William H. Rehnquist: We'll hear argument now in Number 98-1696, The United States v. Roy Lee Johnson. Ms. McDowell.
Barbara B. McDowell: Mr. Chief Justice, and may it please the Court: This case concerns when a Federal criminal defendant's term of supervised release begins. The unambiguous text of 18 U.S.C. 3624(e) provides the answer. That section states that a defendant's term of supervised release commences on the day he is released from imprisonment. It further states that a term of supervised release does not run during any period in which the defendant is imprisoned, except for a period of less than 30 days. That's until a defendant is actually released from prison, his supervised release does not begin. The statute provides--
Antonin Scalia: Suppose that you don't have the situation which existed here, where he was wrongfully convicted and serving a term on a wrongful conviction, but suppose that just in violation of his rights the prison keeps him in for 3 years after the... his term of proper conviction had actually expired. Do you think we'd be obliged to have him serve his term of 3 years' supervised release after those 3 years of wrongful imprisonment had already occurred?
Barbara B. McDowell: --Yes, Your Honor. He would have no remedy that's based on his supervised release term that would be automatic.
Antonin Scalia: Well--
Barbara B. McDowell: He could, however, move under section 3583 for reduction in his term of supervised release.
Antonin Scalia: --Which would be discretionary, with approval?
Barbara B. McDowell: That would be discretionary, yes.
Antonin Scalia: Well, I... it doesn't seem to me this ought to be discretionary.
Barbara B. McDowell: That would--
Antonin Scalia: Why can't we interpret the words, does not run during any period in which the person is imprisoned in connection with a conviction, why can't we interpret that to mean reasonably, properly imprisoned in connection with a conviction?
Barbara B. McDowell: --Well, that would still be inconsistent with the earlier sentence in that same provision that says the term of supervised release commences on the day the person is released from imprisonment. That seems to contemplate actual release, not could have been, should have been, or would have been released.
Antonin Scalia: What is... is there a statute that governs the service of consecutive sentences?
Barbara B. McDowell: Yes, there is. There's a statute that provides that for administrative purposes all sentences will be aggregated. That's section 3584, I believe.
Antonin Scalia: And all sentences shall be aggregated, what does that mean?
Barbara B. McDowell: That has the effect of, if one sentence happens to be vacated defendant will automatically receive credit against a subsequent consecutive sentence.
Antonin Scalia: Suppose the statute didn't read that, and suppose that a person is serving consecutive sentences under a provision either in the statute or in the judicial sentence which says his time for the second conviction shall not begin to run until the service of his time for the first conviction has expired, all right, and then it turns out that the first conviction was improper. He served 5 years in prison wrongfully. You'd still put him in for the next 5?
Barbara B. McDowell: We would still require him to serve a term of supervised release if there was still a term of--
Antonin Scalia: I'm not talking about supervised release. I'm talking about a second conviction. He's serving consecutive terms.
Barbara B. McDowell: --The courts--
Antonin Scalia: The first term is invalidated. They're both 5 years--
Barbara B. McDowell: --Uh-huh.
Antonin Scalia: --5-year terms. The first term is wrong. He shouldn't have been there on that first term. He served 5 years.
Barbara B. McDowell: Uh-huh.
Antonin Scalia: And then you say, well, sorry for that mistake, but here's the second term of 5 years. We want you to serve that now.
Barbara B. McDowell: There could conceivably be a due process problem with that. The courts haven't addressed that particular issue, perhaps because the United States Government has this aggregation provision and States have similar provisions as a result of statute, or court decision. The due process question has come up typically in the context of whether a vacated State sentence has to be credited against a Federal sentence still to be served, or vice versa, and the courts have held there's no due process problem in those circumstances because of the dual sovereignty.
Antonin Scalia: Right.
Barbara B. McDowell: This could conceivably be a different situation.
Antonin Scalia: But if it were the same sovereign there might be a due process problem?
Barbara B. McDowell: There could conceivably be.
Antonin Scalia: Why might there not be a due process problem where the second sentence is a sentence to supervised release?
Barbara B. McDowell: Because supervised release serves different purposes than a term of imprisonment. It's supposed to assist the defendant's transition into society and to protect the community.
Antonin Scalia: But you're not... I mean, it may serve different purposes, but you're not entitled to force someone to undergo it except as punishment for a crime, right?
Barbara B. McDowell: That's true, but in this case, in the case I conceive we're talking about, the defendant still has a valid term of supervised release attached to a valid conviction. We wouldn't, of course, insist that a defendant--
Antonin Scalia: Oh, but--
Barbara B. McDowell: --serve a term of supervised release otherwise.
Antonin Scalia: --you say there may be a due process problem in forcing him to serve the second conviction. Why wouldn't there be a due process problem in forcing him to serve the supervised release that is a punishment for the second conviction? It may serve rehabilitative purposes as well, but it's a punishment.
Barbara B. McDowell: It may be--
Antonin Scalia: And if there is a due process problem, why shouldn't we strain to interpret this statute in order to avoid the due process problem?
Barbara B. McDowell: --Well, the only conceivable due process problem would be in the context of two terms of imprisonment. We conceive that since the purposes of supervised release are so different, and because they are so much less intrusive on a defendant, and because a defendant has an opportunity to get out of the term of supervised release after 1 year, based on his behavior and the interest of justice, that it's not the same situation.
Antonin Scalia: At the discretion of the court.
Barbara B. McDowell: At the discretion of the court.
William H. Rehnquist: That's very nice. If a conviction were set aside, it wouldn't just be the prison term that was set aside. It would be the supervised release, too, would it not?
Barbara B. McDowell: That's correct, Your Honor, but in this case there are still valid convictions to which the term of supervised release was attached.
Sandra Day O'Connor: Now, here, the supervised release was ordered in connection with the drug offenses which--
Barbara B. McDowell: That's correct.
Sandra Day O'Connor: --were not the offenses, the gun-related offense that was wrongfully imposed?
Barbara B. McDowell: That's correct, Your Honor. There were in fact two drug offenses, each of which carried a mandatory term of supervised release of at least 3 years.
Sandra Day O'Connor: And what has happened to this... to Mr. Johnson since the Sixth Circuit decision? Has he been on supervised release or not?
Barbara B. McDowell: No. He had been on supervised release under the district court's decision--
Sandra Day O'Connor: Uh-huh.
Barbara B. McDowell: --and served somewhat in excess of 2 years on supervised release. He was then released immediately--
Sandra Day O'Connor: And off--
Barbara B. McDowell: --upon the court of appeals decision.
Sandra Day O'Connor: --supervision, and the consequences of a reversal here would be that he would go back on for a period of--
Barbara B. McDowell: That's correct. He would still have approximately 9 months more to spend on supervised release. He would, of course, have the opportunity to move under section 3583(e) for a reduction or termination of that term.
Anthony M. Kennedy: --Would you oppose that motion?
Barbara B. McDowell: Not knowing the particular circumstances of this defendant--
Anthony M. Kennedy: I mean, this is Christmas time, almost. [Laughter]
Barbara B. McDowell: --it's difficult to say. The Government has in a number of cases involving similar Bailey defendants not opposed a motion for early termination. The court of appeals relied on another section of the same statute, section 3624(a), to hold that this statute is ambiguous. We disagree. Section 3624(a) says nothing about supervised release. Much less does it suggest that a defendant is entitled to a remedy of a credit against his term of supervised release if he ends up spending more time in prison than in retrospect he should have spent. Indeed, section 3624(a), which states simply that the Bureau of Prisons should release... shall release a prisoner at the expiration of his term of imprisonment, is not even violated in this circumstance, where the Bureau of Prisons releases the defendant on the very day specified under the sentence imposed by the district court.
Ruth Bader Ginsburg: What of the argument that you have to give credit for even periods of liberty erroneously granted, that that counts against the sentence if they let you out by mistake, and then you get it all back, the time that you were out counts as part of your sentence, and the anomaly that you don't get credit for time wrongfully served in prison?
Barbara B. McDowell: It's questionable, Your Honor, whether the doctrine that you're referring to, the common law doctrine, has any continuing validity. As Judge Posner noted in a 1994 opinion, it hasn't been applied to a defendant's benefit in many years. We would suggest that the clear language of section 3624(e) supersedes the common law in this regard. Also, this doctrine--
Antonin Scalia: You could argue that that rule is thoroughly in accord with the rule that you're arguing for. That gives the Government, that deprives the Government of incarceration time to which it is entitled, just as the position you're arguing for deprives the defendant of freedom time to which he's entitled, so maybe there's a certain equity in that, I guess.
Barbara B. McDowell: --Well, the doctrine has been applied only in circumstances where the Government is negligent or at greater fault. Certainly in these circumstances, where a defendant has been held under a valid conviction that was correct under Sixth Circuit law until Bailey, it's difficult to find any fault on the part of the Government similar to those in the constructive parole cases.
John Paul Stevens: Do you agree with Justice Scalia's comment that this statute has a punitive... that supervisory release is a form of punishment?
Barbara B. McDowell: There may be punitive aspects to it, Your Honor.
John Paul Stevens: It's not entirely punitive.
Barbara B. McDowell: It's principle purpose, as conceived by Congress, was not punitive.
John Paul Stevens: At least there is an element of punishment here.
Barbara B. McDowell: There may well be, yes.
David H. Souter: And what is that element, simply the fact that he is required to report periodically, or what-not?
Barbara B. McDowell: Your Honor, that's part of it. That's not all that supervised release entails, however.
Antonin Scalia: He's deprived of certain liberties that ordinary citizens don't have, isn't that right?
Barbara B. McDowell: Well, he's required, for example, to maintain a job, to go to substance abuse counseling--
Antonin Scalia: Right.
Barbara B. McDowell: --not to leave the district without seeking permission from his probation officer or the court--
Antonin Scalia: Cannot carry firearms.
Barbara B. McDowell: --That's correct.
David H. Souter: What's the... what is the rehabilitative aspect of it? I mean, part of the Government's argument is that this is for his benefit to ease his transition back into society. Is there anything beyond what you have just described that helps him ease his way?
Barbara B. McDowell: Yes. For example, one of the standard conditions of supervised release, and one of those imposed in this case, is the defendant work regularly at gainful employment. The probation officer, working with the defendant, will put him in touch with potential employers, or with job placement agencies, and will monitor his performance on the job. This provides a certain amount of assistance and discipline to assist in his rehabilitation. Similarly, a condition--
David H. Souter: It's a lot like parole, then?
Barbara B. McDowell: --It's quite similar, in this aspect, to parole. Parole was different in that it was not a separate term of a defendant's sentence. It was simply served at the end of a term of imprisonment. That's why this issue didn't come up during the parole era.
Anthony M. Kennedy: If this defendant were to violate his terms of supervised release, what would be the maximum liability that he would have for that violation?
Barbara B. McDowell: Conceivably, at least 4 years. The period of... to which a defendant can be sentenced to imprisonment for a violation of supervised release is set forth in the statute. It's been held by several courts of appeals that terms of imprisonment upon revocation of supervised release can run consecutively, even if the terms of supervised release themselves run concurrently. So in this case, since there was supervised release imposed on the two drug counts, conceivably Mr. Johnson could be subject to 4 years. The Bureau of Prisons has, in fact, construed the crediting statute, 3585, to give a defendant whose supervised release has been revoked credit against his subsequent sentence for any time that he erroneously spent in prison previously. If there are no further questions, I'll reserve the remainder of my time.
William H. Rehnquist: Very well, Ms. McDowell. Mr. Schad, we'll hear from you.
Kevin M. Schad: Mr. Chief Justice, and may it please the Court: The respondent does not argue that it should... that the respondent should have... that the Government is entitled to its pound of flesh in this case. The problem with this case has always been that the Government has always sought 3 pounds of flesh where it's only entitled to 1. If you look at the procedural history of this case, the Government argued for two consecutive 924(c) charges which were later overturned by the Sixth Circuit en banc court. The original sentence in this case was 171 months' imprisonment with the 3-year supervised release. Upon the Bailey case we filed the 2255 motion and were able to overturn the other conviction, the 924(c) conviction in this case, but the Government has always consistently sought in this particular case to obtain more than which they are entitled to. If I can address Justice O'Connor's question to the United States with regards to the relief that the United States is seeking in this case, the request for relief in this case is somewhat vague in that the United States doesn't address how it is entitled to a particular kind of relief in this case. If you take the United States' position that supervised release began to run in May of 1996, then in May of 1999 of this year, supervised release will have ended whether or not he was actually on supervised release or not. There is no statute which says that the period of supervised release is tolled for the time in which the court of appeals case and the--
John Paul Stevens: What is the date May 1996? I want to be sure I follow you.
Kevin M. Schad: --In May of 1996 there was a bond hearing and Judge Gilmore of the United States District Court of the Eastern District of Michigan at that point overturned the 924(c) conviction. He was released on that date, May 2, 1996.
John Paul Stevens: I see.
Kevin M. Schad: And the Government's position, United States' position has been that supervised release began to run on that day, so if you take that starting date and play that out for the entire 3 years, then even now the United States is not entitled to any relief in this case.
Antonin Scalia: Well, why does the United States say that he is not on supervised release now? How do we know that he's not on supervised release?
Kevin M. Schad: Well, in... Justice Scalia, in fact the Sixth Circuit did overturn the portion of his supervised release in its decision of August of 1998, and the decision of the Sixth Circuit was transmitted up to the probation officer and in fact he has not been--
Antonin Scalia: I see.
Kevin M. Schad: --The probation officer has not been supervising him since August of 1998.
Antonin Scalia: And there's nothing in the statute that requires that suspension to be tolled, that requires the supervised release time to be tolled by reason of that suspension?
Kevin M. Schad: That's correct, Justice Scalia, and the Government, the United States did not seek to stay the Sixth Circuit's decision pending this Court's decision, so in fact, even if this Court were to decide that in cases under 3624(e) the term of supervised release only begins to run on the day they're actually released from prison, we would argue that it wouldn't make a difference in this particular defendant's case.
Ruth Bader Ginsburg: But it would until... you said it ran out in May 1999?
Kevin M. Schad: That's correct. That's correct, Justice Ginsburg.
Stephen G. Breyer: So that under... why do you... I mean, what are we arguing about? Isn't... under 3583 the unusual defendant who finds himself in your client's situation has a remedy. He goes back to the district court and he says, judge, I would like you to end the supervised release so it's only a year long, and during that year I would like there to be no conditions at all. So... and the judge has adequate power to do that, doesn't he, so what's the problem? And all judges are thoroughly reasonable and will come to the right decision-- [Laughter] --tendered towards the defendant, right?
Kevin M. Schad: Yes. To answer you question, Justice--
Stephen G. Breyer: It's possible not all judges are thoroughly reasonable, I agree with that. What--
Kevin M. Schad: --To answer your question, Justice Breyer--
Stephen G. Breyer: --Yes.
Kevin M. Schad: --even if there were no conditions of supervised release for that term of the year that this particular defendant would have to wait until supervised release was then terminated, he still has the problem of if he would commit another crime to the satisfaction of the probation officer he then can be brought up for supervised release revocation and be given the entire 3 years of supervised release at any time during that 1 year, so even--
Stephen G. Breyer: All right, so he has a special... that kind of special burden, and then let me ask you this question. Suppose a person is convicted of a crime, A, and he has two punishments, X months in prison and a $50,000 fine. Now, suppose he's also convicted of crime B, and he serves prison in crime B, and unfortunately that conviction was erroneous, so it's reversed after he receives some time. That's our basic situation. Not A, but B was reversed. All right. Does the Government now have to give his money back for the fine on crime A?
Kevin M. Schad: --Well, Justice Breyer, in that situation I don't know if crimes A and B are necessarily related to each other.
Stephen G. Breyer: No, they're not related at all.
Kevin M. Schad: Okay. As a good defense lawyer I would argue that they were entitled to a portion of the fine back. I would--
Stephen G. Breyer: So if he's fined solely on crime A, which has nothing to do B, and it turns out that B was erroneous, not A, he has to give back the money on crime A?
Kevin M. Schad: --I do not believe--
Stephen G. Breyer: The Government has to give it back?
Kevin M. Schad: --Yes. I do not believe that I could find support for that under the law but certainly I would--
Stephen G. Breyer: All right. I agree with you.
Kevin M. Schad: --Certainly I would make that argument.
Stephen G. Breyer: I agree with you, and I think it would be-- [Laughter] All right. That being so, how does supervised release for crime A differ from the fine?
Kevin M. Schad: In supervised... in the time spent--
Stephen G. Breyer: If you want to say, take the present case, I mean, that's what I'm--
Kevin M. Schad: --Okay. In taking the present case and applying it to those circumstances, we have a situation where unless this particular defendant gets credit off of his supervised release for the time that he spent in prison, he has no basis to obtain relief for the time that he had spent in prison.
Stephen G. Breyer: --You know, I... you see, my question is--
Kevin M. Schad: I--
Stephen G. Breyer: --if it doesn't affect part 2 of the punishment for the first crime, namely crime A, you know, why does it affect part 2, where the only difference is instead of a fine for crime A it's supervised release for crime A?
Kevin M. Schad: --I do understand your question, Justice Breyer, and I don't know that I have an adequate answer for it.
Antonin Scalia: Mr. Schad, if he's fined incorrectly for crime B, can he get the money back?
Kevin M. Schad: Yes. Yes, Justice Scalia.
Antonin Scalia: If he's incarcerated incorrectly for crime B, can he get the time back?
Kevin M. Schad: No, Justice Scalia.
Antonin Scalia: So it seems fair to give him the time back by not putting him in for the additional 5 years on crime A. That's a somewhat different situation, isn't it?
Kevin M. Schad: That's correct, Justice Scalia.
Antonin Scalia: The only way to give him the 5 years out of his life back is not to have the incarcerated release tolled against him.
Kevin M. Schad: Yes, Justice Scalia, and as a matter of fact there is no other way in this particular case, returning to the facts of this particular defendant, there is no other way to provide him with some relief for the time that he has spent in prison. The--
Ruth Bader Ginsburg: But what of the Government's argument that supervised release, although it may have a punitive aspect, is primarily designed to have the person monitored during his transition back into the community and, indeed, I think the Government says the serious business of the crime is not a factor in the term of supervised release, but rather the characteristics of the defendant.
Kevin M. Schad: --Well, Justice Ginsburg, in fact, when imposing a term of supervised release under the guidelines, the court is to look at the severity of the offense. There's classes of felonies that are... there's A, B, C, and D type class felonies, and depending upon the severity of the felony, that in turn makes the minimum supervised release term larger. So in fact the sentence itself, or the crime itself does have a bearing on supervised release, and although the respondent would admit that there are some rehabilitative aspects of supervised release, that doesn't mean that the converse is not also true, in that incarceration, although it's punitive in nature, does also have aspects of rehabilitation. In the Bureau of Prisons a defendant can obtain his GED while he's incarcerated, he can obtain a trade, he can work in UNICOR and obtain a trade that way, or he can go to a specialized vocational school, he can take classes such as family parenting and different classes like that, so in fact incarceration is also rehabilitative in and of itself also, so the mere fact that supervised release is not solely punishment does not mean that you cannot give credit one for the other in this case.
William H. Rehnquist: But there's certainly a difference in degree at least, isn't there, from the rehabilitative aspects of supervised release as opposed to a prison?
Kevin M. Schad: Yes. Yes, Mr. Chief Justice, and in fact in this case I am confident that the defendant would have certainly wanted to take the 2-1/2 years and served it on supervised release rather than be wrongfully incarcerated in this case.
David H. Souter: Mr. Schad, the difficulty I have with your position is this. If I thought we were writing on a totally clean or unwritten slate here, I would say yes, we ought to try to tinker with the mechanism of supervised release in order to give at least as much credit as can be given for what the Government wrongfully exacted from him. But the slate isn't clean, and when I look at the supervised release scheme in the statute I see that Congress in effect has said, there are two ways you can tinker with it. You can reduce the supervised release term down to a year, and you can, in fact, remove or eliminate some of the customary conditions of supervised release during the period in which it runs. And that seems to suggest to me that Congress is saying, this is the only kind of tinkering you can do. If you find equitable grounds to do these things, you can do them, but equitable grounds do not give you a basis for doing anything more than this, so it sounds to me as though Congress has in effect circumscribed and intended to circumscribe the court's discretion here. Is there an answer to that problem that I have?
Kevin M. Schad: Justice Souter, in this particular case, and with these particular facts, I would agree that Congress has spoken in those two particular areas, but in fact Congress presupposes... when it writes as to those issues it presupposes both a valid conviction and a valid term of supervised release. If you look at 3624(a) and 3624(e), both of those presuppose that there is a valid term of conviction and a valid term of supervised release. I would submit that Congress never considered, and in fact the Sixth Circuit also agreed with this--
John Paul Stevens: But isn't it true that we do have a valid conviction and a valid term of supervised release? He's already served the time on the valid conviction, but we do have a valid conviction.
Kevin M. Schad: --As to the... yes, as to the drug offenses he does have a valid conviction, but as to the 924(c) counts, it was not a valid conviction when it was originally imposed by the sentencing court.
John Paul Stevens: But the supervised release term is not dependant entirely on the 924(c) count, is it?
Kevin M. Schad: No. No, Justice Stevens.
Antonin Scalia: Suppose he's released improperly. There's an administrative snafu in the prison, and he's released prematurely from the sentence that he's validly serving. Does the supervised release time begin to run? While he's out, do they credit him for supervised release time?
Kevin M. Schad: Yes.
Antonin Scalia: They do?
Kevin M. Schad: Yes, they would, until the Government would bring him into court and request, I guess, anticredit--
Antonin Scalia: That he be reincarcerated?
Kevin M. Schad: --Yes.
Antonin Scalia: So if he's walking around free for a year because there's been an administrative mistake, and then they yank him back in to serve the rest of his sentence, he would have had a year knocked off of his later supervised release time?
Kevin M. Schad: That's correct, Your Honor, yes. The bottom line in this case is that the court... the United States is reading 3624(e) and reading that sentence alone, and states that the Congress was clearly unambiguous when it wrote 3420... 3624(e). If you look at petitioner's appendix 26a, where it puts the entire 3624(e) in, if you look at the last sentence of... of 3624(e), it states that no prisoner shall be released on supervision unless such petitioner... prisoner agrees to adhere to an instalment schedule, not to exceed 2 years except in special circumstances, to pay for any fine imposed for the offense committed by such prisoner. Under a literal reading of that portion of 3624(e), a defendant would not be released by the Bureau of Prisons until it agreed to this... until it agreed to this fine schedule, regardless of whether their sentence of imprisonment had already run. And that, if we're going to read 3624(e) literally, all the way through, then under that literal portion we have the same problem that Justice Scalia talked about in a person being wrongfully imprisoned just because the Bureau of Prisons didn't like them or whatever. We have the same exact situation, if you read that literally. Of course, that's not what Congress intended, and the cases that I've cited indicate that if Congress' intent is contrary to what the plain language of the statute says, then in fact this Court can read it to construe the statute to Congress' intent, and I--
Antonin Scalia: Whereas, what do you think the situation is, if he says, heck, no, I won't sign? What is the prison official supposed to do?
Kevin M. Schad: --Well--
Antonin Scalia: Turn him loose anyway?
Kevin M. Schad: --Under a literal reading of 3624(e) it would appear to me that he has to hold them until he agrees to sign, regardless of the prison term.
Antonin Scalia: Hold him until the supervised release period is over?
Kevin M. Schad: That's correct. Well--
Antonin Scalia: In other words, if he refuses to sign, you convert his supervised release into an additional term of imprisonment.
Kevin M. Schad: --And that's the--
Antonin Scalia: Which seems to me fair enough. Why is that an absurd result? I mean, the deal is, we'll give you supervised release if you agree to this. If you don't want to agree to it, fine, we won't give you supervised release. We'll keep you right here. That seems to you very unjust?
Kevin M. Schad: --Yes. Yes, Justice Scalia, it is unjust because it's not necessarily one of the terms of their supervised release in--
Antonin Scalia: Oh, but it says that. It says that.
Kevin M. Schad: --Yes.
Antonin Scalia: No prisoners shall be released... it seems to me what they're telling the prison official is, if he doesn't agree to pay, to pay the fine he owes, convert his supervised release time into additional imprisonment time.
Kevin M. Schad: And in effect what you would have under that circumstance is, you would have a Bureau of Prison official making the decision as to, incarcerate the defendant for a longer period of time without any hearing, without any due process. It would just be that this determination was made, therefore we're holding him for the balance of the term.
William H. Rehnquist: Perfectly consistent with the process set out in the sentence. He has not complied with something that the Congress has said he has to comply with for supervised release. I don't see any due process question there.
Kevin M. Schad: Mr. Chief Justice, when a defendant is accused of violating the terms of his supervised release, once he is out he then has a hearing before the United States district judge and he can defend himself, he has the right to counsel, and only after a finding that he has in fact violated the terms of his supervised release can he then be reincarcerated, and it's up to the judge, the sentencing judge to not only find the term of... or find the revocation but also find the new term.
William H. Rehnquist: Well, very likely, if he felt that he had agreed to the installment schedule and the prison official was just being arbitrary and not releasing him, he would have an action for habeas corpus, the district court to tell him that he's no longer being properly incarcerated, but that doesn't go to whether Congress can exact that sort of a condition. You're saying if the prison official improperly passes on the facts he should have a chance to challenge. Of course he does, but if the prison officer is right on the facts, the guy should stay.
Kevin M. Schad: Mr. Chief Justice, I'm submitting that in fact no... Congress did not intend for the result that the plain language of the statute intends. They didn't enact part of 3624(e)--
William H. Rehnquist: What's the best talisman, or index for deciding what the intent of Congress was? What better than the words they chose?
Kevin M. Schad: --Yes, Your Honor, you have... but in order to look at the Congress' intent, you not only have to look at the exact... or the language that we're speaking of, but you have to look at the overall structure of the statute and the related statutes that are imposed at the same time.
William H. Rehnquist: Why is this inconsistent with the other provisions, the provision... the last sentence, that you say they couldn't possibly have meant literally?
Kevin M. Schad: Well, because in any other circumstance the defendant in violation of a supervised release term is entitled to the full due process rights. This would be the only circumstance in all of the United States Code in which a defendant would not be entitled to the due process of going before the judge and having the right to counsel. This would be the only one, if in fact that was the case.
Antonin Scalia: I don't understand what the alternative that you think Congress had in mind is.
Kevin M. Schad: Well--
Antonin Scalia: If Congress didn't want them to keep the guy until he signs the agreement, which they say he must sign, what was... what is... what are you supposed to do, torture him until he coughs up the agreement? What--
Kevin M. Schad: --No, Justice Scalia.
Antonin Scalia: --What is your alternative? How do you think that sentence ought to be played out?
Kevin M. Schad: I would submit that--
Antonin Scalia: The guy says, heck no, I won't sign.
Kevin M. Schad: --I would submit that any Bureau of Prisons official is, even if they do not sign is going to release them and then probably--
Antonin Scalia: In violation of the law, which says no prisoner shall be released unless he agrees to adhere to, and he hasn't agreed to.
Kevin M. Schad: --Yes. I believe that any Bureau of Prisons official--
Antonin Scalia: And that's your... that in your mind gives a more reasonable interpretation of this statute?
Kevin M. Schad: --Yes. Yes. But--
Anthony M. Kennedy: Are you helped by the second-to-last sentence, in your view, which does conceive of the proposition that there can be concurrent running--
Kevin M. Schad: --Well--
Anthony M. Kennedy: --and you would say this is not in connection with a conviction, so that sentence is inapplicable?
Kevin M. Schad: --Yes, Justice Kennedy. One of the arguments that the United States has made is that no part... that supervised release and detention are antonyms, and therefore they can never be run concurrently with each other in--
Anthony M. Kennedy: And you say the statute itself acknowledges that possibility in the 30-day context when it is in connection with a conviction, and you would have to say this is not in connection with a conviction.
Kevin M. Schad: --That's correct.
Anthony M. Kennedy: The excess time.
Kevin M. Schad: That's correct, and with regards... one item that we haven't looked at is the... how 18 U.S.C. section 3742 plays out, and how in the case where a defendant is... where we're not looking at a retroactive application of Bailey, but we're looking at a guideline sentence that was imposed erroneously, if a defendant receives a term of, let's say, 3 years imprisonment and a 1-year term of supervised release, then if he... if that defendant does not get through the appellate process by the time the 3 years imprisonment have occurred, then the case is mooted and the defendant in that case is not entitled to any relief.
Ruth Bader Ginsburg: Why is that so? Aren't there collateral consequences to a criminal conviction that would still entitle the defendant to appeal?
Kevin M. Schad: Well, the question would be whether or not in that case there is enough to obtain jurisdiction. The only collateral consequence that some of the cases that I've cited to talks about, there's two consequences that they say are a result of that. One of those is the fact that supervised release can be credited against for the wrong term of imprisonment, and then the second part of that is in the situation where, if a future crime is committed, that the length of this sentence could have impact on the length of the future sentence. But then you're getting, if the only collateral consequence is that particular matter, the length of the sentence affecting the length of a future sentence that may occur somewhere down the road, then you're getting to the point where there might not be a case or controversy sufficient enough for a court of appeals to decide the matter. So that collateral consequence is the only one that's discussed. If that's the only collateral consequence that we're talking about, I would have a question as to whether or not the court of appeals could even have the case, or whether it would be mooted at that point. In the case where a defendant received a term of under a year, then conceivably that part of it wouldn't even make a difference, because it might not make any difference on his future sentence, so you have a situation where you have a defendant who's obtained a wrongful guidelines sentence and has no way to vindicate that wrongful sentence under 3742, which Congress clearly intended to be allowed.
Ruth Bader Ginsburg: As far as the guidelines are concerned, wasn't there a change made in response to whatever was the court of appeals decision to say that you can't go back any further than time served?
Kevin M. Schad: Yes, Justice Ginsburg. That was in response to the United States v. Blake case, which was one of the cases that we cited, and I would submit that that's further evidence that the Sentencing Commission believed that you could provide credit against supervised release, otherwise they wouldn't have made the change in the sentencing guidelines to take care of that particular problem.
Ruth Bader Ginsburg: Why not? If they have one... had precedent going the other way they'd want to remove any doubt on this subject.
Kevin M. Schad: That would be the case if, in fact, that particular guideline was made retroactive, which it was not under 1B1.10.
Antonin Scalia: Mr. Schad, would the apparent unfairness of this thing... at least I consider it apparently unfair... be remedied if we held that it would be an abuse of discretion for a judge not to exercise his option to remit the supervised release time?
Kevin M. Schad: Justice Scalia--
Antonin Scalia: I mean, it is within his discretion, but couldn't we say it would be an abuse in these circumstances not to--
Kevin M. Schad: --Is Justice Scalia referring to the 3583, the credit after the 1-year term of... the early termination provision?
Antonin Scalia: --Right.
Kevin M. Schad: Well, the problem with that, Justice Scalia, is that--
Antonin Scalia: You still get 1 year.
Kevin M. Schad: --first you have to serve a year.
Antonin Scalia: You still get 1 year.
Kevin M. Schad: Before you can even ask. So you have that problem, and in this particular defendant's case it would make a difference, because he only had 6 months to go at the time that he was released, if he would have gotten the full credit, so he would have had to serve an additional 6 months before he could--
Antonin Scalia: Before he could even ask, right.
Kevin M. Schad: --And then we still have the problem with the judge's discretion, and even if it's under abuse of discretion standard, by the time a particular defendant could get it up to the court of appeals, then we... he would more than likely serve a lot of his term anyway.
William H. Rehnquist: Well, on the other hand, if the Government... if the judge wrongfully allows him, the Government would have a long time to get it up to the court of appeals, so that works both ways.
Kevin M. Schad: That's correct, Mr. Chief Justice. If there are no further questions, thank you.
William H. Rehnquist: Thank you, Mr. Schad. Ms. McDowell, you have 17 minutes remaining. The only question I have, Ms. McDowell, is how do you interpret in connection with the conviction in the second-to-last sentence? Do you say that this sentence that was being served here was in connection with the conviction, the excess portion?
Barbara B. McDowell: Yes, it was.
David H. Souter: Ms. McDowell, how do you... how would the Government construe this situation, which came up in one of the hypotheticals: An individual is prematurely released. It's a mistake. During the period of release, the individual is on supervised release. Then the mistake is recognized, the prisoner is hauled back and reincarcerated to serve some remainder of time. Under those... and ultimately, of course, he's released again. When the prisoner is released, this time properly, is there a credit against the supervised release time for the period of supervised release between the two incarcerations?
Barbara B. McDowell: I don't believe that the situation has ever come up. If the defendant was actually serving supervised release under the supervision of the probation office--
David H. Souter: Yes. He signed the form and they supervised his job and so on. They did... everything was done, so he was actually being supervised during the period of the release. Would he get credit for it when he was released the second time?
Barbara B. McDowell: --He might well, Your Honor, because under the wording of the statute his term of supervised release would have commenced upon his first release from prison. It then would have been tolled when he went back to prison for the period that he was spending there, and then would start up again once he was released--
David H. Souter: Well, that serves the--
Barbara B. McDowell: --so I think it's possible it would be construed that way to give him credit.
David H. Souter: --That serves the literal terms of the statute, which is your argument, but it does sort of undercut the theory that we need to be literal about the terms of the statute, because the prisoner in effect is in need of this supervision for whatever period of time is prescribed, and so it would seem that the literal interpretation and the rationale for being literal seem to be at odds with each other in that situation.
Barbara B. McDowell: Well, the district court would still have the opportunity, if it appeared necessary to extend the defendant's term of supervised release, if it appeared necessary to serve the deterrence and rehabilitation purposes beyond the term that was initially imposed, unless it was already--
David H. Souter: And hence would--
Barbara B. McDowell: --to a maximum.
David H. Souter: --Would likewise, then, have discretion I presume, on your theory, not to give any credit at all.
Barbara B. McDowell: Effectively not to do that by lengthening a term of supervised release. However, if it was a case where there was a maximum time of supervised release that the defendant could serve, if he had served, say, 1 year before he went back into prison there might be a limit beyond which the district court couldn't go in extending the period--
David H. Souter: Basically I guess your argument is, no system is perfect, but we're going to get closer to what Congress intended if we just be literal about this. That's what it boils down to.
Barbara B. McDowell: --That's correct, Your Honor.
Antonin Scalia: Of course, your answer really doesn't make everything work out okay. If he is subject to parole on another conviction, maybe even from another sovereign on a State conviction, the statute provides that his Federal supervised release shall run concurrently with that other parole or supervised release, right?
Barbara B. McDowell: That's correct.
Antonin Scalia: So suppose he has 2 years parole on a State conviction he has to serve after he's done his Federal sentence, okay. He also has a 2-year Federal supervised release sentence. They let him out early. He serves his 2 years Federal supervised release, which he would normally have been serving concurrently with his State parole for 2 years, right?
Barbara B. McDowell: Right.
Antonin Scalia: Okay. You find out the mistake, you bring him back in, he's going to have to serve another 2 years of supervised release, isn't he, or parole? He'll have to serve his State parole even though... see what I mean?
Barbara B. McDowell: That would be a matter of State law.
Antonin Scalia: He will have lost 2 years of freedom, in effect.
Barbara B. McDowell: Oh, whether he would still have to spend the term of State parole or not would be a matter--
Antonin Scalia: Up to the State.
Barbara B. McDowell: --of State law for... the State judge might decide that he would not have to serve in those circumstances-- On the--
John Paul Stevens: May I ask kind of one... just ask you to comment on one thing? One of the things that's troubling all of us, I think, is the extent to which the supervised release is really the functional equivalent of what... the time he's already served, or its... in its punitive aspects, and one of the provisions of the statute that provides what goes into the supervised release is the kind of a catch-all provision that the judge can impose any other condition it considers to be appropriate. Is there... is that as unlimited, in your view, as it sounds? I mean, could the judge require him to report every 3 days instead of every 30 days, and so forth?
Barbara B. McDowell: --Yes, Your Honor, if the judge felt that that was necessary to serve the purposes of supervised release. In addition to the statute, the Sentencing Guidelines set forth the standard conditions of supervised release that should be imposed in most cases, and that provides a little more clarity to what's in the statute.
John Paul Stevens: Do the standard conditions include a consent to warrantless searches and that sort of thing?
Barbara B. McDowell: Essentially it's a consent that the probation officer may visit the defendant's home and seize whatever he happens to find there.
John Paul Stevens: Unannounced visits and that sort of thing.
Barbara B. McDowell: That's correct. On the point that a term of imprisonment may serve some of those same rehabilitative purposes as supervised release, that may be true, but supervised release is, indeed, different, because the defendant is living in the community. It's only then that he can be expected to maintain a regular job, to receive the outpatient drug counseling that he may need, to meet his child support and other family obligations. It's one thing, for example, for a defendant to remain drug or alcohol-free when he's in prison, where drugs are not available at all, or available only in rare circumstances, and where he is under constant and pervasive supervision. It's quite another matter for the defendant to avoid use of drugs and alcohol when he's back in the community, subject to the same pressures and influences and temptations that got him into trouble in the first place. That's one of the many reasons why supervised release is different, and why it is necessary as a rehabilitative measure. On the point that Mr. Schad raised about the possible mooting of the case, the court of appeals held that the defendant's term of supervised release had terminated upon the issuance of the court of appeals decision. At that point, he still had approximately 9 months to serve on supervised release. Given the court of appeals opinion, it would be incorrect to assume that the defendant was still continuing in some manner to serve his term of supervised release, albeit without any sort of supervision by the probation office. In terms of holding defendant if he fails to agree to the payment, to a fine schedule, it's our understanding that the Bureau of Prisons indeed will hold defendants in those circumstances for the period of supervised release if they don't agree to a fine schedule.
Antonin Scalia: Instead of torturing them. I'm glad to hear that. [Laughter] I thought they'd probably do that.
Barbara B. McDowell: In terms of Mr. Schad's point on the necessity for a crediting rule in order to preserve appeals, Congress, as we pointed out in our reply brief, as dealt with that problem much more directly in 18 U.S.C. 3143, which provides for a defendant to be... remain on release status pending his appeal if it appears that otherwise his sentence could expire before his appeal is decided. That, of course, is available only in particular circumstances where the defendant is not a threat or a risk of flight, and where he has some likelihood of prevailing on his appeal. Finally, Justice Scalia had inquired whether an abuse of... it might be held to be an abuse of discretion if a district court refuses to release a defendant in these circumstances after 1 year. The statutory language doesn't seem to allow that sort of rule, because it requires the district court to consider not only the interests of justice but also the conduct of the defendant, and if the defendant's conduct does not warrant the elimination of all supervised release at that time, it would be inappropriate to release him. The statute requires that the district court take into account a number of factors in deciding a motion under 3583(e)(1). That includes not only the interests of justice, but also the protection of the community and the defendant's continuing rehabilitation needs. Thank you.
William H. Rehnquist: Thank you, Ms. McDowell. The case is submitted.
Speaker: The Honorable Court is now adjourned until Monday next at 10:00.


Warren E. Burger: Number 403, United States against Van Leeuwen. Mr. Solicitor General, you may proceed whenever you’re ready.
Erwin N. Griswold: May it please the Court. This is a criminal case here on certiorari from the United States Court of Appeals for the Ninth Circuit. It involves an interesting and novel question under the Fourth Amendment with respect to search and seizure. The facts, the underlying facts in this case occurred on March 28 and 29, 1968. On that day, not quite two years ago, at 1:30 pm at the United States Post Office at Mt. Vernon in the State of Washington, the respondent appeared, deposited for mailing two heavy packages, 12 pounds each. It is relevant that the post office at Mt. Vernon, Washington is in the western part of the State of Washington and about 60 miles south of the Canadian border. One of these packages was addressed to a post office box in Van Nuys, California and the other two to a post office box in Nashville, Tennessee. Both bore a return address in a neighboring town adjacent to Mt. Vernon. Postage was paid at the airmail rate. The packages were registered and insured, each one for $10,000.00, a total of $20,000.00 for the two, and in response to a request from the post office clerk, it was declared that they contained coins or a coin collection. The post office clerk was suspicious and he immediately advised an officer of the Mt. Vernon police who happened to be in the lobby of his suspicions, and Captain Belgard of the police observed the car departing and noticed that it had British Columbia license plates. The package was then examined and the police captain and the post office clerk were both aware of the fact that the address given on the package was of a nearby -- a junior college of quarters which had been unoccupied for several weeks.
Warren E. Burger: That was the address here, the return address?
Erwin N. Griswold: The return address, the return address. Captain Belgard then perhaps somewhat surprisingly telephoned the Canadian Royal Mounted Police and not the U.S. customs or the FBI, but he telephoned the Canadian Police in Vancouver and it was the Canadian Police who put in a call to Mr. O’Hearn, the Customs Officer-in-charge at Seattle, Washington, and the details so far as they were known were thus transmitted to Mr. O’Hearn in Seattle. By this time, it was about 3 o'clock in the afternoon and Mr. O'Hearn then put in a telephone call to the Customs Office in Van Nuys in California, and he was advised that the addressee of the package being sent there was under investigation for dealing in illegal coins. By the time he had completed that call, it was beyond the closing time in Nashville, which I believe is three hours in advance of Seattle; it may be two, and Mr. O'Hearn then delayed until the following morning in calling to Nashville, the morning of the 29. He got similar information from the Customs Officer in Nashville. I believe he had to do that through Mobile as a matter of fact since the headquarters was in Mobile. Mr. O'Hearn then prepared the affidavit for a search warrant, which appears on page 5 of this record and of course, the preparation of that took time both for composition and for typing. It was then presented to the United States Commissioner in Seattle, and that of course took time to find the Commissioner free from other responsibilities and to give him time for consideration. At 4 o'clock in the afternoon of the following day, March 29, the Commissioner issued a search warrant in Seattle. Now, Seattle is some 60 miles south of Mt. Vernon and Mr. O'Hearn took the search warrant to Mt. Vernon and there served it at 6:30 pm on March 29, which is about 29 hours after the events first began when the package was deposited in the post office in Mt. Vernon. And the problem arises because the package was held in Mt. Vernon and was not forwarded at once through the usual United States Post Office channels. When the warrant was served, the packages were found to contain several hundred gold coins. The packages were resealed, sent on to the addressees, they were refused by the addressees and were returned to the post office in Mt. Vernon. Now, other evidence at the trial showed that the respondent had in fact imported these coins. There was a motion to suppress the evidence of the gold coins, which was denied by the District Court. The respondent was convicted of a violation of the Customs Laws in having imported the coins without a proper declaration, and an appeal was taken to the Court of Appeals for the Ninth Circuit. That Court held that the evidence should have been suppressed on the ground that the delay in holding the coins in Mt. Vernon for 29 hours was unreasonable and a violation of the Fourth Amendment and that is the sole issue which is now before the Court on the government's petition for certiorari. Before going further, let me simply recall the simple words of the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue, but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. And here of course, a warrant was issued, on probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. This is not a case of search without a warrant. Here, there was a search with a warrant. The problem arises because the police officers were careful. They took the time to be sure that they had the proper facts and because the post office employee cooperated in that process by holding the package at Mt. Vernon, Washington. Now, it could of course be said that once the package was in the custody of the post office, it should have been sent on and somehow or other, the officers could have followed it and kept track of it and before it was actually delivered at their respective destinations, these various inquiries could have been made. The logistic and manpower problems involved and that the number of people required in at least three or four different locations as such as it seems to me to make that approach not a reasonable requirement under all circumstances. Now, there is an aspect of this case which seems to me to be of very considerable importance. Last June, this Court decided the Shamel case, and curiously enough also involving coins. I don't know whether coins have become a special target in this area and in the Shamel case, some of the prior decisions of the Court with respect to the extent to which a search without a warrant may be made incident to an arrest were sharply cut down. And there is a consequence of the Shamel case, which I assume is going to have to be presented in later cases. That is the extent to which granting that the police cannot conduct an extensive search and seizure in the premises incident to an arrest, to what extent can the police officers impose a stillstand on the situation? Lock the door, keep people from entering and leaving, prevent people inside the premises from destroying evidences while they go through the necessary process obviously requiring under current conditions of several hours of preparing a warrant -- an affidavit for a search warrant under -- in many cases, this will require not merely the police officer but participation by a lawyer and assistant United States attorney or appropriate state officer, typing, finding a magistrate, submitting it to him, and giving him an opportunity to consider it, and then upon it's issuance, the opportunity to serve. And unless there is some opportunity to impose a stillstand, not to seize but simply to hold things in the status -- status quo, the evidence in many of these cases will be destroyed and the opportunity to make an effective search will evaporate. Now, that is not this case. This has nothing to do with a search incident to an arrest. This is a situation, however, where post office employees in association with other governmental officers, did preserve the situation in status quo by not sending on the package in the normal processes of the U.S. mails. I would point out too in the consideration of this matter as bearing on the reasonableness of their action that there is no communication involved here. There is no letter. There is no transmission of intelligence. This was simply goods, simply gold coins. The delay of 29 hours in the delivery of a package is not unprecedented and there is nothing to indicate that it was a matter of any seriousness to anyone involved. Now, it's curious, though I suppose explainable because of the development of -- the recent development of cases like Shamel, but it's curious that it's almost impossible to find any indication in the decisions in this Court or elsewhere of the extent to which the police may take steps to preserve the status quo while warrants are being obtained. Back, a generation ago in Taylor against the United States, this Court pointed out that “a short period of watching during the time required to secure a search warrant could have prevented the possibility of any change in the premises from which government agents had smelled the order of whiskey. ” And in the Trupiano case in 334 U.S., the Court striking down a search without a warrant noted that a warrant could have been obtained without any risk of removal since one of the agents, and I quote, “was on hand at all times to report and guard against such a move. ” Now, there were no issue in those cases as to the validity of a restraint which might have been imposed while a warrant was being obtained, but the Court in those cases seemed to feel that such a restraint would have been not only natural and understandable, but justifiable.
Byron R. White: You could have -- you could have gotten a warrant and seized the package on the other end of the shipment, I suppose, couldn't you?
Erwin N. Griswold: Yes, Mr. Justice. I mentioned that in stating the facts, but the problems of tracing and keeping track of, and a number of people involved and frankly, I don't know whether a warrant issued by United States Commissioner in Seattle is valid in Van Nuys, California or in Nashville, Tennessee, whether it might not have had to be presented to a commissioner in those places. One of the charges against this warrant now pressed, I believe is that it was based on hearsay and on facts not within the knowledge of the affiant. It would of course be of far more extreme as you got two officers in California and in Nashville, Tennessee. It would have involved a great many -- more people, and our position is that the limited delay in this case, not six months, not a week, 29 hours, or not much more than overnight was not unreasonable under the circumstances, particularly when it was the consequence of the fact that the officers were trying to do their duty carefully and thoughtfully, were seeking to obtain a search warrant, were trying to discover the facts so that if there was no basis for a warrant, that would not be obtained. And our view is that to impose a requirement that you must send the things on and then try to catch them before they're delivered would be too technical, required too much expenditure of manpower, too much risk of loss. When the suspected material is in the custody of the United States and rightly so, this reasonable -- this period seems to us to have been a reasonable one.
Warren E. Burger: I suppose it doesn't weaken your position in any that the articles were in and of themselves contraband? That is, they were articles which were unlawfully in the possession of the mailer having them smuggled across the line?
Erwin N. Griswold: Well Mr. Justice, I thought about that argument and I'm not sure that I can say that gold coins as such are contraband.
Warren E. Burger: Is it smuggle --
Erwin N. Griswold: I suppose any United States citizen who has a collection of gold coins, can legally transmit them by mail to somebody else, to a dealer –-
Warren E. Burger: Across -- across the line from Canada?
Erwin N. Griswold: Here, we have only the suspicion that these have come across from Canada. We have grounds for believing that they have come across from Canada but they were in fact deposited in a United States Post Office 60 miles within the United States.
Warren E. Burger: But if you were sustained here, your position is sustained, what happens to the coins? Are they forfeited?
Erwin N. Griswold: I believe they would be forfeited under the Customs Law, Mr. Justice, Mr. Chief Justice.
Potter Stewart: Isn't it illegal to possess gold coins, quite a part from the Customs Law?
Erwin N. Griswold: No, Mr. Justice. I understand that there are exceptions to the gold statutes and regulations under which coins bona fide held for collecting purposes are perfectly legal. Indeed, I see them advertised in the papers and I think that for $95.00, you can now buy a $20.00 gold piece which --
Potter Stewart: I thought there was a time, almost a generation ago when everybody was required to turn in all these gold?
Erwin N. Griswold: Yes, yes, Mr. Justice.
Potter Stewart: And thereafter, it was illegal to possess them?
Erwin N. Griswold: But there was an exception of bona fide collectors' items, whether that was due to the fact –-
Potter Stewart: I am very -- very happy to hear that because I was disturbed the other day when I found a $5.00 gold piece in my safe deposit box. [Laughter] It was given to me when I was ten years old.
Erwin N. Griswold: Well, that raises all kinds of questions about self incrimination that I -– that I don't think we need to go into here. In some ways, the case which seems to me to be the closest is the Terry case, it's Terry against Ohio decided two years ago. I think I would like, before referring to Terry case however, to make reference to Mr. Justice White's dissenting opinion in the Shamel Case because he did, there deal more extensively than I've been able to find any place else with what I regard as the underlying problem here. Now, it is true that he was using it as an argument that the search without a warrant should be valid and he was in the minority on that, and we are not contending here that a search without a warrant is valid. But on page 774 of Justice White's dissent, he said, “When there must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search. And on page 775, he says, “Moreover, had the police simply arrested the petitioner, taken him off to the station house and later returned with a warrant, it seems very likely that the petitioner's wife, who in view of petitioner's generally garrulous nature must have known of the robbery, would have removed the coins. Now, our position is that, our contention, our suggestion is that that argument not having prevailed, there nevertheless remains open this question which I call of the opportunity to impose the stillstand. Now, just how that can be done, what manpower's involved, what force can properly be used remains to be seen? But we contend here that in a different situation where the goods are already in the custody of the United States, having been confined to the -- confided to the United States Mail that it is appropriate for the officers of the government to preserve the status quo while the warrant is being carefully and thoughtfully obtained. Now, I would like to refer to the Terry case itself because that is a case which goes into these questions of unreasonable search and seizure, the meaning of unreasonable where you do not have an arrest or a seizure involved. In the Terry case, you remember the problem was of the power of the police to take action short of an arrest by way of what is popularly known as stop and frisk, by way of patting a man's clothes to see whether he was armed and on finding a hard object, reaching in and removing it. And in that opinion, Chief Justice Warren discussed at some length the difference between the cause required to obtain a search warrant, which would be probable cause to -- or an arrest warrant, it would be in that case -– a probable cause to believe that a crime had been committed and the cause which was required for a police officer to take this interlocutory step. And it really comes down to this, whether there was probable cause for suspicion with respect to the commission of a crime and the safety of the police officer. I won't take the time to quote from that opinion, particularly on pages 21 to 24. Only by way of analogy, but by considerable analogy, there is discussion of this shorter step of this step short of an arrest or of a procedure and we feel that there is a substantial support in the Terry case for the proposition that the step taken here, and the only step against which complaint is made is the holding of the package for 29 hours and it would've had to be held for a substantial portion of that at the very best, but that was not unreasonable.
William J. Brennan, Jr.: But Mr. Solicitor General, I gather the justification in Terry that was emphasized was the safety of the officer, wasn't it?
Erwin N. Griswold: Yes, Mr. Justice --
William J. Brennan, Jr.: Do we have anything comparable to that in this situation?
Erwin N. Griswold: No, there's no question of safety here, but it is suggested that the only duty of a post office clerk is to send the package on forth with and I suggested if on the exam -- on handling the package in the process of putting it into the mail bag and he hears it ticking that he may find it quite reasonably that he has some duty other than to send it on –-
William J. Brennan, Jr.: What I'm getting at is I wonder if the result reached in Terry would have been reached if that factor of the safety of the officer was not involved?
Erwin N. Griswold: I think perhaps not. I'm not suggesting that Terry is a precise analogy. I am suggesting that it is an application of –- or a determination of what is reasonable conduct under the circumstances, and our suggestion is that in this case, not involving a communication, nothing about the First Amendment, simply goods in transit but to delay them for a day in the process of being careful in seeking a search warrant and then seeking a search warrant through the judgment of an independent magistrate is not such unreasonable conduct as to violate the Fourth Amendment.
Byron R. White: But isn't the analogy the Terry more with the stop rather than the search?
Erwin N. Griswold: Well yes, Mr. Justice, I suppose it is with the stop and the search, although the –-
Byron R. White: Because safety or not, they could still stop him, could still stop the –-
Erwin N. Griswold: Yes. Of course, the stop is only for seconds.
Byron R. White: Well, it's for long enough perhaps to ask him a question?
Erwin N. Griswold: Long enough to ask him with questions and we have a somewhat longer time here.
Warren E. Burger: Mr. Davis?
Craig G. Davis: May it please the Court, Mr. Chief Justice. I find this argument most interesting as presented. I wish I could concur wholeheartedly. Were I to concur this case would be moot and in the Court I would seek to have it dismissed, but I submit that is not the case. I will try and hit the points as we go along very carefully. First of all, let me point out with tongue and cheek as did Judge Chambers of the Court of Appeals that I, too, am not too much dismayed by delay of my mail because oftentimes, it is delayed for longer than 29 hours. But he held in concurring opinion that this was done without judicial authority here and that the delay was intentional. Now, I submit there is a distinction between the intentional delay of one's mail protected by the Fourth Amendment and the delay of one's mail which is unintentional. Let us review the facts in this very carefully. Time is of the essence in this case. First, let me point out that Vancouver, British Columbia is but 60 miles from Mt. Vernon. I know I've traveled this distance to be here with you today. I know that it takes but one hour with maybe a few minutes at Customs to come across. I do know that one must declare items at the border. We do know that these packages were 9 and 11 lbs. respectively, and we see that the petitioner's name or rather the respondent's name is Gerritt Johannes Van Leeuwen. I ask you to look at that name, G.J. Van Leeuwen, and he used as a non de plume, as a return address G.J. Williams. I have found no law, no case authority, and though I'm lawfully ignorant, but I find nothing to tell me that I cannot use a non de plume in sending out a package. He has used an address that is proper, but I submit that I can use your return address if I so wish and have my mail returned there. I know of no law saying I cannot use your own home address –-
Warren E. Burger: But will it disturb you very much if law enforcement officers take a -– have certain reactions to that when they see it? You suggested this does not give some justification for their wondering why?
Craig G. Davis: Sir, if it were brought to the law enforcement officer's attention by yourself and my using your return address, I would say yes, it should be in their hands, but otherwise, I would say it is not their business. They have no reason to be inquiring. Furthermore, if we have a situation where, as we have here, that a man declares them to be coins, and I would suggest that Mr. Justice Stewart do not mail that coin through the mail as it may be smuggled, he hasn't checked it out yet because if it were, he may be in the same position that Van Leeuwen is, but coins are legal here in the United States as numismatic items. This man declared this package to contain coins; he did not lie. He did not go so far as to declare them to be gold coins. He did not declare them to be brought across the border and testimony at the trial interestingly enough showed that the packages are sitting on the counsel car right between the two passengers. Now, mind you, he's mailing this at 1:30. Here we are in a small post office, a first class post office, a focal gathering point for all of Skagit County, and he's mailing two packages registered mail. Now, what's so unusual about registered mail? If you had an item so valuable, certainly you would register it because the maximum insured value is $200.00, unless you declare otherwise. Wouldn't you insure your coin collection? Certainly, any one of us would. But the postal clerk is suspicious, the return address is not one that is occupied. How he happens to know this, probably because it's a small community. Probably because this is a student housing center for the junior college there. This may be how he knows it, and there are –-
Warren E. Burger: But are you –- are you now addressing your arguments to the lack of probable cause to be concerned about any of this?
Craig G. Davis: I'm addressing my own remarks, sir, not only to the lack of probable cause because I'm attacking this on two basis. One, the affidavit being insufficient and two, the detention of the packages for 29 hours, either one of which I submit would be more than sufficient to confirm the Court of Appeals.
Warren E. Burger: Well, this Court on a number of occasions and many other Courts similarly have said that in probable cause, you add up a total of the great many often insignificant things to reach your conclusion. Now, when he added the coins to the false return address, to the fact that the car had a Canadian license, do you think that began to mount up the charge with what the courts talked about in terms of the total of probable cause?
Craig G. Davis: Oh, very definitely, sir, very definitely. I would look as concerned as any law officer who had these facts before him, who would not seek to entertain further doubts and would not seek to resolve this. I would question his integrity. No, these are all very pertinent. They are cumulative snowball effect, but I submit that the snowball is around the government, and here's why. These facts were known, 1:30 he mails it. These facts were known to Captain Belgard who in turn calls the RCMP in Vancouver because there had been a recent burglary of a coin shop up there; he just checked. RCMP in turn does a quick cursory investigation, calls Customs Officer O'Hearn in Seattle, Chief Agent-in-charge. This by 2:30. He relates the following facts to Customs Officer O'Hearn, (1) two packages, (2) gold coins, (3) fictitious address, (4) fictitious addressee, (5) registered mail, (6) return addressees. O'Hearn, being the superlative agent that he is, immediately gets on the phone and calls Van Nuys, California and ascertains that one of these addressees is a suspected trafficker on illegally obtained gold coins. How can a man work faster? I take my hat off to him and I submit at this time, he had probable cause to get a search warrant.
Thurgood Marshall: What time? How many hours? Five hours?
Craig G. Davis: Five hours? No sir, he worked –-
Thurgood Marshall: Two hours?
Craig G. Davis: …faster than that. One hour and five minutes.
Thurgood Marshall: One hour and five minutes?
Craig G. Davis: One hour and five minutes.
Thurgood Marshall: You find nothing wrong as of that time?
Craig G. Davis: I find nothing wrong. In fact, I find it to be very commendable.
Thurgood Marshall: And it took a little time to type an affidavit up, didn't it?
Craig G. Davis: 24 hours later, it did.
Thurgood Marshall: It does take time to type an affidavit?
Craig G. Davis: It does, sir.
Thurgood Marshall: And to recheck, it's –- so how many hours would you think would be maximum in this case?
Craig G. Davis: Considering the fact that the affidavit was applied for at approximately 2:30 pm the following day, I think the affidavit could have been applied on the day that the packages were mailed, considering that Mt. Vernon is 60 miles from Seattle, a drive of one hour on a super freeway. I think it could have been done then, and it should have been submitted –-
Thurgood Marshall: How many hours is that, five hours?
Craig G. Davis: No sir, about 2:30, we have the facts. 2:35, O'Hearn has verified that one of the addressees is a suspected trafficker of gold coins. His office, he would have to call, and he did call, the Attorney General's office and one of the assistants AGs made out this affidavit. I know, he's my classmate.
Thurgood Marshall: So you're complaining about approximately 24 hours?
Craig G. Davis: I am complaining about the additional 24 hours, very definitely sir, because there, that is sloppy police work.
Thurgood Marshall: And how did that injure your –-
Craig G. Davis: How did it injure my client? He spent one year in prison.
Thurgood Marshall: Other than that?
Craig G. Davis: Other than that, the Fourth Amendment protects our –-
Thurgood Marshall: How did it affect his Constitutional Rights?
Craig G. Davis: It affected his Constitutional Rights, and that this Court way long ago in Ex parte Jackson, held that the first class mails are protected by the Fourth Amendment and have the same rights as those possessions within our own private homes and that those rights have been violated.
Thurgood Marshall: Now suppose at the end of the 29 hours, they decided not to do anything and had shifted. Would your man have been injured?
Craig G. Davis: Then I shouldn't be here, sir.
Thurgood Marshall: He wouldn't be injured at all, would he?
Craig G. Davis: That's right.
Thurgood Marshall: So what are you complaining about, the seizure or the stop?
Craig G. Davis: Excuse me?
Thurgood Marshall: What are you complaining about, the seizure and the opening of it, or the timing of the 29 hours?
Craig G. Davis: I am complaining about the timing. I'm complaining very vehemently about the timing. A mail watch could have been put on those packages. They knew the addressees. Telephone communications being what they are, they could've quickly gotten the same information, which I submit incidentally as a sideline. It is hearsay on ear say, but they could've gotten that same information down and the same type of affidavit could have been written up in California and again, in Nashville, Tennessee.
Thurgood Marshall: That's the record, wouldn't you agree that at times, even registered mail is lost?
Craig G. Davis: Lost, yes, and this is what Chief -- or what Judge Chambers referred to that oftentimes, my mail goes astray, but I submit that this was not lost. The government has admitted that they contained it.
Thurgood Marshall: I didn't say that. I said if they had shifted and relied on catching at the other end, they might not have been able to catch it?
Craig G. Davis: They had two packages, sir. They surely would have caught one, but even our post office is that inefficient.
William J. Brennan, Jr.: Mr. Davis?
Craig G. Davis: Sir?
William J. Brennan, Jr.: Certainly, the officer who got this good job of getting this information altogether in an hour and five minutes. Are you conceding that at that point, there was probable cause to get the warrant?
Craig G. Davis: I'm saying at that point, there was probable cause.
William J. Brennan, Jr.: There was?
Craig G. Davis: There was.
William J. Brennan, Jr.: Well then, what about your argument that this affidavit or this warrant is not supported by probable cause? I don't understand that.
Craig G. Davis: I am not saying as I understand it, sir, that it is not supported by a probably cause. I am saying that according to the guidelines laid down in Ventresca that that affidavit is hearsay, based on hearsay. It does not meet the requirements in it.
William J. Brennan, Jr.: So the attack is on the form of the affidavit?
Craig G. Davis: That is correct, sir. I'm not saying they do not have probable cause, if they had the proper source information related, which they did not do.
William J. Brennan, Jr.: Yes.
Craig G. Davis: Now, here we have these packages supposedly on their way. First class mail according to the United States Postal Code must be, when it is mailed half an hour before the next outgoing shipment, included in that shipment. Here, we have two packages which are fortuitously, and I submit now as a forethought, set aside to await a search warrant. Here are two packages that should have been going on their way, and the only other thing that officer O'Hearn has learned the following morning is that Van Leeuwen admitted to a Canadian money that he'd mailed those packages and secondly, that the second addressee was a suspected trafficker in gold coins, cumulative evidence, that is all, cumulative. It adds but a snowflake to the snowball. Now, what happens next? The search warrant is issued and if you look very carefully at the search warrant, at the affidavit on page 5, you'll note that the affiant has information through United States Customs channels. It doesn't tell us where. Each and every one of these facts is set forth. Frankly, I was amazed that I was not upheld at the trial, I will, but I was not, and the Court of Appeals didn't even reach this issue. So I must submit it again for this Court's consideration. But let's assume for the sake of argument that this affidavit is a good one. Let's assume that it is not subject to attack. Let us assume that it meets the requirements of Ventresca. Then, I submit to you that you were saying to me that postal regulations and postal statutes don't mean a thing. A statute of United States government, when it applies to the government, has no meaning. When applied to a private citizen, they certainly clamp down on us and yet, statutory law itself says that the mail shall not be detained by any individual whatsoever, and yet these mails were detained. It tells who may give information from them, and yet –- and that would be the postal clerk to a post office inspector, look in the interim here. We have these packages going to Captain Belgard, to a fireman yet, and I haven't figured that one out yet and last but not least, to Customs Officer O'Hearn. Where is the postal inspector who's given the information? If he had done so, then I wouldn't be here, but he didn't. There is no postal inspector involved yet. Where do we draw --
Warren E. Burger: Do they keep a postal inspector at this station?
Craig G. Davis: They do, sir.
Warren E. Burger: Permanently?
Craig G. Davis: I don't know about permanently, but I know there was one involved because he did sign and witness the return on the search warrant. Why it is that the government waited so long, I honestly do not know. Perhaps it was seeking more evidence than it had, but I submit to you that this is the beginning. This case could be the wedge, and let us not have a wedge.
Warren E. Burger: I think we'll stop at the wedge and take lunch, counsel. Mr. Davis, you may continue.
Craig G. Davis: If the Court please, the wedge I had for lunch was not the one I was instructing the Court on I hope. The wedge I am thinking of is the specter preventive detention. That specter arises in this case. If the government is allowed to detain property, safeguard it under our Constitution for 29 hours, then it's but a short step to the preventive detention of the individual. And I can only –-
Warren E. Burger: And we can always take care of that, can't we?
Craig G. Davis: I leave it in your able hands, sir. I'm sure it will be taken care in this case, too. But the thing that does trouble me more than anything else is that we have a situation where a man does mail something, first class mail. By definition, first class mail, and the issue is raised that there is no delay of printed or written matter. This is true, but I ask of what relevance is it. After all, yesterday, I had the pleasure of viewing the whole diamond which was sent by registered mail and surely, there would've been some question asked if it hadn't made it to its destination, but then, we have a few other items that intrigued me. The Shamel Case was brought up, and this dealt as I recall it with the stop and frisk of an individual. Granted this whole thing's put at standstill for a moment, but for a moment. Then it was dealing with something inherently dangerous, and that is that the man has something that could prove dangerous to the officer investigating.
Potter Stewart: That's a –- Terry against Ohio.
Craig G. Davis: Terry, I beg your pardon, sir, thank you. But this is a case where the post office employees with others maintain the status quo, and I would submit to you that the postal authorities have no such authority. I have cited several statutes in the appendix to my brief. I'd ask the Court to review them carefully because they deal with this particular issue. What can the post office do? I have no qualms whatsoever with the government's argument as to the detention of personal property for a short period of time needed to get a search warrant. But I submit that the short period of time of 29 hours, 24 hours after the facts necessary to get a search warrant issued, this is short. I cannot buy that argument.
Thurgood Marshall: Suppose there is no magistrate that's available for 29 hours?
Craig G. Davis: If no magistrate were available for 29 hours and this could be shown, then I think there we have mitigating circumstances but I still would not like to say categorically that this is reasonable because always, there is a judge available, if not, a commissioner and in this case, there is a commissioner available not only in Seattle but in Bellingham. There are three judges there in Seattle. Any one of them could have issued this.
Thurgood Marshall: Or you could have come to this Court, too?
Craig G. Davis: And this Court, I'm surely –- for sure would have issued a warrant on the facts that they knew at 2:35.
Thurgood Marshall: That's assuming you give us the jurisdiction.
Craig G. Davis: That I cannot do.
Thurgood Marshall: Well, get –- I had great problems with the number of hours as being your only complaint.
Craig G. Davis: This is not my only complaint, sir. It is the primary complaint.
Thurgood Marshall: Didn't you say that they could've gotten a warrant in two or three hours?
Craig G. Davis: That is correct.
Thurgood Marshall: Well then, what is your complaint?
Craig G. Davis: My complaint is that they didn't do it in two or three hours but did it in 25 to 27 hours.
Thurgood Marshall: It is all –- it's the point of 26 hours?
Craig G. Davis: That is correct, sir.
Thurgood Marshall: And that didn't affect the property. The gold is still the same thing. Nothing happened to that?
Craig G. Davis: If I may analogize –-
Thurgood Marshall: Nothing happened to the place where was the gold because it was sent back, wasn't delivered?
Craig G. Davis: First, no one knew that this was gold. Secondly, we hit a problem here in that –-
Thurgood Marshall: No, I'm saying that –- what damage was done to him or his property?
Craig G. Davis: The damage that was done to him was that guarantee of our Constitution under the Fourth Amendment which applies to any man legally in this country, being a foreign national as this man was, a petty subject or not. And when the Constitution tells me, and I am to advise my client that his rights are protected and his papers and his personal effects are protected against an illegal seizure, and that this also applies to the mails but –-
Thurgood Marshall: Does the Fourth Amendment require that to be obtained in less than 29 hours?
Craig G. Davis: I don't know that the Fourth Amendment speaks on this particular issue. I would submit that it is a matter of reasonableness, sir and the question arises where do reasonable men differ? On the matter of a few hours, we can differ, but when we all have before us the facts necessary to issue a search warrant on the same day that the packages are mailed and we dilly-dally for an additional 24 hours, then I submit that this is unreasonable and it's merely a matter of where do we get reasonableness.
Potter Stewart: You concede as I understand it, that there was reasonable cause for the issuance of -– probable cause for the issuance of a warrant on the day –- on the previous day.
Craig G. Davis: I do, sir.
Potter Stewart: And implicitly, as I gather, would have no complaint if a warrant had been issued and the –- and the packages had been seized under that warrant on that day.
Craig G. Davis: That is correct.
Potter Stewart: Well then, I particularly have this same difficulty as my brother Marshall has. I think you'd -– if there weren't –- in other words, on the previous day, it was clear that there was reasonable cause to detain those packages?
Craig G. Davis: Sir, that problem arises –-
Potter Stewart: Or the -- or what you concede, as I understand it?
Craig G. Davis: True, but the problem arises this way. This is an analogy under the Fourth Amendment. We're talking about mail, but if the Court should find that an additional 24 hours before the issuance of a search warrant is perfectly proper, then can't we analogize this to all other situations covered by the Fourth Amendment. Therefore, when the police have reason to believe that I have heroine stashed in my home and I am not there, it having been just delivered in, but still under my control being in my house, and they surround my house and they have the facts necessary within four hours, they can keep me out of my home for an additional 24 hours while they are gathering one additional fact that isn't even pertinent? That's what would happen if that logic and reasoning were followed through to the end and I submit this is not proper under the Fourth Amendment.
Thurgood Marshall: And now, I could see between that case and this case if the heroine was in package at the post office?
Craig G. Davis: If the heroine were in the package at the post office, they have no right whatsoever to open it, and that happened in one case, once where a package did open. In fact, two cases.
Thurgood Marshall: You mean that you can't open a package of heroine until you get a search warrant?
Craig G. Davis: Oh no, sir. You certainly can open it if you have a search warrant.
Thurgood Marshall: Well, that's what -– that's this case. They did get a search warrant?
Craig G. Davis: They got a search warrant but when did they get that search warrant? To do so, sir, they had to violate three different statutes and several regulations. The statutes are as follows. One, the mail must go out the next outgoing shipment, and –-
Thurgood Marshall: Do I have the right of action every time my mail is held up for now?
Craig G. Davis: I wish you did, sir.
Thurgood Marshall: I hope it's the damages, too.
Craig G. Davis: It would be nice if it were, but on this particular –-
Thurgood Marshall: Is that true?
Craig G. Davis: There is nothing for damages.
Thurgood Marshall: It says that's not true.
Craig G. Davis: That's true, but there I submit to you, sir, that this is an unintentional holding up. If you knew that your mail were intentionally being delayed and such would be the outcome of this case whereas the Court of Appeals overturned, then your mail, my mail and every man's mail may be detained for a total of 29 hours at least until they investigate to see shall we send it on or shall we not.
Thurgood Marshall: Oh, Mr. Davis, I think that as possibility of a decision being written against you and not reach any of those things you are now talking about.
Craig G. Davis: I'll take your word for it, sir. I see an inspector there that bothers me though. It troubles me deeply to know that in this day of communications where we're constantly supplying the police with more inaccurate means of obtaining information that we turn around and give them the same leeway that they perhaps had a century ago when it isn't necessary, but no longer is necessary nor is it accountable. Now, they could've gotten a warrant and searched the packages at the other end. Certainly, they could. Now after all, if the mail is delayed en route without a purposeful detention, it would in our knowledge take them two or three days to get back east, or to California for that matter. They know the addressee. Certainly, they had time to pick up these packages at that time. Why didn't they do so? Doesn't this open up the possibility of forum shopping for a magistrate who will issue a search warrant? Are we going to allow this? I would submit that it is not allowable. Now, one issue that was brought up by the Solicitor General, he said that it's not being pressed as hearsay. I am pressing hearsay to the fullest extent possible. This affidavit, a careful analysis shows it is based hearsay on hearsay. It violates every rule laid down in this Court in Ventresca and in Jones as analyzed by Justice Douglas. It doesn't meet these requirements, but I must assume arguendo that it does meet them, and then we get to the detention. Now, another thing was the suspicion that these coins came across from Canada. Well, if they came from within the United States, we wouldn't be here because there is no law that says you cannot have coins, gold coins as collector's item in the United States. In fact, since this case first came about, our laws have grown greatly less strict as to the handling and having of gold coins. Now, we do not contend that the search was without a warrant -- without a warrant is valid. This is true that the government does not contend this, but yet, what do we have? We have essentially a seizure without a warrant. A seizure not for the few hours which the government says is necessary to obtain a search warrant, but a seizure for many hours after we have these facts. Now, is this plausible? Is it reasonable? Can reasonable men even differ on this point? But now, we have one further argument, and that is where the goods are already in the custody of the United States, is it okay to preserve the status quo while the warrant is being obtained, and I would ask you why? Why is such an argument? Why is it reasonable? These packages are placed with the United States Post Office in a form of trust. Our mail system, our whole system of communications in the United States would break down without that trust, and I submit that there's been a violation of statutory law laid down by the Congress and of Cong –- or of regulations put down by the Postmaster General. And I know that I, as a taxpayer, if I violate a title of the taxes or any of the regulations, I stand a chance to be here on the regulations, but on the title, it's questionable. I will normally be knocked down and yet here we are saying in effect, you, the government, can do this and your hands will not be slapped. But when a private individual do so, that he will have a $5,000.00 fine or five years in jail and I ask you, aren't we all men equal under the Constitution of the United States, foreigner or citizen?
Byron R. White: Well, I suppose you'd be making the same argument if the –- if the coins were seized after -– without delay –- or without any delay at all, the coins were seized with a good search warrant.
Craig G. Davis: I would not be making this argument, sir.
Byron R. White: Well, what's the difference?
Craig G. Davis: The difference is the amount of time in which it is done, where reasonable cause –-
Byron R. White: I know, but the postal regulations and the laws remain the same?
Craig G. Davis: The postal re –-
Byron R. White: And here is the government seizing the mail?
Craig G. Davis: This is correct but we have here the issue raised, we must detain while we obtain a search warrant, and I submit that it's already in the government's hands. They have it --
Byron R. White: When would these packages have reached their destination?
Craig G. Davis: Excuse me, sir?
Byron R. White: When would these packages have reached their destination?
Craig G. Davis: It takes airmail, for my brief, to reach this city –-
Byron R. White: Well, how long --
Craig G. Davis: …approximately three days, and these were sent airmail. So I would imagine three days to reach Mobile, Alabama.
Byron R. White: And if the government just hadn't seized them at the point of origin, but had seized them at the destination, they would've had their warrant by then and they would've ended up with the same result as here.
Craig G. Davis: That's correct, but the question is do we begin at the beginning or at the end, and I submit that the government began in the wrong fashion in this case. That's the whole problem. I don't fault the government for the work done. I fault them for the way in which they did it. This man is guilty. Justice was done; he did a year in prison. He's on parole now. I have no qualms about his having been in. I know he was guilty. He's admitted it, but I submit that the law now must be kept straightened out as the Court of Appeals has so found. Thank you.
Warren E. Burger: Thank you, Mr. Davis.
Erwin N. Griswold: I have just two points that I would like to make. Mr. Davis has referred to statutes which required the mail, as he has said to be forwarded promptly. Actually, the statute is printed at the bottom of page 2 of the appendix to his brief, Section 710 of Title 39 of the United States Code and it reads, “Letters brought for mailing to a post office and so forth shall be sent on. This of course was not a letter. I don't regard this as of any great importance, but I do not think there was any violation of that statute in this case. And the other point I would make is –-
Hugo L. Black: He then have penalty of failure to do that?
Erwin N. Griswold: Sorry, Mr. Justice.
Hugo L. Black: Is there a penalty of a failure to do that?
Erwin N. Griswold: No, this is an internal housekeeping part of the post office statute, a direction to postal employees. There are other statutory provisions which make it a crime with penalties attached to interfere with the mails, but I understand them to be directed to outsiders, to persons who obstruct the mails in one way or another and not to postal employees. Now, the other point that I would like to make is simply this. It would seem that Mr. Davis' real complaint is that the warrant was not obtained on March 28, rather on March 29. I think it could be that warrant could have been obtained on March 28 and that I don't think I would have too much difficulty in seeking to defend it here, if it had been. I would point out that the information then available related to only one of the packages, which might have been enough to establish a crime, but not enough to seize the other package. What I would hope would be that the Court would leave a little leeway here, not to setup a rule which would mean that the instant you really now have enough, you must then and there go in and get it because the lines are not easy to draw here. They are hard to draw long after the event and the calm deliberation of this Court. They are much harder to draw for the individual officer on the scene who has to decide whether “well, if I go in now, will it be found that I did not have enough? Here, the officer was careful. He did no harm in the process of being careful. It seems to me he ought to be commended for having done a fine work and that the delay which was involved was reasonable and should not be held to invalidate the seizure in this case.
Warren E. Burger: Thank you, Mr. Solicitor General. The case is submitted.