On August 21, 1974, a two-count indictment was returned against defendant, then a resident of Long Beach, California. Count One charged that defendant filed a false individual income tax return for 1970, listing his adjusted gross income as $4,681 instead of the correct figure of $32,581, in violation of 26 U.S.C. § 7201. Count Two charged a similar violation for the year 1971, with defendant listing his adjusted gross income as $5,306 instead of the proper figure of $64,744.

Two and one-half months later, defendant filed a motion to dismiss the indictment on the ground that it was "the result of impermissably (sic) discriminatory law enforcement and unequal application of the law denying the defendant equal protection of the law." On December 6, 1974, this motion was granted and the case dismissed on the ground that the activities of government informer Tony Gordon had violated defendant's Sixth Amendment right to counsel. On appeal this Court held that the Government's attempted use of Gordon had not prejudiced defendant, so that the case was remanded for trial. United States v. Choate, 527 F.2d 748 (9th Cir. 1975).

Upon remand, defendant filed a motion on March 12, 1976, to suppress all the physical items of evidence sought to be introduced against him. After first hearing evidence on July 13, 1976, Judge Ferguson granted the motion to suppress "as to mail cover issue" after hearing oral argument on October 18, 1976. A memorandum opinion was filed on November 16, 1976, and is now reported in 422 F.Supp. 261. On the same date, the Government appealed the ruling granting the motion to suppress evidence, and on December 7, 1976, the Government filed an amended notice of appeal to include Judge Ferguson's memorandum decision. Jurisdiction properly was lodged in the district court under 26 U.S.C. § 7201 and 18 U.S.C. § 3332, and the appeal of the order granting the motion to dismiss was taken pursuant to 18 U.S.C. § 3731.

In the district court, defendant initially argued that a now-deceased state government informant named Carl Thompson had obtained substantial information from an illegal search of defendant's residence, supposedly providing the impetus for the entire income tax investigation that culminated in defendant's indictment and prosecution. However, Judge Ferguson held that the Government had established by a preponderance of the evidence that any such illegality "did not taint the evidence in this case in more than a de minimis manner" (422 F.Supp. at 263).

Concerning the "mail cover issue," the court found that the Government had initiated a mail cover on defendant's mail from July 31, 1972, to August 25, 1972.1 This mail cover permitted the recording of the data appearing on the outside cover of defendant's incoming first and fourth class mail at three listed addresses, two in Balboa and one in Newport Beach, California. The data consisted of the class of mail, the name of the addressees (occasionally a piece of mail was addressed to Choate and another person), name and return addresses of the senders and place and date of postmarks on mail going to defendant.

The mail cover was obtained through Bureau of Customs Special Agent Melvin C. Johnson's letter to the postal inspector in charge in Los Angeles, California. The letter read as follows:

A cover for First and Fourth Class mail is requested for the following names and addresses:

2811 Newport Blvd.

The above listed subject is currently under investigation by this office for the suspected smuggling of large quantities of narcotics into the United States. CHOATE is currently organizing a large narcotic smuggling ring with the primary source located in South America. It is felt that CHOATE and the source in South America correspond by mail. Return addresses on mail received at the above addresses would be of aid in identifying the source in South America and other members of the smuggling ring. It is requested that a mail cover be placed at the above addresses for a period of 30 days. It is further requested that all replies be directed to Special Agent Lynn P. Williams.

Smuggling narcotics into the United States is in violation of Title 21 USC 952 and carries a penalty under Title 21 USC 960(a)(1) of 15 years imprisonment or a fine of $25,000 and/or both. CHOATE is not under indictment as a result of any investigation conducted by this office nor does this office have any knowledge of any other indictments pending against CHOATE. It is believed that CHOATE has retained Sherman & Sturman, Attorneys at Law, 8500 Wilshire Blvd., Suite 908, Beverly Hills, California as legal counsel.

Your cooperation in this matter would be appreciated.

Sincerely yours,

cc; SUI 5

(Lynn) WILLIAMS/ab

"422 F.Supp. at 264-265 n. 5". (emphasis supplied.)

This letter was initiated by Special Agent Lynn Williams of the Drug Enforcement Agency who was then working as a special agent for the Bureau of Customs, assigned to its hard narcotics unit. In March or April 1972, Williams had been assigned to investigate defendant because he was suspected of importing large quantities of cocaine into the United States.

Judge Ferguson first held that the foregoing letter did not specify "the reasonable grounds that exist" for requesting a mail cover as required by a July, 1965, postal regulation, which provides that all postal inspectors in charge may order mail covers within their district, viz.:2

"Where written request is received from any law enforcement agency of the Federal, State, or local governments, wherein the requesting authority stipulates and specifies the reasonable grounds that exist which demonstrate the mail cover would aid in the location of a fugitive, or that it would assist in obtaining information concerning the commission or attempted commission of a crime" (39 C.F.R. § 233.2(e)(1)(ii); emphasis supplied).

The district court next held that the use of the mail cover as part of the early narcotics investigation of defendant was unconstitutional under the Fourth Amendment, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. The opinion noted that it was the identity of the sender that was of interest to the law enforcement authorities here and that a reasonable person who posted a piece of mail would have an expectation of privacy "(1) that the information contained in the return address will only be used for postal purposes, and (2) that it will be utilized in only a mechanical fashion without any records being kept" (422 F.Supp. at 270). Judge Ferguson could find no compelling governmental interest which could justify the incursion on what he viewed to be a substantial privacy interest.

In closing, the district court concluded that all the evidence the Government sought to introduce against the defendant "was derived from exploitation of leads derived from the illegal mail cover" (422 F.Supp. at 271), so that no part of the evidence could be purged of the taint of the mail cover. In its principal brief the Government admitted that it could not prove the absence of taint if the mail cover was illegal (Br. 8), and at the oral argument the Government conceded that it could not proceed with the trial if the motion to suppress evidence was properly granted. We reverse.

The Government's Evidence Was Not Fatally Tainted by Informant's Entry into Defendant's Home.

The district court found that Carl Thompson, an informer for Primo T. Orosco of the California Bureau of Narcotics Enforcement, had burglarized defendant's Huntington Beach, California, residence in April 1971 and had obtained Choate's future wife's Farmers and Merchants Bank statement for the period March 15-April 15, 1971. However, the court held that the Government established by a preponderance of the evidence that any such illegality "did not taint the evidence in this case in more than a de minimis manner" (422 F.Supp. at 263). In attacking this holding, it was unnecessary for defendant to file a cross-appeal because he was endeavoring to support the judgment in his favor on this issue on the claim that he had advanced below. United States v. Campbell, 293 F.2d 816, 822 (9th Cir. 1961).3 We are in accord with the district court's disposition of this matter.

The record shows that Carl Thompson, who died in May 1976, was used as an undercover informer in April and May 1971 by California Narcotics Agent Orosco to help build a state narcotics case against defendant in exchange for favorable treatment in a potential inquiry into Thompson's own connections with narcotics importation. In Orosco's May 3, 1971, report for the California Bureau of Narcotics Enforcement, he noted that the bank statement Thompson had obtained from defendant's residence in April 1971 was for an account in the name of Suzanne Sylvester (later Mrs. Choate) and that Thompson had indicated that she and defendant were authorized to sign on her account at the Farmers and Merchants Bank in Long Beach, California.

Orosco's report was turned over to Special Agent Lynn Williams of the Federal Bureau of Customs in early April of 1972. In order to give Williams a feeling for the hard narcotic unit's work, the Bureau gave Williams some closed files to study. Believing that there was sufficient information in Choate's file to warrant fuller investigation, Williams had reopened an earlier federal narcotics investigation of defendant closed in April 1971. Orosco's report was in Choate's file. Williams had discussions with Thompson during the Spring of 1972 concerning his relationship to Dennis Choate and his involvement in deriving narcotics intelligence regarding Choate for state narcotic agencies. During his ensuing narcotics investigation of defendant, Williams developed information regarding defendant's assets, in order to see if they coincided with the amount of cocaine reportedly involved, which was later communicated to the Internal Revenue Service and used as part of the present tax prosecution. On May 8, 1972, Williams determined that defendant was not a signatory on, and had no interest in, the Farmers and Merchants Bank account mentioned in Orosco's report and made no further use of that account in tracing defendant's assets. When Williams turned over his information relating to defendant's assets to the Internal Revenue Service, none of that information emanated from Suzanne Sylvester's bank account.

Special Agent Raymond Sherrard of the Internal Revenue Service commenced a criminal tax investigation of defendant in the late Spring of 1972 after being contacted by Customs Agent Williams. Williams told Sherrard that Choate was outspending his apparent means and turned over some of his information on Choate to the Internal Revenue Service since Williams had not been able to build a substantive narcotics case against Choate. Sherrard ceased his investigation in July 1972, when he was unofficially replaced by IRS Special Agent Emmett S. Roach.

In September 1972 Roach was officially placed in charge of the investigation involving defendant's violation of the income tax laws. Williams gave him Orosco's May 1971 report. Roach had the task of verifying expenditures made by defendant in 1970 and 1971, the two tax years included in this indictment. No reference was made to the Farmers and Merchants Bank account in verifying the expenditures for 1970 when Roach began his investigation. However, when he was examining defendant's expenditures for 1971, he discovered that out of defendant's $50,000 in expenditures for that year, under $500, precisely $432.59,4 was made through that account, while over $44,000 was expended in cash without reference to any bank account. The $432.59 in question was first documented by records from the credit card recipients and only later verified by the bank statement. Since these payments amounted to less than $500, Judge Ferguson was certainly justified in concluding that Thompson's obtaining of the merely corroborating one-month bank statement "did not taint the evidence in this case in more than a de minimis manner" (422 F.Supp. at 263).

Thompson's entry into defendant's Huntington Beach residence was to learn of defendant's narcotics activity, and defendant is now being charged with tax evasion. Defendant's modest expenditures to the credit card companies made through the Farmers and Merchants Bank in 1971 were ascertained through the three credit card companies before any recourse to the bank statement. The amount was extremely small in comparison with the understatements of income alleged in the indictment. Consequently, under the various standards developed in United States v. Bacall, 443 F.2d 1050 (9th Cir. 1971), the Thompson burglary, upon the preponderance of evidence in the record (United States v. Cales, 493 F.2d 1215, 1216 (9th Cir. 1974), did not fatally taint the Government's evidence and did not require its suppression. Because the standard of proof in the district court was preponderance of the evidence, we may not overturn the district judge in this regard unless his factual conclusion was clearly erroneous. As demonstrated above, it was not.

There Was Compliance with the Postal Regulations.

As already noted, 39 C.F.R. § 232.2(i)(1)(ii) requires the requesting authority to stipulate and specify "the reasonable grounds that exist which demonstrate the mail cover would aid in * * * obtaining information concerning the commission or attempted commission of a crime." Here the requesting authority stated that the Bureau of Customs was investigating defendant for the suspected smuggling of large quantities of narcotics into the United States. He was said to be "currently organizing a large narcotics smuggling ring with the primary source located in South America." In his key letter, the special agent in charge of the Bureau of Customs office in Los Angeles then stated "It is felt that (defendant) CHOATE and the source in South America correspond by mail." Johnson next wrote that return addresses on mail received at defendant's listed three addresses "would be of aid in identifying the source in South America and other members of the smuggling ring." Johnson noted that smuggling narcotics into the United States violated 21 U.S.C. § 952, with a penalty of fifteen years' imprisonment or a fine of $25,000, or both, under 21 U.S.C. § 960(a)(1). He added that defendant was not under indictment as a result of any investigation conducted by Johnson's office, and that Johnson's office knew of no other indictments pending against defendant, whose lawyer was then identified so that in accordance with customary practice under 39 C.F.R. § 233.2(f)(2), there would be no mail cover of correspondence between Choate and his counsel.5

Judge Ferguson decided that the letter was defective because Johnson used the phrase "It is felt" that the defendant and the source in South America correspond by mail:

"The (regulation) should, therefore, be read as having some substantial significance if an agency's mere 'feeling' that criminal activity is afoot is sufficient to provide the needed showing, it will have been read out of existence" (422 F.Supp. at 266).

In our judgment this was too strict an interpretation of the regulations. The letter written by one layman to another is replete with "reasonable grounds" demonstrating that the mail cover would aid the Bureau of Customs in obtaining information concerning the commission or attempted commission of a crime, as required by this regulation. Neither the regulations governing requests for mail covers nor the postal interpretation of mail cover procedures require a probable cause finding or a determination by a judicial officer.6 According to House testimony of William J. Cotter, Chief Postal Inspector, United States Postal Service in 1975, which we must take as an authoritative construction of the regulations (Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 13 L.Ed.2d 616), "mail covers were to be instituted only upon written request stipulating and specifying a reasonable need for the mail cover and a proper reason for its use." Postal Inspection Hearings at 47. The regulations simply do not require the specification of the factual predicate upon which the requesting agency basis its conclusion that the mail cover subject is involved in the commission or attempted commission of a crime. Failure to specify this predicate is proper under the regulations. Whether a mail cover may sustain constitutional muster will be addressed infra. "Mail covers cannot be authorized for exploratory purposes" where reasonable grounds are not put forth to show the cover will aid in the investigation of a crime. Postal Inspection Hearings at 52.

Of course, Stanley H. Jenson, the postal inspector in charge or his designee had to be satisfied under the regulations that the Bureau of Customs' request set forth reasonable grounds to demonstrate that the mail cover would assist in obtaining information about the commission or attempted commission of a crime (39 C.F.R. §§ 233.2(e)(1)(ii) and 233.2(e)(2)). Moreover, the Chief Postal Inspector must be convinced in his review of actions taken by postal inspectors upon initial submission of a report on a request for a mail cover that the regulations have been satisfied. 39 C.F.R. § 233.2(i). The requesting letter stated that defendant was currently organizing a large narcotics smuggling ring with its primary source in South America and that it was suspected of smuggling large quantities of narcotics into the United States. Based on their prior experience, the requesting special agent and his associates would know that defendant and his South American source would probably correspond by mail. The Committee for Public Justice and the American Civil Liberties Union Foundation of Southern California (amici ) filed a joint brief and participated in the oral argument urging affirmance of the district court's decision. One of their grounds is that there was noncompliance with the postal regulations because requesting Special Agent Jenson wrongfully stated in his July 19, 1972, letter to the Los Angeles postal inspector in charge that "CHOATE is currently organizing a large narcotics smuggling ring with the primary source located in South America" (emphasis supplied). Amici attack this statement on the ground that the federal narcotic investigation of defendant had been closed in April 1971. However, it was reopened by Special Agent Lynn Williams on April 3, 1972, because of additional information received by the Bureau of Customs. That narcotics investigation was continuing even at the time of the July and October 1976 hearings below. Therefore, amici cannot fault the mail cover request on the ground that it related to a closed matter. Although the requesting letter was apparently prepared by Agent Williams (422 F.Supp. at 264), defendant on appeal and the district judge did not question Williams' veracity, and it is inappropriate for us as reviewing judges to impugn his truthfulness on the basis of a cold record that can be read consistently with the contents of the letter.

Viewing the Jenson letter, drafted by a nonlawyer, in a "practical and not abstract * * * commonsense and realistic fashion," it satisfies the applicable regulations, as the Supreme Court held with respect to affidavits for search warrants in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684. As Justice Goldberg there stated, "Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area." (Id.) Since hypertechnical niceties should not be applied to this mail cover request,7 we hold that there was no violation of the applicable postal regulations. Accordingly, there is no need to suppress the evidence on the ground of intentional circumvention of administrative regulations as in United States v. Caceres, 545 F.2d 1182 (9th Cir. 1977).

The Mail Cover Does Not Violate the Constitution

"( T)he protection of a person's general right to privacy his right to be let alone by other people is, like the protection of his property and of his very life, left largely to the law of the individual States." Katz v. United States, 389 U.S. 347, 350-351, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (footnotes omitted). Almost tautologically, only if specific "provisions of the Constitution protect personal privacy from other forms of governmental invasion" (id. at 350, 88 S.Ct. at 510) will a person be able to raise the shield of the Constitution against the practice. The specific sources for zones of privacy in the Constitution seem only to include the First, Third, Fourth, Fifth and Ninth Amendments. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510. If a zone of privacy cannot be grounded on neutral principles rooted in one of these constitutional sources, it simply may not enjoy constitutional protection. See Craven, Personhood: The Right to Be Let Alone, 1976 Duke L.J. 699, 704.

Requiring that a constitutional right be locatable in the Constitution most emphatically does not, of course, suggest a strict circumscription of the various specific constitutional guarantees in the Bill of Rights. Each guarantee still has its Griswold penumbras and emanations. But if it is demonstrated seriatim that none of the specific guarantees creates a zone of privacy in a given case, then there simply is not a constitutional "right of privacy" in that case. Nor is there any question of synergistic coupling between the several Bill of Rights guarantees to create by the operation of all of them together a constitutional right not locatable upon any one of them. See Whalen v. Roe, 429 U.S. 589, 598-599 n. 23, 97 S.Ct. 869, 51 L.Ed.2d 64. This follows from the text of the Ninth Amendment itself: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Griswold v. Connecticut,381 U.S. 479, 491-492, 85 S.Ct. 1678, 1686, 14 L.Ed.2d 510 (Goldberg, J., concurring).

So posed, our task is to analyze the several specific provisions in the Bill of Rights to see if the zones of privacy emanating therefrom encompass Choate's claimed right to have a mail cover placed on his mail. Clearly, under the facts of this case, the Third Amendment may be dismissed by an ipse dixit. Nor need the Fifth Amendment give us pause since defendants and the amici concede that mail cover information derives from an exterior inspection when the mail matter is still under the sender's control.8 Indeed neither the Third nor the Fifth Amendments were raised anywhere in the record below. Only the Fourth and First Amendments have been relied upon.

This Mail Cover Does Not Violate the Fourth Amendment

We now turn in our analysis to inquire whether the Fourth Amendment was violated by the mail cover. As explained by the Seventh Circuit in United States v. Balistrieri, 403 F.2d 472, 475 n. 2 (1968), a mail cover is conducted by the Postal Service's furnishing the requesting government agency with the information appearing on the face of the envelope or packages addressed to a suspect. Information given includes the name of the addressee, the postmark, the name and address of the sender (if it appears), and the class of mail. The mail itself is promptly delivered to the addressee, and the Postal Service furnishes this confidential information only to the requesting agency. A crime has to be a felony before a mail cover will be permitted under 39 C.F.R. § 233.2(e)(1)(ii).9 See note 1 supra.

First of all, there is some question whether this mail cover even constituted a "search" within the Fourth Amendment for, as this Court explained in United States v. Solis, 536 F.2d 880, 881 (9th Cir. 1976):

"Generally evidence acquired by unaided human senses from without a protected area is not considered an illegal invasion of privacy, but is usable under doctrines of plain view or open view or the equivalent."

Assuming a search was involved here, since 1878, it is settled that the Fourth Amendment's protection against "unreasonable searches and seizures" protects a citizen against the warrantless opening of sealed letters and packages addressed to him in order to examine the contents. Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877. A recent article by Professor Geoffrey R. Stone discussed the scope of the Fourth Amendment since that time, The Scope of the Fourth Amendment: Privacy and the Policy Use of Spies, Secret Agents and Informers, American Bar Foundation Research Journal 1195 (1976). As shown therein, the most important relevant case since Ex parte Jackson is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. There the Supreme Court held that because of the Fourth Amendment the prosecution could not introduce evidence of the contents of a telephone conversation of the defendant, which was heard by placing a device on the outside of the public telephone booth in which the defendant was speaking, since an individual speaking to someone over the telephone has a "reasonable expectation of privacy" with respect to the contents of those conversations. 389 U.S. at 360, 88 S.Ct. at 516. (Justice Harlan concurring). The Court decided that "(w)hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," whereas "what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." 389 U.S. at 351, 352, 88 S.Ct. at 511. "(T)he Fourth Amendment protects people, not places." Id. at 351, 88 S.Ct. at 511.

Prior to Katz, the courts uniformly upheld the constitutionality of mail covers. E. g., United States v. Costello, 255 F.2d 876, 881 (2d Cir. 1958); Canaday v. United States, 354 F.2d 849 (8th Cir. 1966); Cohen v. United States, 378 F.2d 751 (9th Cir. 1967), certiorari denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215; Lustiger v. United States, 386 F.2d 132 (9th Cir. 1967), certiorari denied, 390 U.S. 951, 88 S.Ct. 1042, 19 L.Ed.2d 1142.

Subsequent to Katz, the crucial question presented has been whether an individual has a reasonable expectation of privacy which would prevent the Government from inspecting information contained on the outside of mail addressed to him. In all post-Katz decisions except this, the courts have again sustained mail covers on the ground that there is no reasonable expectation that such information will remain unobserved. United States v. Bianco, 534 F.2d 501, 508 (2d Cir. 1976); United States v. Leonard, 524 F.2d 1076, 1087 (2d Cir. 1975); United States v. Balistrieri, supra; United States v. Isaacs, 347 F.Supp. 743, 750 (N.D.Ill.1972), affirmed on other grounds, 493 F.2d 1124 (7th Cir. 1974), certiorari denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146. Less than three months after Katz, certiorari was denied in our Lustiger case, supra. However, it does appear that the instant case is the first post-Katz situation where the constitutionality of the mail cover device has been squarely presented in a manner requiring extended analysis.

While the Supreme Court has not expressly passed on the mail cover device, recent analogous opinions lead us to conclude that it would not hold mail covers unconstitutional even though neither the addressee nor the sender is aware that the exterior data is being used for purposes other than the proper routing of the mail. In United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71, it was held that a bank customer has no legitimate "expectation of privacy" in the contents of his original checks and deposit stubs because they "contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." 425 U.S. at 442, 96 S.Ct. at 1624. Here too the information in question was voluntarily conveyed to the Postal System and exposed to its employees and others in the ordinary course of passage of letters and packages from the senders to the defendant. The following passage from Justice Powell's Miller opinion, substituting the mailer for the depositor, seems singularly apt:

"The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751-752, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id. at 752, 91 S.Ct. 1122; Hoffa v. United States, 385 U.S. (293) at 302, 87 S.Ct. 408, 17 L.Ed.2d 374; Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)." (Footnote omitted, emphasis supplied.) 425 U.S. at 443, 96 S.Ct. at 1624.

This portion of Miller concluded that even if the banks were acting solely as Government agents in transcribing the information and complying with the subpoenas, there would be no intrusion upon the depositors' Fourth Amendment rights. Id. Applying Miller here would mean the transcription of the information in question by the postal authorities and the transmitting of it only to the Bureau of Customs would not violate the Fourth Amendment.10

Subsequently, in United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300, the Court held that the warrantless arrest of Mrs. Santana upon the threshold of her dwelling-house would not violate the Fourth Amendment because she was not in an area where she had any expectation of privacy and because what she knowingly exposed to the public, even in her own house, would not be a subject of Fourth Amendment protection. 427 U.S. at 42, 96 S.Ct. 2406. Thus the last word spoken by the Supreme Court in this field during its October 1975 Term indicates that in accord with Ex parte Jackson, supra, the sender or the recipient of mail does not have a reasonable expectation of privacy with respect to the information on the outside.

Perhaps the closest modern Supreme Court case is United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282. There respondent sent two packages by first class mail from Mt. Vernon, Washington, to Van Nuys, California, and to Nashville, Tennessee. The postal clerk told a policeman present in the Post Office that he was suspicious of the packages and the policeman noticed that the return address on the packages was that of a vacant housing area of a nearby junior college. This information was transmitted to the Bureau of Customs in Seattle, Washington, and the Customs officials then learned that the addressee of one package was under investigation in Van Nuys for trafficking in illegal coins, and that the second addressee was under investigation in Nashville, Tennessee, for the same crime. This Court reversed the defendant's conviction on the ground that the coins were improperly admitted in evidence because a timely warrant had not been obtained, but the Supreme Court in turn reversed us. Its opinion first noted that as established in Ex parte Jackson, letters and sealed packages cannot be opened without a warrant, although "there outward form and weight" can be inspected. 397 U.S. at 251, 90 S.Ct. 1029.

Van Leeuwen pointed out that first class mail is not beyond reach of inspection and that a fictitious return address plus other suspicious circumstances justified the retention of the packages for investigation without a warrant. Because there had been "no possible invasion of the right 'to be secure' in the 'persons, houses, papers and effects' protected by the Fourth amendment against 'unreasonable searches and seizures' ", the inspection of the outside of the first class mail was held not to disturb its privacy. 397 U.S. at 252, 253, 90 S.Ct. at 1032. Applying Van Leeuwen to a mail cover induced by appropriate reasons given by the requesting agency means that the mail cover "cannot be said to be 'unreasonable' within the meaning of the Fourth Amendment." 397 U.S. at 253, 90 S.Ct. at 1033.

In his above-mentioned article, Professor Stone has concluded that a warrantless search or seizure under the Fourth Amendment is only unreasonable "if it poses a relatively serious threat to (one's) privacy" (id. at 1212). Here the senders' placement of their names and addresses on the mail in question waives any privacy claim because the information would foreseeably be available to postal employees and others looking at the outside of the mail. Certainly the defendant could not keep that information invisible, and yet the Fourth Amendment only bars intrusions upon a person's "reasonable expectation of privacy." United States v. Dionisio, 410 U.S. 1, 8, 14, 93 S.Ct. 764, 35 L.Ed.2d 67. Here it cannot be said that there was any governmental intrusion into defendant's home, hotel room or similar place of solitude. Senders knowingly exposed the outsides of the mail to postal employees and others, and defendant could not keep those areas private. This is not a situation where an individual has attempted to control information about himself, nor are all practices of the Government in seeking information about a person unreasonable under the Fourth Amendment. Defendant has not satisfied us that this particular mail cover was unreasonable. See note 10, supra.

In supporting affirmance, the earliest case relied upon by amici is Ex parte Jackson, supra, but there the Court excepted the examination and inspection of the "outward form" of mail from the scope of the Fourth Amendment. Thus the Court was protecting the contents of letters and sealed packages from examination and inspection. This is made clear because the opinion stated sealed items were to remain "closed" against inspection. See 96 U.S. at 733. In addition, Justice Field stated that postal regulations cannot "permit an examination into letters or sealed packages subject to letter postage, without warrant" but may be enforced "as from the parties receiving the letters or packages * * * (emphasis supplied). 96 U.S. at 835.11 Postal regulations first authorized the use of mail covers in 1879, only one year after Ex parte Jackson was decided. Postal Inspection Hearings at 46. Certainly the draftsmen of those regulations must have intended to fit within the strictures of that already famous mail case. Indeed Chief Postal Inspector Cotter recently explained to a House subcommittee that Ex parte Jackson was interpreted by the postal authorities from the beginning as permitting mail covers. Id. at 49. In his May 1975 testimony to the subcommittee, Cotter also reviewed the leading court decisions approving mail covers until then. Id. at 49, 50.

Throughout their brief, amici endeavor to show that mail covers can be abused. When such a case occurs, the Fourth Amendment may be implicated, but as shown elsewhere in this opinion, there was no such abuse here. Amici also contend that this mail cover violated the rights of senders of the mail. They fail to realize that it was requested as part of the investigation of defendant, not his correspondents. At any rate, only the senders would be entitled to raise any question as to intrusion into their Fourth Amendment rights. Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 22 L.Ed.2d 176; United States v. Lisk, 559 F.2d 1108, 1110, 1111 (7th Cir. 1977). And none of them has complained.

This mail cover was not directed at the contents of postal cards or the contents of second, third or fourth class mail, as amici fear (Br. 21).12 Moreover, only an established federal agency was requesting the mail cover here, so that amici cannot properly argue that this mail cover permits snooping by obscure local agencies (cf. Br. 32).13 Likewise, the amici are wrong in asserting that this mail cover would include mail addressed to a "Mr. Carson" (Br. 42), for, in addition to Choate, it was only to apply to mail addressed to "CARSON AND CHOATE SURFBOARDS," thus incidentally including Carson only when his business with Choate was involved. Nor has Carson protested this measure.

Much of amici's attack on this mail cover is on the just-dismissed basis that the postal regulations are unconstitutionally vague and over-broad (Br. 30-42). To the extent that overbreadth and vagueness, other than what has been raised to us, might conceivably exist, this matter was not raised in the district court and therefore will not be considered on appeal. Our function is not inquisitorial. United States Steel Corp. v. Train, 556 F.2d 822, 839 (7th Cir. 1977). However, it should be noted, as even amici recognize (Br. 30, 44, 45), that the postal regulations were tightened in 1965 as a result of Congressional hearings that year. After the more rigid regulations issued in 1965, Senator Long, chairman of the subcommittee that had considered mail covers, expressed his satisfaction with them, while warning that his subcommittee would renew its push to outlaw mail covers completely if the new regulations were ignored, violated or abolished. Long, The Right to Privacy: The Case Against the Government, 10 St. Louis Univ. L.J. 1, 25 (1965). Through that warning and the routine introduction of bills thereafter threatening to abolish this investigative tool, Congress has in effect established itself as a watch-dog to prevent mail cover abuse.

Amici quote from a Note entitled Invasion of Privacy: Use and Abuse of Mail Covers in 4 Columbia Journal of Law and Social Problems 165, 175-176 (1968) (Br. 23-24), but that passage concerns whether mail covers violate statutory prohibitions against delaying the mail (18 U.S.C. §§ 1701, 1702 and 1703), a matter not raised here. The Note does say that the monthly number of mail covers "is now low" and that the 1965 revisions in the postal regulations "covered virtually all objections that had been theretofore raised," thus stifling prior Senatorial criticism (id. at 165, 173-174).

Throughout their brief, amici rely on the Hearings on Invasions of Privacy (Government Agencies) before the Senate Judiciary Subcommittee on Administrative Practice and Procedure, 89th Cong., 1st Sess. (1965) (Invasions of Privacy). Instead of supporting amici, those hearings actually support the Government's position. Thus H. B. Montague, then Chief Postal Inspector of the Post Office Department, testified that the Post Office Department tries to restrict mail covers to 30 days and encourages outside agencies to restrict them to 15 days. Id. at 88. Montague said that he believed requesting agencies were not on fishing expeditions because:

"There has to be some trust and mutual understanding among enforcement agencies or you would never get your work done. We have confidence in these other agencies. Up to now I have had no reason to question or distrust any of them.

"I think any law enforcement agency, when they make an investigation, has a good reason for doing it and that there is some suspicion a crime has been committed. They don't just go out without having some idea that a violation has been committed."

Montague also told the Senate subcommittee that the Post Office had not received complaints of mail cover abuses, probably because the requesting agencies are in law enforcement work and "are dedicated to the same principles we are. They take the same oath of office that we take, and we have found no reason to not have confidence and trust in them, and we do." He added that law enforcement agencies do not put in indiscriminate requests for mail covers. (Id. at 89.) In a table covering the period of 1960 through 1965 supplied by the Postmaster General to subcommittee Chairman Long on May 3, 1965, it was stated that postal inspectors denied a Bureau of Customs request for a mail cover in 1960 and two such requests in 1964 (id. at 341). The table does not cover July 1972 when the instant mail cover was issued. Far from seeking a plethora of mail covers, the Bureau of Customs sought only one mail cover in July 1973 and five in July 1974.14 Hearings on Surveillance before the House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice, 94th Cong., 1st Sess. (1975) (Surveillance) 332, 334.

In May 1965 the Postmaster General sent the Senate subcommittee excerpts from confidential instructions to postal inspectors relating to mail covers, providing as follows:

"OUTSIDE AGENCIES

"It is important that agents of outside agencies fully understand that the purpose of a mail cover is to assist them in apprehending fugitives or to give them leads in other cases in which they are investigating violations of law and that mail cover information is restrictive and must be treated confidentially.

Mail cover information must not be given to private investigators nor furnished in civil action cases. Mail covers are not permitted in routine security investigations for clearance of an individual, but are allowed in suspected espionage cases or on other matters inimical to the interests of the United States.

Refer all requests for mail covers or extension of existing covers from outside agencies to division headquarters for consideration and action by the inspector in charge or his immediate designee. If a verbal request is received direct the requestor to submit it in writing.

"Prior approval by inspectors in charge is not required in our own investigations; however, good judgment must be exercised. The number of mail covers in effect must be reduced to the absolute minimum, and must be strictly controlled. Confine requests to a 30-day period or less. Avoid indiscriminate use of this important investigative technique.

"SECTION 831.44, POSTAL

.44 MAIL COVER. Requests by postal inspectors in charge and postal inspectors for information regarding the addresses, return addresses, or postmarks on mail must be treated in strict confidence and complied with carefully and accurately. In obtaining the information, do not delay delivery of the mail. (See 311.6 and 311.7.)" Invasions of Privacy at 339.

These excerpts tend to show that the abuses conjured up by amici are more ephemeral than real.

In an effort to show mail cover abuses, amici have been able to find only one example, and this is a mail cover in the nebulous field of national security rather than the more specific area of gathering information concerning a crime. Thus in Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975), plaintiff, Lori Paton, wrote a letter intended for the Socialist Labor Party and addressed to the Socialist Workers Party on whom a mail cover was in effect, resulting in an abortive investigation of that plaintiff by an FBI agent, but clearing her of any wrongdoing. The Third Circuit did not pass upon the validity of the mail cover (at 872), and Chief Postal Inspector Cotter explained that the mixup occurred from "human error" (Surveillance at 320). Nobody has asserted that human error or any kind of error was involved in defendant's mail cover.

Similarly inapt is Stanford Daily v. Zurcher, 353 F.Supp. 124 (N.D.Cal.1972), affirmed, 550 F.2d 464 (9th Cir. 1977), certiorari granted, --- U.S. ----, 98 S.Ct. 762, 54 L.Ed.2d ---, relied upon by amici (Br. 12-13). There a warrant to search the premises of a university newspaper for photographs of demonstrations was invalidated because the newspaper was not suspected of any offense. Here the mail cover target was reasonably thought to be importing cocaine from South America, thus justifying the 30-day mail inspection. In Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971) (Amici's Br. 15 n. 12), Troy State University officials searched for narcotics in the college rooms of the two student plaintiffs without warrants or consent. By no stretch of the imagination can such a search be analogized to this mail cover. See also Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856. Finally, in United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (Amici's Br. 37-38), government agents had engaged in wiretaps involving the domestic national security. Quite foreseeably, the Court applied Katz and held that search warrants were required because of "the potential danger posed by unreasonable surveillance to individual privacy and free expression" (at 315, 92 S.Ct. at 2135.). As shown, those factors are simply not present here.15

This Mail Cover Does Not Violate the First Amendment

The dissenting opinion rests on the Fourth Amendment insofar as the Constitution is concerned. The opinion below also never relied on the First Amendment, probably because it was only peripherally relied upon in the district court by defendant. Similarly, in this Court, defendant stresses his Fourth Amendment rights. Apparently taking that cue, amici also rely principally on the Fourth Amendment. In mentioning the First Amendment, neither defendant nor amici have cited any mail case in their favor apart from Paton, supra. In any event, no First Amendment rights of defendant were violated. As seen, the only information being gleaned by the Bureau of Customs was material on the outside of Choate's incoming mail and packages. Such material certainly would not abridge Choate's freedom of speech. Indeed, like any other reasonable citizen, he could expect no privacy as to the outside of his incoming mail, and any "chill" on the exercise of First Amendment rights resulting from that "lack of privacy" is not significant enough to be constitutionally impermissible when, as here, the challenged activity does not concern the substance of a communication and fits within regulatory restrictions. See United States v. Ramsey, 431 U.S. 606, 620-623, 97 S.Ct. 1972, 52 L.Ed.2d 617; generally Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 33 L.Ed.2d 154; Donohoe v. Duling, 465 F.2d 196 (4th Cir. 1972). Speech thought to promote a criminal scheme, such as encompassed by this mail cover, is hardly within the ambit of the First Amendment. Moreover, the practice of associating with compatriots in crime is not a protected associational right. See Runyon v. McCrary, 427 U.S. 160, 176, 96 S.Ct. 2586, 49 L.Ed.2d 415.

Nor may the associational rights of the senders be raised by Choate. N.A.A.C.P. v. Alabama, 357 U.S. 449, 458-460, 78 S.Ct. 1163, 2 L.Ed.2d 1488. Even if he could do so, there is absolutely no support in the record that an equality of interest between Choate and the senders would be anything other than a false equivalency. Paton, supra, at 873-874. This is because there is no support in the record for the theory that any of the senders who were actually subject to the mail cover, and whose identity was actually used in preparing the tax case against Choate, would, in fact, care that others knew of the fact of their "association with Choate". In any event, the record discloses that defendant did not raise senders' First Amendment rights in the district court16 and therefore we need not squarely pass on his ability to raise the senders' First Amendment rights in a purely jus tertii manner.

This Mail Cover Does Not Violate the Ninth Amendment

Rather than covering necessary aids to criminal investigation, such as mail covers, the cases which recognize the right to privacy at least partially on Ninth Amendment grounds, have been described as neatly categorized into matters involving family and procreational activities. See generally, Wilkinson & White, Constitutional Protection for Personal Lifestyles, 62 Cornell L.Rev. 563 (1977). This case appears to fit into neither category. Rights under the Ninth Amendment are only those "so basic and fundamental and so deep-rooted in our society" to be truly "essential rights," and which nevertheless, cannot find direct support elsewhere in the Constitution. Griswold v. Connecticut, 381 U.S. 479, 488-489, 491, 85 S.Ct. 1678, 1685, 14 L.Ed.2d 510 (Goldberg, J., concurring).

Perhaps that is why in her Cardozo lecture on "The Directions and Misdirections of a Constitutional Right of Privacy"17 our colleague Judge Hufstedler initiated her search for the constitutional guarantees of that right with a specific constitutional provision: the Fourth Amendment (id. at 551-558). As there noted, the pertinent words from that Amendment guarantee that people shall be "secure in their * * * papers * * * against unreasonable searches * * *." It may be doubted whether the material collected from mail addressed to defendant before delivery to him was really from his papers. Even assuming so, only unreasonable searches are interdicted. As seen, this was not such a search. As Judge Hufstedler has stated:"The right to protect the autonomy of one's personality cannot be absolute, but it is nevertheless a fundamental constitutional right. In striking the balance between public interest and fundamental private rights, the weight is on the side of the private right unless there is strong justification in favor of the Government action, and the Government has chosen reasonable means for vindicating its overriding interest. When governmental action consists of protecting the constitutional rights of one group of private citizens against the competing rights to privacy of others of its citizens, the societal interests of each are similarly weighed against the other, except that the scale is not initially tipped as it is when the interests that are opposed are fundamental private rights and general public interest." Id. at 562.

From the information in the possession of the Bureau of Customs, there was "strong justification in favor of the Government action" in permitting this mail cover. Moreover, the Government "has chosen reasonable means for vindicating its overriding interest" in enforcing the narcotics laws. Therefore, assuming his standing, we cannot conclude that defendant's right of privacy, stemming from any provision of the Bill of Rights, was impermissibly overborne.18

We are reinforced in our conclusion that the mail cover on Choate was constitutional by cases decided by the Supreme Court at its past Term. Thus the inspections here are less intrusive than the screening of former President Nixon's papers which was recently upheld over right of privacy arguments based on the First, Fourth and Fifth Amendments. Nixon v. Administrator of General Services, 433 U.S. 425, 455-465, 97 S.Ct. 2777, 2796-2801, 53 L.Ed.2d 867. They are also less intrusive than the opening of international mail that just survived First and Fourth Amendment attacks. United States v. Ramsey, supra.19 As in Ramsey, we conclude that any "chill" to defendant and his correspondents is not only minimal but wholly subjective in the light of the safeguards provided by the postal authorities. The information on the outside of envelopes and packages normally passes through so many hands, public and private, that a mail cover cannot be said to invade any constitutionally protected zone of privacy. Thus it is akin to the statutory drug patient identification requirement sustained in Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64, where the Court discussed and distinguished its prior cases in the various right of privacy areas.

Unlike the situation in United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538, the notations on the outside of this mail were not made with "an expectation that the (exterior) contents would remain free from public examination," thus placing defendant outside the right of privacy protections in the Constitution.20 No family sanctity problem exists here such as in Moore v. East Cleveland, 431 U.S. 494, 498-500, 97 S.Ct. 1932, 52 L.Ed.2d 531, where a municipal ordinance which prevented a grandchild from living in his grandmother's home was invalidated under the Due Process Clause of the Fourteenth Amendment.21 Nor is the mail cover analogous to cases invalidating statutes that "burden the freedom to make (childbearing) decisions" such as involved in Carey v. Population Services International, 431 U.S. 678, 687, 97 S.Ct. 2010, 2018, 52 L.Ed.2d 675.22

In this case, the record shows that the information being gleaned from the mail cover on defendant was being used only for legitimate government purposes, namely for enforcement of the narcotics and later the income tax laws. The mail cover was not an attempt to garner a complete profile of defendant. As with most people's mail, inspection of the exterior of envelopes and packages for thirty days would not enable the requesting authority to build up such a complete picture of the subject that it could be used to invade such intimately personal rights as protected by Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, and its spawn.

The order granting the motion to suppress is reversed and the cause is remanded for further proceedings.

HUFSTEDLER, Circuit Judge, concurring and dissenting:

In an August 21, 1974 indictment, Choate was charged with income tax evasion for understating his income in 1970 and 1971, in violation of 26 U.S.C. § 7201. The Government intended to offer at trial Choate's amended returns for those years, which he filed in October, 1972, and documentary evidence tending to prove that Choate's expenditures were greatly in excess of his originally-reported income.1

Choate moved to suppress "all physical evidence sought to be introduced against him" on the theory that it was tainted by illegal searches of his home conducted by a government informant in 1971. After an evidentiary hearing, the district court found that the Government had sustained its burden of proving that the taint of the illegal searches had been dissipated. The testimony at the hearing, however, revealed that during 1972, Choate had been subjected to a mail cover of all of his correspondence. The district court held that the mail cover was conducted in violation of applicable Postal Service regulations, that it constituted an unreasonable search and seizure in violation of the Fourth Amendment, and that the evidence must be suppressed. (United States v. Choate (N.D.Cal.1976) 422 F.Supp. 261, 263.) The district court also found, and the Government concedes on this appeal, that "all evidence sought to be introduced against the defendant in this case was derived from exploitation of leads derived from the illegal mail cover." (Id. at 271.)

The case presents singularly sensitive and difficult statutory and constitutional issues, involving as it does the extent to which the applicable statutes and the Constitution protect persons from searches invisible to the persons whose effects are searched and from the seizures of intangibles that lead to the discovery of tangible evidence. If Choate is unshielded by the Fourth Amendment from the Government's illegal and oppressive conduct in this case, none of us can be secure from similar, unannounced governmental invasions of areas in which we have a reasonable expectation of privacy.

The mail cover was secured by intentionally false statements made by the Customs officer who wrote the request for the cover. The searches and seizures that followed were obtained in violation of the Fourth Amendment because no judicial warrant was obtained to authorize the intrusion into the privacy of Choate's mail, none of the jealously guarded exceptions to the warrant requirement exist, and the search was overbroad and thus in violation of the reasonableness clause of the Fourth Amendment.

I concur with the majority opinion only on the point that the taint of the illegal searches of Choate's home was sufficiently dissipated by intervening events to permit the use of the evidence thus obtained.

Some detail respecting the factual background of this case is essential to an understanding of the legal issues. According to a 1971 report of the California State Bureau of Narcotics Enforcement (BNE), Choate first came to the attention of law enforcement authorities when an undercover informant for the BNE, one Thompson, alleged that Choate was involved in importing cocaine from Peru. Thompson was about to be indicted for his own narcotics dealings, and he later asserted that he was promised leniency if he could "make a case" against Choate.2 During April, 1971, he made a series of illegal entries into Choate's home to obtain evidence and also reported on Choate's alleged drug dealing.3 He produced a tin containing some marijuana and a bank statement from the Farmers and Merchants Bank. The latter was in the name of Choate's wife, with whom he was then living prior to their marriage, but Thompson alleged that Choate used it for his own transactions. Shortly thereafter, Thompson's services as an informant were terminated because his credibility was questioned due to his own legal difficulties. The case on Choate was then closed.

The 1971 BNE report was transmitted to the Federal Bureau of Customs, and on April 3, 1972, Agent Williams of Customs reopened its investigation of Choate.4 It appears that Williams contacted Thompson at this time, but he reported that he had no information on Choate in addition to that in the 1971 report.5 Williams began an investigation of the extent of Choate's assets to see if they "coincided" with the amount of cocaine purportedly involved. He testified that one of his first steps was to investigate the Farmers and Merchants Bank account, but he discontinued this avenue of inquiry immediately upon learning that Choate was not in fact an authorized signatory on the account. Williams rapidly concluded that while he had found "lots of assets," he was "not having much luck in getting a seizure or coming up with a substantive case against Mr. Choate." Therefore, he went to the Internal Revenue Service (IRS)6 and attempted to interest IRS Agent Sherrard in investigating Choate for tax evasion.7

Sherrard, however, declined to become involved in the case until after the Customs investigation ceased. Thereafter Williams continued his asset investigation and instituted a mail cover of all Choate's correspondence.8 The mail cover revealed the identity of Choate's personal bank account and at least two creditors, Diner's Club and Carte Blanche. From these sources, Williams was able to obtain a great deal of information about Choate's expenditures which was ultimately turned over to the IRS.

In September of 1972, an official IRS investigation was opened with Agent Roach in charge. Roach testified that he made use of the information obtained through the mail cover, but that the Farmers and Merchants Bank account was of little use. The latter was used only after the fact that expenditures were made had been independently verified to ascertain that the payments had been made from checks drawn on that account. Those expenditures amounted to less than $500, while total expenditures by Choate for the period in question were over $60,000.9

* Taint of Thompson's Illegal Searches

Choate presses the point that "all" the Government's evidence should be suppressed because of Thompson's illegal searches. We may assume for present purposes that the entries were illegal and the product of governmental misconduct. The question is whether the primary illegality led to the discovery of the evidence sought to be introduced or whether it was obtained through independent means. (Wong Sun v. United States (1963) 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441).

A simple examination of the facts as previously set forth demonstrates the remote relationship between the fruits of Thompson's illegal entries as embodied in the BNE report, and this tax evasion prosecution. The BNE report may well have contributed to Agent Williams' decision to reopen the narcotics investigation of Choate, as it suggested that he was a major trafficker in cocaine. However, the sole lead used by Williams was the bank statement which quickly proved unproductive. That bank statement was used again only after Choate's expenditures were known to the IRS to verify the mode of payment.

Choate's primary contention is that, if the BNE report provided the impetus for reopening the investigation of Choate and contributed to its vigor, all evidence obtained in succeeding investigations is tainted. This Circuit has consistently rejected such arguments and has held that only evidence specifically derived from illegal leads can be deemed tainted. Where the succeeding investigations produce evidence from independent sources, it may be introduced despite the original illegality. (E. g., United States v. Cella (9th Cir. 1977) 568 F.2d 1266, 1284-1286 (mere fact investigation is intensified not enough); United States v. Sand (9th Cir. 1976) 541 F.2d 1370, 1375-76 (nexus between illegally seized evidence and that sought to be suppressed must be shown irrespective of the degree of police illegality); United States v. Cales (9th Cir. 1974) 493 F.2d 1215, 1215-16; United States v. Brandon (9th Cir. 1972) 467 F.2d 1008, 1010 (test is not whether a "but for" relationship exists between the illegal search and later investigation but whether its fruits tended to significantly direct that investigation to the evidence in question); United States v. Bacall (9th Cir. 1971) 443 F.2d 1050, 1055-61 (original illegality must "in fact " lead to specific evidence contested); Durham v. United States (9th Cir. 1968) 403 F.2d 190. See also United States v. Pike (5th Cir. 1975) 523 F.2d 734; United States v. Friedland (2d Cir. 1971) 441 F.2d 855.)

While the ultimate burden of proof is on the Government to show the absence of taint, the defendant must first establish a factual nexus between the illegality and the challenged evidence. The mere establishment of an illegal search does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free from taint. (United States v. Cella, supra, contains a thorough discussion of this point.) Choate did not establish any factual or logical nexus between the BNE report and the subsequent evidence uncovered by Williams and Roach as to Choate's assets and expenditures, except for the Farmers and Merchants Bank statement. (Alderman v. United States (1969) 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176; United States v. Cella, supra, 368 F.2d at 1284; United States v. Sand, supra, 541 F.2d at 1375-76.) While that bank statement should, of course, be suppressed, and any evidence as to that account's use as a source of Choate's expenditures, it cannot be deemed to taint the other evidence of Choate's expenditures which was independently discovered through the mail cover, state motor vehicle records, and other sources.

A mail cover is a procedure by which the United States Postal Service segregates all mail sent to a particular addressee and records all information which appears on its outside cover and, in some cases, identifies the contents of second, third, and fourth class mail.10 The recording in Choate's case was accomplished by a postal employee's listing on a form, for all first and fourth class mail received over a thirty-day period,11 the addressee (three locations were covered), sender, return address, place and date of postmark, and class of mail.12 (See 39 C.F.R. § 233.2(c)(1).) The information obtained through mail cover surveillance provides a data bank which is a potent investigative tool.

It is possible to learn the identities, addresses and frequency of contact of most of a person's correspondents through a one-month mail cover including banks, creditors, affiliations with religious, political, educational, and voluntary organizations, publications received, accountants, and friends.13 Because many of these correspondents maintain files on the addressee which can be discovered and used by the investigating agency (e. g., bank accounts, United States v. Miller (1976) 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71), the mail cover used in combination with other techniques quickly makes the subject's life an open book to investigators.

Mail covers are unique in other respects. The subject of a mail cover is never apprised of the existence of this surveillance unless it is revealed to him in discovery proceedings. (39 C.F.R. § 233.2(g)(4).) In Choate's case, despite ample pretrial discovery motions, the mail cover's existence was revealed only inadvertently in the course of a hearing on a motion to suppress.14 Many mail cover subjects will never learn of the existence of this surveillance because it will not result in litigation. (See United States v. United States District Court (1972) 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752.) The request, authorization, undertaking, and use of results of a mail cover occur wholly within the executive branch. This procedure, neither authorized nor controlled by any act of Congress, is articulated and controlled in the discretion of the Postal Service. No judicial officer is involved at any stage of the proceeding, and records are kept by the Postal Service only.15

Postal regulations provide that any "law enforcement agency"16 may obtain a mail cover by direct written application to members of the Postal Service's investigative division17 the Inspector General or 72 designees about the country. (Hearings on Surveillance, supra n.10, at 331.) The requesting agency is required to recite "the reasonable grounds that exist which demonstrate the mail cover is necessary to . . . obtain information regarding the commission or attempted commission of a crime." (39 C.F.R. § 233.2(d)(2)(ii).) There is no requirement that the requesting agency attest to the truth of these grounds or produce evidence supporting them. Granting or denying a request is in the discretion of the Inspector General or his designee. (Hearings on Postal Inspection Service, supra n.10 at 52.) The meaning of reasonable grounds is undefined (see n.25 infra ) and it appears that most requests are routinely granted if they seem to state reasons why a mail cover will prove helpful to the requesting agency.18 Information is obtained on all correspondence not just mail directly related to the stated purpose of the surveillance. Thus, in Choate's case, while the request was purportedly for purposes of identifying a South American return address, the Bureau of Customs was furnished with mail cover data as to Choate's domestic correspondents.19 Finally, the information obtained is forwarded directly to the requesting agency, and postal records are destroyed after a period of eight years.

Far from being few in number, there were 4,528 other mail covers in effect during 1972 when Choate's was requested and 5,171 in 1973. The Bureau of Customs alone obtained 220 in 1973. (Hearings on Surveillance, supra n.10, at 332, 334.) In view of the fact that mail covers often lead to investigation of senders of mail as well as addressees, it can readily be seen that the rights of large numbers of citizens are involved. (E. g., Paton v. La Prade (3d Cir. 1965) 524 F.2d 862 (FBI investigated everyone who wrote to Socialist Workers Party); Lustiger v. United States (9th Cir. 1967) 386 F.2d 132 and United States v. Schwartz (3d Cir. 1960) 283 F.2d 107 (Post Office contacted all correspondents with mail fraud suspects to see if they had been defrauded).) United States v. Leonard (2d Cir. 1975) 524 F.2d 1076, revealed that approximately 150 persons who received mail from Switzerland without a return address were investigated by the IRS for possible income tax evasion and that the mail of many thousands was covered.1. Postal Service Power to Institute Mail Cover Procedure

A preliminary question is whether the Postal Service has unconstitutionally exceeded its delegated powers in instituting the mail cover procedure and promulgating postal regulations, when the practice is unauthorized by any act of Congress.20 However, we need not here resolve this important and difficult question.21

The Fourth Amendment aside, it is apparent here that the Government failed to comply with the applicable postal regulations. As this provides a basis for suppressing the evidence obtained from the mail cover, we need not reach the question of the validity of the regulations' promulgation as they afford no shield to the challenged conduct.

From the Fourth Amendment perspective, even where a practice is authorized by statute, if it purports to authorize a warrantless search, the constitutionality of the actual search is evaluated in terms of the Fourth Amendment. The statute's specifics become immaterial. (Sibron v. New York (1968) 392 U.S. 40, 59-62, 88 S.Ct. 1889, 20 L.Ed.2d 917 (no need to consider facial constitutionality of statute authorizing warrantless stop and frisks; rather Court will examine actual incident in light of Fourth Amendment). See also United States v. United States District Court, supra, 407 U.S. 297, 308-09, 92 S.Ct. 2125, 32 L.Ed.2d 752 (applying Fourth Amendment to search unauthorized by statute without reaching question whether executive branch has inherent authority to order warrantless wiretaps for national security purposes).) As I find the instant mail cover constituted an unreasonable search and seizure in violation of the Fourth Amendment, I have no occasion to reach the question of the validity of the postal regulations.22

In order to institute the mail cover of Choate, Agent Williams prepared a letter sent over the signature of his supervisor on July 19, 1972, which recited in pertinent part:

"(Choate) is currently under investigation by this office for the suspected smuggling of large quantities of narcotics into the United States. CHOATE is currently organizing a large narcotic smuggling ring with the primary source located in South America. It is felt that CHOATE and the source in South America correspond by mail. Return addresses on mail would be of aid in identifying the source in South America and other members of the smuggling ring."On the basis of this letter, the Postal Service instituted the mail cover, which lasted from July 25 through August 25, 1972. Choate contends that this request failed to comply with 39 C.F.R. § 233.2(d)(2)(ii) (1977) because on its face it does not state "reasonable grounds that exist which demonstrate the mail cover is necessary to . . . obtain information regarding the commission or attempted commission of a crime" and because the recitations were untrue and known by Agent Williams to be untrue at the time he made the request. I am aware of no prior challenge to a mail cover's validity based upon failure to comply with postal regulations. We must therefore determine whether the asserted grounds may serve to vitiate the mail cover, and if so, what evidentiary consequences follow.

There is no provision in the regulations for collateral attack on a mail cover request by a subject.23 However, in a statement submitted to the House of Representatives' Committee on Post Office and Civil Service, which was investigating the use of mail covers, the Chief Postal Inspector for the United States Postal Service said:

". . . The grounds upon which the need for a mail cover is based must be specific in order to permit a determination that the essential requirement is met. Mail covers cannot be authorized for exploratory purposes.

"The sufficiency of a mail cover request is the heart of the mail cover regulations. It is the Postal Service and, in particular, the Chief Inspector who bears all responsibility as to whether approved requests are in keeping with the regulations. The request becomes a permanent part of the mail cover file which must be made available through appropriate discovery procedures in any legal action. The subject of the mail cover would thus be able to challenge not only the propriety of the judgment of the postal official imposing the mail cover, but also the truthfulness and sufficiency of the statements filed by the authority requesting the mail cover."24

The Inspector General's statement suggests that while there is no prior judicial review of mail cover requests, they are challengeable in subsequent judicial proceedings on grounds that (1) the averments did not on their face state "reasonable grounds" and (2) the averments were untruthful. (See also Oliver v. United States (8th Cir. 1957) 239 F.2d 818, 823 ("The question of unreasonable search and seizure in postal inspection is entitled to be resolved, where legislative measures or administrative regulations exist, by such valid limits as have been fixed and held out thereunder as constituting the extent of mail opening and examination in which the Post Office Department will engage.").)

For present purposes, I am content to assume without deciding that the Choate mail cover request states reasonable grounds25 within the meaning of 39 C.F.R. § 233.2(d)(2)(ii),26 as in my view a mail cover request may be collaterally attacked for untruthfulness on the same basis as an affidavit in support of a search warrant.27 The facts developed at the evidentiary hearing in the district court clearly reveal that the statements in the request were false and known by Williams to be false when made. Hence, I would hold that the underlying falsity vitiates the mail cover request irrespective of its facial validity and that this renders the resulting surveillance illegal and requires suppression of the evidence under the compulsion of authority in this Circuit. (United States v. Caceres (9th Cir. 1976) 545 F.2d 1182.)28

A prepared statement of the Inspector General at Senate hearings cannot control our view of the grounds on which a criminal defendant may attack the validity of a mail cover request. It does not constitute an authoritative interpretation, nor do the regulations themselves provide for collateral attack. However, it is highly persuasive as an opinion of the sole entity involved with the authorization and review of mail covers, particularly as it suggests its own belief that Postal Service approval is not intended to be a conclusive determination that a mail cover request is valid.

Some review of the veracity of the "reasonable grounds" stated in a mail cover request is dictated by similar considerations to those which have led most courts of appeals to authorize attacks on the validity of search warrants because of false statements by government agents in the supporting affidavits which led to their issuance:29

". . . it must be recognized that law enforcement agents presenting evidence to magistrates could make a mockery of the magistrate's role if, in the necessarily ex parte proceeding, they could freely employ false allegations in order to secure the warrant. The same would likewise be true if the agents could, with impunity, draft affidavits with utter recklessness as to truth or falsity. In either instance there would be a lack of good faith in the performance of the agent's duty to the judicial office."

United States v. Luna (6th Cir. 1975) 525 F.2d 4, 8.)

As this Circuit has recognized, collateral attacks on the veracity of affidavits in the search warrant context are necessary to further "a basic purpose of the (Fourth) Amendment and the exclusionary rule, namely the deterrence of lawless police action." (United States v. Damitz (9th Cir. 1974) 495 F.2d 50, 55-56.)30 This is true despite the fact that the affidavits have been scrutinized by a neutral magistrate prior to issuance of the warrant because of the ex parte nature of the proceeding and the impossibility of otherwise preserving the defendant's rights.

In the context of the Postal Service mail cover procedure, the need for post-surveillance judicial review is even more pronounced, because no judicial officer has ever previously been interposed to evaluate the governmental averments as to the need for a search. The ex parte procedure has consisted solely of one government law enforcement agency representing to another that the surveillance will likely produce useful evidence. In most cases, the representations are accepted without question, based on the trust reposed by the Postal Inspection Service in coordinate law enforcement agencies. (Hearings on Postal Inspection Service, supra, n.10 at 16 (no evidence required, just "assurances" of coordinate agencies); see also Hearing on Surveillance, supra, n.10 at 322 (testimony of Chief Postal Inspector Cotter).) While I do not believe that such review suffices to validate the procedure for Fourth Amendment purposes, it is patently a minimal requirement. (See Terry v. Ohio (1968) 392 U.S. 1, 12-13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889, noting that application of the exclusionary rule in review of the manner of obtaining evidence serves the dual purposes of deterring government misbehavior and of preserving the "imperative of judicial integrity" as a "ruling admitting evidence in a criminal trial . . . has the necessary effect of legitimizing the conduct which produced the evidence.")

We need not concern ourselves with the questions whether a mail cover request could be attacked upon a less stringent showing than a search warrant affidavit, or about what standard of scienter and materiality is required, because facts established at the evidentiary hearing previously held show that all the material representations in the mail cover request were intentionally falsified by Williams.31 In all the circuits which have reached the issue, intentional misstatement of material facts in an affidavit by a government agent serves to vitiate a search warrant,32 and misstatements of the same nature in the mail cover request must render similarly illegal this mail cover.33

The mail cover request contained three material34 representations: (1) that the requesting authority had reason to believe Choate was "currently" organizing a narcotics smuggling ring with a South American source, (2) that it further believed that the source and Choate corresponded by mail, and thus (3) that a mail cover would aid in identifying the source.

Williams had no "current" information on which he could assert that Choate was organizing a narcotics smuggling ring when he requested the mail cover on July 19, 1972. The only information to that effect was contained in Thompson's April, 1971, reports to the BNE which had been passed along to Customs. All efforts by Williams to obtain current information that would connect Choate with cocaine trafficking had failed (see notes and text at nn. 4-7, supra ),35 and Thompson had informed Williams that he possessed no more recent information than that in the 1971 report.36 Most significant is the fact that Williams felt he could not "make a substantive case" against Choate for drug dealing, and this actually caused him to take the step of going to Sherrard of the IRS before instituting the mail cover and suggesting a tax investigation.37 Williams, in fact, testified that his reason for instituting the mail cover was to look for more assets; he said nothing about a purported South American connection.38 Williams' testimony thus clearly revealed that he was fully aware at the time he made the mail cover request that he had no current information which indicated that Choate was organizing a smuggling ring.

There was no indication in any of the information in Williams' possession that Choate had ever corresponded by mail with a South American contact. The averment to this effect was pure speculation based upon the initial misstatement of fact.39 Thompson's report indicated only that Choate had traveled to South America.

Finally, the essential predicate for the mail cover was the statement that it was expected that it would aid in identifying the South American source. Williams' own testimony revealed, however, that prior to instituting the mail cover he had turned his attention fully to "asset tracing" and had given up any attempt to make a substantive case against Choate. (See nn. 31 & 38, supra.) This was the purpose of the mail cover not finding a South American address. Thus, each material representation in the request was false and known to be false by Williams at the time it was made. It was a bare-faced abuse of the mail cover procedure to obtain information and pursue an investigation apparently outside his jurisdiction asset tracing to establish a basis for an IRS prosecution by reciting false material facts which, if true, would logically have justified the surveillance. (See 422 F.Supp. at 271.)

But for the false averments in the Choate mail cover request, the Postal Service would not have instituted the mail cover, and the resulting investigative leads would not have come to light. In this Circuit, where federal investigators intentionally fail to comply with applicable regulations governing a search, the evidence obtained from the search and its fruits must be suppressed. (United States v. Caceres (9th Cir. 1976) 545 F.2d 1182, 1187-88, as amended on denial of rehearing en banc (1977); see also United States v. Sourapas (9th Cir. 1975) 515 F.2d 295, 298.) The Government argues that this precedent should not apply on the ground that the request here in issue was made in "good faith" and that the Caceres doctrine should be held inapplicable to unintentional, good faith breach of federal regulations governing administrative searches. The misconduct here is much more excessive than the non-compliance in Caceres, which involved failure to obtain prior authorization for the search from proper parties.40 Here Williams misled the Postal Service into conducting the search by false representations, thereby abusing the process and circumventing the precise purpose of tightening of the regulations in 1965 to prevent "fishing expeditions." On this ground the evidence obtained from the mail cover leads must be suppressed.

Despite my conclusion that non-compliance with applicable postal regulations constitutes a valid alternative basis for suppression of the evidence obtained from the mail cover, I find it necessary to reach the Fourth Amendment question. The Fourth Amendment was violated, whether or not there were reasonable grounds, because no warrant was obtained and the search was a general one.41 In effect, the absence of compliance with the Fourth Amendment permitted the governmental duplicity to occur. This violation was effectuated by the Postal Service, not the Bureau of Customs, and the illegality of its conduct cannot be ignored simply because there was preceding illegality by Customs.

The Government argues that resolution of the constitutional issue is controlled by earlier case law. While it is true that mail cover procedures have been upheld against a variety of attacks in the past, I do not view any of those cases as controlling.

The earliest cases did not reach the Fourth Amendment question. (See Cohen v. United States (9th Cir. 1967) 378 F.2d 751, 759-60 (defendant alleged violation of three mail tampering statutes, 18 U.S.C. §§ 1701-03, and an inhibition of his First Amendment rights);42 United States v. Schwartz (3d Cir. 1960) 283 F.2d 107, 107-11 (defendant alleged violation of postal regulations and failure to comply with regulation permitting mail cover);43 United States v. Costello (2d Cir. 1958) 255 F.2d 876, 881-82 (violation of 18 U.S.C. §§ 1701-1703 asserted).)44

Subsequent cases which did reach constitutional issues simply relied, without discussion, upon decisions in the earlier cases respecting alleged violations of statutes and regulations. Thus in Lustiger v. United States (9th Cir. 1967) 386 F.2d 132, 139, this court stated merely that "the Fourth Amendment does not preclude postal inspectors from copying information contained on the outside of sealed envelopes in the mail, where no substantial delay in the delivery of the mail is involved. See Canaday v. United States, 8 Cir., 354 F.2d 849, 856." Canaday had earlier been the first case to reach asserted "constitutional rights," but it stated simply that Schwartz and Costello, supra, "unquestionably validate the mail watch conducted in this case."45 I would believe myself bound by Lustiger,46 despite its dealing with an important issue of constitutional law as if it were a throw-away line, but for the fact that Fourth Amendment jurisprudence has been transformed since Lustiger was decided by the Supreme Court's decision in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and its spawn. (See, e.g., Zweibon v. Mitchell (1975) 170 U.S.App.D.C. 1, 516 F.2d 594 (en banc ) (practices valid pre-Katz must be re-examined in light of its holding).)

In Katz and in Warden v. Hayden (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, decided in the same term, the Court moved away from the property concepts which had previously restricted application of the Fourth Amendment (see also Berger v. New York (1967) 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040.) Before Katz, the Fourth Amendment was thought to apply only to governmental intrusions which constituted a trespass on the property rights of the defendant.47 (See generally, Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 356-58 (1974); Kitch, Katz v. United States : The Limits of the Fourth Amendment, 1968 Sup.Ct.Rev. 133; Note, Formalism, Legal Realism, and Constitutionally Protected Privacy under the Fourth and Fifth Amendments, 90 Harv.L.Rev. 945, 961-68 (1977).) Similarly, before Warden v. Hayden, the Government could seize only evidence the nature of which vitiated the defendant's property rights e.g., contraband, stolen property. The critical recognition of the October Term 1966 was that the legitimacy of all governmental intrusions must be determined by reference to the " 'fundamental criteria' laid down by the Fourth Amendment" which concerns itself with the privacy of the individual which is "the very essence of constitutional liberty and security" (Berger v. New York, supra, 388 U.S. at 49, 50-53, 87 S.Ct. at 1878), not property rights.

Thus in deciding Lustiger prior to the decision in Katz, this court might well have concluded that while the contents of mail could not be investigated absent Fourth Amendment protections (Ex parte Jackson (1878) 96 U.S. 727, 24 L.Ed. 877), a mail cover did not intrude upon a protected area because it did not penetrate the sealed portion of a piece of correspondence. Katz and its progeny have indicated, however, that "the reach of (the Fourth) Amendment cannot turn upon the presence or absence of a physical intrusion into any given