State v. Cooper

STATE_V_COOPER.93-490; 163 Vt 44; 652 A.2d 995

[Filed 10-Nov-1994]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609Ä 0801 of any errors in
order that corrections may be made before this opinion goes to press. 


                                    No. 93-490


State of Vermont                     Supreme Court

                                     On Appeal from
     v.                              District Court of Vermont,
                                     Unit No. 1, Bennington Circuit

Alexander Cooper                     September Term, 1994



John P. Morrissey, Acting J.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
 Attorney General,   Montpelier, for plaintiff-appellee 

William K. Sessions III and Marybeth McCaffrey of Sessions, Keiner, Dumont &
 Barnes, P.C.,   Middlebury, for defendant-appellant 



PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     GIBSON, J.   Defendant Alexander Cooper appeals from a conditional
guilty plea to one count of conspiracy to deliver marijuana in violation of
13 V.S.A.  1404.  On appeal, defendant challenges the trial court's denial
of his motion to suppress evidence of an Express Mail package that contained
marijuana and served as the basis for the charge against him.  We affirm. 

     On November 25, 1991, United States Postal Inspector Robert Sticht of
Tuscon, Arizona 

 

became suspicious of an Express Mail package addressed to a post office box
in Manchester, Vermont.  He contacted United States Postal Inspector Terrence
Loftus in Hartford, Connecticut, advising Loftus that he suspected the
package contained illegal narcotics.  Inspector Sticht informed Inspector
Loftus that the package was sent via Express Mail, a service commonly used by
narcotics distributors, that it originated from Tuscon, a known narcotics
distribution point, and that it contained a false return address.  Inspector
Loftus made arrangements to intercept the package in White River Junction,
Vermont on November 26. 

     Inspector Loftus arrived in White River Junction on the evening of
November 26.  He retrieved the suspicious package from the White River
Junction Post Office, and arranged to have a dog trained to detect narcotics
sniff the package in Springfield at 7:00 a.m. the next morning.  Inspector
Loftus took the package to Springfield the following morning where it was
placed on the floor with seven other packages of similar size.  The dog
reacted positively to the suspicious package, and the test was repeated; the
dog singled out the suspicious package a second time.  The package was then
routed to Manchester while Inspector Loftus went to the United States
District Court in Rutland to obtain a search warrant.  After the search
warrant issued and the package arrived in Manchester, the Manchester police
opened it and found what they believed to be marijuana.  The package was
resealed and delivered to the addressee shortly after 12:00 p.m. on November
27.  The addressee was subsequently arrested and named defendant as the
person who mailed the package. 

     Defendant raises four arguments on appeal.  Defendant first claims that
Inspector Loftus did not have reasonable suspicion to justify his seizure of
the Express Mail package in White River Junction, and therefore the seizure
was illegal under the Fourth Amendment to the United 

 

States Constitution and Chapter I, Article 11 of the Vermont Constitution. 
Alternatively, he argues, that even if there was reasonable suspicion to
detain the package, the length of detention was unreasonable and therefore
violated both the Fourth Amendment and Article 11.  Defendant also argues
that the evidence should be suppressed because the search warrant affidavit
failed to meet the standard of V.R.Cr.P. 41(c).  Finally, defendant contends
that the canine sniff was an illegal search under Article 11.   We address
defendant's arguments in turn. 

                                           I.
                                           A.

     Defendant first claims that Inspector Loftus did not have reasonable
suspicion to detain the Express Mail package as required by the Fourth
Amendment.  He argues that the package met only two of the seven elements
that comprise the drug package profile used by the postal service to detect
illegal narcotics in the mails, specifically, the fictitious return address
and the package's size and shape.(FN1)  For reasonable suspicion, defendant
contends, the package must fit a majority of the seven elements.  The
district court concluded that reasonable suspicion was established by the
false return address, the fact that the package was sent Express Mail, the
size, shape and weight of the package, and Inspector Loftus's knowledge that
Tuscon is a known origination point for illegal drug distribution.  Thus, the
court concluded, Inspector Loftus could lawfully detain the package to dispel
or confirm his suspicions.  We agree. 

     The Fourth Amendment to the United States Constitution protects
individuals from unreasonable government searches and seizures.  U.S. Const.
amend. IV.  Although postal 

 

authorities generally must have probable cause and a warrant to open and
inspect mail, they may detain a mail package if they have reasonable
suspicion that it is involved in criminal activity. United States v. Van
Leeuwen, 397 U.S. 249, 251-52 (1970); see also United States v. Lux, 905 F.2d 1379, 1382 (10th Cir. 1990) (temporary detention of mail for investigative
purposes not unreasonable seizure if based on reasonable suspicion of
criminal activity).  "Investigatory stops are permitted where `specific and
articulable facts, which together with the rational inferences taken
therefrom, reasonably warrant the intrusion.'" State v. Siergiey, 155 Vt. 78,
81, 582 A.2d 119, 121 (1990) (quoting State v. Ryea, 153 Vt. 451, 454, 571 A.2d 674, 675 (1990)). We examine the totality of the circumstances in
evaluating the existence of reasonable and articulable suspicion to justify
an investigatory detention.  State v. Crandall, ___ Vt. ___, 644 A.2d 320,
323 (1994).  We agree with the district court that there were sufficient
specific and articulable facts to support a finding of reasonable suspicion
warranting an investigatory detention of the Express Mail package. 

     The district court found that Express Mail is used regularly by drug
traffickers to distribute narcotics, and packages containing contraband are
often labeled with a fictitious return address.  The court also found that
Tuscon is known by the Postal Service as a hub for illicit drug distribution.
 The Express Mail package defendant sent had all three of these
characteristics, and it was these characteristics together that raised the
suspicions of Inspectors Sticht and Loftus.  Although defendant maintains
that each factor is insufficient to establish reasonable suspicion because
each is consistent with innocent activity, law enforcement officers and
courts are not required to look at each factor in isolation.  Reasonable
suspicion exists in cases like this where several specific and articulable
facts, together with the inferences 

 

reasonably drawn therefrom, lead the officer to conclude that criminal
activity may be afoot. We note that other courts have found reasonable
suspicion to exist on similar facts.  See, e.g., State v. Gross, 789 P.2d 317, 318-19 (Wash. Ct. App. 1990) (reasonable suspicion to hold Federal
Express package for canine sniff where package had false return address, was
sealed with duct tape, and was lightweight for package of its size); State v.
Gordon, 464 N.W.2d 91, 94 (Wis. Ct. App. 1990) (reasonable suspicion to
detain Express Mail package and submit for canine sniff where officer knew,
through training and experience, that drugs are often distributed through the
mails, package was mailed from state commonly known as drug distribution
source, and anonymous informant tipped police that defendant was going to
receive package containing marijuana).  We agree with the district court that
Inspector Loftus had reasonable suspicion to detain the package for further
investigation. 
                                           B.

     Defendant also argues that Chapter I, Article 11 of the Vermont
Constitution requires a higher standard of reasonable suspicion than does the
Fourth Amendment, and that the higher standard was not met in this case.  He
contends that Article 11 gives privacy interests more protection than the
Fourth Amendment, and because of that greater protection, Article 11 requires
a different and higher reasonable suspicion standard.  Defendant has not,
however, identified any privacy interest implicated by the detention of the
Express Mail package to justify a new and more stringent test in this case. 

     Chapter I, Article 11 of the Vermont Constitution,(FN2) like the Fourth
Amendment, protects 

 

individuals from unreasonable government searches and seizures.  Its
protection is aimed at an individual's possessory and privacy rights.  State
v. Savva, 159 Vt. 75, 89, 616 A.2d 774, 781 (1991).  It is well settled that
government seizures of personal property implicate possessory interests while
searches implicate privacy interests.  Id.; see also State v. Platt, 154 Vt.
179, 188, 574 A.2d 789, 794 (1990) (police seizure of vehicle intruded upon
defendant's possessory rights, but privacy rights not implicated until police
searched the vehicle).  The detention of the Express Mail package was a
seizure, not a search.  We decline to articulate a heightened test for
reasonable and articulable suspicion under Article 11 based on a privacy
interest defendant fails to show was intruded upon by the detention. 

                                           II.

     Defendant next argues that Inspector Loftus unreasonably detained the
Express Mail package in contravention to the Fourth Amendment and Article 11.
 The essence of defendant's argument is that because of the interception and
canine sniff, the package was delivered three to three and one-half hours
late.  Defendant contends that the district court erred in finding that there
was no delay because the package was delivered to Manchester on the day it
was due.  He argues that the three to three and one-half hours that elapsed
between the scheduled and actual deliveries was unreasonable and interfered
with his privacy interests. 

     We will not disturb the trial court's findings of fact on appeal unless
they are clearly erroneous or unsupported by the evidence.  State v. Zaccaro,
154 Vt. 83, 86, 574 A.2d 1256, 1258 (1990).  During the suppression hearing,
Inspector Loftus testified that Express Mail from 

 

Tuscon to Vermont takes two days.  Thus, a package sent from Tuscon on
November 25 would arrive at its Vermont address on November 27.  He testified
that had the package not been detained, it would have left White River
Junction on November 27 between 1:30 and 2:00 a.m. for delivery to the
Manchester Post Office.  He further testified that even though the package
was temporarily taken out of the mail stream, it was delivered as scheduled
in the "normal course" on November 27. Although defendant argues vigorously
that the package should have been delivered by 9:00 a.m. on the 27th, there
is no evidence in the record relating to the precise time for delivery to the
addressee.  The evidence available to the trial court fully supports its
finding that the package was delivered when due on November 27.  Based on
this record, we cannot say that the trial court's finding of no delay was
clearly erroneous or unsupported by the evidence. 

     Assuming there was a three to three and one-half hour delay in the
package's delivery, that delay did not exceed the permissible scope of
investigative detentions based on reasonable suspicion.  Defendant relies on
United States v. Place, 462 U.S. 696 (1983), to support his contention that a
three to three and one-half hour delay was unreasonable under the Fourth
Amendment and Article 11.  In Place, the Supreme Court held that a ninety
minute investigatory detention of an airline passenger's luggage exceeded the
"permissible limits of a[n investigative] stop."  Id. at 709.  The Court
reasoned that the defendant's liberty and possessory interests were intruded
upon by the seizure of the luggage from the defendant's custody.  Id. at 708.
 Because there is no liberty interest at stake in this case, Place is inapt. 

     Unlike Place, Inspector Loftus did not seize the package from
defendant's custody. Defendant relinquished custody and control over the
Express Mail package to the Postal Service 

 

by placing the package in the mail stream.  Even if defendant retained a
possessory interest in the package upon mailing, any interference with that
interest was de minimis.  Cf.  United States v. Jacobsen, 466 U.S. 109, 125
(1984) (warrantless seizure of Federal Express package and subsequent
destruction of small amount of package's contents in narcotics field test was
de minimis intrusion on Fourth Amendment possessory interest, and therefore
reasonable); Platt, 154 Vt. at 188-89, 574 A.2d  at 794-95 (warrantless
seizure of murder suspect's automobile pending issuance of search warrant
intruded upon possessory interests, but was least intrusive means of
protecting potential evidence and permissible under Article 11).  Defendant
argues, however, that the detention interfered with his privacy interest in
the package.  As we stated in Part I.B, a government seizure of property
implicates possessory, not privacy, interests.  We fail to see how
defendant's Fourth Amendment and Article 11 interests were unreasonably
interfered with by a three to three and one-half hour delay in the package's
delivery under these circumstances. 

                                          III.

     Defendant's third claim is that the evidence should be suppressed
because the search warrant, issued by a federal judge, did not comply with
V.R.Cr.P. 41(c).  Specifically, defendant claims that the affidavit in
support of the warrant lacked an adequate factual basis on which the judge
could find probable cause.  He argues that the standard applicable to Vermont
warrants, namely the standard set forth in Rule 41(c), rather than the
federal standard employed by the issuing federal judge, should apply to the
warrant in this case.  We need not address the question of which law applies
because we conclude that the warrant was valid under either standard. 

 

     In reviewing a warrant for compliance with Rule 41(c), the key inquiry
is "whether the information provided in the affidavit reveals circumstances
from which a person of reasonable caution would conclude that a crime has
been committed and that evidence of the crime will be found in the place to
be searched."  Platt, 154 Vt. at 185, 574 A.2d  at 793.  Further, we give
deference to the judicial officer's probable cause determination, and do not
subject the supporting affidavits to "hypertechnical scrutiny."  State v.
Ballou, 148 Vt. 427, 434, 535 A.2d 1280, 1284 (1987). 

     Rule 41(c) requires that the probable cause finding be based on
substantial evidence, and that evidence can be hearsay in whole or in part. 
If the supporting affidavit contains hearsay, the rule subjects the hearsay
to a two-part test.  First, the affidavit must convey the factual basis for
any conclusions drawn by the hearsay informant; second, the facts must
demonstrate to the judicial officer that the information is either reliable
or the declarant inherently credible.  Id. at 434, 535 A.2d  at 1284.  The
purpose of this test is to ensure that the judicial officer has information
"from which to make an independent determination of an informant's basis of
knowledge and veracity."  State v. Bruyette, 158 Vt. 21, 33, 604 A.2d 1270,
1276 (1992). 

     Defendant claims that the issuing judge could not determine whether the
dog used for the sniff test was reliable because the affidavit lacked
specific facts about its training.  He asserts that the affidavit should have
stated whether the training was recognized by law enforcement, whether the
dog was certified, and whether that certification was current.  Without this
information, defendant argues, there was no way for the judge to determine
independently if the dog was reliable.  We disagree that Rule 41(c) requires
this information. 

     The affidavit stated that the dog was "narcotic trained."  A fair and
reasonable inference 

 

from this statement would be that the dog, through experience and
instruction, had the ability to detect narcotics.  See United States v.
Venema, 563 F.2d 1003, 1007 (10th Cir. 1977) ("train" in dictionary and
common usage means "to instruct or drill in habits of thought or action," and
judicial officer issuing search warrant could understand that dog "by reason
of experience and training" had ability to sniff out narcotics).  This is not
the only fact, however, that the judge could rely upon to make an independent
analysis.  The affidavit stated that the dog was trained to detect specific
controlled substances, among them marijuana, and that it participated in
monthly training to identify these substances.  Further, the affidavit noted
that the dog reacted positively to the suspect package in two separate tests.
 These facts, in addition to the facts leading to reasonable suspicion, tend
to corroborate the dog's positive alert, and were sufficient to permit the
issuing judge to determine that the dog reliably indicated that the package
contained narcotics. 

     Defendant claims that the warrant affidavit did not satisfy Rule 41(c)
because Inspector Loftus's statement that the dog alerted to the package was
not accompanied by a statement that he witnessed the "alert," or a statement
describing the manner in which the dog alerted. Contrary to defendant's
argument, the judge could readily infer the inspector's presence at the sniff
test because the affidavit indicated that the inspector "retrieved" the
package from the White River Junction post office on November 26, and the
sniff test was done the following day. Moreover, the affidavit does not fail
Rule 41(c) because it lacked a detailed analysis of the dog's behavior when
it was exposed to the package containing marijuana.  We believe it would be
"hypertechnical" to require such statements in this case.  The affidavit
complied with Rule 41(c) by setting forth sufficient facts for the issuing
judge to conclude that the Express Mail package 

 

contained illicit drugs. 

     The warrant also passes the "totality of the circumstances" test used by
federal judges in issuing search warrants.  See Illinois v. Gates, 462 U.S. 213, 238 (1983) (probable cause sufficient to issue warrant must be analyzed
by the totality of the circumstances set forth in the warrant affidavits). 
This standard requires the issuing magistrate to view the affidavit in a
"common sense" manner, and determine whether, "given all the circumstances
set forth in the affidavit . . . there is a fair probability that contraband
or evidence of a crime will be found in a particular place."  Id.  In this
case, there was a substantial basis for the issuing judge to conclude that
there was probable cause to believe the Express Mail package contained
narcotics. 

     Inspector Loftus's affidavit stated that based on his training and
experience, illicit narcotics are commonly distributed by Express Mail, and
that fictitious return addresses often appear on packages containing
contraband.  The inspector stated that he was informed by another postal
inspector in Tuscon that an Express Mail package bound for Manchester,
Vermont contained a fictitious return address, and that Tuscon is known as a
city of origin for mail packages containing illegal narcotics.  The affidavit
described the canine sniff tests, and noted that the dog reacted positively
to the Express Mail package in both tests.  These facts meet the substantial
evidence test, and were sufficient for the issuing judge to conclude that
under the totality of the circumstances, there was a fair probability that
the package contained illegal narcotics. 

                                           IV.

     Defendant's final claim of error is that the canine sniff was an
unlawful search under Article 11.  Recognizing that canine sniff tests are
not Fourth Amendment searches, Place, 462 U.S.  at 707, defendant urges us to conclude differently under the Vermont
Constitution.  He argues that a canine sniff test intrudes upon a reasonable
expectation of privacy and, therefore, may be done only if authorized by a
warrant based on probable cause. Defendant has waived this claim by failing
to raise it in his motion to suppress before the trial court.  See V.R.Cr.P.
12(b)(3) ("Motions to suppress evidence on the ground that it was illegally
obtained" must be raised prior to trial); V.R.Cr.P. 12(f) (failure to raise
issue required by V.R.Cr.P. 12(b) constitutes a waiver thereof).  Having
failed to preserve this claim, we do not address it.  State V. Kasper, 137
Vt. 184, 204, 404 A.2d 85, 96 (1979). 

     Affirmed. 

                              FOR THE COURT:



                              _______________________________________
                              Associate  Justice

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                               Footnotes




FN1.    The profile characteristics include: "(1) size and shape of the package;
(2) package taped to close or seal all openings; (3) handwritten or printed
labels; (4) unusual return name and address; (5) unusual odors coming from
the package; (6) fictitious return address; and (7) destination of the
package."  United States v. Lux, 905 F.2d 1379, 1380 n.1 (10th Cir. 1990). 


FN2. Article 11 provides: That the people have a right to hold themselves, their
houses, papers, and possessions, free from search or seizure; and therefore
warrants, without oath or affirmation first made, affording sufficient
foundation for them, and whereby by any officer or messenger may be commanded
or required to search suspected places, or to seize any person or persons,
his, her or their property, not particularly described, are contrary to that
right, and ought not to be granted.