State v. Ressler, 20040327.

Decision Date25 July 2005
Docket NumberNo. 20040327.,20040327.
Citation701 N.W.2d 915,2005 ND 140
CourtNorth Dakota Supreme Court
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Dale Matt RESSLER, Defendant and Appellant.

Allen M. Koppy, State's Attorney, Mandan, ND, for plaintiff and appellee.

Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Dale Matt Ressler appealed an order deferring imposition of his sentence for possession of drug paraphernalia. Ressler entered a conditional plea of guilty to the charge, reserving the right to appeal the denial of the suppression of evidence. We hold the district court erred in refusing to suppress evidence, and we reverse Ressler's conviction and order deferring imposition of his sentence and remand to the district court to allow Ressler to withdraw his guilty plea.

[¶ 2] On February 24, 2004, Ressler brought a box to a private shipping outlet, We Ship, located in Mandan, North Dakota. Ressler wanted to send his package to his brother in California through United Parcel Service's ("UPS") next-day-air service. The owner of We Ship, Kent Danielson, became suspicious of Ressler, who seemed nervous, kept looking over his shoulder, and was shipping an uninsured, next-day-air package whose weight did not coincide with its stated contents. Danielson opened the package after Ressler left the store. Danielson discovered numerous magazines, some of which had scotch tape around their three open sides. Danielson cut one of the magazines open and found money in various pages throughout the magazine. The amount of money in this magazine was later determined to be $870. Danielson also examined a second magazine, which was not taped, but it did not contain any currency. Danielson called the Mandan Police Department.

[¶ 3] Officer Ray Eisenmann arrived at the store and observed what the store owner had uncovered. According to Officer Eisenmann, there were several magazines, a plastic bag, newspaper wrapping, packaging materials, and the money Danielson discovered inside the first magazine. Danielson also told Officer Eisenmann his suspicions about Ressler.

[¶ 4] Officer Eisenmann wanted to conduct a canine sniff on the package, but the We Ship store was too small to conduct a valid canine test. Officer Eisenmann transported Ressler's package to a nearby law enforcement center, and the canine alerted on the relevant box. Following this positive test result, Officer Eisenmann inventoried the full contents of the box by opening the remaining magazines, and he discovered a total of $9,800 in bills. Police later conducted a garbage search at Ressler's residence and found various items of drug paraphernalia.

[¶ 5] Based on the evidence from the garbage search, police obtained and executed a search warrant for Ressler's residence on February 25, 2004, and uncovered additional drug paraphernalia. The State charged Ressler with possession of the drug paraphernalia found in his home.

I.

[¶ 6] Ressler argues the steps taken by police violated his constitutional right against unreasonable searches and seizures. Ressler claims a sender of a package retains a reasonable expectation of privacy in his parcel, and he notes he had a continuing expectation of privacy in his package extending beyond Danielson's limited, private-party search. Ressler asserts the initial government seizure of his package was without a search warrant or probable cause. Ressler claims Officer Eisenmann needed probable cause to support his actions because Officer Eisenmann exercised dominion and control over the package and its contents when he removed the shipment to the law enforcement center.

[¶ 7] Further, Ressler argues that, even after establishing probable cause to search through the canine sniff, the government nonetheless failed to obtain a search warrant before proceeding with its inventory search. Ressler contends an inventory search should not be used as a subterfuge for criminal investigation. Finally, Ressler argues the evidence from his trash and home, which was derived from the illegal seizure and search of his package, should be suppressed as fruit of the poisonous tree.

[¶ 8] In contrast, the State argues the police conduct in this case did not violate Ressler's constitutional rights. Accordingly, the State denies suppression of the evidence discovered during the search of Ressler's home is required. The State notes the initial search of Ressler's package was carried out by a private actor, the owner of the shipping store, and not a government official. The State asserts removal of the package from the shipping store to the law enforcement center for canine testing was a constitutionally reasonable field test because it did not further compromise any legitimate interest Ressler had in his package that had not already been breached by Danielson's private search, and the removal of the package to the law enforcement center was based upon the reasonable suspicion gained at the shipping store. The State contends the initial detention and movement of Ressler's package need only be supported by reasonable suspicion, not probable cause.

[¶ 9] The State opines that, after the canine identified Ressler's package, the Officer had probable cause to inventory the box and, as the events leading up to the garbage search and the issuance of the search warrant for Ressler's residence were in accordance with constitutional protections, there is no basis upon which to suppress the evidence discovered in Ressler's home.

A.

[¶ 10] The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), provides "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." Ressler's package, which was delivered to We Ship for private interstate shipment, was an "effect" within the meaning of the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Analyzing the events as they unfolded, the private-party search of Ressler's shipment, which was not done at the behest of a government official, does not implicate any constitutional protections. Id. at 114-15, 104 S.Ct. 1652. Further, the record reveals Danielson displayed what he had uncovered to Officer Eisenmann, and there is no indication Officer Eisenmann exceeded the scope of the private-party search during his initial examination at We Ship. Id. at 115, 104 S.Ct. 1652.

B.

[¶ 11] Officer Eisenmann was suspicious of Ressler's shipment, and he determined to move the package to a nearby law enforcement center for a canine test. Danielson told Officer Eisenmann of Ressler's peculiar behavior. Officer Eisenmann saw what appeared to be a large quantity of money shipped inside a taped magazine, and, when viewed through the prism of his training in narcotics enforcement, Officer Eisenmann had grounds for suspicion. At oral argument, the State's Attorney acknowledged the suspicion only amounted to reasonable suspicion, not probable cause. Ressler argued that even reasonable suspicion was lacking. Given the facts of the case, we conclude Officer Eisenmann's suspicion was reasonable.

[¶ 12] Initially we must decide whether Officer Eisenmann's movement of the package constituted a seizure at all. If no seizure occurred, police do not need any level of suspicion to support their conduct. Defining a seizure as "some meaningful interference with an individual's possessory interests," United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), some courts have held no seizure occurs where the government's investigation, such as a canine test, would not delay the shipment of an individual's package if the test returned negative. United States v. Francisco Zavala, 2003 WL 431636, at * 1-2, 2003 U.S. Dist. LEXIS 2521, at * 5-6 (E.D.Pa.2003) (collecting similar cases); see also 3 W. LaFave, Search and Seizure § 9.6, p. 71 (Supp.1982) (noting United States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), which involved a prolonged detention, but no search, of a shipped parcel, "was an easy case for the Court because the defendant was unable to show that the invasion intruded upon either a privacy interest in the contents of the packages or a possessory interest in the packages themselves") (cited in United States v. Place, 462 U.S. 696, 705 n. 6, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). Another court has utilized a contract-based theory of possessory interests when dealing with shipped packages, holding the critical time runs from when the defendant has a contractual right to receive the package to when police establish probable cause to seize the package. United States v. La France, 879 F.2d 1, 7 (1st Cir.1989).

[¶ 13] Under this rationale, it is arguable whether Officer Eisenmann's movement of Ressler's package to the law enforcement center impinged Ressler's possessory interests or constituted a seizure. Officer Eisenmann arrived at We Ship around 11:00 a.m. on February 24, 2004, briefly after Ressler dropped off his shipment. The package was moved to the law enforcement center shortly thereafter and it does not appear a significant delay occurred before police conducted the canine test. Had the canine sniff been negative, the record does not indicate whether the package could have nonetheless arrived at its destination on time, but the early time of day, the speed with which police conducted the canine test, and the close proximity of the law enforcement center and We Ship indicate that on-time delivery might have been plausible.

[¶ 14] There is not universal acceptance of these approaches, however. In United States v. Morones, 355 F.3d 1108, 1111 (8th Cir.2004), the court rejected the government's argument that no seizure of a Federal Express package...

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