Opinion
ID. No. 0104019543
Submitted: July 9, 2001
Decided: September 11, 2001
Upon Consideration of Defendant's Motion to Suppress Evidence DENIED.
Dennis Kelleher, Esq., Dover, Delaware. Attorney for the State.
Joseph A. Hurley, Esq., Wilmington, Delaware. Attorney for the Defendant.
OPINION
The defendants are charged with a number of drug offenses including trafficking in marijuana. It appears from the record that a total of more than forty pounds of marijuana were contained in two express mail packages delivered to the Harrington address of defendant Dale R. Kohland. A few minutes later defendant Benny H. Miller allegedly drove up to Kohland's residence, went inside, took possession of the packages from Kohland, went back to his car, and drove off. He was stopped by police and both packages of marijuana were found in the trunk of his vehicle. Miller has filed a motion to suppress the marijuana from use as evidence. He argues that the initial interception of the two express mail packages at an Indianapolis postal routing facility violated his rights to be secure against unreasonable searches and seizures under the federal and state constitutions. His search and seizure challenge is limited to the initial interception. Accordingly, this decision on the motion is confined to consideration of that issue.
The only evidence presented at the hearing on the motion was an application and affidavit for search warrant signed by Daniel Medrano, a postal inspector, the copies of the mailing labels from the two packages, and the testimony of Detective Boulerice of the Delaware State Police. Since Detective Boulerice was not involved in the initial interception in Indianapolis, and has no personal knowledge thereof, his testimony has no probative value as far as deciding Miller's motion to suppress is concerned. The only evidence considered for this motion are the contents of Medrano's affidavit and the two mailing labels.
Postal inspector Medrano is a Prohibited Mailings Narcotics Specialist assigned to the Indianapolis field office. His responsibilities include investigating controlled substance violations involving the U.S. mail. On April 28, 2001, postal inspectors examined express mail articles at the Indianapolis Eagle Network Hub and the Indianapolis Air Mail Center which had been mailed in the United States and transported to postal facilities for routine sorting. They separated out and segregated express mail and priority mail parcels based on certain "indicators." Those indicators are ones which, according to the affidavit, are characteristic of packages containing controlled substances. Those indicators include (1) the use of express mail and priority mail, (2) excessive wrapping in bubble pack and wrapping plastic, and heavy use of tape around the seams, (3) the use of a fictitious return address, no return address, or a return address which is the same as the addressee address, (4) person to person handwritten labels, (5) origination from a known drug source city such as Los Angeles, (6) a size and weight substantially larger and heavier than a typical express mail article, and (7) the absence of an account number, indicating that the sender paid cash to mail the article. The affidavit goes into some detail in describing several investigations where these indicators were applied with the result that 85% or more of identified packages were found to contain controlled substances.
According to the affidavit, handwritten person to person mailing labels are found on less than five percent of all express mail.
When postal inspectors at the Indianapolis facility examined express mail and priority mail items on April 28, 2001, they separated out at least 30 packages, including the two addressed to Kohland, based upon the above-mentioned indicators. The indicators given as justification for segregating those two are that they were express mail with handwritten person to person mailing labels, heavily taped seams, a non-existent delivery address, and that they were two being sent from the same person to the same person. At some point during the process the two parcels, along with the others, were sniffed by trained narcotics detection dogs. The dogs alerted to thirty of the packages, including the two involved here, indicating the presence of a controlled substance. Postal Officer Medrano then applied for and obtained a search warrant to search the parcels for controlled substances. The mailing labels for the two packages indicate that they were both mailed by Anna Jobe, 5960 W. Oregon #109, Glendale, Arizona 85301. Both were mailed to D. Kohland, 119 Mesquite, Harrington, Delaware 19952. Both were mailed on April 27, 2001. One was mailed at 12:50 p.m. and the other at 12:58 p.m. Their weights were 23 pounds, 13.20 ounces and 26 pounds, 9.4 ounces. Both were mailed for next day delivery by 3:00 p.m. The weights set forth above are the weights that appear on the mailing labels. The cost of one was $57.05. The other was $53.15. After the postal authorities in Indianapolis finished with the packages, they notified the Delaware State Police of what was coming. The police determined that D. Kohland's address was actually 119 Mechanic Street, Harrington, not Mesquite. Arrangements were then made for surveillance of the residence at 119 Mechanic Street while the packages were being delivered by a postal agent. Shortly thereafter, this led to the arrest of defendant Miller when he drove away from the residence with the packages in the trunk of his car. The defendant contends that the initial interception of the packages — i.e., the segregating out of the packages at the Indianapolis postal facility — was a seizure; that such a seizure is permitted only where an officer has reasonable suspicion to believe that the package contains contraband; that the reasonable suspicion must be based upon facts known to the officer before the seizure of the package takes place; that while the affidavit of Inspector Medrano sets forth the facts forming the probable cause upon which a search warrant was ultimately sought, it does not set forth any facts to show that Medrano had reasonable suspicion to believe the packages contained controlled substances when he initially seized them (as opposed to after he seized them); that a seizure based upon reasonable suspicion must be limited to that brief investigatory time necessary for the officer to confirm or dispel his reasonable suspicion; and that there is no evidence that detention of the packages in this case was limited to only the amount of time needed for the officer to investigate his reasonable suspicion. The defendant makes no search and seizure challenge to anything that occurred after the dog alerted on the packages. The State contends that the segregating of the packages for the dog's sniff test does not rise to the level of a seizure and that, if it was, it is a valid seizure based upon the postal inspector having reasonable suspicion to believe that the packages contained controlled substances. Preliminarily, I note that it could be argued that Miller has a standing problem. He was neither the sender nor the addressee of the packages. However, this issue was not raised by the State and I will, therefore, presume that Miller has a sufficient interest in the packages to confer standing. In support of his contention that the seizing officer lacked reasonable suspicion to believe drugs were involved before seizing the two packages, the defendant argues that the affidavit provides no details as to the circumstances of the packages being seized; that, for example, Medrano may not have been able to see the mailing labels or the nature and extent of the taping when he first saw the packages and may have seen these "indicators" only after he put his hands on the packages and seized them; that he may have arbitrarily selected packages whose mailing labels were concealed because the packages were face down; and that he may have stopped a conveyor belt, seized the packages and only then, after they had been seized, examined their mailing labels. He may then, the argument goes, have placed the packages in a storage facility overnight and decided not to conduct the canine sniff until the next day. Or, alternatively, he may have removed the packages from the flow of mail without noting anything suspicious except heavy taping, with the intention of looking at them more closely the next day. Although the affidavit does not contain a step by step detailed description of how each package was handled from the first moment that a postal officer laid eyes on it, it does contain facts which lead to certain conclusions. As is recited in the affidavit, at some point on April 28, the two packages involved here were examined by postal inspectors, along with at least twenty-eight other express or priority mail packages. As is further stated in the affidavit, certain packages, including the two involved here, were segregated from other mail based upon "indicators," all of which were readily ascertainable from an examination of the exterior of the packages. All thirty packages received a canine sniff test at some point on April 28. Since, according to the affidavit, the packages were segregated based upon their exterior physical characteristics, I infer that the canine stiff test was administered to each at some point after each was segregated. The affidavit indicates that all thirty were subjected to the canine sniff test. At a later point, but still on April 28, a detailed affidavit consisting of fifteen pages plus a four page, single spaced description of each of the thirty packages was completed. Many of the paragraphs in the affidavit may have been prepared in advance, but it is clear that the detailed description of each of the thirty packages must have been prepared on April 28 and could not have been fully completed until all thirty packages had been subjected to a sniff test. At some point after that, but still on April 28, the finished affidavit was signed by Inspector Medrano in the presence of a U.S. Magistrate Judge. The entire process, therefore, occurred in less than twenty-four hours while the packages were at the Indianapolis postal facility. On this record, I conclude that the packages were removed from the routine flow of mail because of the characteristics noticed when they were examined and that the defendant's arguments that they may have been kept at the facility overnight after being examined or held at the facility overnight before being examined, or otherwise held apart from normal mail for an unreasonably long period of time before being both examined and exposed to the canine sniff, are highly improbable and must be rejected. I turn next to the issue of whether the initial examination of each package constituted a search or seizure. "A `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." "A `seizure' occurs when there is some meaningful interference with an individual's possessory interest in that property." The contents of letters and packages are constitutionally protected, but no one has a reasonable expectation of privacy in the exterior of a package placed in the mail. The mere fact that a postal inspector briefly handles a package does not constitute either a search or a seizure. It is common knowledge that an article placed in the mail will be picked up, handled and sorted by any number of postal employees as it moves from its place of mailing to its destination. Physical handling does not meaningfully interfere with a person's possessory interest in a package. Therefore, a search or seizure does not occur simply because a postal inspector may pick up a package, turn it over to look at a mailing label that may have been face down, hold it to assess its weight, or otherwise feel the exterior of the package or look at all sides of it. A case cited by the defendant, Arizona v. Hicks, involved the physical handling of a stereo in a private apartment. It is not applicable to a package placed in the U.S. mail. Contrary to the defendant's contention, at the point where Inspector Medrano examined the outside of defendant Kohland's packages, neither a search nor seizure occurred regardless of whether the officer could see the mailing label on the package before he picked it up, or whether he had to remove it from a conveyor belt or otherwise pick it up and turn it over to read the mailing label and/or see the tape sealing the seams.
The mailing label stated Mr. Kohland's address as 119 Mesquite, Harrington, Delaware. His address is 119 Mechanic Street, Harrington.
United States v. Jacobsen, 466 U.S. 109, 113 (1984).
Jacobsen, 466 U.S. at 113.
United States v. VanLeeuwen, 397 U.S. 249 (1970).
480 U.S. 321 (1987).
The next issue is whether the act of segregating the packages was a seizure. At the hearing on the motion, the State referred the Court to the case of United States v. England. In that case two mail packages, sent on separate occasions, were pulled out of normal mail flow and set aside to be sniffed by a trained dog. The first package, after being sniffed positive, was put back into the mail flow and arrived at its destination at the same time that it would have if it had never been set aside at all. The second package was taken to a nearby police station where the sniff test was administered. When the test was positive, a search warrant was obtained and the package was opened. According to the record, if the package had tested negative it could have been returned to the postal station and placed on its originally scheduled flight. The defendant contended that the packages were seized when the postal authorities set them aside to be subjected to a dog sniff. The Ninth Circuit Court of Appeals, however, held that setting the packages aside for a dog sniff was not a seizure because it did not constitute a meaningful interference with the defendant's possessory interest in the packages. By offering this case to the Court, the State argues, in substance, that when Medrano separated the Kohland packages out and set them aside to await the dog sniff, he still had not seized the packages because he had not yet meaningfully interfered with Kohland's (or the defendant's) possessory interest in them. After consideration, I am not inclined to rule on this issue because I am convinced that even if the act of segregating and detaining the packages for further investigation by dog sniff was a seizure, it was a valid warrantless seizure based upon a reasonable and articulable suspicion that the packages contained a controlled substance.
971 F.2d 419 (9th Cir. 1992).
In State v. Ellison, this Court recognized that a mail package may be seized briefly based upon a reasonable and articulable suspicion that the package contains a controlled substance. The Court has also recognized that a reasonable and articulable suspicion that a package contains a controlled substance may be based upon the package's having characteristics consistent with a "drug package profile." In this case, Medrano's affidavit explains that the "indicators" are found on less than five percent of express mail packages, and yet the packages so identified have been found to contain controlled substances approximately eighty-five or ninety percent of the time in several investigations. The defendants' packages met several of the "indicators." Not all "indicators" were present. There is nothing in the record to suggest that the sender's name or address were fictitious, or that the city of origin was a known drug source city. It is not necessary, however, that all factors be present. I conclude that the combination of express mail, a hand written, person to person mailing label, significant weight, heavy taping of the seams, and cash payment is sufficient to create a reasonable and articulable suspicion that a package exhibiting these factors may contain a controlled substance. The fact of two packages, not one, adds to the suspicion. In conclusion, the initial interception of the packages in the Indianapolis mail facility did not violate any right secured to the defendant by the federal or state constitutions. The motion to supress is denied. IT IS SO ORDERED.
Del. Super., Cr. A. No 9701020567, 9701020483, Carpenter, J. (Aug. 13, 1998) (ORDER).
Id.
United States v. Lux, 905 F.2d 1379 (10th Cir. 1990).
The indicators mentioned in paragraph 14 as those causing the examiner to segregate the packages do not include all of the indicators which the packages in fact met. I do not consider this significant, as all indicators were readily apparent upon inspection of the packages.
The "Mesquite" address, rather than "Mechanic" may simply have been an error on the part of the sender. However, it is reasonable that a postal inspector in Indianapolis, who might not be familiar with Harrington addresses, would view the address as non-existent, and note it accordingly.