United States v. Hodges

• Decision Date: 01 October 1971
• Docket Number: No. 71-1052.,71-1052.
• Citation: 448 F.2d 1309
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Donald Eugene HODGES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

448 F.2d 1309 (1971)

UNITED STATES of America, Plaintiff-Appellant, v. Donald Eugene HODGES, Defendant-Appellee.

No. 71-1052.

United States Court of Appeals, Sixth Circuit.

October 1, 1971.

James J. Tansey, Crim. Div., Dept. of Justice, Washington, D. C., for appellant; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., Will Wilson, Asst. Atty. Gen., Washington, D. C., on brief.

Stephen T. McMurtry, Covington, Ky., (Court appointed), for appellee.

Before MILLER and KENT, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

MILLER, Circuit Judge.

The United States appeals from an order of the district court granting appellee's pre-trial motion to suppress evidence in a pending criminal prosecution. Appellee had been indicted for possessing, causing to be delivered by mail and disposing of L.S.D. tablets in violation of applicable federal statutes. The suppressed evidence consisted of a letter, a box of L.S.D. tablets, and an envelope in which the letter and tablets had been mailed.

On the morning of May 22, 1970 Mrs. Emma Hodges accepted from the Hebron, Kentucky post office a sealed, air mail special delivery letter that was addressed to her twenty-one year old son, the appellee. Appellee, who had been camping out alone for sometime, returned irregularly to the Hodges house where he maintained a room. Mrs. Hodges testified that she had been accepting mail for appellee for many years, but shortly before May 22 she informed the Hebron postmaster that she did not wish to receive any more mail for her son. The district court found that Mrs. Hodges accepted the letter at the specific request of the postmaster.¹ It is a fair inference that appellee tacitly approved of her opening any of his mail that she "thought was important and that he should know." Mrs. Hodges did state, however, that to the best of her recollection she had previously opened letters only from appellee's draft board.

After accepting the appellee's letter and returning to her home, Mrs. Hodges peeled off the masking tape on the outside of the envelope and slit open the seal. She discovered that the envelope contained a small pill box and a letter from a girl in California named Pam.² Upon finding pills in the box, she telephoned her private attorney, a Mr. Funk, who had advised with her on many occasions, and who was also a part-time assistant county prosecutor of Boone County, Kentucky, stating that her son had received a letter and a "box of some kind of drugs." It was not disputed that Mrs. Hodges called Funk in his capacity as her private attorney rather than as county prosecutor, nor that Funk assumed that he had been called in that capacity. In response to her inquiry as to what she should do, Funk replied, "Bring it over here right away."³ He then called the Chief of Police and asked him to come to his office. Mrs. Hodges testified that before going to Funk's office she resealed the masking tape so that the letter appeared not to have been opened. Either Mrs. Hodges or Funk reopened the envelope in the presence of the Chief of Police. Upon examination of the contents, including the letter which stated that the tablets were "acid," the Chief of Police took the tablets to the Kentucky State Police. The tablets were eventually delivered to a United States Postal Inspector who had several of them analyzed by a government chemist. The analysis showed that the tablets contained L.S.D., which fact was stipulated by the parties at the hearing. Thereafter, a complaint was issued and an indictment was returned against appellee. He never received the letter.

Appellee filed a motion to suppress the envelope and its contents. After an evidentiary hearing, the district judge issued an oral opinion in which he held that the circumstances related above constituted a violation of appellee's right of privacy. It was evidently the court's view that Mrs. Hodges was in some respect an agent of the United States when she accepted the air mail letter for delivery to her son and that the opening of the letter and the removal of the contents constituted an illegal search and seizure of which the government cannot now take advantage in criminal proceedings. The district court stated:

I am of the opinion that the motion should be sustained. I think this was an invasion of the right of privacy of the recipient of this letter, addressee of this letter. Mrs. Hodges, his mother, was given the letter to deliver to him with the express understanding that she would do that. She had told them, the Postal Department, not to deliver any more of his mail to her and then she said — well, the postman gave her this letter and said, "Well, I will take this one and give it to him," or words to that effect. I think a person\'s right of privacy must be preserved. This is the same as a wiretapping case. The United States would not have a right to use information obtained by wiretapping if she had asked somebody to tap the wire and use that information. The Department here gave this letter to Mrs. Hodges for the express purpose of delivering it to her son. She didn\'t do it. I don\'t think the United States can take advantage of that. I think it is an improper invasion of the rights of privacy of the defendant and I sustain the Motion to Suppress the evidence.

After reviewing the record, briefs, and relevant authority, we hold that the district judge erroneously sustained appellee's motion to suppress the envelope and its contents. It is axiomatic that the Fourth Amendment does not afford protection from searches by private individuals acting without instigation by or collusion with governmental authorities. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Winbush, 428 F.2d 357 (6th Cir. 1970). See generally 36 A.L.R.3d 553 (1971). For many years Mrs. Hodges, with her son's tacit permission, had accepted and opened some of his mail, apparently because he lived away from home and came to his mother's house or into town only occasionally. In this capacity she accepted the envelope at issue here and inspected its contents. This search does not, in our view, contravene the Fourth Amendment as the government was not involved. We find no merit in appellee's argument that Mrs. Hodges' opening and perusal of the envelope and its contents were constitutionally invalid without a search warrant. Appellee relies on Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406 (1918), and Maxwell v. United States, 235 F.2d 930 (8th Cir. 1956), both interpreting mail theft statutes, for the proposition that mail is in the government's custody until actually...