The opinion of the court was delivered by: CLARY
Defendant herein has been indicted under the above-numbered Indictment in 17 Counts for the perpetration of a Mail Fraud, in violation of Title 18 U.S.C. § 1341. Subsequent thereto, defendant filed a motion for the suppression of all evidence on the ground that any evidence to support the Indictment had been illegally obtained against the defendant by a Postal Inspector of the United States Post Office Department between October, 1958 and March, 1959, in violation of the Fourth and Fifth Amendments to the Constitution of the United States and the Postal Laws of the United States, Title 18 U.S.C.A. §§ 1701-1703.
A hearing was held on the motion on Monday, May 25, 1959. At the hearing it developed that the investigation leading up to the Indictment had two distinct aspects. Preliminarily, a Postal Inspector was assigned to scrutinize delivered mail to the defendant, who was trading as 'Direct Lines' at the Hamilton Court Hotel, 101 South 39th Street, Philadelphia, Pennsylvania. This occurred in late 1958. The second aspect consisted of a 'mail watch' on undelivered mail set up in the Post Office and in this fashion: A Clerk was assigned in the Post Office to scrutinize all mail addressed to the defendant at the Hamilton Court Hotel and to note the names and addresses of the senders of the first-class mail involved. The testimony disclosed that this 'mail watch' and the listing of the senders of the letters was done in such a manner so as to not interfere with or delay the delivery of the mail which, of course, is proscribed. There is no substance to any complaint that there was either non-delivery, or delay in delivery, of first-class mail to the defendant.
Testimony taken at the hearing disclosed that in the investigation by the Postal Inspector at the Hamilton Court Hotel there was definitely overzealousness on the part of the investigator. Were it not for an important fact to be set out hereafter, the Court would have no hesitancy in suppressing the evidence obtained at the Hamilton Court Hotel because of unlawful search and seizure of the defendant's mail and telegraphic communication at that address. That question, however, is moot because it was developed at the hearing that all evidence which was used by the Government to secure the present Indictment was obtained from 17 persons whose names and addresses were first obtained by the Clerk at the General Post Office in the 'mail watch' above described.
Defendant's position in this posture of the case is essentially twofold. He insists that: (1) the 'mail watch' is prohibited by the Postal Department's Regulations; and (2) even if the 'watch' itself is permissible, the disclosure by the Postal authorities to the Department of Justice of the information gathered is violative of the Postal Regulations. Since these Regulations have the force of law, he proceeds, evidence secured in violation of them must be suppressed. Defendant has not argued that any Constitutional or statutory provision was infringed.
'(a) * * * Postmasters and others in the postal service shall not give to unauthorized persons information concerning mail matter * * *. Postmasters may give to officers of the law, upon proper identification, to aid in the apprehension of fugitives from justice, information regarding the addresses, return cards, or postmarks on mail matter * * *.
'(b) * * * Upon official request of a representative of another executive department, agency, or independent establishment of the Federal Government and the presentation of proper credentials, postmasters may, when practicable, furnish for official use information regarding the addresses, return cards, or postmarks on mail matter * * *.' 39 C.F.R. § 41.4 (1949 ed.).
In 1954, after it came to light that the Postal Department, at the instance of the staff of a Senate Committee, had conducted a 'watch' over the mail of a United States Senator and had turned over to the Committee staff the information compiled, a special Senate Committee consisting of Senators George and Ferguson issued a report strongly condemning the incident. S.Rep. No. 2510, 83d Congress, 2d Sess. (1954), reprinted at 101 Cong.Rec. 2564 (1955). The Regulations were then revamped, and presently appear in the Postal Manual as parts 311.6 and 311.7.
'Furnish information concerning mail or mailing permits to postal inspectors and to the sender, the addressee, or the authorized representative of either * * *. Do not give such information to others * * *.'
'311.7 Concerning Fugitives.
'Furnish to officers of the law * * * information regarding the addresses, return cards, or postmarks on mail to aid in the apprehension of fugitives from justice * * *.'
Familiar rules of interpretation would indicate that since specific instances are enumerated in which access may be had to information garnered through a 'mail watch', it was intended that access be denied in all other situations. See 2 Sutherland, Statutory Construction §§ 4915-17 (3d ed. 1943). Since defendant was not a fugitive from justice this would preclude making the date available to the Justice Department in the instant case. This approach is supported by the fact that subsection (b) of the former Regulation specifically permitted furnishing information to other governmental units such as the Justice Department. Its omission from the revised Regulations suggests a rejection of the policy it expressed, particularly since the essence of subsection (a) was retained. From this the Court must conclude that communicating the results of a 'mail watch' to the Justice Department is prohibited by the Regulations. Since a violation is thereby established, it may be assumed for purposes of this motion that a 'mail watch' per se also runs counter to the mandate of the Regulations.
The Court is thus faced with a question of great difficulty. Does the violation of the Regulation require suppression of the evidence obtained? It is clear that evidence secured in violation of the Constitution, see Weeks v. United States, 1914, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, or a statute, see Draper v. United States, 1959, 358 U.S. 307, 310, 79 S. Ct. 329, 3 L. Ed. 2d 327; Nardone v. United States, 1939, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307, must be suppressed in a Federal prosecution. A departmental regulation, however, places the issue in a somewhat different perspective.