenders, presents facts to United States attorney, and collaborates as required with Federal and State prosecutors in presentation before United States Commissioner, grand jury, and trial court." (Emphasis added.)

However convincing the words may sound out of context, 39 U.S.C. § 3523(a) (2) (C) and (K) cannot justify arrests without warrants by postal inspectors. The section was enacted as part of the "Postal Field Service Compensation Act of 1955," the purpose of which act was set out in H.Rep.No. 728, 84 Cong. 1st Sess., 1955 Code Cong. § Adm.News, p. 1994:

"It is the purpose of this legislation to provide an increase in the compensation of postal employees and, at the same time, bring about correction of serious inequities in the salary schedule by the adoption of an improved method of classifying postal employees for salary purposes." (Emphasis added.)

Section 3523 is one of many sections in the 1955 act which established postal salary levels by job descriptions rather than by mere job titles, as in prior acts. The purpose of the bill was to classify existing duties, not to create new authority. We do find a congressional grant of limited police authority to postal inspectors in 39 U.S.C. § 903, but that provision, not part of the 1955 act, requires an authorizing letter by the Postmaster General, and even with this safeguard contains no mention of police authority over an individual.4 We read Section 903 as clearly indicating that Congress did not intend to vest postal inspectors with arresting powers.

Furthermore, the so-called authorizing words in Section 3523(a) (2) (K), "apprehends and effects arrests of postal offenders," are weak and ambiguous. They were not molded in the image of other arrest statutessee, for example, 18 U.S.C. § 3052 ("Powers of Federal Bureau of Investigation". Emphasis added.)5 and 18 U.S.C. § 3053 ("Powers of Marshals and Deputies." Emphasis added.)6 — and do not include any reference to arrest warrants, probable cause, or immediacy. Can it be that Congress in its wisdom restricted the F.B.I. but gave postal inspectors carte blanche in arresting "postal offenders"?

The only plausible explanation of Section 3523 is that the words do not give postal inspectors the authority to "arrest." He investigates and, in aiding those with arresting authority, "apprehends and effects arrests." He furnishes the predicate for others to make the arrest and then aids them in the arresting process. But he is not a policeman. We should not have policemen by inference, and persons should not be vested with arresting authority by statutory obliqueness.

In 1948, before the 1955 act, a federal district court stated:

"It suffices that a postal inspector has no authority to make an arrest. It follows he has no authority either to make a search or to seize articles." United States v. Helbock, D. Oregon 1948, 76 F.Supp. 985, 986.

Helbock has been cited by two circuits in cases decided after the 1955 act, which circuits, rather than deciding the effect of Section 3523, have categorized the arrests as valid citizens' arrests under state law. Wion v. United States, 10 Cir. 1963, 325 F.2d 420, 423, cert. den., 1964, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309; and Ward v. United States, 9 Cir. 1963, 316 F.2d 113, 118, cert. den., 1963, 375 U.S. 862, 84 S.Ct. 132, 11 L.Ed.2d 89. Their silence in the face of Section 3523 indicates a reluctance to be impressed by the supposed Congressional grant.7 We find inconclusive and certainly not controlling an occasional iteration of Section 3523(a) (2) (K) without analysis. See Kelley v. Dunne, 1 Cir. 1965, 344 F.2d 129, 130. Such unanalytical affirmations when arresting authority is not in issue can have little more significance than the statute itself. We have found no court to be so uncritically docile when the point has been in issue.

We now proceed from the specific arrest provision of Section 3523 to the state law of citizens' arrests. The relationship of state and federal arresting authority has modern origins in the 1948 Supreme Court case of United States v. Di Re, 1948, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210. In Di Re the court cited a 1789 federal statute which had formalized the congressional intent to respect state arresting regulations even for federal arrests.8 The Court then updated that statute through judicial incorporation:

"We believe, however, that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, the principle of which is still retained, the arrest by judicial process for a federal offense must be `agreeably to the usual mode of process against offenders in such State.\' quoting the 1789 statute in a footnote There is no reason to believe that state law is not an
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