United States v. Choate

• Decision Date: 16 November 1976
• Docket Number: No. CR 74-1250-F.,CR 74-1250-F.
• Citation: 422 F. Supp. 261
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Dennis Roy CHOATE, Defendant.

422 F. Supp. 261

UNITED STATES of America, Plaintiff, v. Dennis Roy CHOATE, Defendant.

No. CR 74-1250-F.

United States District Court, C. D. California.

November 16, 1976.

COPYRIGHT MATERIAL OMITTED

William D. Keller, U.S. Atty., Eric A. Nobles, Asst. U.S. Atty., Chief, Crim. Div., Joel Levine, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff.

Richard G. Sherman, Los Angeles, Cal., for defendant.

MEMORANDUM OPINION

FERGUSON, District Judge.

This matter is before the court on defendant's motion to suppress all evidence sought to be introduced against him in a prosecution for attempted tax evasion under 26 U.S.C. § 7201. His argument initially centered on the activities of one Carl Thompson, a government informant who, Choate contended, had obtained substantial information through an illegal search of his residence. That information, it was alleged, provided the impetus for the entire income tax investigation that culminated in Choate's indictment and prosecution. During the course of an evidentiary hearing on defendant's motion which was held on July 13, 1976, it also became clear that the government had, as part of its investigation, requested a mail cover on Choate which ran from July 31, 1972 to August 25, 1972. The legality of such a procedure in the absence of a search warrant became the second point at issue.

The court has determined that as to the first of these grounds, the activities of Carl Thompson, the government has sustained its burden of establishing by a preponderance of the evidence that the primary illegality did not taint the evidence in this case in more than a de minimis manner. Nevertheless, the mail cover procedure both failed to comply with relevant postal regulations and constituted an unconstitutional violation of Choate's Fourth Amendment rights. Since the taint resulting from this illegality permeated the whole of the ensuing investigation and development of evidence, defendant's motion to suppress must be granted.

1. Compliance with postal regulations.

Regulations governing the use of mail covers¹ are set forth in 39 C.F.R. § 233.2. These provisions were first promulgated on June 17, 1965; they were republished without substantial change in March 1975.² They constitute the "sole authority and procedure" for initiating, processing, placing and using mail covers. 39 C.F.R. § 233.2(b) (1975).

Mail covers may be authorized either as part of an investigation of violations of postal statutes or under certain limited circumstances when necessary to assist law enforcement agencies in criminal investigations. The regulations, in relevant part, state that

(e)(1) All Postal Inspectors in Charge, and not more than three designees pursuant to delegations in writing, may order mail covers within their districts under the following circumstances:

. . . . .

(ii) Where written request is received from any law enforcement agency of the Federal, State, or local governments, wherein the requesting authority stipulates and specifies the reasonable grounds that exist which demonstrate the mail cover would aid in the location of a fugitive, or that it would assist in obtaining information concerning the commission or attempted commission of a crime.³

In requesting a mail cover on Choate, a fairly simple procedure was followed. A letter dated July 19, 1972, was prepared, apparently by Agent Lynn Williams,⁴ and signed by Melvin C. Johnson, Special Agent in Charge. It was addressed to Stanley H. Johnson, Postal Inspector in Charge, Los Angeles, and requested a 30-day mail cover on first and fourth class mail delivered to one of three addresses.⁵ Key language purported to supply the "reasonable grounds that exist which demonstrate the mail cover . . . would assist in obtaining information concerning the commission or attempted commission of a crime": "The above listed subject is currently under investigation by this office for the suspected smuggling of large quantities of narcotics into the United States. CHOATE is currently organizing a large narcotic smuggling ring with the primary source located in South America. It is felt that CHOATE and the source in South America correspond by mail" (emphasis added). It is clear from the congressional hearings which provided the impetus for their adoption and from an examination of the regulations as a whole that this was not a sufficient specification to sustain the Postal Inspector in Charge's order.

Hearings on the invasion of privacy by government agencies were begun in February of 1965 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, apparently as a result of disclosures that a mail cover had been authorized on a New York attorney, Roy Cohn, and his lawyer while Cohn was under indictment for perjury and conspiracy. See Note, "Invasion of Privacy," supra, at 170. A dialogue between Committee counsel Mr. Fensterwald and Mr. H. B. Montague, Chief Postal Inspector, Post Office Department, during the course of the hearings indicates that the Post Office Department as of February 23, 1965 was on notice of congressional concern with indiscriminate use of mail covers:

Mr. FENSTERWALD. What sort of checking is done to insure that the requesting agency has a bona fide reason for instituting a mail cover?

Mr. MONTAGUE. We know the agencies with whom we deal on a day-to-day basis, and they request a mail cover in writing, and they certify that it is in connection with one of their investigations. They specify it is in connection with a violation of the law.

Mr. FENSTERWALD. How do you make sure that the agency is not just on a fishing expedition?

Mr. MONTAGUE. There has to be some trust and mutual understanding among enforcement agencies or you would never get your work done. We have confidence in these other agencies. Up to now I have had no reason to question or distrust any of them.

Mr. FENSTERWALD. It is your feeling no enforcement agency in this country ever goes on a fishing expedition?

Mr. MONTAGUE. I think any law enforcement agency, when they make an investigation, has a good reason for doing it and that there is some suspicion a crime has been committed. They don't just go out without having some idea that a violation has been committed.

Mr. FENSTERWALD. You don't look behind the piece of paper in any case to see whether there is a reasonable cause for putting a mail cover on it?

Mr. MONTAGUE. Normally we don't.

Mr. FENSTERWALD. If there were any abuses in the use of mail covers, how would you know of them?

Mr. MONTAGUE. If they were flagrant abuses we would receive complaints of some kind concerning them. But all of these other agencies in the law enforcement work, I believe, are dedicated to the same principles we are. They take the same oath of office that we take, and we have found no reason to not have confidence and trust in them, and we do.

Mr. FENSTERWALD. If there were abuses how would you know of them?

Mr. MONTAGUE. We would probably get complaints. Any time there are abuses you receive complaints.

Mr. FENSTERWALD. Mr. Montague, who is going to complain? We have just heard that you never take this into court. You use it merely as a lead. It is only when you have a goof does anybody ever hear of a mail cover. So where are these complaints going to come from?

Mr. MONTAGUE. You are implying, Mr. Fensterwald, that these are put in indiscriminately, whether they are going to serve any purpose or not and whether or not they do serve any purpose. That isn't so.

Law enforcement agencies just don't have the time to do that. They have little enough help to get the work done and they will not do it unnecessarily.

Mr. FENSTERWALD. I was not implying that. I was merely implying that you have no way of knowing whether there were abuses or not.

Mr. MONTAGUE. I am quite confident if there were abuses we would hear about it and we would know about it. Hearings, supra, pt. 1, at 88-89.

New, more detailed postal regulations were promulgated on July 17, 1965. The key language "specifies the reasonable grounds that exist" had not appeared in previous versions of the regulations. It can only be concluded that it was introduced in response to congressional pressure (particularly since Senator Edward Long, Chairman of the Senate Subcommittee, had introduced a bill that would have barred all use of mail covers but did not press the measure in light of the revision in the regulations). See Note, "Invasion of Privacy," supra, at 173-74. It must also be observed that the whole thrust of the 1965 revision was to provide a more elaborate set of requirements for invocation of mail covers. Strict requirements that requests be in writing were introduced⁶ and the individuals authorized to approve such measures were sharply limited.⁷ To allow any law enforcement agency to obtain a mail cover without specification of any tangible justification would clearly run counter to the intent of the revision or at least the congressional action which led to its promulgation. The provision should, therefore, be read as having some substantial significance — if an agency's mere "feeling" that criminal activity is afoot is sufficient to provide the needed showing, it will have been read out of existence. This court must therefore conclude that since no "reasonable ground that exists" was specified, the mail cover on Choate was not legally authorized.

2. Constitutionality of the mail cover.

Suppression of evidence that resulted from leads developed as a result of the mail cover is also constitutionally dictated. Although the government has cited a well-recognized line of cases which in the past upheld mail covers against constitutional challenge, the "reasonable expectation of privacy" test of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), mandates a contrary decision in the case at bar. While a number of pre-Katz courts upheld mail covers against a variety of challenges, only Lustiger v. United...