The opinion of the court was delivered by: Marovitz, District Judge.
Motions of Defendant to Suppress Confession and Physical
This is a criminal action under 18 U.S.C. § 1709 charging
defendant, Clarence W. Bell, an employee of the Post Office,
with theft of mail matter. Defendant was arrested by postal
inspectors at the Main United States Post Office Building,
Chicago, Illinois, on Friday, August 9, 1968. At the time of
the arrest, defendant was interrogated by the postal
inspectors, apparently made incriminating statements and either
turned over or had taken from his person various articles
including some allegedly stolen letters. Defendant has moved to
suppress said confession and evidence.
The Government, in its brief in opposition to defendant's
motions, has stated that defendant's detention at the Post
Office Building extended from approximately 5:40 PM until 8:30
PM on the same day when defendant was taken to Chicago Police
Headquarters at 11th Street and State Street for further
detention. Defendant was arraigned before the United States
Commissioner at the United States Courthouse, Chicago,
Illinois, on the next morning, August 10, 1968, at
approximately 11 AM. Defendant has not challenged the
Government's calendar of events and we will accept it for the
purpose of ruling on defendant's motions.
Defendant's position is that postal inspectors do not have
the authority to make arrests and, consequently, that the
inspectors' search and interrogation of defendant were illegal
and the evidence and confession unconstitutionally obtained
from defendant. A postal inspector's duties and
responsibilities are stated in 39 U.S.C. § 3523(a)(2)(C), (K):
"(C) Investigates violation of postal laws,
including, but not limited to, armed robbery,
mailing of bombs, burglary, theft of mail,
embezzlements, obscene literature and pictures,
and mail fraud.
(K) In any criminal investigation, develops
evidence, locates witnesses and suspects;
apprehends and effects arrest of postal offenders,
presents facts to United States attorney, and
collaborates as required with Federal and State
prosecutors in presentation before United States
Commissioner, grand jury, and trial court."
Defendant relies heavily on Alexander v. United States,
390 F.2d 101 (5th Cir. 1968). In that case, a conviction for mail
theft was reversed when the court held, among other things,
that federal law, 39 U.S.C. § 3523(a)(2)(K), did not grant
postal inspectors the authority to make arrests and that
defendant's arrest was also improper under state (Texas) law.
Without elaboration, a couple of cases have stated that
subsection (K) authorizes a postal inspector to make an
arrest. In Kelley v. Dunne, 344 F.2d 129 (1st Cir. 1965), it
"Under 39 U.S.C. § 3523(a)(2)(C) and (K) he [a
postal inspector] had authority to investigate,
develop evidence, locate witnesses, and make
arrest." 344 F.2d at 130.
Similarly, in Neggo v. United States, 390 F.2d 609 (9th Cir.
1968) the court considered the contentions of a convicted mail
embezzler and said:
"We find that the arrest was lawful. There was
probable cause. We hold that postal inspectors
were authorized to make the arrest as private
citizens under California Penal Code Section 837,
and under 39 U.S.C. § 3523(a)(2)(K). The latter
section defines duties of a postal inspector." 390
F.2d at 610.
The Alexander decision, upon which defendant heavily relies,
Kelley statement unfavorably. The Fifth Circuit court pointed
out that arresting authority was not the central issue in
Kelley. Moreover, it characterized the statement quoted above
as "an occasional iteration," "unanalytical," and therefore
"inconclusive" and of "little * * * significance." 390 F.2d at
105. The Fifth Circuit did not, of course, mention the Neggo
decision which, while decided a month before Alexander, was
reported a short time afterwards. Referring to Kelley, the
Fifth Circuit did say that it had found no court to be "so
uncritically docile when the point has been in issue." Id. Yet,
in Neggo the authority to arrest was the only issue and
the court unequivocally, if not elaborately, held that a postal
inspector has that authority under federal law.
Thus, the First and Ninth Circuits have somewhat easily
reached the conclusion that 39 U.S.C. § 3523(a)(2)(K) empowers
a postal inspector to make arrests while the Fifth Circuit
holds otherwise. We would agree with the Fifth Circuit that
there was no real analysis of the relevant statute in Kelley
or, for that matter in Neggo. Yet we must disagree with the
Fifth Circuit's conclusion that such lack of analysis precludes
a meaningful conclusion as to the validity of a postal
inspector's arrest power. That there has been no real
examination of this law may only indicate that there was and is
no real ...