Monday, June 08, 2009

Bailments and Border Searches

Last year, I did a post (one of several I’ve done) on border searches, i.e., on the exception to the 4th Amendment’s warrant requirement that encompasses searching the luggage – and laptops – of people entering or leaving the United States.

In that post, I talked about a new policy – the Policy Regarding Border Search of Information – that had just been adopted by U.S. Customs.

As I noted in that post, the policy implements the border search exception but carves out exceptions (exceptions to the exception, I guess) for certain kinds of information:
The policy then includes sections dealing with particular types of data, such as business information (trade secrets, etc. . . . try to prevent unauthorized disclosure), attorney-client privileged information (try to preserve the privilege) and sealed letters (can’t be searched without first getting a search warrant, because mail is protected under another 4th Amendment principle).
Crossing Borders (August 4, 2008). A few days ago, someone posted this comment on what I said in that post:
I note you mention 'sealed letters' as mail being protected from search as a person crosses the border.
Does it seem like there would be some sort of angle where placing a laptop inside a large envelope, addressing it and stamping it would give it some protection from a search?
Anonymous (May 30, 2009).

Anonymous raises a really good point which, I’m afraid, won’t work. It’s a perfectly logical argument, but sometimes law isn’t logical – or, more accurately, law doesn’t seem to be logical because there are so many complementary and interacting rules it’s difficult to apply straight logic to issues, sometimes.

I posted a brief response to Anonymous’ comment. In this post, I’m going to try to explain why the option he/she suggests won’t work in practice.

Let’s start with the 4th Amendment and mail. As I explained in an earlier post, in 1877, in a case called Ex parte Jackson, the Supreme Court held that we have a 4th Amendment expectation of privacy in sealed letters (not postcards) and packages we send through the U.S. mails, which means police have to get a search warrant to open a letter or package while it’s in transit.

Jackson applies to searches of mail traveling within U.S. borders. Later cases raised the issue of whether it trumps the border search exception, which would mean officers would have to get a search warrant to open and read mail traveling into or out of the United States. The Supreme Court dealt with this issue in U.S. v. Ramsey, 432 U.S. 606 (1977). Customs Inspector George Kallnischkies was inspecting a sack of incoming
international mail from Thailand [when he] spotted eight envelopes that were bulky and which he believed might contain merchandise. The envelopes, all of which appeared . . . to have been typed on the same typewriter, were addressed to four different locations in the Washington, D. C., area. . . . Kallnischkies, based on the fact that the letters were from Thailand, a known source of narcotics, and were `rather bulky,’ suspected the envelopes might contain . . . contraband rather than correspondence. He took the letters to an examining area . . . and felt one of the[m]: It `felt like there was something in there. . . . It was not just plain paper that the envelope is supposed to contain.’ He weighed one of the envelopes, and found it weighed . . . some three to six times the normal weight of an airmail letter. Inspector Kallnischkies then opened that envelope [and found heroin].
U.S. v. Ramsey, supra. Federal agents arrested Ramsey, the intended recipient of the envelopes; he was subsequently indicted for drug smuggling. He moved to suppress the heroin found in the envelopes under Ex parte Jackson; that is, Ramsey claimed the Customs Inspector needed a warrant to open the envelopes. The Court of Appeals for the D.C. Circuit agreed, and the case went to the Supreme Court.

The Supreme Court did not directly address the constitutional issue. It held that the search of the envelopes was lawful under 19 U.S. Code § 482(a) which says that the officers who are
authorized to . . . search vessels may stop, search, and examine . . . any vehicle . . . or person, on which or whom he or they shall suspect there is merchandise which . . . shall have been introduced into the United States in any manner contrary to law . . . and to search any trunk or envelope . . .in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law.
The Ramsey Court held that since Kallnischkies had “reasonable cause” to believe contraband was in the envelope, the “search, therefore, was plainly authorized by the statute.” U.S. v. Ramsey, supra. The Court had this to say about the 4th Amendment:
Since the search . . . was authorized by statute, we are left simply with the question of whether the search, nevertheless violated the Constitution. . . . [W]e need not decide whether Congress conceived the statute as a necessary precondition to the validity of the search or whether it was viewed, instead, as a limitation on otherwise existing authority of the Executive. Having acted pursuant to, and within the scope of, a congressional Act, Inspector Kallnischkies' searches were permissible unless they violated the Constitution.
U.S. v. Ramsey, supra. What the Court is saying in this paragraph is that the statute might be implementing the 4th Amendment (which means the search was valid under both the statute and the 4th Amendment) or it might be giving us more protection than the 4th Amendment, in which case the search would still be valid.

As I may have mentioned, constitutional provisions like the 4th Amendment set the baseline of protection – the absolute minimum of protection – for privacy and other rights. Congress can give us more privacy (or more protection for other rights) by adopting statutes and implementing federal regulations. If, in enacting 19 U.S. Code § 482, Congress gave us more protection than we get under the 4th Amendment, then the search could not have been unconstitutional. If Congress meant for the statute to simply implement what the 4th Amendment requires, then Ramsey still could not complain AND we know that mail searches do not fall automatically under the border search exception.

Under our current understanding of the law, an officer can conduct a routine border search of luggage merely because he wants to; the Customs agent doesn’t have to show he had probable cause or reasonable cause to believe there was contraband inside the luggage. If § 482 implements the 4th Amendment, an agent can’t search mail just because he wants to; he has to have reasonable cause to believe there’s contraband inside.

It’s been 32 years since the Court decided Ramsey, and we still don’t know if § 482 implements the 4th Amendment or goes beyond it. To makes things more complicated, § 145.3(b) of Title 19 of the Code of Federal Regulations provides as follows:
No Customs officer or employee shall open sealed letter class mail which appears to contain only correspondence unless prior to the opening:

(1) A search warrant authorizing that action has been obtained from an appropriate judge of United States magistrate, or
(2) The sender or the addressee has given written authorization for the opening.
Section 145.3(c) of Title 19 of the Code fo Federal Regulations imposes the same restrictions on a Customs officer’s reading “any correspondence contained in letter class mail”. The Ramsey Court cited both of these regulations, but didn’t seem to find that they had any particular bearing on the case, presumably because there’s regulations and § 482 is a federal statute (or maybe for some other reason – I don’t claim to be an expert on federal postal regulations).

So where does that leave us with the original question, i.e., whether sealing a laptop in an addressed, sealed and stamped envelope would protect it from a border search. To implicate the application of the border search exception to mail issue, we have to have “mail.” Mail is “[a]nything sent through the postal system”. If you’re carrying it, then it’s not “mail”, it’s luggage, and the border exception applies with full force to luggage.

As I noted in my response to Anonymous’ comment, the Ex parte Jackson holding is based on the fact that mail – like FedEx and other transactions – is a bailment. In a bailment one person transfers possession – but not ownership – of property to another, usually for a limited purpose. If you’ve ever left a bag with a bellman while you’re in a meeting, that’s a bailment; the bellman has possession of the bag till you get back, but that doesn’t entitle him to open it or sell it or give it away.

When we send things through the mail, that’s a bailment. The Postal Service has my letter; I do not. In Ex parte Jackson, the Supreme Court applied the 4th Amendment to the bailment that results when we mail a letter or a package. If I’m carrying a laptop in a sealed, addressed and stamped envelope, that isn’t a mail bailment because I haven’t turned the laptop over to the Postal Service. So Ex parte Jackson doesn’t apply; as I noted earlier, the laptop is luggage and the border search exception applies to it.


Lionround said...

Professor Brenner, just for the sake of argument (from a layman's perspective). What if I were to put the laptop in the sealed envelope, address it to myself at my work address, apply the appropriate postage and send it, pick it up at work and DO NOT OPEN it.

It has now been through the Postal Service, thus creating a bailment. Do this create an exception to the exception to the exception?


Susan Brenner said...

It's a good scenario . . . the problem is that a bailment only lasts as long as the owner (and possessor) of the property has surrendered possession of it to the bailor (here, the US Mail).

So the bailment begins when you mail the envelope and lasts until it's returned to you (sorry).