UNITED STATES v. VAN LEEUWEN

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Argument of Erwin N. Griswold

Chief Justice Warren E. Burger: Number 403, United States against Van Leeuwen.

Mr. Solicitor General, you may proceed whenever you’re ready.

Mr. Erwin N. Griswold: May it please the Court.

This is a criminal case here on certiorari from the United States Court of Appeals for the Ninth Circuit.

It involves an interesting and novel question under the Fourth Amendment with respect to search and seizure.

The facts, the underlying facts in this case occurred on March 28 and 29, 1968.

On that day, not quite two years ago, at 1:30 pm at the United States Post Office at Mt. Vernon in the State of Washington, the respondent appeared, deposited for mailing two heavy packages, 12 pounds each.

It is relevant that the post office at Mt. Vernon, Washington is in the western part of the State of Washington and about 60 miles south of the Canadian border.

One of these packages was addressed to a post office box in Van Nuys, California and the other two to a post office box in Nashville, Tennessee.

Both bore a return address in a neighboring town adjacent to Mt. Vernon.

Postage was paid at the airmail rate.

The packages were registered and insured, each one for $10,000.00, a total of $20,000.00 for the two, and in response to a request from the post office clerk, it was declared that they contained coins or a coin collection.

The post office clerk was suspicious and he immediately advised an officer of the Mt. Vernon police who happened to be in the lobby of his suspicions, and Captain Belgard of the police observed the car departing and noticed that it had British Columbia license plates.

The package was then examined and the police captain and the post office clerk were both aware of the fact that the address given on the package was of a nearby -- a junior college of quarters which had been unoccupied for several weeks.

Chief Justice Warren E. Burger: That was the address here, the return address?

Mr. Erwin N. Griswold: The return address, the return address.

Captain Belgard then perhaps somewhat surprisingly telephoned the Canadian Royal Mounted Police and not the U.S. customs or the FBI, but he telephoned the Canadian Police in Vancouver and it was the Canadian Police who put in a call to Mr. O’Hearn, the Customs Officer-in-charge at Seattle, Washington, and the details so far as they were known were thus transmitted to Mr. O’Hearn in Seattle.

By this time, it was about 3 o'clock in the afternoon and Mr. O'Hearn then put in a telephone call to the Customs Office in Van Nuys in California, and he was advised that the addressee of the package being sent there was under investigation for dealing in illegal coins.

By the time he had completed that call, it was beyond the closing time in Nashville, which I believe is three hours in advance of Seattle; it may be two, and Mr. O'Hearn then delayed until the following morning in calling to Nashville, the morning of the 29.

He got similar information from the Customs Officer in Nashville.

I believe he had to do that through Mobile as a matter of fact since the headquarters was in Mobile.

Mr. O'Hearn then prepared the affidavit for a search warrant, which appears on page 5 of this record and of course, the preparation of that took time both for composition and for typing.

It was then presented to the United States Commissioner in Seattle, and that of course took time to find the Commissioner free from other responsibilities and to give him time for consideration.

At 4 o'clock in the afternoon of the following day, March 29, the Commissioner issued a search warrant in Seattle.

Now, Seattle is some 60 miles south of Mt. Vernon and Mr. O'Hearn took the search warrant to Mt. Vernon and there served it at 6:30 pm on March 29, which is about 29 hours after the events first began when the package was deposited in the post office in Mt. Vernon.

And the problem arises because the package was held in Mt. Vernon and was not forwarded at once through the usual United States Post Office channels.

When the warrant was served, the packages were found to contain several hundred gold coins.

The packages were resealed, sent on to the addressees, they were refused by the addressees and were returned to the post office in Mt. Vernon.

Now, other evidence at the trial showed that the respondent had in fact imported these coins.

There was a motion to suppress the evidence of the gold coins, which was denied by the District Court.

The respondent was convicted of a violation of the Customs Laws in having imported the coins without a proper declaration, and an appeal was taken to the Court of Appeals for the Ninth Circuit.

That Court held that the evidence should have been suppressed on the ground that the delay in holding the coins in Mt. Vernon for 29 hours was unreasonable and a violation of the Fourth Amendment and that is the sole issue which is now before the Court on the government's petition for certiorari.

Before going further, let me simply recall the simple words of the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue, but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

And here of course, a warrant was issued, on probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

This is not a case of search without a warrant.

Here, there was a search with a warrant.

The problem arises because the police officers were careful.

They took the time to be sure that they had the proper facts and because the post office employee cooperated in that process by holding the package at Mt. Vernon, Washington.

Now, it could of course be said that once the package was in the custody of the post office, it should have been sent on and somehow or other, the officers could have followed it and kept track of it and before it was actually delivered at their respective destinations, these various inquiries could have been made.

The logistic and manpower problems involved and that the number of people required in at least three or four different locations as such as it seems to me to make that approach not a reasonable requirement under all circumstances.

Now, there is an aspect of this case which seems to me to be of very considerable importance.

Last June, this Court decided the Shamel case, and curiously enough also involving coins.

I don't know whether coins have become a special target in this area and in the Shamel case, some of the prior decisions of the Court with respect to the extent to which a search without a warrant may be made incident to an arrest were sharply cut down.

And there is a consequence of the Shamel case, which I assume is going to have to be presented in later cases.

That is the extent to which granting that the police cannot conduct an extensive search and seizure in the premises incident to an arrest, to what extent can the police officers impose a stillstand on the situation?

Lock the door, keep people from entering and leaving, prevent people inside the premises from destroying evidences while they go through the necessary process obviously requiring under current conditions of several hours of preparing a warrant -- an affidavit for a search warrant under -- in many cases, this will require not merely the police officer but participation by a lawyer and assistant United States attorney or appropriate state officer, typing, finding a magistrate, submitting it to him, and giving him an opportunity to consider it, and then upon it's issuance, the opportunity to serve.

And unless there is some opportunity to impose a stillstand, not to seize but simply to hold things in the status -- status quo, the evidence in many of these cases will be destroyed and the opportunity to make an effective search will evaporate.

Now, that is not this case.

This has nothing to do with a search incident to an arrest.

This is a situation, however, where post office employees in association with other governmental officers, did preserve the situation in status quo by not sending on the package in the normal processes of the U.S. mails.

I would point out too in the consideration of this matter as bearing on the reasonableness of their action that there is no communication involved here.

There is no letter.

There is no transmission of intelligence.

This was simply goods, simply gold coins.

The delay of 29 hours in the delivery of a package is not unprecedented and there is nothing to indicate that it was a matter of any seriousness to anyone involved.

Now, it's curious, though I suppose explainable because of the development of -- the recent development of cases like Shamel, but it's curious that it's almost impossible to find any indication in the decisions in this Court or elsewhere of the extent to which the police may take steps to preserve the status quo while warrants are being obtained.

Back, a generation ago in Taylor against the United States, this Court pointed out that “a short period of watching during the time required to secure a search warrant could have prevented the possibility of any change in the premises from which government agents had smelled the order of whiskey.

” And in the Trupiano case in 334 U.S., the Court striking down a search without a warrant noted that a warrant could have been obtained without any risk of removal since one of the agents, and I quote, “was on hand at all times to report and guard against such a move.

” Now, there were no issue in those cases as to the validity of a restraint which might have been imposed while a warrant was being obtained, but the Court in those cases seemed to feel that such a restraint would have been not only natural and understandable, but justifiable.

Justice Byron R. White: You could have -- you could have gotten a warrant and seized the package on the other end of the shipment, I suppose, couldn't you?

Mr. Erwin N. Griswold: Yes, Mr. Justice.

I mentioned that in stating the facts, but the problems of tracing and keeping track of, and a number of people involved and frankly, I don't know whether a warrant issued by United States Commissioner in Seattle is valid in Van Nuys, California or in Nashville, Tennessee, whether it might not have had to be presented to a commissioner in those places.

One of the charges against this warrant now pressed, I believe is that it was based on hearsay and on facts not within the knowledge of the affiant.

It would of course be of far more extreme as you got two officers in California and in Nashville, Tennessee.

It would have involved a great many -- more people, and our position is that the limited delay in this case, not six months, not a week, 29 hours, or not much more than overnight was not unreasonable under the circumstances, particularly when it was the consequence of the fact that the officers were trying to do their duty carefully and thoughtfully, were seeking to obtain a search warrant, were trying to discover the facts so that if there was no basis for a warrant, that would not be obtained.

And our view is that to impose a requirement that you must send the things on and then try to catch them before they're delivered would be too technical, required too much expenditure of manpower, too much risk of loss.

When the suspected material is in the custody of the United States and rightly so, this reasonable -- this period seems to us to have been a reasonable one.

Chief Justice Warren E. Burger: I suppose it doesn't weaken your position in any that the articles were in and of themselves contraband?

That is, they were articles which were unlawfully in the possession of the mailer having them smuggled across the line?

Mr. Erwin N. Griswold: Well Mr. Justice, I thought about that argument and I'm not sure that I can say that gold coins as such are contraband.

Chief Justice Warren E. Burger: Is it smuggle --

Mr. Erwin N. Griswold: I suppose any United States citizen who has a collection of gold coins, can legally transmit them by mail to somebody else, to a dealer –-

Chief Justice Warren E. Burger: Across -- across the line from Canada?

Mr. Erwin N. Griswold: Here, we have only the suspicion that these have come across from Canada.

We have grounds for believing that they have come across from Canada but they were in fact deposited in a United States Post Office 60 miles within the United States.

Chief Justice Warren E. Burger: But if you were sustained here, your position is sustained, what happens to the coins?

Are they forfeited?

Mr. Erwin N. Griswold: I believe they would be forfeited under the Customs Law, Mr. Justice, Mr. Chief Justice.

Justice Potter Stewart: Isn't it illegal to possess gold coins, quite a part from the Customs Law?

Mr. Erwin N. Griswold: No, Mr. Justice.

I understand that there are exceptions to the gold statutes and regulations under which coins bona fide held for collecting purposes are perfectly legal.

Indeed, I see them advertised in the papers and I think that for $95.00, you can now buy a $20.00 gold piece which --

Justice Potter Stewart: I thought there was a time, almost a generation ago when everybody was required to turn in all these gold?

Mr. Erwin N. Griswold: Yes, yes, Mr. Justice.

Justice Potter Stewart: And thereafter, it was illegal to possess them?

Mr. Erwin N. Griswold: But there was an exception of bona fide collectors' items, whether that was due to the fact –-

Justice Potter Stewart: I am very -- very happy to hear that because I was disturbed the other day when I found a $5.00 gold piece in my safe deposit box.

[Laughter] It was given to me when I was ten years old.

Mr. Erwin N. Griswold: Well, that raises all kinds of questions about self incrimination that I -– that I don't think we need to go into here.

In some ways, the case which seems to me to be the closest is the Terry case, it's Terry against Ohio decided two years ago.

I think I would like, before referring to Terry case however, to make reference to Mr. Justice White's dissenting opinion in the Shamel Case because he did, there deal more extensively than I've been able to find any place else with what I regard as the underlying problem here.

Now, it is true that he was using it as an argument that the search without a warrant should be valid and he was in the minority on that, and we are not contending here that a search without a warrant is valid.

But on page 774 of Justice White's dissent, he said, “When there must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search.

And on page 775, he says, “Moreover, had the police simply arrested the petitioner, taken him off to the station house and later returned with a warrant, it seems very likely that the petitioner's wife, who in view of petitioner's generally garrulous nature must have known of the robbery, would have removed the coins.

Now, our position is that, our contention, our suggestion is that that argument not having prevailed, there nevertheless remains open this question which I call of the opportunity to impose the stillstand.

Now, just how that can be done, what manpower's involved, what force can properly be used remains to be seen?

But we contend here that in a different situation where the goods are already in the custody of the United States, having been confined to the -- confided to the United States Mail that it is appropriate for the officers of the government to preserve the status quo while the warrant is being carefully and thoughtfully obtained.

Now, I would like to refer to the Terry case itself because that is a case which goes into these questions of unreasonable search and seizure, the meaning of unreasonable where you do not have an arrest or a seizure involved.

In the Terry case, you remember the problem was of the power of the police to take action short of an arrest by way of what is popularly known as stop and frisk, by way of patting a man's clothes to see whether he was armed and on finding a hard object, reaching in and removing it.

And in that opinion, Chief Justice Warren discussed at some length the difference between the cause required to obtain a search warrant, which would be probable cause to -- or an arrest warrant, it would be in that case -– a probable cause to believe that a crime had been committed and the cause which was required for a police officer to take this interlocutory step.

And it really comes down to this, whether there was probable cause for suspicion with respect to the commission of a crime and the safety of the police officer.

I won't take the time to quote from that opinion, particularly on pages 21 to 24.

Only by way of analogy, but by considerable analogy, there is discussion of this shorter step of this step short of an arrest or of a procedure and we feel that there is a substantial support in the Terry case for the proposition that the step taken here, and the only step against which complaint is made is the holding of the package for 29 hours and it would've had to be held for a substantial portion of that at the very best, but that was not unreasonable.

Justice William J. Brennan: But Mr. Solicitor General, I gather the justification in Terry that was emphasized was the safety of the officer, wasn't it?

Mr. Erwin N. Griswold: Yes, Mr. Justice --

Justice William J. Brennan: Do we have anything comparable to that in this situation?

Mr. Erwin N. Griswold: No, there's no question of safety here, but it is suggested that the only duty of a post office clerk is to send the package on forth with and I suggested if on the exam -- on handling the package in the process of putting it into the mail bag and he hears it ticking that he may find it quite reasonably that he has some duty other than to send it on –-

Justice William J. Brennan: What I'm getting at is I wonder if the result reached in Terry would have been reached if that factor of the safety of the officer was not involved?

Mr. Erwin N. Griswold: I think perhaps not.

I'm not suggesting that Terry is a precise analogy.

I am suggesting that it is an application of –- or a determination of what is reasonable conduct under the circumstances, and our suggestion is that in this case, not involving a communication, nothing about the First Amendment, simply goods in transit but to delay them for a day in the process of being careful in seeking a search warrant and then seeking a search warrant through the judgment of an independent magistrate is not such unreasonable conduct as to violate the Fourth Amendment.

Justice Byron R. White: But isn't the analogy the Terry more with the stop rather than the search?

Mr. Erwin N. Griswold: Well yes, Mr. Justice, I suppose it is with the stop and the search, although the –-

Justice Byron R. White: Because safety or not, they could still stop him, could still stop the –-

Mr. Erwin N. Griswold: Yes.

Of course, the stop is only for seconds.

Justice Byron R. White: Well, it's for long enough perhaps to ask him a question?

Mr. Erwin N. Griswold: Long enough to ask him with questions and we have a somewhat longer time here.

Chief Justice Warren E. Burger: Mr. Davis?

Argument of Craig G. Davis

Mr. Craig G. Davis: May it please the Court, Mr. Chief Justice.

I find this argument most interesting as presented.

I wish I could concur wholeheartedly.

Were I to concur this case would be moot and in the Court I would seek to have it dismissed, but I submit that is not the case.

I will try and hit the points as we go along very carefully.

First of all, let me point out with tongue and cheek as did Judge Chambers of the Court of Appeals that I, too, am not too much dismayed by delay of my mail because oftentimes, it is delayed for longer than 29 hours.

But he held in concurring opinion that this was done without judicial authority here and that the delay was intentional.

Now, I submit there is a distinction between the intentional delay of one's mail protected by the Fourth Amendment and the delay of one's mail which is unintentional.

Let us review the facts in this very carefully.

Time is of the essence in this case.

First, let me point out that Vancouver, British Columbia is but 60 miles from Mt. Vernon.

I know I've traveled this distance to be here with you today.

I know that it takes but one hour with maybe a few minutes at Customs to come across.

I do know that one must declare items at the border.

We do know that these packages were 9 and 11 lbs. respectively, and we see that the petitioner's name or rather the respondent's name is Gerritt Johannes Van Leeuwen.

I ask you to look at that name, G.J. Van Leeuwen, and he used as a non de plume, as a return address G.J. Williams.

I have found no law, no case authority, and though I'm lawfully ignorant, but I find nothing to tell me that I cannot use a non de plume in sending out a package.

He has used an address that is proper, but I submit that I can use your return address if I so wish and have my mail returned there.

I know of no law saying I cannot use your own home address –-

Chief Justice Warren E. Burger: But will it disturb you very much if law enforcement officers take a -– have certain reactions to that when they see it?

You suggested this does not give some justification for their wondering why?

Mr. Craig G. Davis: Sir, if it were brought to the law enforcement officer's attention by yourself and my using your return address, I would say yes, it should be in their hands, but otherwise, I would say it is not their business.

They have no reason to be inquiring.

Furthermore, if we have a situation where, as we have here, that a man declares them to be coins, and I would suggest that Mr. Justice Stewart do not mail that coin through the mail as it may be smuggled, he hasn't checked it out yet because if it were, he may be in the same position that Van Leeuwen is, but coins are legal here in the United States as numismatic items.

This man declared this package to contain coins; he did not lie.

He did not go so far as to declare them to be gold coins.

He did not declare them to be brought across the border and testimony at the trial interestingly enough showed that the packages are sitting on the counsel car right between the two passengers.

Now, mind you, he's mailing this at 1:30.

Here we are in a small post office, a first class post office, a focal gathering point for all of Skagit County, and he's mailing two packages registered mail.

Now, what's so unusual about registered mail?

If you had an item so valuable, certainly you would register it because the maximum insured value is $200.00, unless you declare otherwise.

Wouldn't you insure your coin collection?

Certainly, any one of us would.

But the postal clerk is suspicious, the return address is not one that is occupied.

How he happens to know this, probably because it's a small community.

Probably because this is a student housing center for the junior college there.

This may be how he knows it, and there are –-

Chief Justice Warren E. Burger: But are you –- are you now addressing your arguments to the lack of probable cause to be concerned about any of this?

Mr. Craig G. Davis: I'm addressing my own remarks, sir, not only to the lack of probable cause because I'm attacking this on two basis.

One, the affidavit being insufficient and two, the detention of the packages for 29 hours, either one of which I submit would be more than sufficient to confirm the Court of Appeals.

Chief Justice Warren E. Burger: Well, this Court on a number of occasions and many other Courts similarly have said that in probable cause, you add up a total of the great many often insignificant things to reach your conclusion.

Now, when he added the coins to the false return address, to the fact that the car had a Canadian license, do you think that began to mount up the charge with what the courts talked about in terms of the total of probable cause?

Mr. Craig G. Davis: Oh, very definitely, sir, very definitely.

I would look as concerned as any law officer who had these facts before him, who would not seek to entertain further doubts and would not seek to resolve this.

I would question his integrity.

No, these are all very pertinent.

They are cumulative snowball effect, but I submit that the snowball is around the government, and here's why.

These facts were known, 1:30 he mails it.

These facts were known to Captain Belgard who in turn calls the RCMP in Vancouver because there had been a recent burglary of a coin shop up there; he just checked.

RCMP in turn does a quick cursory investigation, calls Customs Officer O'Hearn in Seattle, Chief Agent-in-charge.

This by 2:30.

He relates the following facts to Customs Officer O'Hearn, (1) two packages, (2) gold coins, (3) fictitious address, (4) fictitious addressee, (5) registered mail, (6) return addressees.

O'Hearn, being the superlative agent that he is, immediately gets on the phone and calls Van Nuys, California and ascertains that one of these addressees is a suspected trafficker on illegally obtained gold coins.

How can a man work faster?

I take my hat off to him and I submit at this time, he had probable cause to get a search warrant.

Justice Thurgood Marshall: What time?

How many hours?

Five hours?

Mr. Craig G. Davis: Five hours?

No sir, he worked –-

Justice Thurgood Marshall: Two hours?

Mr. Craig G. Davis: …faster than that.

One hour and five minutes.

Justice Thurgood Marshall: One hour and five minutes?

Mr. Craig G. Davis: One hour and five minutes.

Justice Thurgood Marshall: You find nothing wrong as of that time?

Mr. Craig G. Davis: I find nothing wrong.

In fact, I find it to be very commendable.

Justice Thurgood Marshall: And it took a little time to type an affidavit up, didn't it?

Mr. Craig G. Davis: 24 hours later, it did.

Justice Thurgood Marshall: It does take time to type an affidavit?

Mr. Craig G. Davis: It does, sir.

Justice Thurgood Marshall: And to recheck, it's –- so how many hours would you think would be maximum in this case?

Mr. Craig G. Davis: Considering the fact that the affidavit was applied for at approximately 2:30 pm the following day, I think the affidavit could have been applied on the day that the packages were mailed, considering that Mt. Vernon is 60 miles from Seattle, a drive of one hour on a super freeway.

I think it could have been done then, and it should have been submitted –-

Justice Thurgood Marshall: How many hours is that, five hours?

Mr. Craig G. Davis: No sir, about 2:30, we have the facts.

2:35, O'Hearn has verified that one of the addressees is a suspected trafficker of gold coins.

His office, he would have to call, and he did call, the Attorney General's office and one of the assistants AGs made out this affidavit.

I know, he's my classmate.

Justice Thurgood Marshall: So you're complaining about approximately 24 hours?

Mr. Craig G. Davis: I am complaining about the additional 24 hours, very definitely sir, because there, that is sloppy police work.

Justice Thurgood Marshall: And how did that injure your –-

Mr. Craig G. Davis: How did it injure my client?

He spent one year in prison.

Justice Thurgood Marshall: Other than that?

Mr. Craig G. Davis: Other than that, the Fourth Amendment protects our –-

Justice Thurgood Marshall: How did it affect his Constitutional Rights?

Mr. Craig G. Davis: It affected his Constitutional Rights, and that this Court way long ago in Ex parte Jackson, held that the first class mails are protected by the Fourth Amendment and have the same rights as those possessions within our own private homes and that those rights have been violated.

Justice Thurgood Marshall: Now suppose at the end of the 29 hours, they decided not to do anything and had shifted.

Would your man have been injured?

Mr. Craig G. Davis: Then I shouldn't be here, sir.

Justice Thurgood Marshall: He wouldn't be injured at all, would he?

Mr. Craig G. Davis: That's right.

Justice Thurgood Marshall: So what are you complaining about, the seizure or the stop?

Mr. Craig G. Davis: Excuse me?

Justice Thurgood Marshall: What are you complaining about, the seizure and the opening of it, or the timing of the 29 hours?

Mr. Craig G. Davis: I am complaining about the timing.

I'm complaining very vehemently about the timing.

A mail watch could have been put on those packages.

They knew the addressees.

Telephone communications being what they are, they could've quickly gotten the same information, which I submit incidentally as a sideline.

It is hearsay on ear say, but they could've gotten that same information down and the same type of affidavit could have been written up in California and again, in Nashville, Tennessee.

Justice Thurgood Marshall: That's the record, wouldn't you agree that at times, even registered mail is lost?

Mr. Craig G. Davis: Lost, yes, and this is what Chief -- or what Judge Chambers referred to that oftentimes, my mail goes astray, but I submit that this was not lost.

The government has admitted that they contained it.

Justice Thurgood Marshall: I didn't say that.

I said if they had shifted and relied on catching at the other end, they might not have been able to catch it?

Mr. Craig G. Davis: They had two packages, sir.

They surely would have caught one, but even our post office is that inefficient.

Justice William J. Brennan: Mr. Davis?

Mr. Craig G. Davis: Sir?

Justice William J. Brennan: Certainly, the officer who got this good job of getting this information altogether in an hour and five minutes.

Are you conceding that at that point, there was probable cause to get the warrant?

Mr. Craig G. Davis: I'm saying at that point, there was probable cause.

Justice William J. Brennan: There was?

Mr. Craig G. Davis: There was.

Justice William J. Brennan: Well then, what about your argument that this affidavit or this warrant is not supported by probable cause?

I don't understand that.

Mr. Craig G. Davis: I am not saying as I understand it, sir, that it is not supported by a probably cause.

I am saying that according to the guidelines laid down in Ventresca that that affidavit is hearsay, based on hearsay.

It does not meet the requirements in it.

Justice William J. Brennan: So the attack is on the form of the affidavit?

Mr. Craig G. Davis: That is correct, sir.

I'm not saying they do not have probable cause, if they had the proper source information related, which they did not do.

Justice William J. Brennan: Yes.

Mr. Craig G. Davis: Now, here we have these packages supposedly on their way.

First class mail according to the United States Postal Code must be, when it is mailed half an hour before the next outgoing shipment, included in that shipment.

Here, we have two packages which are fortuitously, and I submit now as a forethought, set aside to await a search warrant.

Here are two packages that should have been going on their way, and the only other thing that officer O'Hearn has learned the following morning is that Van Leeuwen admitted to a Canadian money that he'd mailed those packages and secondly, that the second addressee was a suspected trafficker in gold coins, cumulative evidence, that is all, cumulative.

It adds but a snowflake to the snowball.

Now, what happens next?

The search warrant is issued and if you look very carefully at the search warrant, at the affidavit on page 5, you'll note that the affiant has information through United States Customs channels.

It doesn't tell us where.

Each and every one of these facts is set forth.

Frankly, I was amazed that I was not upheld at the trial, I will, but I was not, and the Court of Appeals didn't even reach this issue.

So I must submit it again for this Court's consideration.

But let's assume for the sake of argument that this affidavit is a good one.

Let's assume that it is not subject to attack.

Let us assume that it meets the requirements of Ventresca.

Then, I submit to you that you were saying to me that postal regulations and postal statutes don't mean a thing.

A statute of United States government, when it applies to the government, has no meaning.

When applied to a private citizen, they certainly clamp down on us and yet, statutory law itself says that the mail shall not be detained by any individual whatsoever, and yet these mails were detained.

It tells who may give information from them, and yet –- and that would be the postal clerk to a post office inspector, look in the interim here.

We have these packages going to Captain Belgard, to a fireman yet, and I haven't figured that one out yet and last but not least, to Customs Officer O'Hearn.

Where is the postal inspector who's given the information?

If he had done so, then I wouldn't be here, but he didn't.

There is no postal inspector involved yet.

Where do we draw --

Chief Justice Warren E. Burger: Do they keep a postal inspector at this station?

Mr. Craig G. Davis: They do, sir.

Chief Justice Warren E. Burger: Permanently?

Mr. Craig G. Davis: I don't know about permanently, but I know there was one involved because he did sign and witness the return on the search warrant.

Why it is that the government waited so long, I honestly do not know.

Perhaps it was seeking more evidence than it had, but I submit to you that this is the beginning.

This case could be the wedge, and let us not have a wedge.

Chief Justice Warren E. Burger: I think we'll stop at the wedge and take lunch, counsel.

Mr. Davis, you may continue.

Mr. Craig G. Davis: If the Court please, the wedge I had for lunch was not the one I was instructing the Court on I hope.

The wedge I am thinking of is the specter preventive detention.

That specter arises in this case.

If the government is allowed to detain property, safeguard it under our Constitution for 29 hours, then it's but a short step to the preventive detention of the individual.

And I can only –-

Chief Justice Warren E. Burger: And we can always take care of that, can't we?

Mr. Craig G. Davis: I leave it in your able hands, sir.

I'm sure it will be taken care in this case, too.

But the thing that does trouble me more than anything else is that we have a situation where a man does mail something, first class mail.

By definition, first class mail, and the issue is raised that there is no delay of printed or written matter.

This is true, but I ask of what relevance is it.

After all, yesterday, I had the pleasure of viewing the whole diamond which was sent by registered mail and surely, there would've been some question asked if it hadn't made it to its destination, but then, we have a few other items that intrigued me.

The Shamel Case was brought up, and this dealt as I recall it with the stop and frisk of an individual.

Granted this whole thing's put at standstill for a moment, but for a moment.

Then it was dealing with something inherently dangerous, and that is that the man has something that could prove dangerous to the officer investigating.

Justice Potter Stewart: That's a –- Terry against Ohio.

Mr. Craig G. Davis: Terry, I beg your pardon, sir, thank you.

But this is a case where the post office employees with others maintain the status quo, and I would submit to you that the postal authorities have no such authority.

I have cited several statutes in the appendix to my brief.

I'd ask the Court to review them carefully because they deal with this particular issue.

What can the post office do? I have no qualms whatsoever with the government's argument as to the detention of personal property for a short period of time needed to get a search warrant.

But I submit that the short period of time of 29 hours, 24 hours after the facts necessary to get a search warrant issued, this is short.

I cannot buy that argument.

Justice Thurgood Marshall: Suppose there is no magistrate that's available for 29 hours?

Mr. Craig G. Davis: If no magistrate were available for 29 hours and this could be shown, then I think there we have mitigating circumstances but I still would not like to say categorically that this is reasonable because always, there is a judge available, if not, a commissioner and in this case, there is a commissioner available not only in Seattle but in Bellingham.

There are three judges there in Seattle.

Any one of them could have issued this.

Justice Thurgood Marshall: Or you could have come to this Court, too?

Mr. Craig G. Davis: And this Court, I'm surely –- for sure would have issued a warrant on the facts that they knew at 2:35.

Justice Thurgood Marshall: That's assuming you give us the jurisdiction.

Mr. Craig G. Davis: That I cannot do.

Justice Thurgood Marshall: Well, get –- I had great problems with the number of hours as being your only complaint.

Mr. Craig G. Davis: This is not my only complaint, sir.

It is the primary complaint.

Justice Thurgood Marshall: Didn't you say that they could've gotten a warrant in two or three hours?

Mr. Craig G. Davis: That is correct.

Justice Thurgood Marshall: Well then, what is your complaint?

Mr. Craig G. Davis: My complaint is that they didn't do it in two or three hours but did it in 25 to 27 hours.

Justice Thurgood Marshall: It is all –- it's the point of 26 hours?

Mr. Craig G. Davis: That is correct, sir.

Justice Thurgood Marshall: And that didn't affect the property.

The gold is still the same thing.

Nothing happened to that?

Mr. Craig G. Davis: If I may analogize –-

Justice Thurgood Marshall: Nothing happened to the place where was the gold because it was sent back, wasn't delivered?

Mr. Craig G. Davis: First, no one knew that this was gold.

Secondly, we hit a problem here in that –-

Justice Thurgood Marshall: No, I'm saying that –- what damage was done to him or his property?

Mr. Craig G. Davis: The damage that was done to him was that guarantee of our Constitution under the Fourth Amendment which applies to any man legally in this country, being a foreign national as this man was, a petty subject or not.

And when the Constitution tells me, and I am to advise my client that his rights are protected and his papers and his personal effects are protected against an illegal seizure, and that this also applies to the mails but –-

Justice Thurgood Marshall: Does the Fourth Amendment require that to be obtained in less than 29 hours?

Mr. Craig G. Davis: I don't know that the Fourth Amendment speaks on this particular issue.

I would submit that it is a matter of reasonableness, sir and the question arises where do reasonable men differ?

On the matter of a few hours, we can differ, but when we all have before us the facts necessary to issue a search warrant on the same day that the packages are mailed and we dilly-dally for an additional 24 hours, then I submit that this is unreasonable and it's merely a matter of where do we get reasonableness.

Justice Potter Stewart: You concede as I understand it, that there was reasonable cause for the issuance of -– probable cause for the issuance of a warrant on the day –- on the previous day.

Mr. Craig G. Davis: I do, sir.

Justice Potter Stewart: And implicitly, as I gather, would have no complaint if a warrant had been issued and the –- and the packages had been seized under that warrant on that day.

Mr. Craig G. Davis: That is correct.

Justice Potter Stewart: Well then, I particularly have this same difficulty as my brother Marshall has.

I think you'd -– if there weren't –- in other words, on the previous day, it was clear that there was reasonable cause to detain those packages?

Mr. Craig G. Davis: Sir, that problem arises –-

Justice Potter Stewart: Or the -- or what you concede, as I understand it?

Mr. Craig G. Davis: True, but the problem arises this way.

This is an analogy under the Fourth Amendment.

We're talking about mail, but if the Court should find that an additional 24 hours before the issuance of a search warrant is perfectly proper, then can't we analogize this to all other situations covered by the Fourth Amendment.

Therefore, when the police have reason to believe that I have heroine stashed in my home and I am not there, it having been just delivered in, but still under my control being in my house, and they surround my house and they have the facts necessary within four hours, they can keep me out of my home for an additional 24 hours while they are gathering one additional fact that isn't even pertinent?

That's what would happen if that logic and reasoning were followed through to the end and I submit this is not proper under the Fourth Amendment.

Justice Thurgood Marshall: And now, I could see between that case and this case if the heroine was in package at the post office?

Mr. Craig G. Davis: If the heroine were in the package at the post office, they have no right whatsoever to open it, and that happened in one case, once where a package did open.

In fact, two cases.

Justice Thurgood Marshall: You mean that you can't open a package of heroine until you get a search warrant?

Mr. Craig G. Davis: Oh no, sir.

You certainly can open it if you have a search warrant.

Justice Thurgood Marshall: Well, that's what -– that's this case.

They did get a search warrant?

Mr. Craig G. Davis: They got a search warrant but when did they get that search warrant?

To do so, sir, they had to violate three different statutes and several regulations.

The statutes are as follows.

One, the mail must go out the next outgoing shipment, and –-

Justice Thurgood Marshall: Do I have the right of action every time my mail is held up for now?

Mr. Craig G. Davis: I wish you did, sir.

Justice Thurgood Marshall: I hope it's the damages, too.

Mr. Craig G. Davis: It would be nice if it were, but on this particular –-

Justice Thurgood Marshall: Is that true?

Mr. Craig G. Davis: There is nothing for damages.

Justice Thurgood Marshall: It says that's not true.

Mr. Craig G. Davis: That's true, but there I submit to you, sir, that this is an unintentional holding up.

If you knew that your mail were intentionally being delayed and such would be the outcome of this case whereas the Court of Appeals overturned, then your mail, my mail and every man's mail may be detained for a total of 29 hours at least until they investigate to see shall we send it on or shall we not.

Justice Thurgood Marshall: Oh, Mr. Davis, I think that as possibility of a decision being written against you and not reach any of those things you are now talking about.

Mr. Craig G. Davis: I'll take your word for it, sir.

I see an inspector there that bothers me though.

It troubles me deeply to know that in this day of communications where we're constantly supplying the police with more inaccurate means of obtaining information that we turn around and give them the same leeway that they perhaps had a century ago when it isn't necessary, but no longer is necessary nor is it accountable.

Now, they could've gotten a warrant and searched the packages at the other end.

Certainly, they could.

Now after all, if the mail is delayed en route without a purposeful detention, it would in our knowledge take them two or three days to get back east, or to California for that matter.

They know the addressee.

Certainly, they had time to pick up these packages at that time.

Why didn't they do so?

Doesn't this open up the possibility of forum shopping for a magistrate who will issue a search warrant?

Are we going to allow this?

I would submit that it is not allowable.

Now, one issue that was brought up by the Solicitor General, he said that it's not being pressed as hearsay.

I am pressing hearsay to the fullest extent possible.

This affidavit, a careful analysis shows it is based hearsay on hearsay.

It violates every rule laid down in this Court in Ventresca and in Jones as analyzed by Justice Douglas.

It doesn't meet these requirements, but I must assume arguendo that it does meet them, and then we get to the detention.

Now, another thing was the suspicion that these coins came across from Canada.

Well, if they came from within the United States, we wouldn't be here because there is no law that says you cannot have coins, gold coins as collector's item in the United States.

In fact, since this case first came about, our laws have grown greatly less strict as to the handling and having of gold coins.

Now, we do not contend that the search was without a warrant -- without a warrant is valid.

This is true that the government does not contend this, but yet, what do we have?

We have essentially a seizure without a warrant.

A seizure not for the few hours which the government says is necessary to obtain a search warrant, but a seizure for many hours after we have these facts.

Now, is this plausible?

Is it reasonable?

Can reasonable men even differ on this point?

But now, we have one further argument, and that is where the goods are already in the custody of the United States, is it okay to preserve the status quo while the warrant is being obtained, and I would ask you why?

Why is such an argument?

Why is it reasonable?

These packages are placed with the United States Post Office in a form of trust.

Our mail system, our whole system of communications in the United States would break down without that trust, and I submit that there's been a violation of statutory law laid down by the Congress and of Cong –- or of regulations put down by the Postmaster General.

And I know that I, as a taxpayer, if I violate a title of the taxes or any of the regulations, I stand a chance to be here on the regulations, but on the title, it's questionable.

I will normally be knocked down and yet here we are saying in effect, you, the government, can do this and your hands will not be slapped.

But when a private individual do so, that he will have a $5,000.00 fine or five years in jail and I ask you, aren't we all men equal under the Constitution of the United States, foreigner or citizen?

Justice Byron R. White: Well, I suppose you'd be making the same argument if the –- if the coins were seized after -– without delay –- or without any delay at all, the coins were seized with a good search warrant.

Mr. Craig G. Davis: I would not be making this argument, sir.

Justice Byron R. White: Well, what's the difference?

Mr. Craig G. Davis: The difference is the amount of time in which it is done, where reasonable cause –-

Justice Byron R. White: I know, but the postal regulations and the laws remain the same?

Mr. Craig G. Davis: The postal re –-

Justice Byron R. White: And here is the government seizing the mail?

Mr. Craig G. Davis: This is correct but we have here the issue raised, we must detain while we obtain a search warrant, and I submit that it's already in the government's hands.

They have it --

Justice Byron R. White: When would these packages have reached their destination?

Mr. Craig G. Davis: Excuse me, sir?

Justice Byron R. White: When would these packages have reached their destination?

Mr. Craig G. Davis: It takes airmail, for my brief, to reach this city –-

Justice Byron R. White: Well, how long --

Mr. Craig G. Davis: …approximately three days, and these were sent airmail.

So I would imagine three days to reach Mobile, Alabama.

Justice Byron R. White: And if the government just hadn't seized them at the point of origin, but had seized them at the destination, they would've had their warrant by then and they would've ended up with the same result as here.

Mr. Craig G. Davis: That's correct, but the question is do we begin at the beginning or at the end, and I submit that the government began in the wrong fashion in this case.

That's the whole problem.

I don't fault the government for the work done.

I fault them for the way in which they did it.

This man is guilty.

Justice was done; he did a year in prison.

He's on parole now.

I have no qualms about his having been in.

I know he was guilty.

He's admitted it, but I submit that the law now must be kept straightened out as the Court of Appeals has so found.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Davis.

Rebuttal of Erwin N. Griswold

Mr. Erwin N. Griswold: I have just two points that I would like to make.

Mr. Davis has referred to statutes which required the mail, as he has said to be forwarded promptly.

Actually, the statute is printed at the bottom of page 2 of the appendix to his brief, Section 710 of Title 39 of the United States Code and it reads, “Letters brought for mailing to a post office and so forth shall be sent on.

This of course was not a letter.

I don't regard this as of any great importance, but I do not think there was any violation of that statute in this case.

And the other point I would make is –-

Justice Hugo L. Black: He then have penalty of failure to do that?

Mr. Erwin N. Griswold: Sorry, Mr. Justice.

Justice Hugo L. Black: Is there a penalty of a failure to do that?

Mr. Erwin N. Griswold: No, this is an internal housekeeping part of the post office statute, a direction to postal employees.

There are other statutory provisions which make it a crime with penalties attached to interfere with the mails, but I understand them to be directed to outsiders, to persons who obstruct the mails in one way or another and not to postal employees.

Now, the other point that I would like to make is simply this.

It would seem that Mr. Davis' real complaint is that the warrant was not obtained on March 28, rather on March 29.

I think it could be that warrant could have been obtained on March 28 and that I don't think I would have too much difficulty in seeking to defend it here, if it had been.

I would point out that the information then available related to only one of the packages, which might have been enough to establish a crime, but not enough to seize the other package.

What I would hope would be that the Court would leave a little leeway here, not to setup a rule which would mean that the instant you really now have enough, you must then and there go in and get it because the lines are not easy to draw here.

They are hard to draw long after the event and the calm deliberation of this Court.

They are much harder to draw for the individual officer on the scene who has to decide whether “well, if I go in now, will it be found that I did not have enough?

Here, the officer was careful.

He did no harm in the process of being careful.

It seems to me he ought to be commended for having done a fine work and that the delay which was involved was reasonable and should not be held to invalidate the seizure in this case.

Chief Justice Warren E. Burger: Thank you, Mr. Solicitor General.

The case is submitted.