United States v. Oliver, 19497.
| Decision Date | 11 May 1956 |
| Docket Number | No. 19497.,19497. |
| Citation | 140 F. Supp. 808 |
| Parties | UNITED STATES of America, Plaintiff, v. Thelma J. OLIVER, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Edward L. Scheufler, U. S. Atty., by Horace W. Kimbrell, Asst. U. S. Atty., Kansas City, Mo., for plaintiff.
Francis L. Roach and Solbert M. Wasserstrom, Kansas City, Mo., for defendant.
A complaint was filed against the defendant for knowingly depositing poisonous matter in the United States Mail, and for violating the Narcotics Act. Subsequently she appeared in court, and agreed that the District Attorney might proceed by information. Pursuant to that agreement, the District Attorney filed an information in three counts against her. The first count charged that the defendant caused to be deposited for mailing and delivery, a certain poison, to-wit, 824 grains of heroin hydrochloride to be delivered to a designated address in Denver, Colorado, in violation of § 1716 Title 18 U.S.Code. The second count charged that the defendant purchased and possessed the narcotic drugs described in Count I, in violation of § 4704(a) Title 26 U.S.C.A. The third count charged that the defendant knowingly received, concealed and possessed the narcotic drugs described in the other counts, after being imported and brought into the United States, in violation of § 174 Title 21 U.S.C.A.
The defendant did not enter a plea to any of the above counts, but filed a motion to suppress the evidence in the possession of Government agents, on the ground that it was obtained by an illegal search and seizure in violation of the Fourth Amendment to the Constitution of the United States. A jury was waived and the evidence was heard by the court. It was stipulated that the court should consider the motion to suppress and the guilt or innocence of the defendant together, and that if the court should find that the search and seizure was legal and proper under the circumstances, the defendant would be found guilty, and if the search and seizure was in violation of the defendant's constitutional rights, then the defendant would be discharged.
The motion to suppress was supported by the affidavits of the defendant and her husband, Charles Lee Oliver, who is also charged with violation of the Narcotics Act in the United States District Court for the State of Colorado, at Denver.
There was little dispute as to the facts. On March 12, 1956, the defendant appeared at the window of the United States Post Office sub-station at 31st Street and Indiana Avenue in Kansas City, Missouri, and submitted a package for mailing which she requested to be sent air-mail special-delivery to the address of her husband under an assumed name in Denver, Colorado. In her testimony she stated that she told the clerk she wanted it to go first class, but on cross-examination, she was uncertain and indefinite in her statement in this respect,—and I think it may be assumed that her only statement to the clerk was that it be sent air-mail special-delivery. For this service she paid 6¢ per ounce or 36¢ for air-mail and 35¢ for special-delivery, making a total of 71¢.
When the defendant came into the post office, she was recognized by a mail carrier, who worked out of the station and who was also an undercover agent for the Bureau of Narcotics. He spoke to the defendant and exchanged some light conversation with her. When she went out of the post office, this employee of the Government told the clerk at the window that the defendant had been under surveillance for some time as a suspected peddler of narcotics, and that he possessed her picture as a means of identification.
Thereupon, the clerk at the window called the Superintendent of the station, to whom this information was conveyed, and the Superintendent thereupon opened the package in a manner which will be described later. He unwrapped it and found therein some greeting cards, and also two small white envelopes sealed in the usual manner by means of a sealing substance, each of which contained a white paper unsealed in which was wrapped heroin hydrochloride, the combined contents of the two envelopes equalling 824 grains. The Superintendent immediately communicated with the office of the Bureau of Narcotics in Kansas City and an agent of that office proceeded to the Post Office where he made a field test of the substance and determined that it was heroin hydrochloride.
The heroin was replaced in the envelopes as it was found, and sealed by means of scotch tape, replaced in the original package, re-tied as originally and forwarded on to its destination in Denver. It being after court hours, the narcotics agent proceeded to the home of the United States Commissioner, where he filed a complaint against the defendant and obtained a warrant for her arrest. In an attempt to serve the warrant, it was ascertained that the defendant had left for Denver on an evening train. Thereupon, the narcotics agent communicated with the Denver office, advising them of the circumstances and advised that the Kansas City office held a warrant for the arrest of the defendant which was being forwarded to them in Denver.
The hotel address to which the narcotics were to be delivered, was kept under observation, and when the package was sought to be delivered on March 13, 1956, the defendant's husband was not present. A notice of the attempt to deliver the package was left at the hotel, with the information that it could be obtained at the Post Office. The Post Office delivery window was also kept under observation. When the defendant's husband presented himself at the window and requested delivery of the package, the narcotics agent placed him under arrest.
The narcotics agent then proceeded to the hotel where the defendant was staying and placed defendant under arrest also, without possession of the warrant, although it was then in the mail for delivery. He also searched the defendant's room there, but found no other narcotics. The defendant was returned to Kansas City, and her husband proceeded against in Denver. The search admittedly was made without a search warrant, and it is the contention of the defendant that her constitutional rights have been violated, and that the contents of the package may not now be used against her in this proceeding.
The package was approximately 2½× 4×5 inches in size, wrapped in ordinary wrapping paper and secured by ordinary wrapping string. There is some dispute between defendant and the parties who unwrapped it, as to the method by which it was secured, but I think the difference between the testimony of the two parties is not material. The package was not "sealed" in the sense in which we ordinarily understand that term, i. e., wax, mucilage or other sealing substance. The agent in charge testified that in the opening process, he simply untied the knots in the string and when the package was tied up again, they used the same string, and that it was secured and tied in the same manner.
The parties have filed briefs in support of their respective positions. Numerous rules and regulations of the Post Office Department as to the method and manner of handling mail and the classifications thereof were introduced in evidence. Of course, such rules and regulations have the force of law and are binding upon all parties, if they are within the provisions of the law with reference to the handling of mail, and are not violative of the constitutional rights of citizens.
Regulation 331.11 provides:
Regulation 331.12 provides:
A number of other regulations were cited to the court, most of which, it would seem, pertain to the method of handling mail, how it shall be wrapped for transmission, and the fixing of charges therefor. Those regulations do not help us here, when we consider the fact that all air-mail is considered to be first-class mail for the purpose of transportation charges, under the regulations. This is true whether the matter mailed be letters or merchandise. There is a distinction however, between the rates charged for special-delivery air-mail and parcels or merchandise. The charges for the latter being in excess of that for the former, and the higher rate was charged the defendant for the delivery of her package, although she states that she was not advised at the time that the merchandise rate was being charged. The postal clerk testified that he applied the rate upon the theory that the package contained merchandise.
Because of the contents of the package, we may proceed upon the assumption that the defendant did not intend that the package should be subject to inspection by the Post Office authorities, as is provided in certain rules and regulations of the department with respect to mail in classes...
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