U.S. v. Glover

• Decision Date: 24 January 1997
• Docket Number: Nos. 95-4096,95-4101,s. 95-4096
• Citation: 104 F.3d 1570
• Parties: 97 CJ C.A.R. 168 UNITED STATES of America, Plaintiff-Appellee, v. Darrell Jay GLOVER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Susan Noreen KOZAK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1570

104 F.3d 1570

97 CJ C.A.R. 168

UNITED STATES of America, Plaintiff-Appellee, v. Darrell Jay GLOVER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Susan Noreen KOZAK, Defendant-Appellant.

Nos. 95-4096, 95-4101.

United States Court of Appeals, Tenth Circuit.

Jan. 24, 1997.

Jerold D. McPhee, Salt Lake City, UT, for Defendant-Appellant in No. 95-4096.

Deirdre A. Gorman, Farr, Kaufman, Sullivan, Gorman, Jensen, Medsker & Perkins, Ogden, UT, for Defendant-Appellant in No. 95-4101.

Richard D. McKelvie, Assistant United States Attorney, (Scott M. Matheson, Jr., United States Attorney, with him on the brief), Salt Lake City, UT, for Plaintiff-Appellee in Nos. 95-4096 and 95-4101.

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Defendants Susan Kozak and Darrell Glover entered conditional guilty pleas to possession of methamphetamine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). They bring these appeals claiming that the district court erred when it refused to grant their pretrial motions to suppress. Kozak claims that the district court erred when it refused to suppress drugs discovered during a search of an Express Mail package and statements she made during an interview with postal inspectors. Glover asserts that the district court erred when it refused to suppress statements he made during a custodial interrogation as well as a handwritten confession. Both assert that the district court should have suppressed evidence discovered during a search of the home that they share. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

In late 1993, Postal Inspector Gary Collins received a telephone call from the Postmaster at Willard, Utah. The Postmaster was concerned about a suspicious Express Mail package emitting the odor of coffee addressed to Kozak's post office box. Collins contacted James Summerhill, a detective with the Box Elder County Sheriff's Office, to discuss the package and to arrange for a drug-detecting dog to sniff the package. Summerhill indicated Kozak was currently a police officer who had worked on drug assignments and was, therefore, familiar with the methods used to mask the smell of drugs.

Summerhill in turn contacted the Willard Postmaster to arrange for a drug-detecting dog to check the package. The Postmaster indicated Kozak had recently received a number of suspicious packages. Because the dog was unable to detect the presence of drugs, the package was returned to the mail stream. Nevertheless, Collins and Summerhill continued to monitor the frequency and nature of all Express Mail packages delivered to Kozak.

In January, 1994, several postal inspectors approached their supervisor, Joseph Schouten, and informed him that suspicious Express Mail packages were being delivered to Kozak's post office box. The suspicious circumstances surrounding the shipment and receipt of the packages, along with some information regarding the possibility Kozak's daughter might be involved in drug trafficking, led the postal inspectors to suspect the packages contained controlled substances. As a result of these suspicions, the postal inspectors instituted a mail watch ¹ for Express Mail packages going to Kozak's post office box or street address.

On April 12, 1994, another Express Mail package arrived in Salt Lake City. Postal inspectors detained the package for approximately one day while they sought a search warrant. Schouten prepared a lengthy affidavit recounting the investigation of Kozak and requesting a search warrant to open the package. The affidavit, along with a warrant, was presented to a United States Magistrate on April 13, 1994. The magistrate issued the warrant; postal inspectors executed it immediately. The package contained two white envelopes; each envelope contained coffee grounds and methamphetamine. After taking samples of the methamphetamine, Schouten resealed the Express Mail package so that postal inspectors could make a controlled delivery.

The controlled delivery took place on April 14, 1994. On that morning, the Willard Postmaster informed Kozak that the package was at the post office. Glover appeared at the post office and picked up the package. As he was leaving the parking lot, he was stopped by the postal inspectors and placed under arrest.

Glover was arrested for possession of a controlled substance and advised of his Miranda rights. Schouten asked Glover if he wanted to make a statement concerning the incident. Glover indicated he understood his rights and that he did not wish to talk at that time. The officers immediately ceased questioning Glover.

After Glover's arrest, Summerhill and Schouten went to Kozak's home. They arrived at approximately 7:00 a.m., knocked on the door, and were greeted by Kozak. Schouten identified himself as a postal inspector, informed Kozak that Glover was in custody, and indicated that, although she was not under arrest, they would like to talk to her at the station. Kozak agreed to accompany the officers to the station. Schouten, Summerhill, and Kozak then went directly to Summerhill's office. Schouten again advised Kozak that she was not under arrest but indicated that he would like to talk to her about the events of the past several months. In the course of the resulting conversation, Kozak admitted that she knew the package contained methamphetamine and that she had received similar packages in the past. She asserted, however, that the drugs were for her own use and for the use of a family member whom she was unwilling to identify.

After Kozak had made her statement, Schouten went to speak to Glover. Wilson immediately reminded Schouten that Glover had invoked his rights. The officers then discussed which particular right Glover had invoked. At this point, Glover interrupted the officers, clarified that he had formerly invoked his right to silence, but indicated that he did wish to talk now. At this point, the officers began asking Glover questions. Glover was not readvised of his Miranda rights and was not asked to sign a waiver-of-rights form.

After answering Schouten's questions, Glover was taken to talk with Kozak. After they spoke for approximately thirty minutes, Schouten requested consent to search their house. Kozak and Glover were advised of their right not to consent. Nevertheless, both agreed to the search and each signed a written consent form. That search revealed the existence of drug paraphernalia in the home.

After he was allowed to talk to Kozak, Glover was taken to a holding cell. At some point thereafter, Wilson came to Glover's cell and asked for a written statement. Wilson supplied the pen and paper and Glover wrote a short statement. Wilson was present when Glover wrote the statement and he reviewed and signed it as a witness.

Kozak and Glover were indicted on charges of possession of methamphetamine with intent to distribute, a violation of 21 U.S.C § 841(a)(1). Both moved to suppress their statements to the postal inspectors and the evidence seized from their post office box and home. The motion was referred to a magistrate judge for the purpose of conducting an evidentiary hearing. See 28 U.S.C. § 636(b)(1)(B). The magistrate judge issued a detailed Report and Recommendation, recommending that the motions to suppress be denied. Following a hearing, the district court adopted the Report and Recommendation and affirmed it in all respects. Glover and Kozak then entered guilty pleas, reserving their right to appeal the district court's denial of their motions to suppress. Fed.R.Crim.P. 11(a)(2).

II. ANALYSIS

A. Kozak's Claims

1. Detention and Search of the April 12, 1994, Express Mail Package

Kozak claims that postal inspectors improperly detained the April 12, 1994, Express Mail package because they did not have a reasonable suspicion contraband was in the package. She further alleges the search warrant is invalid because the affidavit in support thereof did not establish probable cause.

In reviewing the district court's denial of a motion to suppress, we accept the court's factual findings unless they are clearly erroneous and consider the evidence in the light most favorable to the government. The ultimate question of whether a search and seizure was reasonable under the Fourth Amendment is a question of law reviewed de novo. United States v. Greenspan, 26 F.3d 1001, 1004 (10th Cir.1994).

In this Circuit, it is clear that "[a] temporary detention of mail for investigative purposes is not an unreasonable seizure when authorities have a reasonable suspicion of criminal activity." United States v. Lux, 905 F.2d 1379, 1382 (10th Cir.1990). Thus, the issue is whether the postal inspectors had a reasonable suspicion of criminal activity at the time they detained the package. A review of the magistrate's findings leads us to conclude that they did.

On April 12, 1994, Inspector Wilson learned that an Express Mail package addressed to Kozak had arrived in Salt Lake City. The package smelled strongly of coffee. Wilson testified and the district court found that the decision to detain the package was based on the following:

(1) his conversations with other postal inspectors and law enforcement agencies in Brigham City and Box Elder County concerning the express mail packages going to Kozak's post office box and Kozak's daughter's potential involvement in drug trafficking; (2) the fact that this package and most of the prior packages smelled like coffee; and (3) his research concerning the return addresses on the prior packages had revealed either fictitious names or addresses.

In light of the minimal intrusion occasioned by the detention, these considerations were sufficient to justify Wilson's decision to briefly detain the package for further investigation. ² See United States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 1032-33, 25 L.Ed.2d 282 (1970).

Once Wilson returned to the office,...