that it is valid, its justification must be found in the origin of the values deemed controlling. They presumably constitute a value or policy judgment of the entire polity. This is particularly true of the Constitutional commands, representing as they do the nation's paramount source of law. It is, perhaps, not equally true in the case of statutory enactments which are the product of the legislature's best judgment at some specific time. While the question may therefore be closer when the violation is of a statute, the ultimate choice has nevertheless been the same.
A departmental regulation such as this one stands on a different footing. It has its basis in the views of the department promulgating it, and ordinarily can in no sense be said to imply the wide approval of a statute or Constitutional provision. Thus, when a balance is sought to be struck it is the desirability of promoting a departmental rather than a national policy that supports suppression of the evidence.
That fact that the location of the balance is a subject of heated dispute where national interests are called in question suggests that the opinion of the Postal Department furnishes tenuous justification for such a drastic remedy as suppression.
Moreover, where a statute is involved Congress is not in a very advantageous position to effectively prevent violations of the policy expressed therein; for violations normally originate from agencies outside Congress. Conversely, violations of the Postal Regulations, as in the instant case, have their origin within the Department. It is thus uniquely capable of enforcement, and the need for Court intervention is less clear. The fact that the Department chooses not to enforce the Regulation does not appreciably diminish the force of this argument. If Congress were able to effectively secure observance of their enactments, and were it to decide not to do so, an advocate of the exclusionary rule would be hard pressed to sustain it in relation to statutory violations. This is indicated by the fact that an adverse Congressional judgment on the wisdom of the exclusionary rule would presumably be decisive. Cf. Wolf v. People of State of Colorado, 1949, 338 U.S. 25, at pages 39-40, 69 S. Ct. 1359, 93 L. Ed. 1782 (Black, J., concurring).
The fact that the Regulation at issue is interpreted as a response to a Senate Committee report does not sufficiently broaden the base of the policy expressed therein to alter this conclusion. No legislation emanated from the report, and the report was not debated nor even given express approval by the Senate; it was merely forwarded to the Attorney General. Moreover, the incident that generated the report involved surveillance of a Senator's mail -- a subject about which the Senate was understandably concerned. Finally, it must be remembered that the Senate is but one branch of the legislature. To rely upon the report is therefore to rest upon a slim reed indeed.
In view of what has been said the Court feels that the considerations militating against extension of the exclusionary rule have the better of the argument. Defendant, however, has called attention to several cases that stand for the proposition that valid departmental regulations have the force and effect of law. From this he concludes that they should be treated as a law would be in the instant case.
It seems almost too fundamental to point out that because regulations are said to have the force of law for one purpose does not mean they will be accorded like treatment for all purposes. Cf. United States v. Eaton, 1892, 144 U.S. 677, 688, 12 S. Ct. 764, 36 L. Ed. 591. Whether they will in a given case depends upon an assessment and critical scrutiny of the considerations relevant to the particular problem demanding solution. This has been attempted in this case with the result of convincing the Court that on balance of the wiser course to pursue is to permit use of the evidence in question.
Finally, Oliver v. United States, 8 Cir., 239 F.2d 818, certiorari dismissed, 1957, 353 U.S. 952, 77 S. Ct. 865, 1 L. Ed. 2d 858, is not opposed to the decision reached. There the Court utilized a combination of statutory and administrative restrictions on the right to inspect mail to suppress evidence obtained by opening a wrapped package containing heroin. However, for reasons outlined above, the injection of a statutory command creates a rather different problem than that now before the Court. Accordingly, defendant's motion will be denied.
An appropriate order will be entered.