State v. Coburn

State v. Coburn  (95-537); 165 Vt 318; 683 A.2d 1343

[Opinion Filed 12-Jul-1996]


       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 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-537


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont
                                                  Unit No. 3, Orange Circuit

William C. Coburn                                 April Term, 1996


Marilyn S. Skoglund, J.

       Lamar Enzor, Rutland County Deputy State's Attorney, Rutland, for
  plaintiff-appellee

       Matthew I. Levine of Griffin & Levine, White River Junction, for
  defendant-appellant


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



       ALLEN, C.J.   Defendant entered a conditional plea of nolo contendere
  to a charge of possessing marijuana (18 V.S.A. § 4230(a)(3) and 13 V.S.A. §
  9) and appeals the Orange District Court's denial of his motion to suppress
  evidence.  We affirm.

       On August 6, 1994, defendant arrived at the John F. Kennedy
  International Airport in New York City on an Air Jamaica flight, direct
  from Jamaica, W.I.  Traveling with him were two suitcases, each with an
  airline identification tag, and one with the name of "Bill Coburn" and a
  Randolph, Vermont address.  A narcotics dog on the tarmac alerted United
  States Customs Officer Mesmore to one of defendant's suitcases as luggage
  was loaded on a conveyor belt leading to the terminal baggage claim area. 
  Officer Mesmore removed that suitcase from the conveyor belt; defendant's
  second suitcase continued inside on the conveyor belt.  Inside the terminal
  baggage claim area, another narcotics dog alerted Customs Officer Strasser
  to defendant's second suitcase as it was sitting next to the conveyor belt
  inside the terminal.

       When all of the passengers had cleared the baggage claim area, both
  suitcases were delivered to Customs Inspector Irwin, who asked Air Jamaica
  officials to open the suitcases.

 

  Inspector Irwin noticed a strong odor of glue when one of the suitcases was
  opened.  He removed the liner from the suitcase and discovered a number of
  bags, wrapped in opaque brown tape, secured to the inside perimeter of the
  suitcase.  A small sample was taken from a bag and field tested; the test
  was positive for marijuana.  Inspector Irwin replaced all of the items in
  the suitcase, including the bags of marijuana, and transferred custody of
  the suitcases to Customs Agent Michael.  Because federal authorities were
  not interested in pursuing criminal charges against defendant, Agent
  Michael telephoned Customs Agent Lussier in Burlington.  Agent Lussier was
  instructed to contact Vermont State Police about possible state prosecution
  of defendant.

       Agent Michael removed the packets of marijuana from the  suitcase in
  which they were found, placed them in a box, and sealed the box as
  evidence.  He then emptied that suitcase and put all of the clothing and
  other personal items into the second suitcase.  He delivered the sealed
  evidence box containing the marijuana to the evidence custodian for Customs
  at the JFK Airport. Agent Michael delivered the other suitcase containing
  defendant's clothing and other personal items to an Air Jamaica
  representative.

       A person subsequently telephoned Air Jamaica on behalf of defendant
  requesting the suitcases.  On August 9, 1994, Agent Michael personally
  delivered both suitcases and the sealed evidence box to Agent Lussier in
  Burlington.

       Agent Lussier delivered custody of the three items to Vermont State
  Police Detective Cucinelli, who photographed the insides of both suitcases
  and examined their contents.  He then placed all of the bags of marijuana
  into the empty suitcase; defendant's clothing and other personal items
  remained in the other suitcase.  He closed both suitcases and placed them
  in the evidence locker at the Williston Barracks.

       Detective Cucinelli removed the suitcases on August 10, 1994, and
  transported them to the Vermont State Police Laboratory for fingerprinting
  and drug analysis.  A drug analysis was performed, which was positive for
  the presence of marijuana.  At no time was a warrant obtained for any of
  the searches or testing by either Customs officials or the Vermont State

 

   Police.

       After the laboratory tests were completed, Detective Cucinelli made a
  controlled delivery to defendant, who was immediately arrested.  The next
  day the suitcases were again delivered to the Vermont State Police
  Laboratory for further testing, again without a warrant.

       Defendant was charged with possession of marijuana and entered his
  nolo plea, subject to the trial court's ruling on his motion to suppress
  evidence.  The court denied his motion, and the present appeal followed.

                                I.

       Defendant concedes the legality of the canine sniff of his luggage at
  JFK airport.  He argues, however, that this initially lawful search of his
  luggage became unlawful when Customs officials, and later the Vermont State
  Police, opened his luggage and examined the contents without a warrant.  He
  also argues that the initially lawful seizure of his luggage became
  unlawful when Customs officials and Vermont police retained his luggage for
  five days and when his luggage was transferred from one jurisdiction to
  another, all without a warrant.

       Defendant first contends that the Customs agents should have obtained
  a warrant to open his luggage and examine its contents after the canine
  sniff indicated the presence of illegal drugs. Defendant's argument is
  contrary to United States Supreme Court precedent.  When persons enter the
  United States at a border crossing, a routine search of those persons and
  their belongings without reasonable suspicion or probable cause and without
  a warrant is per se reasonable.  United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985); see also United States v. Ramsey, 431 U.S. 606, 619
  (1977) (routine search at border crossing without probable cause or warrant
  is reasonable).  "A routine border search contemplates the search of a
  person's luggage and other personal effects."  United States v. Moody, 649 F.2d 124, 127 (2d Cir. 1981).  Therefore, Customs officials at JFK
  International Airport could lawfully open defendant's luggage and examine
  its contents without any suspicion and without a warrant.

       Defendant also argues that the subsequent examination of his luggage
  and its contents by Vermont police violated the Fourth Amendment.  In
  Illinois v. Andreas, 463 U.S. 765 (1983),

 

  Customs officials discovered marijuana during a legal warrantless search of
  a locked shipping container that arrived in Chicago on a flight from India. 
  The Customs officials notified the Drug Enforcement Administration (DEA). 
  DEA agents and Chicago police subsequently resealed the container and made
  a controlled delivery to the defendant.  The defendant argued that the
  police needed a warrant to reopen the container after the controlled
  delivery.  The Andreas Court concluded that "[n]o protected privacy
  interest remains in contraband in a container once government officers
  lawfully have opened that container and identified its contents as
  illegal." Id. at 771.  Therefore, once Customs agents lawfully opened
  defendant's luggage and discovered marijuana, he lost any privacy interest
  in the contents of his luggage.

       Moreover, the resealing of defendant's luggage for shipment to Vermont
  did not revive his privacy interest.  In Andreas, no privacy interest arose
  as a result of resealing of the shipping container for controlled delivery
  to the defendant.  According to the Court, "[t]he simple act of resealing
  the container to enable the police to make a controlled delivery does not
  operate to revive or restore lawfully invaded privacy rights."  Id.

       The Andreas Court's holding was supported by the plain-view doctrine. 
  Id.  The plain-view doctrine is based on the proposition that once police
  lawfully observe an object firsthand, the owner's privacy interest in that
  object is lost.  Id.; see also Horton v. California, 496 U.S. 128, 136
  (1990) (restating plain-view doctrine).

    [O]nce a container has been found to a certainty to contain illicit
    drugs, the contraband becomes like objects physically within the plain view
    of the police, and the claim to privacy is lost.  Consequently, the
    subsequent reopening of the container is not a "search" within the
    intendment of the Fourth Amendment.

  Andreas, 463 U.S.  at 771.  Moreover, where law enforcement officers are
  cooperating in an investigation, as was the case here from the time that
  Customs officials decided not to prosecute and contacted the Vermont State
  Police, the knowledge of one is presumed to be shared by all. Id. at 771
  n.5.

       The fact that defendant's luggage was transferred by Customs officials
  to the Vermont State Police and that it was shipped from New York to
  Vermont does not change the result.  In

 

  People v. Adler, 409 N.E.2d 888 (N.Y. 1980), a package declared to contain
  a vase was x-rayed by a suspicious airline employee and found to contain a
  large quantity of pills.  The airline employee contacted the DEA, and a DEA
  agent took custody of the package.  A laboratory analysis of the pills
  revealed them to be amphetamines and barbiturates.  The DEA agent marked
  his initials on the inside of the box, repackaged the contents, and
  returned the box to the airline for shipment to New York.  The DEA agent
  also contacted New York police, who intercepted the package upon arrival. 
  The New York police opened the package, verified that the pills were
  amphetamines and barbiturates, verified the presence of the DEA agent's
  markings, and resealed the package.  The package was later claimed by the
  defendant, who was arrested when she took control of the package.  The
  defendant argued that the New York police violated the Fourth Amendment by
  searching the package without a warrant.  The court held that "when the New
  York police searched the package, there was no independent intrusion
  requiring a warrant, but simply a continuation of the valid search and
  seizure effected in Los Angeles."  Id. at 892. Because the conduct of
  Vermont police is a continuation of the legal conduct of Customs officials,
  and there has been no break in the chain of custody, their conduct is not a
  second search under the Fourth Amendment.  See Andreas, 463 U.S.  at 772-73
  (absent likelihood contents of container have changed, no legitimate
  expectation of privacy remains in container previously opened under lawful
  authority); accord United States v. DeBerry, 487 F.2d 448, 451 (2d Cir.
  1973); McConnell v. State, 595 P.2d 147, 152-55 (Alaska 1979).(FN1)

       Similarly, the transfer of defendant's luggage from federal
  jurisdiction to state jurisdiction for purposes of a state prosecution does
  not violate the Fourth Amendment.  "So long as the evidence seized in a
  permissible, routine customs border inspection meets federal standards for
  such searches . . . it is no violation of the defendant's [federal]
  constitutional rights if the

 

  evidence is later used in a state prosecution."  State v. Dreibelbis, 147
  Vt. 98, 100, 511 A.2d 307, 308 (1986).

       Defendant argues that his Fourth Amendment rights were violated
  because Customs officials retained his suitcases and their contents for
  three days before forwarding them to Vermont and because the Vermont State
  Police retained them for an additional two days. Defendant relies on United
  States v. Place, 462 U.S. 696 (1983), as support for his argument. Place,
  however, is distinguishable.  In Place, the defendant's luggage was seized
  by Customs officials at LaGuardia Airport after he acted suspiciously upon
  questioning.  After first moving the defendant's luggage to JFK Airport,
  government agents retained the luggage for ninety minutes to await the
  arrival of a narcotics dog.  Applying principles from Terry v. Ohio, 392 U.S. 1 (1967), the United States Supreme Court held that government agents
  could briefly detain the defendant's luggage based on reasonable suspicion. 
  Place, 462 U.S.  at 706.  Nevertheless, the Court held that the defendant's
  Fourth Amendment rights were violated because the ninety-minute delay was
  longer than reasonably necessary to confirm or dispel the initial
  suspicion. Id. at 709-10.  Thus, at issue in Place was the length of
  seizure before the canine sniff test was performed.  Here, defendant argues
  that his luggage was detained for an unreasonable period of time after the
  lawful discovery of contraband by Customs agents.  Place is therefore
  inapposite.

       As contraband, an instrumentality of a crime, and evidence of a crime,
  defendant's luggage and its contents could be seized and held by Customs
  officials or the Vermont State Police pending prosecution.  See Warden,
  Maryland Penitentiary v. Hayden, 387 U.S. 294, 306-07 (1967).  Defendant
  has failed to articulate how the retention of his luggage for five days for
  further investigation, to transfer it from New York to Vermont and to
  arrange a controlled delivery in Vermont, violated the Fourth Amendment.

                                II.

       Defendant also appeals the court's denial of his motion for
  suppression under Chapter I, Article 11 of the Vermont Constitution,
  arguing that even if no violations of the Fourth

 

  Amendment exist, the conduct of the Customs officials had to pass muster
  under the Vermont Constitution as well.  The trial court rejected
  defendant's state constitutional claim on grounds that the Supremacy Clause
  and the express delegation of powers to the Congress in the United States
  Constitution bars reconsideration of the lawfulness of the Customs
  officials' conduct by Vermont courts under the Vermont Constitution.

       We defer to federal law where the federal interest in the conduct at
  issue outweighs Vermont's interest.  See State v. St. Francis, 151 Vt. 384,
  391, 563 A.2d 249, 253 (1989). With respect to safeguarding the United
  States border or its functional equivalent, Almeida-Sanchez v. United
  States, 413 U.S. 266, 272-73 (1973), the federal interest is preeminent.
  Control of commerce with foreign nations is an exclusively federal function
  under the United States Constitution, U.S. Const. art. I, § 8, cl. 3, and
  "[t]he authority of the United States to search the baggage of arriving
  international travelers is based on its inherent sovereign authority to
  protect its territorial integrity."  Torres v. Puerto Rico, 442 U.S. 465,
  472-73 (1979); see also United States v. 1903 Obscene Magazines, 907 F.2d 1338, 1341 (2d Cir. 1990) ("The United States Customs Service has plenary
  power to safeguard the United States borders, which includes the power to
  inspect any person or thing that presents itself at a border seeking
  entrance.").

       We therefore hold that the Vermont Constitution does not apply to the
  conduct of federal government officials acting under the exclusive federal
  authority to safeguard the borders of the United States.  We are not alone
  in holding that the state constitution does not apply to federal border
  searches.  See, e.g., People v. Mitchell, 79 Cal. Rptr. 764, 767 (Cal. Ct.
  App. 1969) ("A border search by a United States Customs Officer is lawful;
  does not depend on probable cause; and is not governed by state laws.");
  Morales v. State, 407 So. 2d 321, 329 (Fla. Ct. App. 1981) (evidence seized
  by Customs officers pursuant to reasonable border search is clearly
  admissible in either federal or state courts); State v. Allard, 313 A.2d 439, 451 (Me. 1973) (no state constitutional violation where Customs
  officer turned over evidence to state police); State v. Bradley, 719 P.2d 546, 549 (Wash. 1986) ("Neither state law nor the state constitution can
  control federal officers' conduct.").

 

       Because the Vermont Constitution does not apply to the otherwise
  lawful conduct of Customs officials, our scrutiny under Chapter I, Article
  11 of the Vermont Constitution is limited to the conduct of the Vermont
  State Police.  Defendant correctly argues that standing to challenge
  searches is broader under the Vermont Constitution than under the United
  States Constitution.  See State v. Wood, 148 Vt. 479, 489, 536 A.2d 902,
  908 (1987) (standing to challenge police conduct under Vermont Constitution
  exists if defendant has possessory, proprietary, or participatory interest
  in items seized or area searched).  Although defendant has standing to
  challenge the conduct of the Vermont police, he fails to articulate how his
  already vitiated possessory interest in his luggage was revived upon
  transfer from Customs to the Vermont police.  Moreover, because the conduct
  of the Vermont police is lawful under the Fourth Amendment, using a
  plain-view rationale, it is similarly lawful under the Vermont Constitution
  using the same rationale.  See State v. Badger, 141 Vt. 430, 454, 450 A.2d 336, 350 (1982) (police lawfully seized defendant's blood-stained shoes as
  incriminating evidence because defendant openly displayed them to public). 
  Finally, the retention of defendant's luggage and contents for two days
  does not violate the Vermont Constitution.  Although defendant retained a
  possessory interest in his suitcases and personal effects, Vermont police
  could lawfully seize and retain them as evidence to be used in prosecuting
  defendant.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice


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                                  Footnotes


FN1.  Defendant cites United States v. Crochetiere, No. 88-74-01
  (D.Vt. March 9, 1989) as support for his argument that Vermont police
  exceeded the scope of the initial Customs search. Crochetiere is
  distinguishable because it involved a private search followed by a
  subsequent warrantless government search that exceeded the scope of the
  private search.