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upholding a finding of reasonable suspicion based in part on a fictitious recipient and a shipping address associated with another name
Summary of this case from Olson v. StateOpinion
Court of Appeals No. A-9987.
August 19, 2009.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-06-00755 CR.
Margi A. Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Hayward L. Cooley was convicted of misconduct involving a controlled substance in the third degree, a class B felony, for possessing cocaine with the intent to deliver. Cooley appeals, arguing that Superior Court Judge Patricia A. Collins erred in denying his motion to suppress. Cooley's motion to suppress was based on his contention that the police did not have reasonable suspicion to detain a package he shipped through UPS. The police detained the package to have a drug-detecting dog sniff it. (The dog alerted to the package. The police obtained a warrant to search the package based in part on the dog's reaction to the package. This resulted in the police discovering the cocaine and the eventual charges against Cooley.) We uphold Judge Collins's finding that the police had reasonable suspicion to detain the package and subject it to a dog sniff.
AS 11.71.030(a)(1).
Factual and procedural background
Judge Collins conducted an evidentiary hearing to address Cooley's motion to suppress. Investigator Dominic Branson, an officer with the Juneau Police Department, testified at the evidentiary hearing. Branson testified that he was assigned to the Southeast Alaska Narcotics Enforcement Team and had received extensive specialized training in drug interdiction, including detecting drugs shipped in packages through the United States Postal Service, FedEx, and UPS. On June 8, 2006, he was at the UPS facility in Juneau, observing packages coming into the facility. He testified that he was looking for packages that were "out of the ordinary." According to Investigator Branson, most of the packages that he saw were business-to-business mail or from a business to a private residence.
While conducting the investigation, Branson observed a package that did not look like any of the other packages he had seen that day. The box had originally contained Kirkland garbage bags, a Costco brand. Besides being reused, the box was heavily taped, and had been mailed from a shipping and receiving company. He also observed ramen noodles stuck to the tape on the bottom of the package.
Branson explained that one of the factors that made him suspect the package might contain contraband was that a shipping company had been used. He said that a person using a shipping company could remain anonymous, because the shipping company would not require any identification or a legitimate return address to send a package. And the shipper could pay in cash, rather than by check or credit card. He also testified that the small pieces of Ramen noodles on the package seemed odd because that was a commodity readily obtainable in Juneau. He also observed that the package had been sent second-day air. (The cost to ship the package was $63.99.) Branson testified that the box was heavily taped, which was suspicious. Frequently, people shipping drugs heavily tape the box in an attempt to eliminate odors and to make sure the contents stay secure.
Branson testified that the box was addressed to "Howard Lee." He decided to investigate whether a person named Howard Lee actually resided in Juneau. Branson requested a police department search of the Alaska Public Safety Information Network (APSIN). Branson testified that APSIN includes all Alaska drivers' licenses, identification cards, and criminal records. He further testified that another database was searched, which included permanent fund dividends, hunting and fishing licenses, and the Juneau Police Department computer system. There was no record of a Howard Lee in Juneau. According to the database searches, the name associated with the address on the package was someone other than Howard Lee.
Branson testified that he also considered where the package was sent from, California, which he described as a hub for drugs coming in from Mexico. He testified that drugs could be purchased at a cheaper price in California and sold in Alaska for profit. Branson stated that during the day he had observed approximately 1200 parcels, and this was the only package that he searched.
Based on this information, Branson requested the drug-detecting dog, which arrived in approximately one-half hour. The dog alerted to the box. The police obtained a warrant to search the package and found the cocaine.
At the conclusion of the evidentiary hearing, Judge Collins concluded that the State had shown that the police had reasonable suspicion to detain Cooley's package to allow it to be sniffed by a dog trained to detect drugs. In her findings, she expressed some skepticism about the probative value of some of the things that the police considered in concluding that the package was suspicious. But she concluded that, taken as a whole, the police had articulated substantial reasons to suspect that the package contained illegal drugs. Specifically, Judge Collins found that common sense suggested that people shipping drugs would heavily tape the package in which they sent the drugs. She noted that Branson had taken substantial steps to determine if a Howard Lee lived in Juneau or lived at the address where the package was being sent. She concluded that Branson's investigation was sufficiently thorough to provide reasonable grounds for believing that Howard Lee was a fictitious person, and described this as the "turning point" in reaching a conclusion that there was reasonable suspicion that the package contained illegal drugs. Judge Collins also stated that she took into account that the officers had observed approximately 1200 packages that day, and this was the only package they had selected that they felt was sufficiently suspicious to conduct a further investigation. Why we uphold Judge Collins's decision
The question before us is whether the police had reasonable suspicion to detain Cooley's package. The police have reasonable suspicion when they have a "particularized and objective basis for suspecting . . . criminal activity." In particular, in order to enforce the protections against unreasonable searches and seizures in the Fourth Amendment to the United States Constitution and article I, sections 14 and 22 of the Alaska Constitution, "it is not enough for the State to point to identifiable reasons to suspect that a package contains contraband. The State's reasons must also serve to differentiate the suspected package from the body of innocent packages."
See McGee v. State, 70 P.3d 429, 431 (Alaska App. 2003); Pooley v. State, 705 P.2d 1293, 1310-11 (Alaska App. 1985).
McGee, 70 P.3d at 432 (Mannheimer, J., concurring) (quoting United States v. Cortez, 449 U.S. 411, 418-19, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)).
Id. at 433.
In Gibson v. State, we found that the state troopers had reasonable suspicion to subject a package to a dog sniff. The troopers had received a call reporting a suspicious package at the Anchorage International Airport. An airline employee was suspicious of the package because of its size and weight — it "was relatively small and was wrapped in brown paper with fiber tape over two ends and across the bottom." In addition, the contents of the package were described as "tea," but the shipper had paid $21 to have this inexpensive commodity shipped by private air carrier rather than using less expensive means. The troopers obtained the package from the airline. They discovered that the shipper of the package was not listed in the telephone book, that the return address did not exist, and that the phone number listed for the shipper belonged to someone else. We noted that the "intrusion was relatively slight and for the limited purpose of subjecting the package to a dog sniff." Based on these considerations, we concluded that the police had "adequate reasonable suspicion to justify the investigatory steps taken."
708 P.2d 708 (Alaska App. 1985).
Id. at 708.
Id.
Id. at 708-09.
Id. at 710.
Id.
In McGee v. State, w e reached a different result, finding that the police did not have reasonable suspicion to detain a package in order to test it with an ion mobility spectrometer (a device that can detect trace elements of controlled substances). In McGee, an Anchorage Airport police officer intercepted a package addressed to McGee at the Fairbanks FedEx facility. The officer thought McGee's package was suspicious because: (1) it was addressed by hand; (2) it had been mailed by overnight delivery; (3) it was addressed to "Sam McGee," which the officer erroneously assumed was a fictitious name; (4) the airbill did not have a phone number and did not describe the contents of the package; (5) the $21.50 shipping charge had been paid with cash; (6) the package appeared to have a "container" inside it; and (7) the officer considered Tacoma, Washington, the city from which the package was sent, to be a "source city" for drugs. We upheld the superior court's determination that the officer lacked reasonable suspicion to test the package with an ionscanner. We noted that the State had failed to provide any information that "distinguished McGee's package from any small express package sent from one individual to another."
Id. at 430, 432.
Id. at 431.
Id.
Id. at 432.
Id.
In a concurring opinion, Judge Mannheimer explained that "the problem with the State's articulable factors [was] that they describe[d] too many innocent shipments. . . . [T]he circumstances offered to justify the temporary detention of mail . . . must serve to distinguish the detained package from the general body of shipments." Judge Mannheimer assumed that overnight packages, shipments that are hand-addressed or paid for in cash, and shipments from certain "drug source" areas are more likely to contain contraband, but still determined that it was "not enough for the State to point to identifiable reasons to suspect that a package contains contraband." Instead, "[t]he State's reasons must also serve to differentiate the suspected package from the body of innocent packages."
Id. at 433 (Mannheimer, J., concurring).
Id.
Id.
In the present case, we conclude that the police had sufficient information to differentiate Cooley's package from the body of innocent packages and to have reasonable suspicion that Cooley's package contained illegal drugs. Therefore, the police could submit that package to a dog sniff. In her findings, Judge Collins recognized that many of the factors Investigator Branson testified about which made him suspicious of the package, standing alone, could easily have innocent explanations. She emphasized that the police checked several different sources to reach their conclusion that there was no record of the addressee, Howard Lee, in Juneau and that the name associated with the address on the package was someone other than Howard Lee. Judge Collins could, therefore, reasonably conclude that the police investigation was sufficiently thorough to reason ably suggest that Howard Lee was a fictitious name. (This is an obvious contrast to the facts in McGee, where the police merely assumed, inaccurately, that McGee was using a fictitious name.) Judge Collins also accepted the testimony of the police officers that the officers had observed approximately 1200 packages that day and had only selected Cooley's for further investigation. Judge Collins's factual findings support the conclusion that the police had reasonable suspicion to subject Cooley's package to a dog sniff. We accordingly conclude that Judge Collins did not err in denying Cooley's motion to suppress.
The judgment of the superior court is AFFIRMED.