Fourth Amendment--Search and Seizure

Journal of Criminal Law and Criminology Volume 68 Article 2 Issue 4 December

Winter 1977 Fourth Amendment--Search and Seizure

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Recommended Citation Fourth Amendment--Search and Seizure, 68 J. Crim. L. & Criminology 493 (1977)

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The casenotes for this issue of the Journal were completed by the following members of the staff: Kathy Saxton, Thomas W. Dressier, Ruben Castillo, David Welsch, Michael J. Faber, Alan Howard Aronson, David M. English, Michael B. Brohman, Richard Foglia, Celia M. Yerger, Charles Richard Walker, Allen Steinberg, Linda Maiman Starkopf and Howard Zelener.

FOURTH AMENDMENT-SEARCH AND SEIZURE

Connally v. Georgia, 97 S. Ct. 546 (1977). G.M. Leasing Corp. v. United States, 97 S. Ct. 619 (1977). United States v. Ramsey, 97 S. Ct. 1972 (1977). United States v. Chadwick, 97 S. Ct. 2476 (1977).

In three recent decisions1 the Supreme Court authorized by statute to make a warrantless has taken the opportunity to define and de- search. Such a search did not violate the fourth lineate further a citizen's rights under the amendment, and since postal regulations fourth amendment.2 In United States v. Chad- strictly prohibit the reading of any correspond- wick3 the Court held that defendants' fourth ence without a search warrant, there was no amendment rights were violated when federal chill of defendants first amendment rights. agents opened, without a search warrant, a Finally, in G.M. Leasing Corp. v. United States' 200-pound footlocker lawfully seized and re- the Court held that a warrantless seizure of moved from the open trunk of a stationary automobiles parked in public places was per- car, even where the agents had probable cause missible to satisfy the income tax liability of an to believe the footlocker contained contraband. individual taxpayer who was the appellant cor- However, in United States v. Rarmsey4 the Court poration's general manager. However, a war- held that a customs officer who noticed eight rantless search of appellant's office and seizure bulky letters from Thailand, which all ap- of papers found there was, in the absence of peared to have been addressed with the same any exigent circumstances, a violation of the typewriter, had reasonable cause to suspect fourth amendment. they contained contraband and was therefore The fourth amendment was included in the I United States v. Chadwick, 97 S. Ct. 2476 (1977); Bill of Rights in response to the general warrants, "writs of assistance," United States v. Ramsey, 97 S. Ct. 1972 (1977); G. M. by which the Eng- Leasing Corp. v. United States, 97 S. Ct. 619 (1977). lish Crown had given colonial customs officials In a fourth case, Connally v. Georgia, 97 S. Ct. 546 sweeping authority to search virtually anywhere (1977), the Court held that where a state statute, GA. for goods imported into the colonies in viola- CoDE ANN. § 24-1601 (1967), provided that a justice tion of British tax laws. of the peace who issued a warrant would receive a Denounced in 1761,6 five-dollar fee, but no fee for a denial of the warrant; these writs were an early focal point of colonial "[t]he situation... [was] one which offers 'a possible opposition to the Crown. Ironically, however, temptation to the average man as a judge,"' and the new United States government soon passed violated the protections given to the defendant by legislation which guarded its own revenue the fourth and fourteenth amendments to the Con- stitution. Id. at 548-49. Connally had been convicted nearly as jealously as the British government of possession of marijuana in violation of the Georgia had guarded its colonial income. The first 7 Controlled Substances Act, GA. CODE ANN. ch. 79A- customs statute provided for warrantless 8 (1975), after his house had been raided and searched pursuant to a search warrant issued in the 6597 S.Ct. 619 (1977). manner provided for in the statute. See Boyd v. United States, 116 U.S. 616, 625 2 U.S. CONST. amend. IV: (1886); Stanford v. Texas, 379 U.S. 476, 481 (1965). The right of the people to be secure in their 7 Act of July 31, 1789, ch. 5, 1 Stat. 29, 43. Section persons, houses, papers, and effects, against 24 of the statute provided: unreasonable searches and seizures, shall not be [E]very collector ... shall have full power and violated; and no Warrants shall issue, but upon authority, to enter any ship or vessel, in which probable cause, supported by Oath or affirma- they shall have reason to suspect any goods, tion, and particularly describing the place to be wares or merchandise subject to duty shall be searched, and the persons or things to be seized. concealed; and therein to search for, seize, and 3 97 S. Ct. 2476 (1977). secure any such goods, wares or merchandise; " 97 S. Ct. 1972 (1977). and if they shall have cause to suspect a conceal- SEARCH AND SEIZURE [Vol. 68

searches of vessels and ships, though not of made that course imperative. ' ' 14 Other excep- private dwellings or buildings, and may be tions to the warrant requirement were listed in seen, therefore, to have outlined the first ex- a recent court of appeals opinion:' 5 (1) hot ception to the fourth amendment requirement pursuit, (2) plain view doctrine, (3) emergency of a search warrant. doctrine, and (4) consent. With the exception Other exceptions to the amendment devel- of the last, all may be considered specific sorts oped much later, in the twentieth century, and of exigent circumstances. most of these may be seen to be specific in- Because the fourth amendment flatly pro- stances of the later-enunciated doctrine of exi- hibits unreasonable search and seizure, a gent circumstances8 mentioned in Ramsey. search, to be constitutional, must be found to However, these exceptions were developed be reasonable. When exigent circumstances, piecemeal, and only hindsight enables one to whether the general doctrine or one of the fit them into such a framework. The first major specific exceptions, are pleaded as justification exception, which allows warrantless search and for a warrantless search, the Court must decide seizure incident to arrest, was stated in dictum whether the asserted exigencies are sufficient- by the United States Supreme Court in Weeks whether they are truly "exigent." If the Court v. United States9 in 1914. The doctrine was determines that they are, the search is reason- embellished ten years later in Carroll v. United able and thereby constitutional. With warrant- States1" where the Court interpreted the Na- less searches based on no exigency, the analysis tional Prohibition Act" as authorizing federal is the same, in that the search, whether author- prohibition agents to stop, search and seize, ized by statute or alleged to be justified by without a warrant, an automobile believed to some non-exigency based exception to the be transporting bootleg liquor.12 This ruling fourth amendment, must still be found to be became known as the automobile exception. reasonable. Because of the underlying value of The government's case in Chadwick was based the fourth amendment's protections and be- on these two exceptions. The broader doctrine cause of the Court's own interpretation that of exigent circumstances was first mentioned review by a neutral magistrate is essential when in dictum in McDonald v. United States ,i3 where a citizen's privacy is at stake," the threshold Justice Douglas said, "We cannot ... excuse for entry into the area of reasonableness is the absence of a search warrant without a high. The burden is placed on the party seek- showing ... that the exigencies of the situation ing an exception, or the broadening of an existing exception, to the rule." ment thereof, in any particular dwelling-house, The Court in its recent decisions seems to be store, building, or other place, they .. . shall, adhering to Justice Powell's concern, expressed upon application on oath or affirmation to any in his concurrence to United States v. Watson,'8 justice of the peace, be entitled to a warrant to enter such house, store, or other place (in the that the exceptions to the warrant requirement day time only) and there to search for such remain tightly restricted and clearly drawn. goods, and if any shall be found, to seize and The reasoning in all three cases may be seen to secure the same for trial.... revolve around a citizen's expectations of pri- 8 BLACK's LAW DICTIONARY 683 (4th ed. rev. 1968), vacy with regard to international mail," in an defiies exigency in part 21 as "any event or occasional 0 in regard to locked luggage. combination of circumstances, calling for immediate office" and action or remedy." Where these expectations were seen to be war- 9 232 U.S. 383, 392 (1914). ranted and reasonable, the Court held that 10267 U.S. 132 (1924). 11Tit. 2, §§ 25, 26 (Comp. St. Ann. Supp. 1923, § 10138'/2 m, 10138'/2 mm), 41 Stat. 305, 315; § 6 of 14 Id. at 456. supplemental act (Comp. St. Ann. Supp. 1923, 15 United States v. Mapp, 476 F.2d 67, 76 (2d Cir. § 101842). 1973). 12 See J. LANDYNSKI, SEARCH AND SEIZURE AND " See Connally v. Georgia, 97 S. Ct. 546 (1977). THE SUPREME COURT 90 (1966), where a distinction is 17 United States v. Jeffers, 342 U.S. 48, 51 (1951). drawn between goods seized for lack of duty paid 18423 U.S. 411, 427 (1976) (Powell, J., concurring) and those seized to be used as evidence in a criminal (quoting Katz v. United States, 389 U.S. 347, 357 prosecution. Landynski finds faulty the Court's rea- (1967)). soning that the long tradition of warrantless search 19 United States v. Ramsey, 97 S. Ct. 1972 (1977). and seizure in the area of customs searches justifies a 20 G.M. Leasing Corp. v. United States, 97 S. Ct. warrantless search for criminal evidence. 619 (1977). 13335 U.S. 451 (1948). 21 United States v. Chadwick, 97 S. Ct. 2476 (1977). SUPREME COURT REVIEW only a search warrant can justify an intrusion.22 warrantless search of an automobile had taken But in an area where search is routine and place at the police station after a late-night indeed often physically intrusive, as in border arrest of four defendants seated in the car in a searches, expectations of privacy are not com- parking lot. In Chambers, the Court found the monly held, and therefore, warrantless search search permissible, Justice White reasoning is permissible.23 that it was a choice between a warrantless search In United States v. Chadwick, Amtrak officials or a warrantless seizure while a search warrant in San Diego had noticed that a man and was sought and that since both courses of action woman boarding a train for Boston were carry- were equally intrusive on the defendants, either ing with them a large footlocker which was was "reasonable under the Fourth Amend- leaking talcum powder, a substance train offi- ment."28 The exigency which would have justi- cials knew was often used to mask the odor of fied an immediate search of the auto-that it marijuana. The male passenger also matched a might be driven away if the police were re- profile used to spot drug traffickers. Federal quired to leave to seek a warrant-was ex- agents, informed of these facts, were on hand tended in time to justify the later warrantless two days later when the train arrived in Boston. search. In Chadwick, the district court found A trained dog sniffed the footlocker when it no such exigency and indeed no "nexus" at all had been unloaded in the station and gave a between the search and the auto.2 9 It was the signal to the agents indicating that a controlled footlocker, not the auto, which had been substance was contained therein, but the agents searched, and the court saw it as a mere coinci- waited to make their arrests until a third person dence that the footlocker was resting in the had arrived with a car. The 200-pound foot- trunk of a car, rather than on a platform in locker had been loaded into the trunk of this the station or upon the ground at the time of vehicle when the arrests were made. The agents the arrests. Had the arrests taken place when had neither arrest nor search warrants. The the footlocker was in either of the latter places, car, footlocker and arrestees were taken to the a warrant would have been required; the auto- federal building in Boston, and one and one- mobile exception could not be invoked on such half hours later the double-locked footlocker a tenuous basis. The court went on to point was opened there with keys found upon the out that the Carroll exception and its extensions male passenger. Large amounts of marijuana were based on the presence of some exigency, were found in the footlocker, and respondents some danger that the object of the search might were indicted for possession of marijuana with be "spirited away."30 A double-locked, 200- intent to distribute and for conspiring to pos- pound footlocker in a stationary car could not sess with intent to distribute .24 be whisked away by three defendants who had Before trial in the district court25 the defend- all been handcuffed and escorted to govern- ants moved to suppress the marijuana obtained ment cars. Furthermore, railroad guards and by search of the footlocker. The government, city policemen, as well as federal agents, were having conceded that no warrant had been present at the scene of the arrest. issued for the search, contended that it was In considering the government's contention nevertheless valid under the automobile excep- that the footlocker search was valid as incident tion of Carroll or as a search incident to arrest. to arrest, 3' the court referred to a test relied In considering the automobile exception, the upon in Chimel v. California.3 There the Su- court pointed out that "[t]he word 'automobile' 28Id. at 52. 29 393 F. Supp. at 772. is not a talisman in whose presence the Fourth 0 ' 2 6 3 Id. at 773. Amendment fades away and disappears, and 31 After the district court had considered the Gov- 7 distinguished Chambers v. Maroney- where a ernment's arguments concerning the automobile ex- 22 G.M. Leasing Corp. v. United States, 97 S. Ct. ception and had granted defendants' motion to sup- 619 (1977); United States v. Chadwick, 97 S. Ct. 2476 press, the Government filed motions to reconsider (1977). and to vacate. In support of these motions, the 23 United States v. Ramsey, 97 S. Ct. 1972 (1977). Government then introduced evidence to support its 24 21 U.S.C. §§ 841 (a)(1), 846 (1970). contention that the incident to arrest exception to ?5 United States v. Chadwick, 393 F. Supp. 763 (D. the warrant requirement justified the warrantless Mass. 1975). search of the footlocker. The court then made a 26 Id. at 772 (quoting Coolidge v. New Hampshire, supplemental fact finding which is included in its 403 U.S. 443, 461-62 (1971). opinion. 393 F. Supp. at 774. 27 399 U.S. 42 (1970). 32 395 U.S. 752 (1969). SEARCH AND SEIZURE [Vol. 68

preme Court had outlined the parameters of gous to automobiles in that it could easily the area, as opposed to the person, which disappear before a warrant could be obtained, could be searched incident to an arrest. The but pointed out that Carroll had made no men- "'area within [a defendant's] immediate con- tion of baggage and that the Supreme Court trol' . . . the area from within which he might had made no definitive ruling on baggage gain possession of a weapon or destructible outside the automobile area.4" After noting that evidence"33 could legally be searched without a the government itself was not arguing that any warrant. Applying-this test to Chadwick's case, exigency existed, the court concluded by stating the district court concluded that a double- that it found no exigency justifying the foot- locked, 200-pound footlocker which was in the locker search. The district court's suppression 41 open trunk of a car at the time of the arrests Qrder was therefore affirmed. was not within the defendants' immediate con- The Supreme Court granted certiorari42 to trol at that point. consider the question of the warrantless foot- The government appealed its case, and the locker search and affirmed the decision of the court of appeals, 34 after pointing out that ex- court of appeals. 43 The government's argu- ceptions to the fourth amendments must be ment, as in the court of appeals, was that the well-defined and few in number 35 and that the fourth amendment protects only homes, offices burden was on the party seeking to fit within and private communications and that only in an exception," summarized with approval the searches in those contexts should the reasona- district court's reasoning in regard to the auto- bleness of the search turn on whether a warrant mobile exception. was procured. Beyond these situations, the In pressing its contention that the search of reasonableness of the search should depend the footlocker was valid as incident to the only on whether there was probable cause that arrests, the government attacked the district evidence of criminal conduct was present. court's reliance on Chimel, stating that that Chief Justice Burger, speaking for the major- 44 ruling was applicable only to searches of dwell- ity, disagreed, stating that "the Fourth ' 45 ings. The court was not persuaded and noted Amendment 'protects people, not places. ' that the Chimel test had been employed in "[M]ore particularly," he went on, "it protects circumstances involving searches outside of people from unreasonable government intru- dwellings.3 7 The court refused to accept the sions into their legitimate expectations of pri- government's proposed test of "reasonable- vacy. '46 The issue thus became whether the ness," stating that its duty was to consider warrantless search of the footlocker was unrea- whether the facts of the search at bar justified sonable. its inclusion in any established exception. Al- The Chief Justice reviewed the history of the though the court conceded that it had upheld fourth amendment and reasoned that although a warrantless search of a hand-carried briefcase the public outcry at the time of the writing of at the scene of an arrest, 38 it distinguished such handheld luggage from the footlocker involved 4 Id. at 781. The court further reasoned that "such in Chadwick: handheld luggage was more closely an exception could have considerable impact, as its related to the personal effects found on an premises might seem to apply not only to baggage but to mail, express packages, and moving freight of arrestee, which may be searched without a 39 all description." Id. at 782. warrant as incident to the arrest. The court 41 Senior District Judge Thomsen dissented on the further admitted that some baggage was analo- ground that an officer who has probable cause to believe contraband is being transported in a suitcase 33 Id. at 763. or locker in his presence has the same authority to m United States v. Chadwick, 532 F.2d 773, 778 seize and search it without a warrant as he would to (lst Cir. 1976). arrest someone committing another sort of felony in 35See note 14 supra and accompanying text. his presence. Id. at 785-86. 36 United States v. Jeffers, 342 U.S. 48, 51 (1951). 42 429 U.S. 814 (1976). 37The court cited in particular United States v. 13 United States v. Chadwick, 97 S. Ct. 2476 (1977). Robinson, 414 U.S. 218 (1973), where the defendant 44 The decision was seven to two, with Justices had been first arrested in an automobile for driving Blackmun and Rehnquist dissenting. Justice Bren- without a license; a search which produced heroin nan, who concurred fully, wrote a brief concurrence was held "incident to a lawful arrest." Id. at 224. in response to Justice Blackmun's dissent. " United States v. Eatherton, 519 F.2d 603 (1st 41 97 S. Ct. at 2481 (quoting Katz v. United States, Cir.), cert. denied, 423 U.S. 987 (1975). 389 U.S. 347, 351 (1967)). 39532 F.2d at 780. 46 97 S. Ct. at 2481. 1977] SUPREME COURT REVIEW

the Bill of Rights had centered mainly on mobility of the vehicle could not be the only searches of homes, there was no reason to rationale upon which the automobile exception conclude that the authors felt differently about was based. The key, he continued, concerned searches conducted in public places. He further expectations of privacy. Such expectations are reasoned that the protection offered by the much less with respect to an automobile: one warrant requirement, which insured that a rarely stores one's personal effects there, he neutral magistrate had considered the facts of pointed out,5 6 and the contents and occupants 47 5 7 the situation and assured the individual of of a car are in plain view on public roads. the lawful authority of the searching officer,4" State licensing regulations's and inspection and ,was equally valuable in or out of the home. custody procedures a made the automobile sub- The Chief Justice went on to point out that ject to public and official scrutiny as well. Such warrants had been required for a variety of public display and concern is not present in searches conducted outside the home: a "bug- regard to luggage, and therefore, since the ging" in a public phone booth 49 and searches defendants had placed personal effects in the of an automobile on private property,50 an footlocker and had taken the trouble to double- automobile impounded by the police, 51 a hotel lock it, their expectations were that their pri- room,52 and an office.' 3 The only unreasonable vacy would be respected. Further, since the government invasions of privacy were not, footlocker was safely ensconced in the federal then, just those which infringed upon one's building, there was no concern or danger that 4 privacy at home. it might be moved before a warrant could be Warrantless searches of automobiles had obtained. been permitted, the Chief Justice conceded, In response to the government's theory that even when there was little or no danger that a warrantless search of property in possession 5 the evidence would be removed, thus the of one arrested in a public place is permitted so long as there is probable cause that the 47 property contains contraband, the Chief Justice Johnson v. United States, 333 U.S. 10 (1948). There the police had entered a hotel room with no outlined the rationale upon which the search warrant or probable cause. The quick judgment of incident to arrest exception to the warrant an officer who smelled opium outside the room was requirement is based, relying, like the court of held no substitute for due consideration by a magis- appeals, upon Chimel. Because the arrestee trate. might attempt to use a weapon or destroy 48 Camara v. Municipal Court, 387 U.S. 523 (1967). The appellant had argued that warrantless building evidence, a search to uncover such items was inspections were unconstitutional. The Court agreed, reasonable within the area of the arrestee's in part because a warrant furnishes assurance of control. He concluded that: proper authority. " Katz v. United States, 389 U.S. 347 (1967). Once law enforcement officers have reduced '0 Coolidge v. New Hampshire, 403 U.S. 443 (1971). luggage or other personal property not imme- '" Preston v. United States, 376 U.S. 364 (1964). diately associated with the person of the arrestee 12 United States v. Jeffers, 342 U.S. 48 (1951). to their exclusive control, and there is no longer '3G.M. Leasing Corp. v. United States, 97 S. Ct. any danger that the arrestee might gain access 619 (1977). 4The fourth amendment is just one of several ted the evidence as the fruits of a proper, although constitutional provisions which protect privacy, as warrantless, search designed to protect the public. Justice Stewart pointed out in Katz v. United States, In South Dakota v. Opperman, 428 U.S. 364 389 U.S. 347 (1967). In Katz, however, the Court had (1976), the defendant's car had been impounded asserted that a "general right to privacy" was under after a series of parking violations. A routine search the protection of the states. Id. at 350-51. Note that uncovered marijuana in the car. Katz was decided two years after Griswold v. Con- In Cooper v. California, 386 U.S. 58 (1967), the necticut, 381 U.S. 479 (1965), where the Court had defendant had been arrested on a narcotics charge. ruled that there was a constitutional right to marital Evidence found in his impounded car one week after privacy. the arrest was held admissible despite the lack of a I In Cady v. Dombrowski, 413 U.S. 433 (1973), a warrant. drunk driver's car was impounded in Wisconsin. The See also Chambers v. Maroney, 399 U.S. 42 (1970), driver claimed to be an off-duty policeman; a local and text accompanying note 27. policeman searched the car which had been left 56 97 S. Ct. at 2484 (Burger, CJ.) (quoting Cardwell unguarded out-of-doors for the service revolver he v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion)). believed to be stored there. In the course of his 57 Id. search, he found bloody articles which were later 18 Cady v. Dombrowski, 413 U.S. 433 (1973). used as evidence in a murder trial. The Court admit- " South Dakota v. Opperman, 428 U.S. 364 (1976). SEARCH AND SEIZURE [Vol. 68

to the property to seize a weapon or destroy so relentlessly tracked down drug traffickers. evidence, a search of that property is no longer Justice Blackmun's assertion that allowing the 66 an incident of the arrest. footlocker to be searched without a warrant as incident to arrest would not "seriously In a footnote, the Chief Justice qualified his derogat[e]"66 a citizen's rights may be true, but exclude the situation where the statement to the law has long been drawn along such fine to contain explosives or luggage was believed lines, and noble principles can be eroded in other, equally dangerous materials. 6 Because such an inch-by-inch fashion. As the court of justified the warrantless no other exigency appeals pointed out, a leap from permitting search of the footlocker, the judgment of the searches of cars to permitting searches of court of appeals was affirmed. locked personal luggage which happens to be Justice Blackmun, joined by Justice Rehn- in a car is a vast one indeed when the new quist, dissented on the ground that he saw no proposition is logically extended.67 The central significant difference between the situation in 62 premise upon which the Supreme Court based and that in United States v. Edwards, Chadwick its reasoning-that reasonable expectations of search of personal effects which upheld the privacy may be intruded upon only by means without a warrant after the arrestee was in jail, of a warrant-is not only valid historically or in those cases involving impounded cars but is also workable in other sorts of circum- searched thoroughly, locked which had been stances.68 In addition, that premise would seem Because the issuance compartments included.63 to be at the very heart of the fourth amend- case such as Chadwick would of a warrant in a ment. be, Justice Blackmun believes, a matter of rou- In United States v. Ramsey, a customs inspector af- tine, the fourth amendment protection dealing with international letter class mail69 in forded by the majority's holding will have little the New York General Post Office noticed that practical value. In addition, he went on, the eight envelopes arriving from Thailand, a opinion may have little impact since other doc- known source of heroin, were particularly trines will usually sustain warrantless searches bulky and that all appeared to have been ad- by the police. He reasoned that allowing prop- dressed with the same typewriter. An envelope erty such as the footlocker to be searched where was weighed and found to be three times as place in public would a valid arrest had taken heavy as normal letters. The official opened no result in simplifying constitutional law with the envelopes and found a white powder which of a citizen's fourth amend- serious diminishing tests revealed to be heroin. The envelopes were had ment rights. Finally, he pointed out that then sent to the Washington area, as per their the arrest taken place when the respondents addresses, and were delivered under the sur- were seated upon it or standing near it, the veillance of the Drug Enforcement Administra- footlocker would have been in their control and thus searchable. It should be noted, however, that Justice Brennan in his concurrence 66 97 S. Ct. at 2489 (Blackmun, Rehnquist, JJ., dissenting). disputed this assertion, reasoning that "control" 67 See note 40 supra. A ruling which permitted the of a double-locked, 200-pound footlocker could warrantless search of the footlocker would establish not be so easily resolved .64 a precedent which could form the basis for future The Court in Chadwick adhered to its admo- findings that warrantless searches of similar items- nition in Katz v. United States"5 and refused to packages, baggage, freight-were also permissible. expand the automobile or the search incident The result would be a whole new exception to the a further erosion of its pro- to arrest exceptions to the fourth amendment's fourth amendment and tections. Chief Justice Burger warned of this sort of warrant requirement, despite, no doubt, a danger in United States v. 12 200-Ft. Reels of Film, temptation to aid the federal agents who had 413 U.S. 123, 127 (1973): "The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, 66 97 S. Ct. at 2485. fourth, or fifth 'logical' extension occurs.... [T]he 61 Id. at 2485 n.9. aggregate or end result is one that would never have 62 415 U.S. 800 (1974). been seriously considered in the first instance." 6 See note 55 supra. 68 See text following note 100 and accompanying 64 97 S. Ct. at 2486 (Brennan, J., concurring). note 120. 389 U.S. 347 (1967). Also see note 18 supra and 69 International letter class mail is similar to domes- accompanying text. tic first class mail. 19771 SUPREME COURT REVIEW

tion. One defendant collected the envelopes alone limited the former to only a few possibil- from three different addresses and was ar- ities, such as drugs or small jewelry, and these, rested after giving a second defendant a paper the court pointed out, could often be detected bag in which officals found six envelopes con- by such external means as trained dogs, x-rays, taining heroin, along with cash and "cutting" or metal detectors. Further, because the Su- matter for the heroin. The district court denied preme Court had unanimously held that au- defendants' motion to suppress the heroin, and thorities were permitted to detain mail in order defendants were convicted of several related to investigate suspicious circumstances or ob- narcotics offenses .70 tain search warrants,7 4 there was no need for The court of appeals reversed,7 1 refusing to an official to open letter mail without a warrant. accept the government's contention that the The court of appeals also relied on the spirit opening of the envelopes in the case at bar was of two recent Supreme Court decisions which a border search permitted as an exception to it perceived as attempts to keep the border the fourth amendment. The court noted that a exception narrowly-defined. In Almeida-Sanchez number of courts have held 72 that packages v. United States,75 the appellant, in his automo- moving through international borders may be bile, had been stopped by a roving patrol subjected to a warrantless search and thus are twenty miles north of the United States-Mexico included in the border search exception. In- border: The Court ruled in a five to four deed, two circuits73 had gone further and in- decision that there was no warrant nor probable luded letter mail, as well as packages, in the cause for halting the car, and the marijuana exception, on the ground that there was no found in the ensuing search could not be used meaningful difference between the search of against the appellant. Two years later, in United automobiles, baggage, people, and packages States v. Brignoni-Ponce,76 the Court held that a crossing the border and a search of mail cross- border patrol's judgment that a car contained ing the border. The District of Columbia Cir- "Mexican-looking" people was not a reasonable cuit, however, reasoned that the border search basis for stopping it. The respondent's motion exception was based on the exigent circum- to suppress in his trial for transporting illegal stances doctrine. The volume and mobility of aliens was thus granted. The Court stated that border traffic were seen to be the underlying "reasonableness . . . depends on a balance be- reasons for the exception. The court found tween the public interest and the individual's 77 little analogy between letters and people or right to personal security. automobiles as transporters of contraband. Size Finally, the court of appeals considered the fact that these were letters which were searched 71 Appellant Ramsey was convicted of violations of and quoted Justice Holmes: "[T]he use of the the following: 21 U.S.C. § 952(a) (1970), unlawful mails is almost as much a part of free speech as importation of heroin; 21 U.S.C. § 843(b) (1970), the right to use our tongues .... "8 Noting unlawful use of a communication facility; 21 U.S.C. the Supreme Court's special concern when § 841(a) (1970), possession of heroin with intent to distribute; 18 U.S.C. App. § 1202(a)(1) (1970), unlaw- fourth amendment rights converge with first ful receipt and possession of a firearm; 22 D.C. amendment rights, as expressed in United States CODE § 3203 (1973), unlawful possession of a pistol. v. United States District Court.79 and Stanford v. Appellant Kelly was convicted of violations of 21 U.S.C. § 952(a) (1970); 21 U.S.C. § 843(b) (1970); 21 74 United States v. Van Leeuwen, 397 U.S. 249 U.S.C. § 841(a) (1970). (1970). There, two 12-pound packages of gold coins 7 United States v. Ramsey, 538 F.2d 415 (D.C. mailed from a town in Washington near the Canadian Cir. 1976). border had aroused the suspicion of postal authori- 72 United States v. Doe, 472 F.2d 982 (2d Cir.), ties and the local police. The Court held that a 29- cert. denied, 411 U.S. 969 (1973); United States v. hour delay in the delivery did not destroy the efficacy Galvez, 465 F.2d 681 (10th Cir. 1972); United States of the warrant obtained after investigation proved v. Beckley, 335 F.2d 86 (6th Cir. 1964), cert. denied, the officials' suspicions well-founded. 380 U.S. 922 (1965); United States v. Swede, 326 F. 7- 413 U.S. 266 (1973). Supp. 533 (S.D.N.Y. 1971); United States v. Sohnen, 7 422 U.S. 873 (1975). 298 F. Supp. 51 (E.D.N.Y. 1969). 77 Id. at 878. 7' United States v. Bolin, 514 F.2d 554 (7th Cir. " United States ex rel. Milwaukee Social Demo- 1975) (citing United States v. Odland, 502 F.2d 148 cratic Publishing Co. v. Burleson, 255 U.S. 407, 437 (7th Cir.), cert. denied, 419 U.S. 1088 (1974)); United (1921) (Holmes, J., dissenting). States v. Barclift, 514 F.2d 1073 (9th Cir.) (per cur- 79 407 U.S. 297 (1972) (wiretaps without warrants iam), cert. denied, 423 U.S. 842 (1975). are not permissible). SEARCH AND SEIZURE [Vol. 68

Texas,80 the court concluded that the risks were ambiguous, as Justice Rehnquist was quick to too great to allow international mail to be point out. opened without a showing of probable cause Having determined that the search of the and the obtaining of a search warrant from a envelopes was made in accordance with the neutral magistrate. statute, Justice Rehnquist then turned to the The court found little hindrance to the con- constitutionality of the warrantless search. Bor- venience of officials in its ruling, especially in der searches, he asserted, "are reasonable sim- view of the fact that when the customs officials ply by virtue of the fact that they occur at 8 6 transferred the envelopes to the District of the border. In support, he cited the 1789 8 7 Columbia post office, officials there had ob- customs law and the 1886 conclusion of the tained a warrant before reopening them. The Court in Boyd v. United States that the passage court, with one dissent, thus reversed the con- of the 1789 act was proof that customs searches were not considered unreasonable and thus victions. 88 The Supreme Court granted certioraris in not prohibited by the fourth amendment. order to resolve the conflict among the cir- Two recent cases dealing with the importation cuits.8 2 The decision of the court of appeals of obscene matter were cited as well in support was reversed. Justice Rehnquist, writing for of the recognized reasonableness of border the majority,s3 read the applicable postal stat- searches.89 utes4 as authorizing the customs official's act in Confronting the issue of letter searches, Jus- this case. The statute reads in part: "Any of tice Rehnquist reasoned that there was no basis rationale for the officers - . . authorized to board or search in the border search exception's vessels may stop, search ... any trunk or differentiating between the mode of entry of mail into the country and that of people or envelope, wherever found, in which he may 0 have a reasonable cause to suspect there is automobiles. He relied on Cotzhausen v. Nazro9 merchandise which was imported contrary to where the Court had declared that "if the mail law ...... Noting that the statutory require- is to be left unwatched, and all its sealed con- ment of reasonable cause is less than the fourth tents, even after delivery to the person to whom amendment's probable cause threshold for a addressed, are to be exempt from seizure, ... warrant, Justice Rehnquist reasoned that the dutiable matter of great value may thus be bulk and the country of origin of the letters in introduced from foreign countries."' the case at bar did form a foundation of reason- He went on to point out that the court of able cause for the customs search. The search appeals had erred in seeing the border search had thus been made in accordance with the exception as one built on the doctrine of exi- statute. 86 Id. at 1979. In a lengthy footnote, 5 Justice Rehnquist VSee note 7 supra. defended his statutory interpretation, rebut- 116 U.S. 616, 623 (1886). 89 United States v. 12 200-Ft. Reels of Film, 413 ting Justice Stevens' dissent. The fact that U.S. 123 (1973); United States v. Thirty-seven Photo- postal regulations had not implemented the graphs, 402 U.S. 363 (1971). In Reels of Film the statutory authority, first given in 1866, until Court ruled that Congress may prohibit the importa- 1971, and that until then postal officials had tion of obscene materials intended for personal use not been allowed to open international mail only. The Court reasoned that border regulation is without a warrant except in the presence of within the power granted to Congress by the com- merce clause of the Constitution and noted that and with the consent of the addressee, did not border searches "rest on different considerations and change the analysis. The dissent's other points different rules of constitutional law from domestic revolved around legislative history, most of it regulations." 413 U.S. at 125. In Thirty-seven Photo- graphs the Court ruled that Congress may declare obscenity contraband and that the seizure by customs 80 379 U.S. 476 (1965) (warrant to search for com- officials of photographs intended for commercial use munist publications was held too sweeping). was valid. s 429 U.S. 815 (1976). o 107 U.S. 215 (1882). 82 See note 73 and accompanying text. 91 Id. at 218. However, in Cotzhausen, as the Court ' The decision was six to three, with Justice Powell there obliquely revealed, the dutiable matter-a writing a brief concurrence and Justice Stevens, shawl-had not been seized until it was in the hands joined by Justices Brennan and Marshall, dissenting. of the addressee and had been opened by her. Justice '4 19 U.S.C. § 482 (1970) (emphasis added). Rehnquist did not make note of this difference in s197 S. Ct. 1972, 1976-78 n.8 (1977). the fact situation. 1977] SUPREME COURT REVIEW gent circumstances. 92 He found the border contain writings-pamphlets, letters and so search exception analogous to the search inci- forth-and therefore a first amendment chill dent to arrest exception and saw neither excep- could be seen to exist in permitting their open- tion as based on the doctrine of exigent circum- ing as well. 93 stances. With so much precedent in favor of opening As for the court of appeals' view that its international mail, it is possible that a point of decision in Ramsey was consistent with the spirit no return had been reached; that to be logically of Brignoni-Ponce and Almeida-Sanchez, Justice consistent meant either expanding the excep- Rehnquist asserted that those decisions were tion or overruling the decisions of many courts. based on a finding that the searches had not Possibly the necessity for logical extension, taken place at a border or its functional equiv- present in Ramsey and not in Chadwick, justifies alent. They were, therefore, inapplicable to the possible first amendment chill of the for- the case at bar. mer, although even "minimal" and "subjective" In his conclusion, Justice Rehnquist pointed erosions of principle are suspect. 100 out that because postal regulations strictly for- In addition, Justice Rehnquist's analysis in bade the reading of foreign letter mail without Ramsey, while it parses well logically, fails to a search warrant,94 any chill on first amend- come to grips with several of the court of ment rights was not only "minimal," but also appeals' most salient and practical points, in "wholly subjective."95 particular: (1) the ease with which a warrant to Although Justice Rehnquist denied that Ram- open mail may be obtained, given the Court's sey is an expansion of the border search excep- decision that delay for that purpose is permis- tion to the fourth amendment,96 it seems clear sible; and (2) the fact that much contraband that the Court's allowance of a warrantless can be detected by external means such as dogs search of undelivered international mail does and metal detectors. However, considered in broaden the exception.97 Because authorization relation to the framework outlined in Chad- for border searches predates the fourth wick-one's reasonable expectations of privacy- amendment itself, it may be that the Court Ramsey fits. The long tradition of border considers the border search exception excluded searches, of both people and mail, makes it from the Katz rule that fourth amendment arguably reasonable to expect bulky mail from exceptions be kept tightly restricted. Although Thailand to be searched for illegal drugs. the District of Columbia Circuit did not see In G.M. Leasing Corp. v. United States, the things that way, both the Seventh and the Internal Revenue Service had determined that Ninth Circuits have.98 And in view of the fact an individual taxpayer, who was general man- that packages may be searched without a war- ager of the appellant corporation, owed nearly rant, to exclude letters would mean drawing a a million dollars in taxes for the years 1970 and line at some arbitrary point. When is a bulky 1971. The taxpayer had filed no returns for envelope a package and when a letter? How those years and, in addition, was a fugitive large may an envelope be and still remain a from justice, having escaped from a federal letter? Further, as the dissenting judge in the marshall after being convicted on a charge of court of appeals noted, 99 a package can also misapplication of national bank funds.10 1 These factors were considered to jeopardize collection 92 See note 13 supra and accompanying text. of the taxes. Consequently, in accordance with 93In view of the Supreme Court's reasoning in the Internal Revenue Code of 1954,102 a jeop- Chimel that fear of an arrestee's grabbing a weapon or destroying evidence was the basis for allowing a 100 See note 66 and accompanying text. warrantless search incident to arrest, it is difficult to see how Justice Rehnquist arrived at such a categori- 101The taxpayer was convicted of a violation of 18 zation of the search incident to arrest exception. U.S.C. § 2 (1969) and 18 U.S.C. § 656 (1976), and the 9 19 C.F.R. § 145.3 (1977). conviction was affirmed in United States v. Cooper, 95 Since it would seem that the first amendment 464 F.2d 648 (10th Cir. 1972). chill is always "subjective," it is not clear just what 102 I.R.C. § 6861(a). The statute reads in relevant Justice Rehnquist meant by this characterization. part: "If the Secretary believes that the assessment or 96 97 S.Ct. at 1981. collection of a deficiency . . . will be jeopardized by '7See note 91 supra. delay, he shall ... immediately assess such deficiency " See note 73 supra. ...and notice and demand shall be made ... for 9 538 F.2d at 423. the payment thereof." SEARCH AND SEIZURE [Vol. 68 ardy assessment was made. In attempting to a limited fourth amendment issue, the permis- collect the taxes owed, the IRS determined sibility of the seizures to satisfy tax assessments, that the appellant corporation was the tax- affirming in part and reversing in part the payer's alter-ego. The corporation, supposedly decision of the lower court. Justice Blackmun a car-leasing concern, listed no employees, had wrote for a unanimous court. After reviewing paid no state sales tax and had no license to the statutes which provide authority for tax conduct business in the area of its location. levies,' 0 7 he pointed out that the levy power However, the corporation owned several very was essential to the country. It was, indeed, its expensive collectors' cars, and the IRS seized, "lifeblood."' 8 Because the Court had limited without a warrant, two Rolls Royces, three its consideration of the case to the fourth Stutzes and a Jaguar. All of the automobiles amendment issue, the court of appeals' deter- were taken from public places. Also, with the minations that the levies were valid and that aid of a locksmith, the revenue officers en- the appellant corporation was the individual tered, again without a warrant, appellant's taxpayer's alter-ego were accepted. Thus, Jus- place of business on two separate occasions; on tice Blackmun reasoned, probable cause existed their second visit, furnishings and papers were for the seizure of the corporation's assets in seized. satisfaction of the tax liability. The only ques- The corporation filed suit against the IRS tion then became whether warrants were nec- and individual agents, claiming wrongful levy essary in order to make the seizures of the and asking for return of the autos, suplression automobiles and documents reasonable. of the evidence gained from the search and Relying on Murray's lessee v. Hoboken Land & damages. The district court's judgment in favor Improvement Co., 0 9 the Court ruled that the of the corporation awarded damages in an seizure of the automobiles from public places undetermined amount, both compensatory and was not unreasonable where a customs official punitive, against individual revenue agents, had been found to have withheld revenue owed suppressed the use of the seized documents or to the government; his property had been photocopies of them, ordered all seized assets seized through a title transfer involving no returned and removed all levies against such intrusion onto private property. assets. The seizure of the documents from appel- The court of appeals reversed as to all the lant's offices was, however, a different matter. critical issues."°3 After concluding that the trial Quoting from Camara v. Municipal Court,"0 court had erred in its decision that the corpo- Justice Blackmun said, "[O]ne governing prin- ration was not the fugitive taxpayer's alter-ego, ciple, justifed by history and by current expe- the court agreed with the Government that rience, has consistently been followed: except further error had been committed when the in certain carefully defined classes of cases, a trial court "entered no independent findings search of private property without proper con- of fact or conclusions of law but merely ac- sent is 'unreasonable' unless it has been author- cepted those prepared by appellee."'0 4 The court found the search and seizure of both the 107I.R.C. §§ 6321, 6331(a), (b). automobiles and the documents statutorily au- 168 97 S. Ct. at 627 (quoting, Bull v. United States, 0 5 thorized' and concluded that the govern- 295 U.S. 247, 259 (1935)). ment's lien on the property seized was valid. 00 59 U.S. (18 How.) 272 (1856). Murray's Lessee is a The Supreme Court granted certiorari'0 6 on prime example of the early judicial interpretation of the fourth amendment, which, in the tradition of 105 G.M. Leasing Corp. v. United States, 514 F.2d the English common law, was based on property 935 (10th Cir. 1975). The court, in accordance with a rights. Thus the government was entitled to seize government concession, affirmed the trial court's property to which it had a superior claim. This return of stock to the taxpayer's son, an intervener. premise has since been discredited, explained Justice "oId. at 940. The court of appeals noted that the Brennan in Warden v. Hayden, 387 U.S. 294, 304 district court had been condemned twice before for (1967), and seizures may be unreasonable under the this practice. fourth amendment even though the government 105 I.R.C. § 6331(a), (b). The latter subsection pro- asserts a superior common-law property interest. vides, in relevant part: "The term levy as used in this The remedy for the seizure found unreasonable title includes the power of distraint and seizure by under the fourth amendment then becomes suppres- any means." sion, rather than replevin. 1-6 423 U.S. 1031 (1975). "o 387 U.S. 523, 528-29 (1967). 1977] SUPREME COURT REVIEW

ized by a valid search warrant."'' n He then The Government argued further that since cited a string of cases in support of the premises IRS statutes curbed agent discretion and since that (1) businesses as well as individuals are broad discretion given to building inspectors in protected by the fourth amendment,' and (2) Camara had led the Court there to require a even corporations have certain fourth amend- warrant, that case was not applicable in the ment rights.1 3 Warrantless searches of certain case at bar. Justice Blackmun, however, heavily-regulated business, such as gun 4 or pointed out that the applicable statutes in the liquor' sales, may be authorized by Congress, present case" 9 were hardly a restraint upon but these were distinguishable from the case at IRS discretion when, for example, the Secre- bar, because the office intrusion was unrelated tary of the Treasury could choose between to the nature of the appellant-corporation's seizure of property from either public or pri- business. In addition, although the Constitu- vate places. He read the statute as silent on the tion specifically lists the power of the federal subject of invasion of privacy and therefore government to "lay and collect Taxes, ' 1" 6 and considered the case governed by the usual although Congress had as early as 1791 passed fourth amendment rule that unless a search of an act authorizing tax levies against those who private property fits into one of the few defined were delinquent," 7 Justice Blackmun reasoned exceptions to the warrant requirement, it is that these historical facts should not undermine unreasonable. the fourth amendment's protection. In a pow- A final Government argument, that its search erful rebuttal of the government's contention, was valid under the exigent circumstances doc- quoted Madison's argument for the proposed trine, was disposed of summarily by the Court. Bill of Rights that without such protection Justice Blackmun pointed out that the revenue general warrants might be used to collect agents had waited two days after their first taxes.1l8 entry into the offices before returning to seize the documents. There was, therefore, plenty of time in which to obtain a warrant. "' 97 S.Ct. at 628-29. "' See v. City of Seattle, 387 U.S. 541 (1967); Go- The Court in G.M. Leasing, as its unanimity Bart Co. v. United States, 282 U.S. 344 (1931); Silver- indicates, took an orthodox position 120 on the thorne Lumber Co. v. United States, 251 U.S. 385 fourth amendment. The issues were less com- (1920). plex than those in Chadwick or Ramsey because "' Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946); Go-Bart Co. v. United States, 282 no serious attempt was made by the Govern- U.S. 344 (1931); Silverthorne Lumber Co. v. United ment to persuade the Court that the warrant- States, 251 U.S. 385 (1920); Hale v. Henkel, 201 U.S. less search of the corporation's offices fit into 43 (1906). an accepted exception to the fourth amend- "4 In United States v. Biswell, 406 U.S. 311 (1972), ment requirement. However, the case may be a warrantless search of a gun-shop storeroom was held to be authorized by the Gun Control Act of seen to fit nicely within the "reasonable expec- 1968, 18 U.S.C. § 923(g) (1970). tations of privacy" framework iterated by Chief "' In Colonnade Catering Corp. v. United States, Justice Burger in Chadwick. While an automo- 397 U.S. 72 (1970), the Court held that because bile or a bulky letter from Thailand may rea- Congress had failed to specify a seizure procedure in its authorization of liquor dealer inspections, the sonably be expected to be subjected to govern- fourth amendment applied. Congress might have ment regulation and surveillance, the contents authorized warrantless seizure but had not. of one's office-its files and furnishings-have "16 U.S. CONST. art. I, § 8, cl.1. not been traditionally under the eye of the "7 Act of March 3, 1791, ch. 15, § 23, 1 Stat. 204. government. Indeed papers are specifically de- 118 1 ANNALS OF CONG. 438 (1834 ed.), quoted in 97 S. Ct. at 630. Madison had argued: clared as protected in the fourth amendment The General Government has a right to pass all itself. laws which shall be necessary to collect its revenue; the means for enforcing the collection are like reason for restraining the Federal Govern- within the direction of the Legislature: may not ment. general warrants be considered necessary for "9 I.R.C. §§ 6321, 6331(a), (b). Section 6331(a) this purpose, as well as for some purposes which reads in part: "[I]t shall be lawful for the Secretary it was supposed at the framing of their constitu- or his delegate to collect such tax ... by levy upon tions the State Governments had in view? If all property and rights to property ... belonging to there was reason for restraining the State Gov- such person .... " ernments from exercising this power, there is 120 See notes 110-11 and accompanying text. SEARCH AND SEIZURE [Vol. 68

If one were to rely on Chadwick or G.M. swer as to what the Court will do in its next Leasing in order to see just where the Burger fourth amendment cases. Court is going with regard to the fourth However, if the spirit of and the framework amendment, the conclusion would be that it is for analysis set up in Chadwick are adhered to holding the line on exceptions to the amend- in the future, that is, if the Court continues to ment, possibly even retreating from its holding hold the line on expanding the exceptions to in United States v. Biswell.'2 ' However, Chadwick, the fourth amendment and subjects every case and Ramsey, both products of a divided Court to the test of what reasonable expectations of unlike, G.M. Leasing, definitely extended the privacy were involved, it may well be that border exception to the amendment, albeit Chadwick will become the most influential of only a hair's breadth in view of the widely- the three decisions considered here. Certainly, established proposition that packages in inter- it is an example of a "hard case" (in view of the national mail may be subjected to warrantless expansive automobile exception precedents) search. Ramsey was also consistent with the which seems most in tune with what the framers rulings of two out of three of the courts of of the fourth amendment intended. appeals which had faced the question. 2 The three recent cases thus give no definitive an- against warrantless search of international letter mail, 121 406 U.S. 311 (1972). Also see note 114. the Seventh and Ninth Circuits had found similar 122 Although the D.C. Circuit had in Ramsey ruled searches constitutional. See note 73 supra.