467 F2d 359 Collins v. L Wolff

467 F.2d 359

Terrence Owen COLLINS, Appellee,
v.
Charles L. WOLFF, Jr., Appellant.

No. 72-1158.
United States Court of Appeals,
Eighth Circuit.

Submitted Sept. 13, 1972.
Decided Oct. 4, 1972.

Bernard L. Packett, Asst. Atty. Gen., Lincoln, Neb., Clarence A. H. Meyer, Atty. Gen, for appellant.

E. Dean Hascall, of Hascall, Reagan & Jungers, Bellevue, Neb., for appellee.

Before BRIGHT and STEPHENSON, Circuit Judges, and TALBOT SMITH,* District Judge.

PER CURIAM.

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1

Appellant Wolff, Warden, Nebraska Penal Complex, appeals from the decision of the United States District Court for the District of Nebraska ordering that writ of habeas corpus issue unless within 90 days the District Court of Sarpy County, Nebraska, grant petitioner a new trial. The issue before this Court is whether the District Court erred in finding that a package was mailed as first-class mail and thus under applicable statutes and regulations was not subject to opening and inspection by the Post Office Department without a search warrant.1 We affirm on the basis of the well-reasoned opinion of the late Honorable John W. Delehant, Senior District Judge, reported at 337 F.Supp. 114 (D. Nebraska 1972).

2

Appellant urges that the trial court erred in finding that the package in question was first-class mail for the reason that under the doctrine of Santana v. United States, 329 F.2d 854 (CA1 1964), cert. denied, 377 U.S. 990, 84 S.Ct. 1915, 12 L.Ed.2d 1044 (1964), the failure of appellee to mark the parcel "first-class" established that it was air parcel post and fourth-class mail, and thus subject to opening by postal officials under applicable regulations. However, in Santana, as the Court there pointed out, the package involved was insured. This indicated it was not first-class mail, since there was no authority for insuring unregistered mail of the first-class. 329 F.2d at 856. In the matter at hand, the package was not insured. Thus the affixing of postage at the highest rate applicable under these circumstances warranted a finding it was sent as first-class mail.

3

We are satisfied that the record herein amply supports the trial court's finding that the package in question was mailed as first-class mail and that under applicable law it was not subject to opening and inspection by the Post Office Department without a search warrant.

4

Affirmed.

*

Eastern District of Michigan, sitting by designation

1

The package was opened and found to contain an amphetamine tablet which later resulted in appellee's arrest and conviction for unlawful possession of stimulant drugs. Nebraska v. Collins, 186 Neb. 50, 180 N.W.2d 687 (1970)