author: Me. Justice Rehnquist Mr. Justice Powell, Mr. Justice Stevens,

text:
    UNITED STATES v. RAMSEY et al.
    No. 76-167.
    Argued March 30, 1977
    Decided June 6, 1977

      Kenneth S. Geller argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Jerome M. Feit.

      Allan M. Palmer argued the cause and filed a brief for respondent Ramsey. Irving R. M. Panzer, by appointment of the Court, 429 U. S. 916, argued the cause and filed a brief for respondent Kelly.

        Mélvin L. Wulf, Joel M. Gora, and Jack D. Novik filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.

   Me. Justice Rehnquist

delivered the opinion of the Court.

Customs officials, acting with “reasonable cause to suspect” a violation of customs laws, opened for inspection incoming international letter-class mail without first obtaining a search warrant. A divided Court of Appeals for the District of Columbia Circuit held, contrary to every other Court of Appeals which has considered the matter, that the Fourth Amendment forbade the opening of such mail without probable cause and a search warrant. 176 U. S. App. D. C. 67, 538 F. 2d 415. We granted the Government’s petition for certiorari to resolve this Circuit conflict. 429 U. S. 815. We now reverse.

I

Charles W. Ramsey and James W. Kelly jointly commenced a heroin-by-mail enterprise in the Washington, D. C., area. The process involved their procuring of heroin, which was mailed in letters from Bangkok, Thailand, and sent to various locations in the District of Columbia area for collection. Two of their suppliers, Sylvia Bailey and William Ward, who were located in West Germany, were engaged in international narcotics trafficking during the latter part of 1973 and the early part of 1974. West German agents, pursuant to court-authorized electronic surveillance, intercepted several transAtlantic conversations between Bailey and Ramsey during which their narcotics operation was discussed. By late January 1974, Bailey and Ward had gone to Thailand. Thai officials, alerted to their presence by West German authorities, placed them under surveillance. Ward was observed mailing letter-sized envelopes in six different mail boxes; five of these envelopes were recovered; and one of the addresses in Washington, D. C., was later linked to respondents. Bailey and Ward were arrested by Thai officials on February 2, 1974; among the items seized were eleven heroin-filled envelopes addressed to the Washington, D. C., area, and later connected with respondents.

Two days after this arrest of Bailey and Ward, Inspector George Kallnischkies, a United States customs officer in New York City, without any knowledge of the foregoing events, inspecting a sack of incoming international mail from Thailand, spotted eight envelopes that were bulky and which he believed might’contain merchandise. The envelopes, all of which appeared to him to have been typed on the same typewriter, were addressed to four different locations in the Washington, D. C., area. Inspector Kallnischkies, based on the fact that the letters were from Thailand, a known source of narcotics, and were “rather bulky,” suspected that the envelopes might contain merchandise or contraband rather than correspondence. He took the letters to an examining area in the post office, and felt one of the letters: It “felt like there was something in there, in the envelope. It was not just plain paper that the envelope is supposed to contain.” He weighed one of the envelopes, and found it weighed 42 grams, some three to six times the normal weight of an airmail letter. Inspector Kallnischkies then opened that envelope:

“In there I saw some cardboard and between the cardboard, if I recall, there was a plastic bag containing a white powdered substance, which, based on experience, I knew from Thailand would be heroin.
“I went ahead and removed a sample. Gave it a field test, a Marquis Reagent field test, and I had a positive reaction for heroin.” App. 32.

He proceeded to open the other seven envelopes which “in a lot of ways were identical”; examination revealed that at least the contents were in fact identical: each contained heroin.

The envelopes were then sent to Washington in a locked pouch where agents of the Drug Enforcement Administration, after obtaining a search warrant, opened the envelopes again and removed most of the heroin. The envelopes were then resealed, and six of them were delivered under surveillance. After Kelly collected the envelopes from the three different addressees, rendezvoused with Ramsey, and gave Ramsey a brown paper bag, federal agents arrested both of them. The bag contained the six envelopes with heroin, $1,100 in cash, and “cutting” material for the heroin. The next day, in executing a search upon warrant of Ramsey’s residence, agents recovered, inter alia, two pistols.

Ramsey and Kelly were indicted, along with Bailey and Ward, in a 17-count indictment. Respondents moved to suppress the heroin and the two pistols. The District Court denied the motions, and after a bench trial on the stipulated record, respondents were found guilty and sentenced to imprisonment for what is in effect a term of 10 to 30 years. The Court of Appeals for the District of Columbia Circuit, one judge dissenting, reversed the convictions, holding that the “border search exception to the warrant requirement” applicable to persons, baggage, and mailed packages did not apply to the routine opening of international letter mail, and held that the Constitution requires that “before international letter mail is opened, a showing of probable cause be made to and a warrant secured from a neutral magistrate.” 176 U. S. App. D. C., at 73, 538 F. 2d, at 421.

II

Congress and the applicable postal regulations authorized the actions undertaken in this case. Title 19 U. S. C. § 482, a recodification of Rev. Stat. § 3061, and derived from § 3 of the Act of July 18, 1866, 14 Stat. 178, explicitly deals with the search of an “envelope”:

“Any of the officers or persons authorized to board or search vessels may . . . search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law . . . .”

This provision authorizes customs officials to inspect, under the circumstances therein stated, incoming international mail. The “reasonable cause to suspect” test adopted by the statute is, we think, a practical test which imposes a less stringent requirement than, that of “probable cause” imposed by the Fourth Amendment as a requirement for the issuance of warrants. See United States v. King, 517 F. 2d 350, 352 (CA5 1975); cf. Terry v. Ohio, 392 U. S. 1, 8, 21-22, 27 (1968). Inspector Kallnischkies, at the time he opened the letters, knew that they were from Thailand, were bulky, were many times the weight of a normal airmail letter, and “felt like there was something in there.” Under these circumstances, we have no doubt that he had reasonable “cause to suspect” that there was merchandise or contraband in the envelopes. The search, therefore, was plainly authorized by the statute.

Since the search in this case. was authorized by statute, we are left simply with the question of whether the search, nevertheless violated the Constitution. Cf. United States v. Brignoni-Ponce, 422 U. S. 873, 877 (1975). Specifically, we need not decide whether Congress conceived the statute as a necessary precondition to the validity of the search or whether it was viewed, instead, as a limitation on otherwise existing authority of the Executive. Having acted pursuant to, and within the scope of, a congressional Act, Inspector Kallnischkies’ searches were permissible unless they violated the Constitution.

Ill

A

That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials “full power and authority” to enter and search “any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . . .” This acknowledgment of plenary customs power wras differentiated from the more limited power to enter and search “any particular dwelling-house, store, building, or other place . . .” where a warrant upon “cause to suspect” was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago. In Boyd v. United States, 116 U. S. 616, 623 (1886), this Court observed:

“The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as ‘unreasonable,’ and they are not embraced within the prohibition of the amendment.” (Emphasis supplied.)

This interpretation, that border searches were not subject to the warrant provisions of the Fourth Amendment and were “reasonable” within the meaning of that Amendment, has been faithfully adhered to by this Court. Carroll v. United States, 267 U. S. 132 (1925), after noting that “[t]he Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable,” id., at 147, recognized the distinction between searches within this country, requiring probable cause, and border searches, id., at 153-154:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country . . . have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.” (Emphasis supplied.)

More recently, we noted this longstanding history in United States v. Thirty-seven Photographs, 402 U. S. 363, 376 (1971):

“But a port of entry is not a traveler’s home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search. Customs officials characteristically inspect luggage and their power to do so is not questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country.”

In United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 125 (1973), we observed: “Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations. The Constitution gives Congress broad, comprehensive powers ‘[t]o regulate Commerce with foreign Nations.’ Art. I, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry.” Finally, citing Carroll and Boyd, this Court stated in Almeida-Sanchez v. United States, 413 U. S. 266, 272 (1973), that it was “without doubt” that the power to exclude aliens “can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders.” See also id., at 288 (White, J., dissenting).

Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless “reasonable” has a history as old as the Fourth Amendment itself. We reaffirm it now.

B

Respondents urge upon us, however, the position that mailed letters are somehow different, and, whatever may be the normal rule with respect to border searches, different considerations, requiring the full panoply of Fourth Amendment protections, apply to international mail. The Court of Appeals agreed, and felt that whatever the rule may be with respect to travelers, their baggage, and even mailed packages, it would not “extend” the border-search exception to include mailed letter-size envelopes. 176 U. S. App. D. C., at 73, 538 F. 2d, at 421. We do not agree that this inclusion of letters within the border-search exception represents any “extension” of that exception.

The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country. It is clear that there is nothing in the rationale behind the border-search exception which suggests that the mode of entry will be critical. It was conceded at oral argument that customs officials could search, without probable cause and without a warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. Tr. of Oral Arg. 43-44. Surely no different constitutional standard should apply simply because the envelopes were mailed, not carried. The critical fact is that the envelopes cross the border and enter this country, not that they are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search “reasonable.”

Almost a century ago this Court rejected such a distinction in construing a protocol to the Treaty of Berne, 19 Stat. 604, which prohibited the importation of letters which might contain dutiable items. Cotzhausen v. Nazro, 107 U. S. 215 (1883). Condemning the unsoundness of any distinction between entry by mail and entry by other means, Mr. Justice Miller, on behalf of a unanimous Court, wrote, id., at 218:

“Of what avail would it be that every passenger, citizen and foreigner, without distinction of country or sex, is compelled to sign a declaration before landing, either that his trunks and satchels in hand contain nothing liable to duty, or if they do, to state what it is, and even the person may be subjected to a rigid examination, if the mail is to be left unwatched, and all its sealed contents, even after delivery to the person to whom addressed, are to be exempt from seizure, though laces, jewels, and other dutiable matter of great value may thus be introduced from foreign countries.”

The historically recognized scope of the border-search doctrine, suggests no distinction in constitutional doctrine stemming from the mode of transportation across our borders. The contrary view of the Court of Appeals and respondents stems, we think, from an erroneous reading of Carroll v. United States, 267 U. S., at 153, under which the Court of Appeals reasoned that “the rationale of the border search exception ... is based upon . . . the difficulty of obtaining a warrant when the subject of the search is mobile, as a car or person . . . .” 176 U. S. App. D. C., at 70, 538 F. 2d, at 418.

The fundamental difficulty with this position is that the “border search” exception is not based on the doctrine of “exigent circumstances” at all. It is a longstanding, historically recognized exception to the Fourth Amendent’s general principle that a warrant be obtained, and in this respect is like the similar “search incident to lawful arrest” exception treated in United States v. Robinson, 414 U. S. 218, 224 (1973). We think that the language in Carroll v. United States, supra, makes this point abundantly clear. The Carroll Court quoted verbatim the above-quoted language from Boyd v. United States, 116 U. S. 616 (1886), including the reference to customs searches and seizures of the kind authorized by 1 Stat. 29, 43, as being neither “unreasonable” nor “embraced within the prohibition of the [Fourth] [A]mendment.” Later in the opinion, the Court commented that having “established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made.” 267 U. S., at 153 (emphasis supplied). It then, in the passage quoted supra, at 618, distinguished, among these types of searches which required no warrant, those which required probable cause from those which did not: border searches did not; vehicular searches inside the country did. Carroll thus recognized that there was no “probable cause” requirement at the border. This determination simply has nothing to do with “exigent circumstances.”

The Court of Appeals also relied upon what it described as this Court’s refusal in recent years twice “to take an expansive view of the border search exception or the authority of the Border Patrol. See United States v. Brignoni-Ponce, 422 U. S. 873 . . . (1975); Almeida-Sanchez v. United States, 413 U. S. 266 . . . (1973).” 176 U. S. App. D. C., at 72, 538 F. 2d, at 420. But, as the language from each of these opinions suggests, 422 U. S., at 876, 884; 413 U. S., at 272-273, plenary border-search authority was not implibated by our refusal to uphold searches and stops made at places in the interior of the country; the express premise for each holding was that the checkpoint or stop in question was not the border or its “functional equivalent.”

In view of the wealth of authority establishing the border search as “reasonable” within the Fourth Amendment even though there be neither probable cause nor a warrant, we reject the distinctions made by the Court of Appeals in its opinion.

Nor do we agree that, under the circumstances presented by this case, First Amendment considerations dictate a full panoply of Fourth Amendment rights prior to the border search of mailed letters. There is, again, no reason to distinguish between letters mailed into the country, and letters carried on the traveler’s person. More fundamentally, however, the existing system of border searches has not been shown to invade protected First Amendment rights, and hence there is no reason to think that the potential presence of correspondence makes the otherwise constitutionally reasonable search “unreasonable.”

The statute in question requires that there be “reasonable cause to believe” the customs laws are being violated prior to the opening of envelopes. Applicable postal regulations flatly prohibit, under all circumstances, the reading of correspondence absent a search warrant, 19 CFR § 145.3 (1976):

“No customs officer or employee shall read or authorize or allow any other person to read any correspondence contained in sealed letter mail of foreign origin unless a search warrant has been obtained in advance from an appropriate judge or U. S. magistrate which authorizes such action.”

Cf. 18 U. S. C. § 1702.

We are unable to agree with the Court of Appeals that the opening of international mail in search of customs violations, under the above guidelines, impermissibly chills the exercise of free speech. Accordingly, we find it unnecessary to consider the constitutional reach of the First Amendment in this area in the absence of the existing statutory and regulatory protection. Here envelopes are opened at the border only when the customs officers have reason to believe they contain other than correspondence, while the reading of any correspondence inside the envelopes is forbidden. Any “chill” that might exist under these circumstances may fairly be considered not only “minimal,” United States v. Martinez-Fuerte, 428 U. S. 543, 560, 562 (1976); cf. United States v. Biswell, 406 U. S. 311, 316-317 (1972), but also wholly subjective.

We therefore conclude that the Fourth Amendment does not interdict the actions taken by Inspector Kallnischkies in opening and searching the eight envelopes. The judgment of the Court of Appeals is, therefore,

Reversed.

Mr. Justice Powell,

concurring.

The statute at issue expressly authorizes customs officials to “search any . . . envelope” at the border where there is “reasonable cause to suspect” the importation of contraband. 19 U. S. C. § 482. In view of the necessarily enhanced power of the Federal Government to enforce customs laws at the border, I have no doubt that this statute — requiring as a precondition to the opening of mail “reasonable cause to suspect” a violation of law — adequately protects both First and Fourth Amendment rights.

I therefore join in the judgment of the Court. On the understanding that the precedential effect of today’s decision does not go beyond the validity of mail searches at the border pursuant to the statute, I also join the opinion of the Court.

Mr. Justice Stevens,

with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

The decisive question in this ease is whether Congress has granted customs officials the authority to open and inspect personal letters entering the United States from abroad without the knowledge or consent of the sender or the addressee, and without probable cause to believe the mail contains contraband or dutiable merchandise.

■ In 1971 the Department of the Treasury and the Post Office Department first asserted that Congress had granted such authority in an awkwardly drafted statute enacted in 1866. Under the earlier practice, which had been consistently followed for 105 years, customs officials were not allowed to open foreign mail except in the presence, and with the consent, of the addressees, unless of course a warrant supported by probable cause had been first obtained. There are five reasons why I am convinced that Congress did not authorize the kind of secret searches of private mail that the Executive here conducted.

First, throughout our history Congress has respected the individual’s interest in private communication. The notion that private letters could be opened and inspected without notice to the sender or the addressee is abhorrent to the tradition of privacy and freedom to communicate protected by the Bill of Rights. I cannot believe that any member of the Congress would grant such authority without considering its constitutional implications.

Second, the legislative history of the 1866 statute unambiguously discloses that this very concern was voiced during debate by Senator Howe, and that he was assured by the sponsor of the legislation that the bill would not authorize the examination of the United States mails. This colloquy is too plain to be misunderstood:

“Mr. HOWE. The second and third sections of this bill speak of the seizure, search, and examination of all trunks, packages, and envelopes. It seems to me that language is broad enough to cover the United States mails. I suppose it is not the purpose of the bill to authorize the examination of the United States mails.
“Mr. MORRILL [sponsor of the bill]. Of course not.
“Mr. HOWE. I propose to offer an amendment to prevent such a construction.
“Mr. EDMUNDS. There is no danger of such a construction being placed upon this language. It is the language usually employed in these bills.
“Mr. HOWE. If gentlemen are perfectly confident that it will bear no such construction, and will receive no such construction, I do not care to press it.
“The PRESIDING OFFICER. The Senator from Wisconsin withdraws his amendment.”

Third, the language of the statute itself, when read in its entirety, quite plainly has reference to packages of the kind normally used to import dutiable merchandise. It is true that buried, deep in the first long sentence in § 3 of the Act to prevent smuggling there is an authorization to “search any trunk or envelope, wherever found.” I do not believe, however, that the word “envelope” as there used was intended to refer to ordinary letters. Contemporary American dictionaries emphasize the usage of the word as descriptive of a package or wrapper as well as an ordinary letter. This emphasis is consistent with the text of the bill as originally introduced, which used the phrase “any trunk, or other envelope.” Moreover, in 1866 when the Act was passed, there was no concern expressed in Congress about the smuggling of merchandise that would fit in a letter-size envelope. A legislative decision to authorize the secret search of private mail would surely be expressed in plainer language than is found in the long statutory provision quoted in the margin; at the very least it would be supported by some affirmative evidence in the legislative history rather than the total disclaimer in the colloquy quoted above.

Fourth, the consistent construction of the statutory authorization by a series of changing administrations over a span of 105 years must be accorded great respect. NLRB v. Bell Aerospace Co., 416 U. S. 267, 274-275; Helvering v. Reynolds Co., 306 U. S. 110, 114-115. If the Executive perceives that new conditions and problems justify enlargement of the authority that had been found adequate for over a century, then these matters should be brought to the attention of Congress. Cf. H. K. Porter Co. v. NLRB, 397 U. S. 99, 109.

Finally, the asserted justification for the broad power claimed is so weak that it is difficult to believe that Congress would accept it without the most searching analysis. The fear the new practice is intended to overcome is that the addressee of a suspicious item of mail would withhold consent to open foreign mail, thereby necessitating the return of the item to the sender. But the refusal to accept delivery without disclosing the contents of a suspicious letter would itself be a fact which could be considered — along with whatever indicia caused the inspector to regard the item with suspicion in the first place — in a probable-cause determination. There is no reason to believe that the alternatives of probable cause or consent would lead to the extensive return of contraband that would otherwise be confiscated on the basis of “reasonable cause to suspect.”

If the Government is allowed to exercise the power it claims, the door will be open to the wholesale, secret examination of all incoming international letter mail. No notice would be necessary either before or after the search. Until Congress has made an unambiguous policy decision that such an unprecedented intrusion upon a vital method of personal communication is in the Nation’s interest, this Court should not address the serious constitutional question it decides today. For it is settled that

“when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not ‘the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.’ [Greene v. McElroy, 360 U. S. 474,] 507.” Hannah v. Larche, 363 U. S. 420, 430.

Cf. Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 347-348 (Brandeis, J., concurring). Accordingly, I would affirm the judgment of the Court of Appeals.

       Several Courts of Appeals have held that international letter-class mail may be opened, pursuant to a border search, without probable cause and without a warrant. United States v. Milroy, 538 F. 2d 1033 (CA4), cert. denied, 426 U. S. 924 (1976); United States v. King, 517 F. 2d 350 (CA5 1975); United States v. Barclift, 514 F. 2d 1073 (CA9), cert. denied, 423 U. S. 842 (1975); United States v. Bolin, 514 F. 2d 554 (CA7 1975); United States v. Odland, 502 F. 2d 148 (CA7), cert. denied, 419 U. S. 1088 (1974). Several other Courts of Appeals, in approving the warrantless opening of mailed packages crossing the borders, have indicated that-the opening of international letter-class mail should be governed by the same standards. United States v. Doe, 472 F. 2d 982 (CA2), cert. denied, sub nom. Rodriguez v. United States, 411 U. S. 969 (1973); United States v. Beckley, 335 F. 2d 86 (CA6 1964), cert. denied, sub nom. Stone v. United States, 380 U. S. 922 (1965). The First Circuit has reserved the question of letters. United States v. Emery, 541 F. 2d 887, 888-889 (1976).

       The mail was inspected at the General Post Office in New York City, where incoming international air mail landing at Kennedy Airport is taken for routing and customs inspections. There is no dispute that this is the “border” for purposes of border searches, see n. 11, infra.

       Inspector Kallnischkies also testified that his “normal procedure,” when examining envelopes from certain countries which were of a certain weight and bulkiness, was to “shake it a little,” and “if it moves, I know there is something in there that is not correspondence. It is merchandise and I have to open it to cheek it out.” App. 48-49. He was unable to specifically recall, however, whether or not he had followed the “normal procedure” in this case.

       The Government does not seek to justify the original discovery of the heroin on the basis of this warrant: “[A] post-opening warrant obviously does not justify the original opening.” Brief for United States 4 n. 2. We accordingly accord no significance to the obtaining of this subsequent warrant.

       Bailey and Ward, although indicted, were not tried, as they have remained outside the United States.

       The Government acknowledges that “[t]he weapons were found as a result of respondents’ arrests and so are ‘fruit’ of the discovery of the heroin. The convictions consequently must stand or fall with the heroin offenses.” Id., at 5 n. 4.

       Neither court below considered whether Ramsey or Kelly had standing to object to the opening of the envelopes in light of the fact that none of the envelopes were addressed to them. The Government, however, did not raise the issue below, and consequently we do not reach it. United States v. Santana, 427 U. S. 38, 41 n. 2 (1976).

       Postal regulations have implemented this authority. See 19 CFR § 145.2 (1976); 39 CFR § 61.1 (1975). The regulations were promulgated in 1971; prior to that time existing regulations did not implement the statutory authority. The fact that postal authorities did not open incoming international letter-class mail upon “reasonable cause to suspect” prior to 1971 does not change our analysis.
      Title 39 U. S. C. §3623 (d), which prohibits the opening of first-class mail of “domestic origin,” “except under authority of a search warrant authorized by law . . . ,” has, by its own terms, no application to international mail of any class. A proposed amendment, which would have imposed similar statutory requirements on the opening of international mail, was defeated on the floor of the House, 116 Cong. Rec. 20482-20483 (1970).
      Our dissenting Brethren find no fewer than five separate reasons for refusing to follow the unambiguous language of the statutory section. The first is the longstanding respect Congress has shown for “the individual’s interest in private communication.” Post, at 626. But as we examine it, infra, at 616-619, no such support may be garnered from the history of the Fourth Amendment insofar as border searches are concerned. Insofar as they rely on the First Amendment, they ignore the limitations imposed on the search by the statute, infra, at 623-624, as well as by the regulations. Postulating a sensitive concern for First Amendment values as of 1866 is a difficult historical exercise on the basis of available materials from that time. Cf. Ex parte Jackson, 96 U. S. 727 (1878) (Fourth Amendment analysis only). Most puzzling of all, however, is the dissent’s reliance on the defeated amendment, offered in 1970, when there is no dearth of available materials, which would have imposed a specific warrant requirement on the opening of international letter-class mail. Contrary to the tenor of the dissent, the amendment was defeated, not passed. The one bit of legislative history the dissent quotes, a statement of Congressman Derwinski, reflects only the concern that with the amendment “ ‘the problem of stopping the flow of narcotics and pornography would be greatly compounded.’ ” Post, at 626 n. 2. We do not see how any solace whatever for the dissenting position may be derived from this sort of legislative history.
      The dissent also relies on a brief colloquy on the floor. of the Senate during the debate on the 1866 Act. The colloquy is notable both for its brevity and for its ambiguity. It does not distinguish between mailed packages and mailed letters; it refers generally to the “‘examination of... the United States mails.’ ” Post, at 627. Yet, by that time, the “mail” encompassed both. See 12 Stat. 704. (To the extent the colloquy was meant to encompass any intrusion on the “mails,” the statute has long since been interpreted otherwise. Cotzhausen v. Nazro, 107 U. S. 215, 219 (1883).) Perhaps because of its brevity, the colloquy does not distinguish between domestic and international mail, nor does it distinguish between the searching of envelopes for contraband and the possible reading of enclosed communications. It explicitly manifests a concern with §2 as well as with §3 of the bill. But §2 allowed customs inspectors “to go on board of any vessel . . . and to inspect, search, and examine the same, and any person, trunk, or envelope on board . . . .” Section 3, however, contains a “reasonable cause to suspect” requirement that is not found in § 2, and the colloquy may have simply referred to a concern about the wholesale opening, and reading, of letters. Cf. Cong. Globe 39th Cong., 1st Sess., 3440-3441 (1866). The colloquy by no means indicates to us that Congress was concerned only with detecting smuggling that would be carried in “trunk”-sized packages. It is at best insufficient to overcome the precise and clear statutory language Congress actually enacted.
      The dissent additionally relies on the language of the statute in its entirety as demonstrating a concern only with “packages of the kind normally used to import dutiable merchandise.” Post, at 628. But this assertion — assuming we as judges know what size packages dutiable merchandise usuqlly comes in — is wholly contrary to the thrust of the purpose, and the language, of the Act. The purpose of the Act is “to Prevent Smuggling.” Nowhere does this purpose, however and wherever articulated, reflect a concern with the physical size of the container employed in smuggling, nor do we possess any reliable indication that only large items were smuggled into this country in 1866. As for the word “envelope,” it is difficult to see how our dissenting Brethren derive comfort from its use in the statute. The contemporary dictionary source they cite states that the most common use of the word “envelope” is in the sense of “ ‘the cover or wrapper of a document, as of a letter.’ ” Post, at 630 n. 5. We are quite unable to see how this, the most common usage of the word, reinforces the view that Congress intended only a narrow definition when it used the word without restriction.
      The dissent also relies on a “consistent construction” over 105 years by the Executive. Post, at 631. To the extent it relies on a construction that things entering by mail are not covered by the statute, this reliance founders on the opinion of a former Acting Attorney General. See 18 Op. Atty. Gen. 457 (1886). To the extent it is referring only to letter-sized mail, the dissent nowhere demonstrates any actual interpretation by anyone that the congressional authority was perceived as an affirmative limitation on the power of the Executive to open letters at the border when there existed “reasonable cause” to suspect a violation of customs laws. The evidence marshaled by our dissenting Brethren on this point could be called “consistent” only by the most generous appraiser of such material.
      The dissent’s final reliance is on the assertion that asking the addressee for consent to open a letter had not been proved unworkable. Presumably the conclusion to be drawn from this is that the Executive’s reason for a change in its policy is weak. But this is beside the point; it reflects not at all on Congress’ words or intent in 1866 or at any other time. That the Executive Branch may have relied on a less-than-cogent reason in its 1971 regulatory change has nothing to do with the interpretation of an Act of Congress.
      Underlying all of these reasons, apparently, is the fear that “[i]f the Government is allowed to exercise the power it claims, the door will be open to the wholesale, secret examination of all incoming international letter mail.” Post, at 632. That specter is simply not presented by this case. As we observe, infra, at 623-624, the opening of mail is limited by a “reasonable cause” requirement, while the reading of letters is totally interdicted by regulation. It is this unwarranted speculation, and not the policy followed by the Executive, that poses the “serious constitutional question” to be avoided.

       The Court of Appeals, it should be noted, evidently believed that Inspector Kallnischkies possessed sufficient information at the time the envelopes were opened to meet the stricter “probable cause” requirement; it believed "that the facts in this case are such that, had they been presented to a magistrate, issuance of a search warrant permitting opening of the envelopes would have been appropriate.” 176 U. S. App. D. C. 67, 73 n. 8, 538 F. 2d 415, 421 n. 8. Because of our disposition of this case, we do not reach that question.

       In light of our conclusion that there existed “reasonable cause to suspect” a violation of the customs laws, we need not, and do not, decide whether the search would have nonetheless been authorized by other statutory grants of authority urged alternatively upon us by the Government. Title 19 U. S. C. §482 also authorizes customs officials to “stop, search, and examine . . . any vehicle, beast, or person, on which or whom . . . they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise . . . .” Title 19 U. S. C. § 1582 provides, in pertinent part, that “[t]he Secretary of the Treasury may prescribe regulations for the search of persons and baggage . . . ; and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under such regulations.”

       Although the statutory authority authorizes searches of envelopes “wherever found,” 19 U. S. C. § 482, the envelopes were searched at the New York City Post Office as the mail was entering the United States. We, therefore, do not have before us the question, recently addressed in other contexts, of the geographical limits to border searches. See United States v. Brignoni-Ponce, 422 U. S. 873 (1975); Almeida-Sanchez v. United States, 413 U. S. 266 (1973). Nor do we need to decide whether the broad statutory authority subjects such mail to customs inspection at a place other than the point of entry into this country. See United States v. King, 517 F. 2d, at 354 (“[T]he envelopes had passed an initial stage in the customs process when they were routed to Alabama, but they were still in the process of being delivered, and still subject to customs inspection”).

       Section 23 of this customs statute provided, in pertinent part:
      “[I]t shall be lawful for the collector, or other officer of the customs, after entry made of any goods, wares or merchandise, on suspicion of fraud, to open and examine, in the presence of two or more reputable merchants, any package or packages thereof . . . .”
      Section 24 of this customs statute provided, in pertinent part:
      “[E]very collector, naval officer and surveyor, or other person specially appointed by either of them for that purpose, shall have full power and authority, to enter any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed; and therein to search for, seize, and secure any such goods, wares or merchandise; and if they shall have cause to suspect a concealment thereof, in any particular dwelling-house, store, building, or other place, they or either of them shall, upon application on oath or affirmation to any justice of the peace, be entitled to a warrant to enter such house, store, or other place (in the day time only) and there to search for such goods, and if any shall be found, to seize and secure the same for trial . . . .”

       We do not decide whether, and under what circumstances, a border search might be deemed “unreasonable” because of the particularly offensive manner in which it is carried out. Cf. Kremen v. United States, 353 U. S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U. S. 344, 356-358 (1931)

       The opinion in Carroll v. United States, 267 U. S. 132, 149 (1925), itself reminds us that “[t]he Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.”

       This explanation does not, and cannot, fully explain the border-search “exception” even if it were grounded in the “exigent circumstances” doctrine. For a letter may as easily be held by customs officials when it crosses with a traveler as it can when it crosses in the mail. Too, this explanation cannot explain the different treatment which the Court of Appeals apparently would have accorded mailed packages, which presumably may be detained as easily as letter-size envelopes.

       There is no reason to infer that mailed letters somehow carry with them a greater expectation of privacy than do letters carried on one’s person. Cf. 39 U. S. C. § 3623 (d).

       There are limited justifiable expectations of privacy for incoming material crossing United States borders. Not only is there the longstanding, constitutionally authorized right of customs officials to search incoming persons and goods, but there is no statutorily created expectation of privacy. See 39 U. S. C. § 3623 (d). See also United States v. King, 517 F. 2d, at 354; United States v. Odland, 502 F. 2d 148 (CA7), cert. denied, 419 U. S. 1088 (1974); United States v. Doe, 472 F. 2d, at 985.

       We, accordingly, have no occasion to decide whether, in the absence of the regulatory restrictions, speech would be “chilled,” or, if it were, whether the appropriate response would be to apply the full panoply of Fourth Amendment requirements. Cf. Roaden v. Kentucky, 413 U. S. 496, 502-506 (1973); Terry v. Ohio, 392 U. S. 1, 19 (1968); Stanford v. Texas, 379 U. S. 476, 485 (1965).

       In Wolff v. McDonnell, 418 U. S. 539 (1974), this Court, in the context of the opening of mail from an attorney to a prisoner-client, noted that “freedom from censorship is not equivalent to freedom from inspection or perusal,” id., at 576. This Court held:
      “As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship; since the mail would not be read. Neither could it chill such communications, since the inmate’s presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials’ opening the letters.” Id., at 577.
      We deal here, of course, with borders, not prisons. Yet the power of customs officials to take plenary action to stop the entry of contraband is no less in the border-search area than in prisons. The safeguards in the border-search area, we think, are comparable to those found constitutionally valid in Wolff.

      As the Court notes, ante, at 623, postal regulations flatly prohibit the reading of “any correspondence contained in sealed letter mail of foreign origin unless a search warrant has been obtained . . . 19 CFR § 145.3 (1976).

       This was the procedure followed by the customs officials in Cotzhausen v. Nazro, 107 U. S. 215, relied upon by the Government here. For 100 years, from 1871 to 1971, Post Office Regulations allowed incoming international letter mail to be opened only in the presence, and with the consent, of the addressee. Brief for United States 20-21, nn. 12a, 14 (citing regulations).

       This conviction is bolstered by the history of the defeat of the amendment which would have imposed a specific warrant requirement on the opening of international mails, ante, at 612 n. 8. The amendment was offered during the course of House debate on the Postal Reorganization and Salary Adjustment Act of 1970, Title 39 U. S. C., which created the United States Postal Service. This amendment was but one of more than 35 amendments to the Act offered on the floor of the House that day. 116 Cong. Rec. 20481 (1970). Speaking immediately before the amendment was defeated, Congressman Derwinski said:
      “Going beyond the constitutional debate which we do not have the time for this afternoon, if this amendment were to be adopted, the problem of stopping the flow of narcotics and pornography would be greatly compounded.
      “I do not believe we want to legislate on such a major issue with just 10 minutes of debate.” Id., at 20483.
      Under such circumstances the defeat of this amendment cannot be considered an expression of the will of the House of Representatives on the issue, but it does emphasize the reluctance of Congress to legislate in the area without careful consideration of the constitutional questions. See, e. g., 18 U. S. C. § 2510 (Omnibus Crime Control and Safe Streets Act of 1968) (warrant required to electronically intercept wire or oral communications) ; S. Rep. No. 1097, 90th Cong., 2d Sess., 66-76, 88-108, 161-177, 182-183, 187, 214-218, 224-226, 23A-239 (1968). I do not, of course, imply that this incident is, in itself, sufficient to demonstrate congressional sensitivity to the individual interest in private communication. See ante, at 612 n. 8. I cannot believe, however, that the Court seriously questions the validity of my assumption that Congress (in 1866 as well as today) was indeed concerned about such matters.

       Cong. Globe, 39th Cong., 1st Sess., 2596 (1866). After consideration of one more amendment the bill passed the Senate the same day.

         The first three sections of the Act,' Further to Prevent Smuggling and for Other Purposes, enacted on July 18,1866, read as follows:

        “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, for the purposes of this act, the term ‘vessel,’ whenever hereinafter used, shall be held to include every description of water-craft, raft, vehicle, and contrivance used or capable of being used as' a means or auxiliary of transportation on or by water; and the term ‘vehicle,’ whenever hereinafter used, shall be held to include every description of carriage, wagon, engine, car, sleigh, sled, sledge, hurdle, cart, and other artificial contrivance, used or capable of being used as a means or auxiliary of transportation on land.
      “Sec. 2. And be it further enacted, That it shall be lawful for any •officer of the customs, including inspectors and occasional inspectors, or of a revenue cutter, or authorized agent of the Treasury Department, or other person specially appointed for the purpose in writing by a collector, naval officer, or surveyor of the customs, to go on board of any vessel, as well without as within his district, and to inspect, search, and examine the same, and any person, trunk, or envelope on board, and to this end, to hail and stop such vessel if under way, and to use all necessary force to compel compliance; and if it shall appear that any breach or violation of the laws of the United States has been committed, whereby or in consequence of which, such vessel, or the goods, wares, and .merchandise, or any part thereof, on board of or imported by such vessel, is or axe hable to forfeiture, to make seizure of the same, or either or any part thereof, and to arrest, or in case of escape, or any attempt to escape, to pursue and arrest any person engaged in such breach or violation: Provided, That the original appointment in writing of any person specially appointed as aforesaid shall be filed in the custom-house where such appointment is made.
      “Sec. 3. And be it further enacted, That any of the officers or persons authorized by the second section of this act to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person on which or whom he or they shall suspect there are goods, wares, or merchandise which are subject to duty or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there are goods which were imported contrary to law; and if any such officer or other person so authorized as aforesaid shall find any goods, wares, or merchandise, on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe are subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial; and every such vehicle and beast, or either, together with teams or other motive-power used in conveying, drawing, or propelling such vehicle, goods, wares, or merchandise, and all other appurtenances, including trunks, envelopes, covers, and all means of concealment, and all the equipage, trappings, and other appurtenances of such beast, team, or vehicle shall be subject to seizure and forfeiture; and if any person who may be driving or conducting, or in charge of any such carriage or vehicle or beast, or any person travelling, shall wilfully refuse to stop and allow search and examination to be made as herein provided, when required so to do by any authorized person, he or she shall, on conviction, be fined in any sum, in the discretion of the court convicting him or her, not exceeding one thousand dollars, nor less than fifty dollars; and the Secretary of the Treasury may from time to time prescribe regulations for the search of persons and baggage, and for the employment of female inspectors for the examination and search of persons of their own sex; and all persons coming into the United States from foreign countries shall be hable to detention and search by authorized officers or agents of the government, under such regulations as the Secretary of the Treasury shall from time to time prescribe: Provided, That no railway car or engine or other vehicle, or team used by any person or corporation, as common carriers in the transaction of their business as such common carriers shall be subject to forfeiture by force of the provisions of this act unless it shall appear that the owners, superintendent, or agent of the owner in charge thereof at the time of such unlawful importation or transportation thereon or thereby, was a consenting party, or privy to such illegal importation or transportation.” 14 Stat. 178-179.

       “A wrapper; an outward covering or case.” J. Worcester, A Dictionary of the English Language (1860).
      “That which envelops, wraps up, encases, or surrounds; a wrapper; a cover; especially, the cover or wrapper of a document, as of a letter.” N. Webster, An American Dictionary of the English Language (Goodrich & Porter eds. 1869).
      These are the primary definitions given for “envelope.”

       The word "other” was deleted by amendment, Cong. Globe, 39th Cong., 1st Sess., 2564 (1866). I recognize that one may argue that the deletion of the word “other” is evidence of an intent to include every kind of envelope rather than just those comparable to a “trunk.” It seems more reasonable to infer, however, that the draftsmen considered the direct comparison to a trunk too restrictive and merely had in mind all containers which performed the same kind of packaging function even though not as large as a trunk. It seems unrealistic to interpret this change as intended to broaden the statute to encompass personal mail.

       The stated object of the 1866 Act was to prevent smuggling, especially from Canada along the North and Northwestern frontier:
      “It has been found very difficult on our frontier during the last two years to prevent the system of smuggling which has been going on and increasing day by day. The custom-houses are defrauded and the Government is cheated.” Remarks of Congressman Eliot, Cong. Globe, 39th Cong., 1st Sess., 3419 (1866).
      See also remarks of Senator Morrill, id., at 2563; of Senator Williams, id., at 2567.

       An 1886 opinion of Acting Attorney General Jenks made reference to the practice followed in Cotzhausen v. Nazro, 107 U. S. 215, a case which involved the opening of package mail with the consent, and in the presence, of the addressee. See 18 Op. Atty. Gen. 457, 458. No opinion of any subsequent Attorney General has construed the statute any more broadly.

       In support of its argument in this Court that the 1971 regulations are reasonable within the meaning of the Fourth Amendment, the Government has assembled a plethora of statistical data obtained after the regulations were adopted. Such a post hoc justification cannot, of course, inform us about the actual motivation for the adoption of the regulations. I mention the point only because the Government’s reliance on these data tends to confirm my judgment that if a new rule is to be fashioned, it should be drafted by the Congress.


source: Caselaw Access Project

author: Per Curiam. Mr. Chief Justice Burger, Mr. Justice Blackmun, Mb. Justice Rehnquist,

license: Public Domain

text:
    ROBERTS v. LOUISIANA
    No. 76-5206.
    Argued March 28, 1977
    Decided June 6, 1977

      Garland R. Rolling argued the cause and filed briefs for petitioner.

      Louise Korns argued the cause for respondent. With her on the briefs were William J. Guste, Jr., Attorney General of Louisiana, and Harry F. Connick.

      Jules E. Orenstein, Assistant Attorney General, argued the cause for the State of New York as amicus curiae. With him on the brief were Louis J. Lejkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.

        Frank Carrington, Wayne W. Schmidt, Glen R. Murphy, Courtney Evans, Cecil Hicks, and James P. Costello filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance.

        Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore and William E. James, Assistant Attorneys General, and Howard J. Schwab and Alexander W. Kirkpatrick, Deputy Attorneys General, filed a brief for the State of California as amicus curiae.

   Per Curiam.

Petitioner Harry Roberts was indicted, tried, and convicted of the first-degree murder of Police Officer Dennis Mclnemey, who at the time of his death was engaged in the performance of his lawful duties. As required by a Louisiana statute, petitioner was sentenced to death. La. Rev. Stat. Ann. § 14:30 (2) (1974) , On appeal, the Supreme Court of Louisiana affirmed his conviction and sentence. 331 So. 2d 11 (1976). Roberts then filed a petition for a writ of certiorari in this Court. The petition presented the question whether Louisiana’s mandatory death penalty could be imposed pursuant to his conviction of first-degree murder as defined in subparagraph- (2) of § 14:30.

Shortly before that petition was filed, we held in another case (involving a different petitioner named Roberts) that Louisiana could not enforce its mandatory death penalty for a conviction of first-degree murder as defined in subparagraph (1) of §14:30 of La. Rev. Stat. Ann. (1974). Roberts v. Louisiana, 428 U. S. 325 (1976) (hereafter cited as Stanislaus Roberts for purposes of clarity). In the plurality opinion in that case, the precise question presented in this case was explicitly answered.

This precise question was again answered by the Court in Washington v. Louisiana, 428 U. S. 906 (1976). The petitioner in the Washington case had killed a policeman and was tried and sentenced to death under the same provision of the Louisiana statute as was the petitioner in the present case. We vacated the death sentence, holding: “Imposition and carrying out of the death penalty [in this case] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Roberts v. Louisiana. . ." Ibid. See also Sparks v. North Carolina, 428 U. S. 905 (1976); Green v. Oklahoma, 428 U. S. 907 (1976).

Recognizing that this Court had already decided that a mandatory death sentence could not be imposed for the crime that Harry Roberts committed, the Attorney General of Louisiana initially conceded that “under this Court’s decision in Stanislaus Roberts v. Louisiana, No. 75-5844, [the sentence of death in the present case] cannot be carried out unless, of course, this Court grants Louisiana’s Application for Rehearing and modifies its former holding.” Brief in Opposition 2-3. The Court nevertheless granted certiorari on November 8, 1976, 429 U. S. 938, and on November 29 limited the grant to the question “[w]hether the imposition and carrying out of the sentence of death for the crime of first-degree murder of a police officer under the law of Louisiana violates the Eighth and Fourteenth Amendments to the Constitution of the United States.” 429 U. S. 975.

In Woodson v. North Carolina, 428 U. S. 280, 304 (1976), this Court held that “the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” In Stanislaus Roberts, supra, we made clear that this principle applies even where the crime of first-degree murder is narrowly defined. See n. 2, supra.

To be sure, the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance. There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property. But it is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer. Circumstances such as the youth of the offender, the absence of any prior conviction, the influence of drugs, alcohol, or extreme emotional disturbance, and even the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct are all examples of mitigating facts which might attend the killing of a peace officer and which are considered relevant in other jurisdictions.

As we emphasized repeatedly in Stanislaus Roberts and its companion cases decided last Term, it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. Because the Louisiana statute does not allow for consideration of particularized mitigating factors, it is unconstitutional.

Accordingly, we hold that the death sentence imposed upon this petitioner violates the Eighth and Fourteenth Amendments and must be set aside. The judgment of the Supreme Court of Louisiana is reversed insofar as it upholds the death sentence upon petitioner. The case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Chief Justice Burger,

dissenting.

I would sustain the Louisiana statute and I therefore dissent on the basis of my dissenting statement in Roberts v. Louisiana, 428 U. S. 325, 337 (1976), and that of Mr. Justice White in Woodson v. North Carolina, 428 U. S. 280, 306 (1976).

Mr. Justice Blackmun,

with whom Mr. Justice White and Mr. Justice Rehnquist join, dissenting.

The Court, feeling itself bound by the plurality opinion in Roberts v. Louisiana, 428 U. S. 325 (1976) (hereafter Stanislaus Roberts), has painted itself into a corner. I did not join that plurality opinion, and I decline to be so confined. I therefore dissent from the Court’s disposition of the present case and from its holding that the mandatory imposition of the death penalty for killing a peace officer, engaged in the performance of his lawful duties, constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. I would uphold the State’s power to impose such a punishment under La. Rev. Stat. Ann. § 14:30 (2) (1974), and I would reject any statements or intimations to the contrary in the Court’s prior cases.

The per curiam opinion asserts that “the precise question presented in this case was explicitly answered” in Stanislaus Roberts. Ante, at 635. It also relies on the summary disposition of Washington v. Louisiana, 428 U. S. 906 (1976), where a death sentence that had been imposed under § 14:30 (2) was vacated and where it was stated that the imposition and carrying out of the death penalty constituted cruel and unusual punishment. Ante, at 635. Finally, the per curiam states that “it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense.” Ante, at 637. Since § 14:30 (2) does not allow for consideration of mitigating factors, the per curiam strikes down the death sentence imposed on petitioner.

In my view, the question of the constitutionality of Louisiana’s mandatory death penalty for killing a peace officer was not answered in Stanislaus Roberts. Washington may be said to be a summary ruling on the merits, but that case was decided without the benefit of plenary consideration, and without focusing on the identity and activity of the victim. I believe its result to be incorrect as a constitutional matter and I would disapprove and withhold its further application.

Stanislaus Roberts was charged and convicted under a different subsection, that is, § 14:30 (1), of the Louisiana first-degree murder statute. See 428 U. S., at 327. See also ante, at 634^635. Subsection (1) provided a mandatory death penalty in the case where the killer had a specific intent to kill or to inflict great bodily harm and was engaged in the perpetration or attempted perpetration of aggravated kidnaping, aggravated rape, or armed robbery. See ante, at 634 n. 1. Subsection (2), in contrast, provides that first-degree murder is committed when the killer has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who is engaged in the performance of his lawful duties. Ibid. The two subsections obviously should involve quite different considerations with regard to the lawfulness of a mandatory death penalty, even accepting the analysis set forth in the joint opinions of last Term. Thus, to the extent that the plurality in Stanislaus Roberts alluded to subsections of the Louisiana law that were not before the Court, those statements are nonbinding dicta. It is indisputable that carefully focused consideration was not given to the special problem of a mandatory death sentence for one who has intentionally killed a police officer engaged in the performance of his lawful duties. I therefore approach this case as a new one, not predetermined and governed by the plurality in Stanislaus Roberts.

Washington may present a different problem. It did decide the issue now before the Court, but it did so without the benefit of full briefing and argument, and it was one of three pending Louisiana cases treated as a cluster and routinely remanded at the Term’s end in the immediate wake of Stanislaus Roberts. Because an explicit finding was made that the death penalty constituted cruel and unusual punishment, perhaps Washington is not to be treated in the same way as summary affirmances were treated in Edelman v. Jordan, 415 U. S. 651, 670-671 (1974). I would simply inquire, as to Washington, whether its holding should not be overruled, now that the Court has had the benefit of more careful and complete consideration of the issue.

On the merits, for reasons I have expressed before, I would not find § 14:30 (2) constitutionally defective. See Furman v. Georgia, 408 U. S. 238, 405-414 (1972) (dissenting opinion). See also Stanislaus Roberts, 428 U. S., at 337-363 (White, J., dissenting). Furthermore, even under the opinions of last Term, I would conclude that § 14:30 (2) falls within that narrow category of homicide for which a mandatory death sentence is constitutional. See Gregg v. Georgia, 428 U. S. 153, 186 (1976); Woodson v. North Carolina, 428 U. S. 280, 287 n. 7, 292-293, n. 25 (1976); Stanislaus Roberts, 428 U. S., at 334 n. 9. Since the decision in Washington is inconsistent with this view, I would overrule it.

I should note that I do not read the per curiam opinion today as one deciding the issue of the constitutionality of a mandatory death sentence for a killer of a peace officer for all cases and all times. Reference to the plurality opinion in Stanislaus Roberts reveals that the Louisiana statute contained what that opinion regarded as two fatal defects: lack of an opportunity to consider mitigating factors, and standardless jury discretion inherent in the Louisiana responsive verdict system. Without the latter, as here, a different case surely is presented. Furthermore, it is evident, despite the per curium’s general statement to the contrary, that mitigating factors need not be considered in every case; even the per curiam continues to reserve the issue of a mandatory death sentence for murder by a prisoner already serving a life sentence. Ante, at 637 n. 5. Finally, it is possible that a state statute that required the jury to consider, during the guilt phase of the trial, both the aggravating circumstance of killing a peace officer and relevant mitigating circumstances would pass the plurality’s test. Cf. Jurek v. Texas, 428 U. S. 262, 270-271 (1976). For me, therefore, today’s decision must be viewed in the context of the Court’s previous criticism of the Louisiana system; it need not freeze the Court into a position that condemns every statute with a mandatory death penalty for the intentional killing of a peace officer.

Mb. Justice Rehnquist,

with whom Mb. Justice White joins, dissenting.

The Court today holds that the State of Louisiana is not entitled to vindicate its substantial interests in protecting the foot soldiers of an ordered society by mandatorily sentencing their murderers to death. This is so even though the State has demonstrated to a jury in a fair trial, beyond a reasonable doubt, that a particular defendant was the murderer, and that he committed the act while possessing “a specific intent to kill, or to inflict great bodily harm upon, ... a peace officer who was engaged in the performance of his lawful duties . . . .” La. Rev. Stat. Ann. § 14:30 (2) (1974). That holding would have shocked those who drafted the Bill of Rights on which it purports to rest, and would commend itself only to the most imaginative observer as being required by today’s “evolving standards of decency.”

I am unable to agree that a mandatory death sentence under such circumstances violates the Eighth Amendment’s proscription against “cruel and unusual punishments.” I am equally unable to see how this limited application of the mandatory death statute violates even the scope of the Eighth Amendment as seen through the eyes of last Term’s plurality in Roberts v. Louisiana, 428 U. S. 325 (1976) (hereafter Stanislaus Roberts). Nor does the brief per curiam opinion issued today demonstrate why the application of a mandatory death sentence to the criminal who intentionally murders a peace officer performing his official duties should be considered “cruel and unusual punishment” in light of either the view of society when the Eighth Amendment was passed, Gregg v. Georgia, 428 U. S. 153, 176-177 (1976); the “objective indicia that reflect the public attitude” today, id., at 173; or even the more generalized “basic concept of human dignity” test relied upon last Term in striking down several more general mandatory statutes.

While the arguments weighing in favor of individualized consideration for the convicted defendant are much the same here as they are for one accused of any homicide, the arguments weighing in favor of society’s determination to impose a mandatory sentence for the murder of a police officer in the line of duty are far stronger than in the case of an ordinary homicide. Thus the Court’s intimation that this particular issue was considered and decided last Term in Stanislaus Roberts, supra, simply does not wash. A footnoted dictum in Stanislaus Roberts discussing a different section of the Louisiana law from the one now before us scarcely rises to the level of plenary, deliberate consideration which has traditionally preceded a declaration of unconstitutionality.

Such a meager basis for stare decisis would be less offensive were we not dealing with large questions of how men shall be governed, and how liberty and order should be balanced in a civilized society. But authority which might suffice to determine whether the rule against perpetuities applies to a particular devise in a will does not suffice when making a constitutional adjudication that a punishment imposed by properly enacted state law is “cruel and unusual.” Mr. Justice Frankfurter wisely noted that a “footnote hardly seems to be an appropriate way of announcing a new constitutional doctrine,” Kovacs v. Cooper, 336 U. S. 77, 90-91 (1949); it is hardly a more appropriate device by which to anticipate a constitutional issue not presented by the case in which it a.ppears. This seemingly heedless wielding of our power is 'least acceptable when we engage in what Mr. Justice Holmes described as “the gravest and most delicate duty that this Court is called upon to perform.” Blodgett v. Holden, 275 U. S. 142, 147-148 (1927) (separate opinion).

Five Terms ago, in Furman v. Georgia, 408 U. S. 238 (1972), this Court invalidated the then-current system of capital punishments, condemning jury discretion as resulting in “freakish” punishment. The Louisiana Legislature has conscientiously determined, in an effort to respond to that holding, that the death sentence would be made mandatory upon the conviction of particular types of offenses, including, as in the case before us, the intentional killing of a peace officer while in the performance of his duties. For the reasons stated by Me. Justice White for himself, The Chief Justice, Me. Justice Blackmun, and me in his dissent in Stanislaus Roberts, supra, and by me in my dissent in Woodson v. North Carolina, 428 U. S. 280, 308 (1976), I am no more persuaded now than I was then that a mandatory death sentence for all, let alone for a limited class of, persons who commit premeditated murder constitutes “cruel and unusual punishment” under the Eighth and Fourteenth Amendments.

But even were I now persuaded otherwise by the plurality’s analysis last Term, and were I able to conclude that the mandatory death penalty constituted “cruel and unusual punishment” when applied generally to all those convicted of first-degree murder, I would nonetheless disagree with today’s opinion. Louisiana’s decision to impose a mandatory death sentence upon one convicted of the particular offense of premeditated murder of a peace officer engaged in the performance of his lawful duties is clearly not governed by the holding of Stanislaus Roberts, and I do not believe that it is controlled by the reasoning of the plurality’s opinion in that case. Today’s opinion assumes, without analysis, that the faults of the generalized mandatory death sentence under review in Stanislaus Roberts, must necessarily inhere in such a sentence imposed on those who commit this much more carefully limited and far more serious crime. In words that would be equally appropriate today, Mr. Justice White noted last Term, 428 U. S., at 358:

“Even if the character of the accused must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal’s character is such that he deserves death. Moreover, quite apart from the character of a criminal, a State should constitutionally be able to conclude that the need to deter some crimes and that the likelihood that the death penalty will succeed in deterring these crimes is such that the death penalty may be made mandatory for all people who commit them. Nothing resembling a reasoned basis for the rejection of these propositions is to be found in the plurality opinion.”

Under the analysis of last Term’s plurality opinion, a State, before it is constitutionally entitled to put a murderer to death, must consider aggravating and mitigating circumstances. It is possible to agree with the plurality in the general case without at all conceding that it follows that a mandatory death sentence is impermissible in the specific case we have before us: the deliberate killing of a peace officer. The opinion today is willing to concede that “the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance.” Ante, at 636. But it seems to me that the factors which entitle a State to consider it as an aggravating circumstance also entitle the State to consider it so grave an aggravating circumstance that no permutation of mitigating factors exists which would disable it from constitutionally sentencing the murderer to death. If the State would be constitutionally entitled, due to. the nature of the offense, to sentence the murderer to death after going through such a limited version of the plurality’s “balancing” approach, I see no constitutional reason why the “Cruel and Unusual Punishments” Clause precludes the State from doing so without engaging in that process.

The elements that differentiate'this case from the Stanislaus Roberts case are easy to state. In both cases, the factors weighing- on the defendant’s side of the scale are constant. It is consideration of these factors alone that the opinion today apparently relies on for its holding. But this ignores the significantly different factors which weigh on the State’s side of the scale. In all murder cases, and of course this one, the State has an interest in protecting its citizens from such ultimate attacks; this surely is at the core of the Lockean “social contract” idea. But other, and important, state interests exist where the victim was a peace officer performing his lawful duties. Policemen on the beat are exposed, in the service of society, to all the risks which the constant effort to prevent crime and apprehend criminals entails: Because these people are literally the foot soldiers of society’s defense of ordered liberty, the State has an especial interest in their protection.

We are dealing here not merely with the State’s determination as to whether particular conduct on the part of an individual should be punished, and in what manner, but also with what sanctions the State is entitled to bring into play to assure that there will be a police force to see that the criminal laws are enforced at all. It is no service to individual rights, or to individual liberty, to undermine what is surely the fundamental right and responsibility of any civilized government: the maintenance of order so that all may enjoy liberty and security. Learned Hand surely had it right when he observed:

“And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.” The Spirit of Liberty 190 (3d ed., 1960).

Policemen are both symbols and outriders of our ordered society, and they literally risk their lives in an effort to preserve it. To a degree unequaled in the ordinary first-degree murder presented in the Stanislaus Roberts case, the State therefore has an interest in making unmistakably clear that those who are convicted of deliberately killing police officers acting in the line of duty be forewarned that punishment, in the form, of-death, will be inexorable.

This interest of the State, I think, entitled the Louisiana Legislature, in its considered judgment, to malee the death penalty mandatory for those convicted of the intentional murder of a police officer. I had thought Justices Stewart, Powell, and Stevens had conceded that this response — this need for a mandatory penalty — could be permissible when, focusing on the crime, not the criminal, they wrote last Term in Gregg, 428 U. S., at 184, that

“the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” (Emphasis added.)

I am quite unable to decipher why the Court today concludes that the intentional murder of a police officer is not one of these “certain crimes.” The Court’s answer appears to lie in its observation that “it is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer.” Ante, at 636-637. The Court, however, has asked the wrong question. The question is not whether mitigating factors might exist, but, rather, whether whatever “mitigating” factors that might exist are of sufficient force so as to constitutionally require their consideration as counterweights to the admitted aggravating circumstance. Like Mr. Justice White, I am unable to believe that a State is not entitled to determine that the premeditated murder of a peace officer is so heinous and intolerable a crime that no combination of mitigating factors can overcome the demonstration “that the criminal’s character is such that he deserves death.” 428 U. S., at 358.

As an example of a mitigating factor which, presumably, may “overcome” the aggravating factor inherent in the murder of a peace officer, the Court today gives us the astonishing suggestion of “the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct . . . .” Ante, at 637. I cannot believe that States are constitutionally required to allow a defense, even at the sentencing stage, which depends on nothing more than the convict’s moral belief that he was entitled to kill a peace officer in cold blood. John Wilkes Booth may well have thought he was morally justified in murdering Abraham Lincoln, whom, while fleeing from the stage of Ford’s Theater, he characterized as a “tyrant”; I am appalled to believe that the Constitution would have required the Government to allow him to argue that as a “mitigating factor” before it could sentence him to death if he were found guilty. I am equally appalled that a State should be required to instruct a jury that such individual beliefs must or should be considered as a possible balancing factor against the admittedly proper aggravating factor.

The historical and legal content of the “Cruel and Unusual Punishments” Clause was stretched to the breaking point by the plurality’s opinion in the Stanislaus Roberts case last Term. Today this judicially created superstructure, designed and erected more than 180 years after the Bill of Rights was adopted, is tortured beyond permissible limits of judicial review. There is nothing in the Constitution’s prohibition against cruel and unusual punishment which disables a legislature from imposing a mandatory death sentence on a defendant convicted after a fair trial of deliberately murdering a police officer.

       That section provides in part:

        “First degree murder

      “First degree murder is the killing of a human being:
      “(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or
      “(2) When the offender has a specific intent to kill, or to inflict great bodily harm upoT>, a fireman or a peace officer who was engaged in the performance of his lawful duties; or
      “(3) Where the offender has a specific intent to kill or to inflict great, bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or
      “(4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; [or]
      “(5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder.
      “For the purposes of Paragraph (2) herein, the term peace officer shall be defined [as] and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys’ investigator.
      “Whoever commits the crime of first degree murder shall be punished by death.”
      In 1975, § 14:30 (1) was amended to add the crime of aggravated burglary as a predicate felony for first-degree murder. 1975 La. Acts, No. 327.

       “The diversity of circumstances presented in cases falling within the single category of killings during the commission of a specified felony, as well as the variety of possible offenders involved in such crimes, underscores the rigidity of Louisiana’s enactment and its similarity to the North Carolina statute. Even the other more narrowly drawn categories of first-degree murder in the Louisiana law [one of these being the wilful, deliberate, and premeditated homicide of a fireman or a police officer engaged in the performance of his lawful duties] afford no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender.” 428 U. S., at 333-334.

        “Only the third category of the Louisiana first-degree murder statute, covering intentional killing by a person serving a life sentence or by a person previously convicted of an unrelated murder, defines the capital crime at least in significant part in terms of the character or record of the individual offender. Although even this narrow category does not permit the jury to consider possible mitigating factors, a prisoner serving a life sentence presents a unique problem that may justify such a law. See Gregg v. Georgia, [428 U. S. 153, 186 (1976)]; Woodson v. North Carolina, [428 U. S. 280, 287 n. 7, 292-293, n. 25 (1976)].” Id., at 334 n. 9 (emphasis added).

       We recognize that the life of a police officer is a dangerous one. Statistics show that the number of police officers killed in the line of duty has more than doubled in the last 10 years. In 1966, 57 law enforcement officers were killed in the line of duty; in 1975, 129 were killed. Federal Bureau of Investigation, Crime in the United States 1975, Uniform Crime Reports 223 (1976).

       See, e. g., the portion of the proposed standards of the Model Penal Code quoted in Gregg v. Georgia, 428 U. S. 153, 193-194, n. 44 (1976).

       We reserve again the question whether or in what circumstances mandatory death sentence statutes may be constitutionally applied to prisoners serving life sentences. See n. 2, supra, quoting 428 U. S., at 334 n. 9.

       Indeed, our holding in Jurek v. Texas, 428 U. S. 262 (1976), that the Texas sentencing procedure was constitutionally adequate rested squarely on the fact that mitigating circumstances could be considered by the jury. In that case the joint opinion of Justices Stewart, Powell, and Stevens stated:
      “But a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, [428 U. S.,] at 303-305, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana [428 U. S. 325 (1976)]. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.
      “Thus, in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances. In Gregg v. Georgia, we today hold constitutionally valid a capital-sentencing system that directs the jury to consider any mitigating factors, and in Proffitt v. Florida we likewise hold constitutional a system that directs the judge and advisory jury to consider certain enumerated mitigating circumstances. The Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.” Id., at 271-272 (footnote omitted).

       In joining this opinion for the Court, Mr. Justice Brennan and Mr. Justice Marshall agree that the plurality opinion in Stanislaus Roberts, supra, controls this case, but adhere to their view that capital punishment is in all circumstances prohibited as cruel and unusual punishment by the Eighth and Fourteenth Amendments.

        Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North Carolina, 428 U. S. 280 (1976); and Stanislaus Roberts, 428 U. S. 325 (1976).

       In Woodson, the plurality noted that a public opinion poll “revealed that a 'substantial majority’ of persons opposed mandatory capital punishment.” 428 U. S., at 298-299, n. 34. It does not follow, even accepting that poll, that a “substantial majority” oppose mandatory capital punishment for the murderers of police officers. What meager statistics there are indicate that public opinion is at best pretty evenly divided on the subject. In a June 1973 Harris Survey, 41% of the people surveyed thought that “all” persons convicted of killing a policeman or a prison guard should get the death penalty; as opposed to 28% for the more general crime of first-degree murder. Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan. L. Rev. 1245, 1252 (1974). A May 1973 poll in Minnesota revealed that 49% of the sample favored “automatic” capital punishment for "'murder of a law enforcement officer/” Id., at 1251. With-such substantial public support, one would have thought that the determination as to whether a mandatory death penalty should exist was for the legislature, not for the judiciary through some newfound construction of the term “cruel and unusual punishments.” Yet while the plurality observes that “[c]entral to the application of the Amendment is a determination of contemporary standards regarding the infliction of punishment,” 428 U. S., at 288, the opinion today makes absolutely no attempt to discuss “contemporary standards” with respect to the particular category now before us. The reason, of course, is not hard to deduce: the plurality’s separation of “standards of decency” from “the dignity of man” indicates that, with respect to the latter, the plurality itself, and not society, is to be the arbiter.

       Cf. 4 W. Blackstone, Commentaries *82:
      “To resist the king’s forces by defending a castle against them, is a levying of war .... But a tumult, with a view to pull down a particular house, or lay open a particular inclosure, amounts at most to a riot; this being no general defiance of public government.”
      As recently noted by Chief Justice Laskin of the Canadian Supreme Court,
        Miller and Cockriell v. The Queen, 70 D. L. R. 3d 324, 337, [1976] 5 W. W. R. 711, 735 (1976), in discussing whether a mandatory death sentence constituted “cruel and unusual punishment” within the meaning of § 2 (b) of the Canadian Bill of Rights:
      “I do not think, however, that it can be said that Parliament, in limiting the mandatory death penalty to the murder of policemen and prison guards, had only vengeance in view. There was obviously the consideration that persons in such special positions would have a sense of protection by reason of the grave penalty that would follow their murder .... It was open to Parliament to act on these additional considerations in limiting the mandatory death penalty as it did, and I am unable to say that they were not acted upon. On this view, I cannot find that there was no social purpose served by the mandatory death penalty so as to make it offensive to §2 (b).” (Concurring opinion.)