856 F.2d 843 (7th Cir. 1988), 87-1474, United States v. Koenig

• Citation: 856 F.2d 843
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Lacey Lee KOENIG and Lee Graf, Defendants-Appellants.
• Case Date: August 31, 1988
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

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856 F.2d 843 (7th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lacey Lee KOENIG and Lee Graf, Defendants-Appellants.

Nos. 87-1474, 87-1598.

United States Court of Appeals, Seventh Circuit

August 31, 1988

Argued Nov. 10, 1987.

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Thomas A. Durkin, Chicago, Ill., Joe R. Vespa, Peoria, Ill., for defendants-appellants.

Mark Stuaan, Asst. U.S. Atty., J. William Roberts, U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Before CUMMINGS, CUDAHY and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The well-known overnight courier Federal Express opened a suspicious package deposited with it for delivery. It contained a white powder and the carrier notified the federal Drug Enforcement Administration ("DEA"). A field test by a federal agent indicated cocaine. The DEA, in coordination with Federal Express, performed a controlled delivery of the package to the intended recipient. In the course of the package's travels through the Federal Express

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system, it was specially handled by the courier's personnel. At its terminus, in Peoria, Illinois, the package was opened for the last of many times, jointly by a federal agent, a member of the Illinois Police, and a Federal Express employee. The package was then delivered, according to its address, to the residence of Ms. Koenig. Shortly afterward the DEA obtained and executed a search warrant on the residence and seized several items including the package. While the police were searching Koenig's apartment, defendant Graf knocked on the door and the officers allowed him to enter. The officers immediately "frisked" Graf and found $1,800 in cash on his person. (Graf has not challenged the legality of the search.)

On September 22, 1986, a federal grand jury returned an indictment charging both Koenig and Graf (along with two other co-defendants whose participation is not relevant here) in connection with the shipping of cocaine. The indictment charged Koenig and Graf with conspiracy to distribute cocaine, 21 U.S.C. Sec. 841(a)(1); and with possession of cocaine, 21 U.S.C. Sec. 844(a); and charged Koenig alone with attempting to possess cocaine with intent to distribute, 21 U.S.C. Sec. 846. Koenig, joined by Graf, moved before trial to suppress the evidence found in the package arguing that it was the fruit of an illegal search. They argue that the police required a warrant to examine the package at its origin, notwithstanding the initial opening of the parcel by Federal Express. Further, they contend that a warrant was required for the reopening of the package in Peoria, Illinois, prior to its delivery because the package had left the hands of the DEA in transit. The district judge denied the motion, and Koenig entered a conditional plea of guilty to the charges of conspiracy to distribute cocaine and attempt to possess cocaine. The plea was conditioned upon her right to appeal the denial of the suppression motion. Fed.R.Crim.P. 11(a)(2). Graf was tried and convicted of conspiracy to distribute cocaine, as well as on a possession charge not part of this appeal. Graf argues that the evidence only showed his relationship with Koenig was that of buyer and seller, thus he should not have been convicted as a coconspirator in the conspiracy to distribute. He also adopts Koenig's arguments on the impropriety of admitting the cocaine in evidence. We agree with the district judge and hold that he properly refused to suppress the reception of the package and its contents in evidence, and that the evidence received was sufficient for a jury to convict Graf as a coconspirator.

I

On July 17, 1986, Federal Express Senior Security Specialist Jerry Zito was at the West Palm Beach Federal Express station on what he described as a "routine station visit." While there, he conducted a visual inspection of packages received over the counter and detected an odor of laundry soap or fabric softener emanating from one of the boxes. Cocaine is ofttimes packed in laundry products to mask its smell. His curiosity piqued, Zito checked the West Palm Beach, Florida, telephone directory and found no listing for the shipper of record. He inquired of another employee about the address the shipper had given and was informed that it was fictitious. Zito proceeded to open the package. Inside, wrapped in fabric softener sheets, he found two transparent plastic bags containing white powder. He contacted the local DEA office. Special Agent Weitz responded and field tested the powder. The test indicated cocaine.

After replacing all but a small sample of the cocaine with cornstarch, Weitz repacked the bags and marked the package. After consulting with DEA Agent Hershey in Springfield, Illinois, Weitz returned the package to the West Palm Beach Federal Express office with instructions to perform a controlled delivery. The package was routed through the Federal Express hub in Memphis, Tennessee. While in Memphis, the package was kept in a Federal Express safe and was opened on two occasions by Federal Express employees to check its contents. The box was once again opened upon its arrival in Peoria, Illinois, on July 19, this time by Agents Hershey and Simmons of the Illinois State Police and a

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Federal Express employee. Hershey field-tested the remaining sample of the original powder, again with positive results for cocaine. The package was again sealed and then delivered to its intended recipient, Koenig. A federal search warrant was then obtained and executed on Koenig's apartment, resulting in the seizure of several items including the Federal Express package containing the packets of cornstarch and cocaine samples.

II

Koenig and Graf ask this court to reverse the district court's refusal to suppress the evidence found in the package. Graf's appeal on this point is easily dismissed. Because Graf was neither the sender nor the addressee of the package and thus has no privacy right in it, he therefore has no standing to make the request. On appeal, he fails to point to any other source of a personal privacy interest in Koenig's mail. We need not decide whether a privacy interest could be recognized given proof of an ownership interest in the contents of the parcel and a showing of the ability to control the parcel once delivered. A wife, for example, might have a privacy interest in an envelope containing a life insurance policy covering both husband and wife that was sent to the household addressed to the husband. Graf fails to qualify for that sort of standing, however, because he fails to establish even a limited privacy interest in the package. Graf never asserted that he was part owner of the drugs in transit. To the contrary, he has consistently argued that he was never a part of the conspiracy to distribute, but only a frequent customer of Koenig. His position is that his relationship with Koenig was no more than a buyer/seller, the mandatory implication being that he had no interest, title or control over the drugs Koenig obtained until such time as he had purchased them from her. Graf also points out that "[t]here is ... no evidence that [he] at any time resided with any of the principals." Graf Brief at 9. Consequently, he could not have exerted control over Koenig's mail upon delivery. Without a privacy interest in the package, Graf lacks standing to assert Fourth Amendment objections to the police conduct. It is well established that Fourth Amendment rights are "personal rights which ... may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Graf's only interest in suppressing the package and its contents is to avoid its evidentiary force against him. A similar interest exists in every defendant with regard to every piece of evidence the prosecution may adduce and is plainly not protected by the Fourth Amendment. Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

Unlike Graf, Koenig has a privacy interest in her mail and so may test the legality of the conduct used to search and seize the same. Her major contention on appeal is that Federal Express employee "Zito was acting as a de facto instrument or agent of the government at the time of the search." As such, she maintains that any search he conducted must be evaluated as if performed by a federal official. Under the circumstances, Zito's warrantless search was unreasonable, says Koenig, and so any evidence discovered must be excluded from subsequent criminal proceedings. For the purposes of this appeal, we may assume that, had Zito been a federal agent, his warrantless search would have been unreasonable. But see United States v. Ford, 525 F.2d 1308, 1312-13 (10th Cir.1975) (during a controlled delivery of lost luggage by an airline, warrantless seizure justified by exigent circumstances, as the time delay to obtain a warrant might have tipped off the recipients to the presence of the police). It matters not because we reject the major premise of Koenig's argument and hold that Zito performed the initial search as a private citizen.

It is axiomatic that the Fourth Amendment does not apply to private entities. Like much of the Constitution, "it was intended as a restraint upon the activities of sovereign authority." Burdeau v. McDowell,

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56 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). The Supreme Court has held that a wrongful search or seizure conducted by a private party does not rise to a constitutional violation of the Fourth Amendment, Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1979), nor prevent the government from using evidence that it has acquired lawfully. Coolidge v. New Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 2048-50, 29 L.Ed.2d 564 (1971). Here, Zito put the...