Oliver v. United States, 15598

• Decision Date: 31 January 1957
• Docket Number: No. 15598,15599.,15598
• Citation: 239 F.2d 818
• Parties: Thelma J. OLIVER, Appellant, v. UNITED STATES of America, Appellee. Charles Lee OLIVER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

239 F.2d 818 (1957)

Thelma J. OLIVER, Appellant, v. UNITED STATES of America, Appellee.

Charles Lee OLIVER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15598, 15599.

United States Court of Appeals Eighth Circuit.

January 9, 1957.

Rehearing Denied January 31, 1957.

Solbert M. Wasserstrom, Kansas City, Mo. (Francis L. Roach, Kansas City, Mo., on the brief), for appellants.

Horace Warren Kimbrell, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., and William O. Russell, Asst. U. S. Atty., Kansas City, Mo., on the brief), for appellee.

Before JOHNSEN, VAN OOSTERHOUT and WHITTAKER, Circuit Judges.

Rehearing Denied in No. 15598 January 31, 1957.

JOHNSEN, Circuit Judge.

A wife mailed a 6-ounce package at Kansas City, Missouri, to her husband in Denver, Colorado. Included in its contents were 1¾ ounces of heroin. The package was sent by air mail. Under the statutes, all air mail not exceeding 8 ounces in weight constitutes first-class mail.¹

The Post Office Department at Kansas City opened the package, went through its contents, and discovered the presence of the heroin. On suggestion of the Bureau of Narcotics, however, the package was restored to its original state and transmitted to Denver for delivery.

The Denver Post Office sent out a notice to the husband, requesting him to call for the package. He did so, and the package was turned over to him, but possession was immediately taken from him by a waiting narcotics agent.

Arrest was accompanyingly made of him, and shortly afterwards of the wife also, who had come on to Denver to join him. Criminal proceedings were instituted against both — against the husband in Denver, and against the wife in Kansas City.

Each filed a motion in the court at Kansas City, to suppress any possible evidential use of the package or of the examination made of it, on the ground of illegal search and seizure. The court denied the husband's motion on jurisdictional ground, holding that the question as to him was for the court at Denver. The wife's motion was considered at the time of her jury-waived trial and was denied on its merits.

Holding the search-and-seizure incidents to be lawful and admissible against her, the court found the wife guilty of, and imposed sentence upon her for, violation of 18 U.S.C. § 1716 (knowingly mailing a poison, namely heroin hydrochloride); of 26 U.S.C. § 4704(a) (purchasing a narcotic drug not in, or from, an original stamped package); and of 21 U.S.C. § 174 (receiving, concealing and possessing a narcotic drug, known to have been imported contrary to law).

The husband has appealed from the court's jurisdictional denial of his motion to suppress. The wife has appealed from her conviction and sentence, claiming only as error the court's denial of her motion to suppress and its admitting of the incidents and results of the search and seizure as evidence against her.

The wife's appeal will be first considered. That case is presented to us by both parties, as a question entirely of whether the Post Office Department at Kansas City had a right to open and inspect the package as it did, since it was these incidents on which the Government's charges and proof against the wife were predicated.²

It is the contention of the wife that the opening and inspecting of the package were unlawful, because the package constituted first-class mail, and, under the existing statutes and regulations, the contents of such mail were not entitled to be opened and examined without a warrant. The Government contends that the term "first-class mail", as used in the general statutes and regulations existing and in the Air Mail Act, was intended to have significance only as a matter of postage rate and not in any way as a search-and-seizure limitation. It argues that all mail is at any time subject to being opened and examined by the Post Office Department, except letters or other sealed matter.

Here, the package as mailed consisted of a cardboard box of greeting cards and envelopes, with two of the envelopes having been used to hold the 1¾ ounces of heroin and having been sealed by means of the gummed mucilage contained on the flaps. Wrapping paper had been used to cover the box, and twine had been stretched around it, both ways, secured at the end by a tight knot. The postal employee, who undertook the task of restoring the package to its original condition, admitted that he had had difficulty in making the string stretch sufficiently, to be able to retie the knot.

In presenting the package for mailing, the wife had told the window-clerk that she wanted it sent air mail and special delivery. He weighed the package and informed her that the charges amounted to 71 cents — 36 cents (6 ounces at 6 cents per ounce) for air-mail postage, and 35 cents for special delivery fee, stating that, since the package was merchandise, it was subject to a 35-cent fee for special delivery, instead of the 20-cent fee applicable to letters. The wife paid the amount indicated by the clerk as being required.

A mail carrier at the postal station, who had been serving also as an undercover agent for the Bureau of Narcotics, saw the wife mail the package. He had a speaking acquaintanceship with her and regarded her as a narcotics suspect. It was because of the suspicion voiced by him to the superintendent of the station that the package was opened and inspected, including an unsealing of the two envelopes containing the heroin. A narcotics agent was then called, who identified the powder as heroin but as a precaution removed a sample of it. Following this, the two heroin envelopes were resealed, the package was rewrapped and retied to make it appear to be in its original state, and the package was sent on to Denver for delivery.

Ever since Ex parte Jackson, 1877, 96 U.S. 727, 24 L.Ed. 877, it has been regarded as settled law that the protection against unreasonable search and seizure of one's papers or other effects, guaranteed by the Fourth Amendment, extends in fitting manner to their presence in the mails. Congressional measures or Post Office Department regulations covering prohibitions or inspections as to mail matter can only be enforced "consistently with rights reserved to the people, of far greater importance than the transportation of the mail". Id., 96 U.S. at page 732. Thus, the Supreme Court declared generally that such measures or regulations "cannot be enforced in a way which would require or permit an examination into letters, or sealed packages, subject to letter postage, without warrant * * *". Id., 96 U. S. at page 735.

"In their enforcement, a distinction is to be made between different kinds of mail matter, — between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be." Id., 96 U.S. pp. 732-733.

The Government urges that the expression "letters and sealed packages" used by the Court constituted a definitive and studied fixing by it of the limits and conditions of such protection against search and seizure as it would be possible to claim against mail inspection in any situation.

It does not seem to us, however, that the expression can in its context be viewed as indicating or implying any such legal absoluteness. So to read it would require the assumption that the Court had consideredly engaged in a survey and contemplation of all the possible forms of mail which might then or at any future time exist, under legislative or administrative authority, and was presuming to speak upon the question in relation to such a total horizon.

Rather, it seems to us that the discussion in the opinion, some of which has been quoted, was primarily purposed to make it doctrinally clear that, in the Government's monopolistic right to provide the public with mail facilities, it could not escape the guaranties of the Bill of Rights, and that as to the search-and-seizure guaranty of the Fourth Amendment it would be required, in its dealing with mail, to recognize a distinction between "what is intended to be kept free from inspection" and "what is open to inspection". We thus read the words, "such as letters, and sealed packages subject to letter postage", which immediately follow the first expression quoted, and the words, "such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined", which immediately follow the second expression quoted, as having been used in each instance simply in practical illustration and not in attempted judicial formula.

Such a reading also harmonizes the opinion with the approach which ordinarily has characterized judicial consideration and resolution...