U.S. v. LaFrance, 88-2244

• Decision Date: 02 May 1989
• Docket Number: No. 88-2244,88-2244
• Citation: 879 F.2d 1
• Parties: UNITED STATES of America, Appellant, v. Michael Francis LaFRANCE, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

879 F.2d 1

UNITED STATES of America, Appellant, v. Michael Francis LaFRANCE, et al., Defendants, Appellees.

No. 88-2244.

United States Court of Appeals, First Circuit.

Heard May 2, 1989.

Decided July 17, 1989.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., were on brief, for U.S.

Nathan P. Diamond, for defendant, appellee Mark Anthony Grimmel.

Richard S. Emerson, Jr., for defendant, appellee Michael Francis LaFrance.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and GRAY, ^* Senior District Judge.

SELYA, Circuit Judge.

It should not be surprising that criminal enterprises, like lawful ones, have adapted their operating procedures to the ever quickening pace of modern life. As legitimate commerce soars on the wings of technological advancement, so does illegitimate commerce; as permitted businesses luxuriate in the enhanced sophistication of a service-oriented economy, so do proscribed businesses. A rising tide lifts all boats.

The case before us posits important and little-considered questions: To what extent may the nation's interest in stanching the flow of drugs impinge upon the newfound conveniences of the modern era? When does a seizure and detention of property from what are now the whitewater rapids of commerce offend the federal Constitution? That these questions are no longer rhetorical is amply illustrated by the sequence of events underlying this case, culminating in the seizure and detention of a cocaine-laden Federal Express package. Traffic in drugs, already "highly organized and conducted by sophisticated criminal syndicates," United States v. Mendenhall, 446 U.S. 544, 562, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980) (Powell, J., concurring), has now fully coopted the methods and means of more conventional commerce. When contraband absolutely, positively has to get there overnight, the incessant commercial messages which inundate our society's channels of communication "guarantee" felons, like other entrepreneurs, prompt delivery. The tale follows.

I

An indictment was returned in the United States District Court for the District of Maine charging defendants-appellees Michael LaFrance and Mark Grimmel with conspiracy to possess cocaine, intending to distribute it, committing that substantive offense, and aiding and abetting commission of the offense. See 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), 846; 18 U.S.C. Sec. 2. The basic facts are largely undisputed. We summarize them.

In the fall of 1985, Lewiston, Maine police received anonymous calls claiming that LaFrance was selling cocaine and marijuana received via Federal Express (FedEx) from Florida. Grimmel was said to be the consignor. The caller(s) said that LaFrance's father, Frank, was aware of his son's illicit trafficking, and that LaFrance stored cocaine at his father's house. The police did little or nothing with this intelligence until March of 1986. They then determined where in Lewiston LaFrance lived and learned that he had sent and received weekly FedEx packages to and from Florida since at least the previous November. Notwithstanding this new information, the investigation proceeded at a somewhat somnolent gait.

Eventually, the sleeping giant awoke. Sometime before 9:00 a.m. on June 5, a Thursday, FedEx officials alerted the Lewiston police, as they had recently been requested to do, that a package from Grimmel had arrived at the carrier's Portland facility. It was addressed to Frank LaFrance at his Lewiston residence. Not surprisingly, the police considered the package suspect. The FedEx manager offered to open the package on his own authority, but the lawmen demurred. The case officer, Avery, conferred immediately with his superior, Lt. Saucier. Because they were unsure of the legal landscape, and wary of Fourth Amendment minefields, the policemen asked FedEx at roughly 9:03 a.m. to hold the package pending further word.

Saucier then sought advice from the Maine State Police in the person of Agent MacMaster. MacMaster set about locating a drug-sniffing dog. By 9:20 a.m., MacMaster had tracked down a handler, Trooper Gallagher, and dog (Solomon), at Gallagher's home in Gray, Maine (a community situated midway between Portland and Lewiston). MacMaster suggested that the officers meet in Lewiston to conduct the drug sniff because Lewiston was the parcel's stipulated destination and seemed reasonably convenient for all concerned. Avery thereupon instructed FedEx's local manager, Attanas, to send the package to Lewiston in the normal course, but to deliver it to the police department after the carrier's remaining Lewiston delivery commitments were fulfilled.

In Lewiston, FedEx guarantees overnight delivery by noon of the following day. The officers understood that the package would arrive at the stationhouse around then, or soon after. Avery was off duty, caring for his infant son. He tried, but failed, to make alternative child-care arrangements. Eventually, his wife returned home, freeing him for the work at hand. Although the record is less than precise, the most logical inference is that Mrs. Avery did not return until 11:28 a.m., when Avery called Gallagher (who was also off duty) and asked him to visit the Lewiston police station by 1:00 p.m., with Solomon in tow.

As events transpired, the package arrived at the stationhouse at 12:45 p.m. Avery was already there. Gallagher arrived about 1:00 p.m., having accidentally gone first to police headquarters in a neighboring community. The sniff test began about 1:15 p.m. and ended within the hour. The test was positive (or phrased in the idiom of the rite, the "canine unit ... alerted to the package"). Appellees concede that the successful sniff test added a sufficient quantum of evidence to establish probable cause for issuance of a warrant and inspection of the seized parcel's contents. When searched, the package was found to contain a substantial quantity of cocaine.

At the suppression hearing, LaFrance testified that he expected to receive the package by 11:00 a.m., or 11:15 a.m. at the latest, based upon his prior experience. When 11:00 a.m. came and went with no delivery, LaFrance telephoned Grimmel. Grimmel assured him the missive had been sent and immediately asked FedEx to trace it. LaFrance called FedEx directly; the company told him that the matter would be checked. Instead of waiting for a return call, LaFrance tried again shortly before noon, only to have the earlier exchange repeated. On his third call, between 1:00 p.m.-1.30 p.m., an understandably impatient LaFrance was informed that a trace had been instituted but that FedEx did not know the package's exact whereabouts. A FedEx employee also told LaFrance that the courier had tried to deliver the package, but that no one had been at home. LaFrance neither asked nor received the name(s) of the FedEx staffers with whom he spoke during the three calls.

From that point forward, LaFrance called approximately every half-hour until late afternoon. At roughly 5:00 p.m. FedEx made an apopemptic call to LaFrance and arranged for him to meet the delivery truck. At the designated rendezvous, LaFrance was arrested upon taking possession of a dummy package. Grimmel's apprehension followed, as did the indictment.

Defendants moved to quash evidence anent the package and its contents. ¹ The district court granted the motions, holding that the authorities had failed to minimize the intrusiveness of the detention, thus violating defendants' constitutional rights. United States v. LaFrance, 702 F.Supp. 350, 355 (D.Me.1988). The government appeals under 18 U.S.C. Sec. 3731. We reverse.

II

A

The fourth amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and accomplishes its objective by providing protections of probable cause and particularity. A sealed package entrusted to a private parcel service is "unquestionably an 'effect' within the meaning of the Fourth Amendment." United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984). Accordingly, though "government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining [its] contents...." Id.

In this case, the police seized just such a package. They did so on reasonable suspicion that it contained contraband. Hence, despite the absence of probable cause at that point, the seizure was lawful. See United States v. Place, 462 U.S. 696, 700-06, 103 S.Ct. 2637, 2641-44, 77 L.Ed.2d 110 (1983) (reasonable suspicion can justify brief detention of property); United States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 1032-33, 25 L.Ed.2d 282 (1970) (similar); United States v. West, 731 F.2d 90, 91-92 (1st Cir.1984) (similar), cert. denied, 469 U.S. 1188, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985). Once having seized the parcel, the officers exercised effective control over it for some five and one-quarter hours before the probable cause barrier was scaled. Appellees asseverate, and the court below agreed, that the police did not act expeditiously enough, thus rendering the time of detention unreasonable and contaminating the fruits of the ensuing search. We are not persuaded.

B

Ordinarily, we would afford considerable respect to the district court's findings on a suppression motion. See United States v. Aguirre, 839 F.2d 854, 857 (1st Cir.1988); United States v. Figueroa, 818 F.2d 1020, 1024 (1st Cir.1987). But, it is settled that findings of fact predicated upon, or induced by, errors of law are not entitled to the usual deference. See United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 83 S.Ct. 1773, 1784 n. 9, 10 L.Ed.2d 823 (1963); Reliance Steel Products Co. v. National Fire Ins. Co., 880 F.2d 575, 577 (1st Cir., 1989). This is such a case...