People v. Shapiro

People v. Shapiro, No. 81920 (10/17/97)


NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of
the opinion to request a rehearing. Also, opinions are subject to modification,
correction or withdrawal at anytime prior to issuance of the mandate by the Clerk
of the Court. Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following opinion will be
published by the Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.


Docket No. 81920--Agenda 28--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CRAIG L.
SHAPIRO et al., Appellees.
Opinion filed October 17, 1997.

JUSTICE HEIPLE delivered the opinion of the court:
At issue is the constitutionality of the United States Postal Service s
detention and investigation of a suspicious package, and of the search warrants
and arrests which ensued. The Framers of the United States Constitution believed
a uniform, safe and secure mail delivery system so important to our democracy
that the United States Constitution requires Congress to establish a post office.
U.S. Const., art. I, sec. 8, cl. 7. Indeed, at the inception of our Republic mail
delivery was deemed so essential that some of those who unlawfully interfered
with it were sentenced to death.[fn1] But what of where the interfering party is
the government itself, either in the person of the United States Postal Service or
any of our myriad police agencies? Obviously, the United States mail cannot be
completely immune from any and all investigation. Yet, the constitutional
ramifications of exercising police power over the mail are significant, especially
as regards the free speech guarantees of the first amendment and the search and
seizure guarantees of the fourth amendment. We allowed the State s petition for
leave to appeal (155 Ill. 2d R. 315) to consider whether the government s actions
in the instant case comported with the fourth amendment s search and seizure
guarantees. For the reasons expressed below, we hold that the government s
actions violated the fourth amendment and, accordingly, affirm the judgments of
the lower courts suppressing the evidence and quashing defendants arrests.

FACTS
Defendants, Rachel H. Smith and Craig L. Shapiro, were charged with
possession with intent to deliver 200 grams or more of the controlled substance
psilocybin. 720 ILCS 570/401(a)(11) (West 1994). The following facts pertinent
to this appeal were subsequently elucidated[fn2].
On or before January 19, 1995, a 14 by 14 by 9 inch package wrapped in
heavy brown paper, with heavily taped seams, was deposited with the United
States Postal Service s (Postal Service) Express Mail in Eugene, Oregon. The
return address was in Eugene, Oregon, and the addressee was defendant Rachel
Smith of Champaign, Illinois. The scheduled delivery date was Friday, January 20,
1995. On Thursday, January 19, 1995, the package was en route to Champaign
when Postal Service officials identified it as suspicious at O Hare International
Airport (O Hare) in Chicago because it met three of the Postal Service s drug
package profile criteria, viz., wrapped in heavy brown paper; heavily taped; and
addressed from one individual to another. Pursuant to the Postal Service s internal
policies, the package was removed from the mail stream at O Hare and shipped
to United States Postal Inspector Stephen Atterbury in St. Louis, Missouri, for
investigation.
Atterbury received the package on Friday, January 20, 1995, whereupon
he telephoned Postal Service officials in Oregon and learned that the return
address on the package was fictitious. He then contacted the St. Louis County
police department canine unit and arranged for one of its narcotics dogs to check
the package. After the dog twice "alerted on" the package, Atterbury completed
a search warrant affidavit and presented it to a federal magistrate in Missouri, who
issued a search warrant at 2:38 p.m. on January 20, 1995. Atterbury thereafter
searched the package and discovered that it contained the controlled substance
psilocybin. He then contacted Champaign police officials and arranged to
participate in a controlled delivery of the package the following Monday.
On Monday, January 23, 1995, Atterbury assisted the Champaign police
in obtaining an anticipatory search warrant for the addressee s premises. After the
search warrant was issued, Atterbury and the police attempted the first controlled
delivery of the package. Because no one answered the door, delivery was
postponed until the following day. On Tuesday, January 24, 1995, Atterbury
successfully accomplished a controlled delivery. Defendant Shapiro signed for the
package on behalf of defendant Smith and the police then executed the
anticipatory search warrant. When the police subsequently interviewed defendant
Shapiro, Shapiro noted that she had been expecting the package and, when it was
not delivered on time, had called the post office to inquire about the delay. The
post office told her that the package was lost.
After their arrests, both defendants moved to suppress the evidence and to
quash their arrests on a variety of search and seizure theories. The circuit court of
Champaign County suppressed the evidence and quashed defendants arrests,
finding, inter alia, that the government lacked probable cause to detain and to
investigate the package at O Hare, which rendered all the subsequent searches and
warrants invalid. The appellate court observed that the circuit court incorrectly
applied the probable cause standard instead of the reasonable articulable suspicion
standard in determining the validity of the initial decision to detain and investigate
the package, and further held that the latter standard had been met. The appellate
court nevertheless affirmed the judgment of the circuit court on a different ground,
ruling that the nature and extent of the detention and investigation which led to
the advent of probable cause was unreasonable. 283 Ill. App. 3d at 354-55.

ANALYSIS
Whether the government has seized property in violation of the fourth
amendment generally presents a mixed question of law and fact: first a court
weighs the evidence and determines the facts surrounding the complained-of
conduct, after which it decides whether, as a matter of law, these facts constitute
an unconstitutional seizure. In the instant case, however, there are no factual
disputes and our review is de novo. People v. Foskey, 136 Ill. 2d 66, 76 (1990).
We additionally observe that our disposition of this case follows from our
conclusions regarding the constitutionality of (1) the initial decision to detain and
investigate the defendants package at O Hare International Airport; and (2) the
reasonableness of that detention and investigation. Accordingly, we consider only
these issues and do not reach the arguments raised by the parties concerning the
anticipatory search warrant issued in Champaign, Illinois.

I. Decision to Detain and to Investigate the Package
The United States Constitutions protects the "right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures." (Emphasis added.) U.S. Const., amend. IV.[fn3] When the people
deposit their effects/possessions for delivery with the United States mail, the
constitutional proscriptions concerning searches and seizures do not cease to apply
simply because the item has been delivered into the hands of the government. See
United States v. Place, 462 U.S. 696, 705, 77 L. Ed. 2d 110, 119-20, 103 S. Ct. 2637, 2643 (1983) ("seizure may be made after the owner has relinquished control
of the property to a third party"). Indeed, effects deposited with the United States
mail enjoy the same search and seizure protections as if they were located within
a private residence. In re Jackson, 96 U.S. 727, 733, 24 L. Ed. 877, 879 (1878).
Yet the fourth amendment does not preclude all investigations of the mail.
A seizure, after all, involves the meaningful interference with a person s
possessory interests in an item of personal property. United States v. Jacobsen,
466 U.S. 109, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984). Citing United States v.
Van Leeuwen, 397 U.S. 249, 252, 25 L. Ed. 2d 282, 285, 90 S. Ct. 1029, 1032
(1970), the State contends that the mere detention of mail to examine the exterior
of a package never constitutes a seizure because the fourth amendment does not
prohibit examinations of the exterior of packages, regardless of whether delivery
delays result. As defendants correctly counter, however, such a broad reading of
Van Leeuwen is unwarranted given its further statement that "[t]heoretically ***
detention of mail could at some point become an unreasonable seizure of `papers'
or `effects' within the meaning of the fourth amendment." United States v. Van
Leeuwen, 397 U.S. at 252, 25 L. Ed. 2d at 285, 90 S. Ct. at 1032. Indeed, to
suggest otherwise raises an Orwellian specter quite at odds with the fourth
amendment. The investigation of the exterior of a package by the government may
often be consistent with the fourth amendment; however, depending upon the
nature and duration of the detention and investigation, it may at other times violate
the fourth amendment s seizure proscription. United States v. Van Leeuwen, 397 U.S. at 252, 25 L. Ed. 2d at 285, 90 S. Ct. at 1032; see also United States v.
Allen, 990 F.2d 667, 671 (1st Cir. 1993) (considering, and citing other cases which
have considered, whether the government s detention of mail amounted to an
unconstitutional seizure as anticipated in Van Leeuwen).
The rationale for allowing the detention and investigation of mail absent
probable cause is found in Terry v. Ohio, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880 (1968), and its progeny, which interpret the fourth amendment as
permitting minimally intrusive investigatory stops of individuals and/or their
property where there is a reasonable suspicion of criminal activity. See Ill. Rev.
Stat. 1971, ch. 38, pars. 107--14, 108--1.01 (statutory adoption of Terry standard
in Illinois). Reasonable suspicion arises where specific and articulable facts, and
rational inferences therefrom, reasonably justify an intrusion. Terry v. Ohio, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880. Based upon experience and
drug-trafficking intelligence, the United States Postal Inspection Service has
developed a drug package profile for packages deposited in the Express Mail and
Priority Mail. Profile characteristics include: (1) heavy brown paper wrapping; (2)
heavily taped seams; (3) handwritten address label; (4) sent from one individual
to another; (5) mailed from a zip code different from the address; and (6) a
fictitious address. While it is uncertain whether any one of these criteria, standing
alone, would support a finding of reasonable articulable suspicion, in various
combinations these criteria might indeed support such a finding.
In the instant case, Postal Service officials initially decided to investigate
defendants package at O Hare because it was wrapped in brown paper with heavy
taping and was hand-addressed from one individual to another. In considering the
constitutionality of this action, the trial court erroneously ruled that probable cause
was necessary to permit the detention and investigation of defendants package,
whereupon it concluded that the initial detention and investigation amounted to an
unconstitutional seizure. The appellate court, however, applied the legally
appropriate reasonable articulable suspicion standard and concluded that there was
reasonable suspicion to detain and investigate the package. 283 Ill. App. 3d at
351-52.
Despite defendants protestations otherwise, we hold that the appellate court
was correct in its conclusion that these factors were sufficient to give rise to a
reasonable articulable suspicion that the package contained narcotics. According
to the Postal Service, only 5% of Express Mail packages are addressed from one
individual to another. This fact, in concert with the brown paper and heavy taping
typically used to prevent narcotics odors from escaping such packages, warranted
a minimally intrusive detention and investigation of defendants package under the
reasonable articulable suspicion standard. United States v. Place, 462 U.S. at 703,
77 L. Ed. 2d at 118, 103 S. Ct. at 2642.

II. Reasonableness of the Detention and Investigation
We next consider the reasonableness of the government s detention and
investigation of the defendants package, for where reasonable articulable suspicion
permits the detention and investigation of a person s personal property, the fourth
amendment further demands that that detention and investigation be reasonable.
United States v. Place, 462 U.S. at 709-10, 77 L. Ed. 2d at 122-23, 103 S. Ct. at
2645-46. Whether the detention and investigation of a person s property,
commenced upon reasonable articulable suspicion of criminal activity, is itself
reasonable depends largely upon investigatory diligence and the length of
detention. United States v. Place, 462 U.S. at 709-10, 77 L. Ed. 2d at 122-23, 103
S. Ct. at 2645-46; see also United States v. Allen, 990 F.2d 667, 671-72 (1st Cir.
1993) (applying the United States v. Place criteria to determine reasonableness of
detention and investigation of United States mail). Only when the nature and
extent of the detention are minimally intrusive of an individual s fourth
amendment possessory interests can opposing law enforcement interests support
a seizure based upon less than probable cause. United States v. Place, 462 U.S. at 703, 77 L. Ed. 2d at 118, 103 S. Ct. at 2642.
Here the government did not expeditiously conduct its investigation of the
defendants package at O Hare, where it initially targeted the package for
investigation because it was wrapped in brown paper, heavily sealed with tape and
hand-addressed from one individual to another. Indeed, no investigation occurred
at O Hare. Instead, pursuant to an internal policy of the Postal Service, the
package was sealed in a new container and rerouted for investigation by the postal
inspector in St. Louis, far afield from either O Hare or the package s intended
destination in Champaign, Illinois. In St. Louis, Postal Inspector Atterbury
telephoned postal officials in Oregon and determined that the return address was
fictitious. He then arranged to have a dog trained to detect drugs come into close
proximity to the package, which the dog alerted on twice. At this juncture there
was probable cause to suspect the package contained narcotics and, after receiving
a warrant from a federal magistrate in Missouri, Atterbury searched the package
and discovered that it contained psilocybin. That probable cause eventually arose
is dispositive of nothing, however, as it does not address the reasonableness of the
detention and investigation which gave rise to the probable cause.
In considering whether the investigation and length of detention of mail is
so minimally intrusive that it is reasonable in the absence of probable cause,
courts consider whether law enforcement officials could have acted more swiftly.
See, e.g., United States v. Allen, 990 F.2d 667, 671 (1st Cir. 1993). We take
judicial notice that O Hare is located in Chicago, which has no shortage of
telephones, drug detection dogs or federal magistrates. Thus there appears no
constitutionally reasonable justification for shipping the defendants package,
which they expected would arrive by Express Mail on January 20, 1995, to St.
Louis so that Atterbury could telephone Oregon to establish whether the return
address was fictitious and afterwards arrange for a drug detection dog to sniff the
package. Had these investigatory steps been taken in Chicago, the duration of the
investigation would have been significantly shorter, and the five-day delivery
delay caused in part by rerouting the package to St. Louis substantially reduced.
This is the investigatory diligence that is mandated by the fourth amendment,
which seeks to insure that the government s interference with a person s possessory
interest in property is minimally intrusive where it is premised not upon probable
cause, but merely upon a reasonable articulable suspicion of illegal activity.
United States v. Place, 462 U.S. at 703, 77 L. Ed. 2d at 118, 103 S. Ct. at 2642.
That the Postal Service s internal policies required shipment of the package out of
state for investigation is of no constitutional consequence, as it is the Postal
Service that must accommodate the fourth amendment and not vice-versa.
Accordingly, we conclude that the government s intrusion upon the instant
defendants possessory interest in their package was not minimal and thus did not
comply with the fourth amendment.
We are cognizant that United States v. Place considered a third factor in
determining the reasonableness of a detention and investigation of personal
property short of probable cause: information given to the owner or possessor of
the item detained for investigation. United States v. Place, 462 U.S. at 709-10, 77 L. Ed. 2d at 122-23, 103 S. Ct. at 2645-46. An Illinois State Police investigative
report contained in the instant record shows that defendant Shapiro called the post
office to inquire why the package was late and was told that it was lost. The
record does not indicate whether Shapiro s telephone inquiry and the post office s
response occurred prior to or after the advent of probable cause. We need not
consider the uncertainty of the conversation s timing and its constitutional
significance, however, because of our determination that the nature and duration
of the detention and investigation alone rendered it unreasonable. See United
States v. Place, 462 U.S. at 710, 77 L. Ed. 2d at 123, 103 S. Ct. at 2646 (finding
that the nature and length of detention was sufficient to render seizure
unreasonable, though considering also what the suspect had been told regarding
the detention). It is nevertheless worth observing that defendant Shapiro s
awareness of and expectation that the package would arrive on its delivery date
further illustrates the defendants possessory interest in the package.
In affirming the judgments of the lower courts suppressing the evidence
and quashing defendants arrests, we are mindful of the scourge that drugs
represent to American society and the importance of the so-called "war on drugs"
in eradicating this social calamity. However, our Republic has enjoyed a peaceful
and prosperous history for well over two centuries, not because we have increased
police powers to achieve ordered liberty, but because we have recognized that
ordered liberty requires that police powers be sublimated to the Bill of Rights. It
is the latter, and not the former, that guarantees those freedoms the rest of the
world associates with our Republic.

CONCLUSION
For the foregoing reasons, the judgment of the appellate court affirming the
circuit court s order suppressing the evidence and quashing defendants arrests is
affirmed.

Appellate court judgment affirmed.

JUSTICE MILLER, dissenting:
Unlike the majority, I believe that the brief detention effected by
authorities of the package in this case did not contravene the defendants'
constitutional rights, and therefore I dissent.
The majority makes much of the decision by postal authorities to reroute
the package from Chicago to St. Louis for purposes of investigation. The majority
insists that the detour contributed significantly to the delay in the delivery of the
package. I do not agree. The package was initially pulled from the stream of mail
on Thursday, January 19, 1995. The postal inspector assigned to the case, Stephen
Atterbury, received the package the next day, January 20, in St. Louis. Atterbury
then learned from his counterparts in Oregon that the return address on the
package was fictitious, and Atterbury also obtained the services of a specially
trained dog, who detected narcotics in the package. That same day, Atterbury
presented a request for a search warrant to a federal magistrate in St. Louis, and
a warrant was issued at 2:38 that afternoon. Atterbury then opened the package
and found inside 3« pounds of a material containing psilocybin, a controlled
substance.
The relevant period here begins with the initial seizure of the package on
January 19 and ends with the issuance of the search warrant the next day. It is not
clear from the record how much delay, if any, was caused by the decision to
transfer the package to St. Louis on its southward journey from Chicago to
Champaign. The extra time could not have exceeded part of a day, however, and
Atterbury acted expeditiously in conducting his investigation and obtaining the
warrant. It should be noted that most of the five-day delay in the delivery of the
package, mentioned by the majority, occurred after the warrant was obtained and
the package was opened. Indeed, the record shows that, prior to the delivery of the
package on Tuesday, January 24, Atterbury made several attempts to deliver the
package on Monday, January 23, after the weekend, but no one at the residence
answered the door that day.
Because I believe that the initial period of detention was reasonable, I
respectfully dissent from today's decision.

JUSTICE BILANDIC, specially concurring:
I agree with the analysis and the result reached in part II of the majority
opinion.
Because the detention and investigation of the defendants' package was not
reasonable under the fourth amendment, the defendants' motions to suppress must
be granted and their arrests quashed. This holding is dispositive of this appeal.
There is no need to resolve the issues in part I of the majority opinion.


[fn1] W. Rich, The History of the United States Post Office to the Year 1829, 95
(1924).

[fn2] For a more detailed rendition of the facts, the reader is referred to the
appellate opinion in 283 Ill. App. 3d 343.

[fn3] The Illinois Constitution similarly provides that "people shall have the right
to be secure in their persons, houses, papers and other possessions against
unreasonable searches [and] seizures." (Emphasis added.) Ill. Const. 1970, art. I,
sec. 6. The parties, however, have not premised any of their arguments on the
Illinois Constitution and we thus do not consider its application, except to observe
that there is no reason to suggest that the search and seizure guarantees of article
I, section 6, of the Illinois Constitution are any less comprehensive than we
interpret those of the fourth amendment to be.