State v. Stump
State v. Stump
Opinion of the Court
OPINION
We granted réview of this case to decide whether an order by the trial court suppressing evidence was proper under the circumstances.
Respondent Mary Lynn Stump was indicted for possession of cocaine.
For purposes of this appeal, the factual summaries of either side do not vary in material regard. In the early morning hours of April 25, 1975, Investigator Harter of the Alaska State Troopers was awakened by a telephone call from his office directing him to contact Victor Gedminas, the Assistant Manager of Western Airlines Freight at Anchorage International Airport. When Harter called Gedminas, he was informed that a Western . Airlines employee, William Krossa, had discovered some white powder in a package of T-shirts.
In the course of his duties, Krossa occasionally opened packages shipped by Western Airlines in order to determine that their contents were as described on the accompanying air bills. Prior to his involvement with the case at bar, Krossa had never found unlawful drugs in a package he inspected. Although he had on occasion discovered other items which were not supposed to be shipped by air, he had had no past dealings with police officers with regard to these items. On the day in question, Krossa’s attention was drawn to a package wrapped in 'brown .paper addressed to Dick York in care of respondent, Mary Stump. It had been shipped from San Francisco and was accompanied by an air bill stating its contents as “T-shirts.” The method of collecting payment was unusual, and, on the day of its arrival, Krossa received between four and eight telephone calls from a man and a woman inquiring whether the package had come in. Also, Krossa had been informed by a co-worker that a few days before, the package’s recipients had shipped a book upon which they had placed an unusually high value to an address in San Francisco.
These facts caused Krossa to suspect that the contents of the package might not be as described, and he therefore opened it for inspection. Krossa found that the package did indeed contain T-shirts. In addition, however, he discovered two plastic bags of a powder-like substance taped to the inside of one of the shirts. Krossa suspected that the substance was either cocaine or heroin. With the plastic bags still taped to the inside of the T-shirt, Kros-sa repackaged the goods in their original box, leaving the end open.
When Investigator Harter subsequently met with Krossa at the airport, he was shown a box wrapped in brown paper which had one end cut off. Krossa thereupon removed the contents of the box and showed Harter the T-shirt which contained the plastic bags. At that point Harter reached inside the T-shirt and removed the plastic bags. Some of the white powder reacted positively to a field test for cocaine.
The trial court found that the search of the package was conducted in conjunction with or at the direction of the police and that no exception to the prohibition against warrantless searches and seizures was applicable under the circumstances. Hence, the trial judge concluded that the search was unlawful and the evidence subject to suppression.
There are two separate components of the search
We begin with the initial inspection of the package by Mr. Krossa. At the time of the search, Krossa was acting in a purely private capacity, not as an agent of the police. There was no evidence that he had cooperated with the police in the past or had any previous contact with them pertaining to drug detection.
A search by a private citizen not acting in conjunction with or at the direction of the police does not violate the constitutional prohibitions against unreasonable search and seizure.
Id. at 807, citing Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 1051 (1921), and other federal authorities. Hence, the search by Krossa did not violate Stump’s constitutional rights.
Turning to the second inspection, we note that after Krossa discovered the powder,
We are not persuaded that this inspection stands on any different footing than the first inspection. There is no indication it was done at the direction of the police, nor was there an attempt by the officer to open the original package. Investigator Harter was handed a T-shirt from a box opened by Krossa, and the powder contained in plastic bags was pointed out to him. No police search had occurred up until this time. There was no “prying into hidden
The decision of the trial court dated August 29, 1976, is reversed, and this case is remanded for further proceedings in conformity with this opinion.
. AS 17.12.010 prohibits the possession or sale of a depressant, hallucinogenic, or stimulant drug.
. Alaska R.Crim.P. 37(c).
. “[T]he state can invoke our discretionary review jurisdiction in criminal cases where the matter sought to be reviewed involves a non-final order or decision of the superior court.” State v. Browder, 486 P.2d 926, 931 (Alaska 1971). See State v. Davenport, 510 P.2d 78, 80 (Alaska 1973).
. Alaska R.App.P. 23(c)(1) allows the filing of a petition for review when an order affects a substantial right which “ . in effect terminates the proceeding or action and prevents a final judgment therein
. Alaska R.App.P. 23(d) permits the filing of a petition for review when a controlling question of law is involved.
.The fourth amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971) ; Bell v. State, 519 P.2d 804, 806 (Alaska 1974).
. Thus we are not confronted with the situation involved in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), where government agents initiated and participated in a search of air cargo by TWA employees.
. We note that respondent concedes the legality of the initial intrusion by Krossa. (Respondent’s Brief at 7).
. According to Krossa, the plastic bags were “cellophane,” not opaque, and he could see they contained a brownish-gray powder. (Tr. 15)
. The box was 14" X 14" X2%" and was wrapped in brown paper.
. The exact testimony was a follows :
Q. Okay, and the contents were in the box?
A. He — apparently he had put them back in after he had checked them before I got there.
Q. Okay. And he took them out again for your observation?
A. Yes, ma’am.
Q. Okay. And the — he had not removed the items from inside the T-shirt?
A. No, they were still taped to the inside of the T-shirt.
Q. Okay. And he removed them from the T-shirt?
A. I did.
Q. You removed them from the T-shirt? You also took them out of the box?
A. You just asked me that.
Q. Was it you or him, I’m sorry.
A. He removed them from the box, showed me the plastic bag taped to the back of the shirt. I removed the bag from the shirt. (Tr. 29-30).
. Actually there were two smaller “cellophane” bags inside a larger bag which formed an outer covering.
. Brown v. State, 372 P.2d 785, 790 (Alaska 1962).
. See U. S. v. Blanton, 479 F.2d 327 (5th Cir. 1973); Wolf Low v. United States, 391 F.2d 61 (9th Cir. 1968); United States v. Hodges, 448 F.2d 1309 (6th Cir. 1971).
. The dissent contends that the seizure was not justified. In this regard see Daygee v. State, 514 P.2d 1159, 1162-1163 (Alaska 1973), where we said, “[i]t is not necessary that the contraband be positively identified before it is seized.” (Footnote omitted). Also see Bell v. State, 519 P.2d 804, 808 (Alaska 1974), where this court, citing Day-gee, made the following observation:
While Jones [a government employee] did not positively declare that he believed the substance was marijuana, it strains credulity to conjure some other identification for this material found in a carton shipped as “clothing”. Admittedly it could have been hay, tea or spices, but officers are not required to eliminate every far-fetched conjectural hypothesis before seizing an item as contraband.
Here, also, the manner of shipment, the concern shown by the addressees over the “T-shirts,” the method of packaging, and the material’s appearance do not allow any reasonable inference that the bags did not contain contraband.
Dissenting Opinion
(dissenting).
I cannot agree with the majority opinion in this case. My disagreement on the search issue centers on the conclusion that “no police search . . . occurred” when the T-shirts were removed from the package the second time.
When Investigator Harter arrived at the airport, he was shown a box wrapped in brown paper with one end cut off. There was no contraband in sight. William Krossa, an airline employee, informed Har-ter that inside one of the T-shirts in the box was a plastic bag containing two plastic bags of white powder.
In Schraff v. State,
A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.” (footnote omitted)
Prior to the second inspection, the powdery substance was concealed from Hart-er’s view; as far as he was concerned, the substance was in a hidden place. Therefore, when Krossa inspected the package’s contents for the second time, he was conduct
Even if I were to agree with the majority’s position with respect to the search issue, I would still differ from the decision ultimately reached by the court. My disagreement is based on the majority’s finding that Investigator Harter’s seizure of the contraband was authorized under the plain view exception to the search warrant requirement.
Justice Boochever (now Chief Justice), in writing the majority opinion in Bell v. State,
Although inferential reasoning rather than direct sight of the contraband itself has often been held sufficient to justify a “plain view” seizure of a package containing contraband, courts have not articulated the standard of certainty of the presence of contraband required when the state seeks to justify a seizure partly upon plain sight of an object and partly upon reasoning as to the contents of the object.7
Whatever that standard of certainty is, I believe it was not met here. In Daygee v. State, 514 P.2d 1159 (Alaska 1973), we sustained a seizure of contraband (marijuana) in plain view because of evidence that the police officer involved had extensive training in detecting marijuana, had testified that he recognized the smell of marijuana burning and that the substance in the bag in his view looked like marijuana, which he had seen previously.
But we have no such evidence here. Officer Harter testified only that he was a narcotics investigator. There was no testimony or other evidence that he had extensive training in detecting cocaine and that because of certain elements peculiar to that drug, he recognized the powdery substance in the plastic bags as being cocaine, or some other illicit drug. His suspicions were undoubtedly aroused by the presence of the plastic bags in the T-shirts, but a plain view of simply suspicious looking objects does not justify their seizure without a warrant.
In Bell v. State, the court held that:
[Cjlear and convincing evidence of the nature and presence of contraband within the package, such as Jones had, is sufficient to sustain a “plain view” seizure. We do not decide whether some lesser standard, such as probable cause, would suffice; such a discussion is not material to the outcome of this case, and the parties have not briefed or argued the question.10
There was no such “clear and convincing evidence” until after Harter had re
In my- opinion, Officer Harter’s seizure of the plastic bags was totally unauthorized and unreasonable. A search without a warrant is per se unreasonable unless it falls within one of the narrowly defined exceptions to the warrant requirement.
The exceptions to the requirement for a warrant are “jealously and carefully drawn”, and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to. show the need for it. . . .” Coolidge v. New Hampshire, 403 U.S. 443, 454 — 55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971).
The only exception that could conceivably apply here is that there may have been imminent destruction or concealment of known evidence.
Furthermore, this exception, if it would apply, relates to “known” evidence. As I have pointed out, there was no evidence that Harter knew what the plastic bags contained until after he had seized them without a warrant and conducted a field test which indicated the presence of cocaine. The state had the burden of proving the existence of exigent circumstances that would justify a seizure without a warrant.
Keeping in mind that the practicalities of law enforcement must be examined when we review the conduct of police officers, the state might argue that to expect Officer Harter to get a warrant at 2:30 or 3:00 o’clock in the morning would be unreasonable. I would reject the view that the police are excused from seeking a warrant because the hour is early, or late, and that they will have difficulty in finding a judge or magistrate to issue a warrant. The vital protections of the fourth amendment and art. I, sec. 14 of the Alaska Constitution cannot be hinged upon the convenience of police and magistrates or judges.
Being a narcotics investigator, Harter may have believed that what he ■ saw in the plastic bags may have been cocaine. But there is a difference between belief, or even probable cause to believe, that what the officer saw in the plain view was
The point of the Fourth Amendment, which often is not grapsed by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer in the often competitive enterprise of ferreting out crime.15
The foundation of the constitutional guarantees against unreasonable searches and seizures is the right to privacy.
One’s right to privacy is recognized not alone in the constitutional prohibitions against unreasonable searches and seizures in the fourth amendment to the federal constitution and in art. I, sec. 14 of the' Alaska Constitution. In 1972, the people of Alaska added to our constitution sec. 22 of art. I which provides:
The right of the people to privacy is recognized and shall not 'be infringed. The legislature shall implement this section.
This addition to our constitution has the effect of removing whatever doubt may have existed regarding the precious nature of the individual’s right to privacy. It has the effect, in my opinion, of requiring that in the area of searches and seizures, for example, the law must be construed most liberally in favor of the individual and most strictly against the government, in order to effectuate the constitutional mandate that the right to privacy of the people shall not be infringed.
The majority opinion in this case has the ultimate effect, I believe, in creating a presumption that evidence to support a magistrate’s or judge’s disinterested determination to issue a warrant will also justify a police officer in making a seizure without a warrant. This would certainly reduce the very explicit constitutional protections of privacy of the people to a nullity, and would leave one’s person and his property secure only in the discretion of police officers.
. Krossa had testified that the powdery substance “looked kind of brownish through the bag — brown gray.” (Alaska 1974), where this court stated:
. See Bell v. State, 519 P.2d 804, 807 (Alaska 1974), where this court stated:
A search by a private citizen not acting in conjunction with or at the direction of the police does not violate the constitutional prohibitions against unreasonable search and seizure.
. 544 P.2d 834 (Alaska 1975).
. 431 P.2d 502, 505 (Alaska 1967).
.The fourth amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Alaska Constitution, art. X, § 14, provides :
The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
. 519 P.2d 804 (Alaska 1974).
. Id. 519 P.2d at 808 n. 13.
. Daygee v. State, 514 P.2d 1159, 1162-63 (Alaska 1973).
. People v. Marshall, 69 Cal.2d 51, 442 P.2d 665 (1968).
. Bell v. State, 519 P.2d 804, 809 n. 13 (Alaska 1974).
. Erickson v. State, 507 P.2d 508, 514 (Alaska 1973).
. Bell v. State, 519 P.2d 804, 806 (Alaska 1974).
.McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158 (1948) ; People v. Marshall, 69 Cal.2d 51, 442 P.2d 665, 671 (1968).
. Chapman v. United States, 365 U.S. 610, 614-15, 81 S.Ct. 776, 778-779, 5 L.Ed. 828, 832 (1961) ; Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948); People v. Marshall, 69 Cal.2d 51, 442 P.2d 665, 668 (1968).
. Fresneda v. State, 458 P.2d 134, 138 (Alaska 1969).
. Chimel v. California, 395 U.S. 752, 761, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685, 693 (1969).
. See Smith v. State, 510 P.2d 793, 799 n. 2 (Alaska 1973) (dissenting opinion of Chief Justice Rabinowitz).
. See Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 779, 5 L.Ed.2d 828, 832 (1961) ; Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948); People v. Marshall, 69 Cal.2d 51, 442 P.2d 665, 669 (1968).
Reference
- Full Case Name
- STATE of Alaska, Petitioner, v. Mary Lynn STUMP, Respondent
- Cited By
- 18 cases
- Status
- Published