Com. v. Aguiar

• Decision Date: 14 June 1976
• Citation: 370 Mass. 490,350 N.E.2d 436
• Parties: COMMONWEALTH v. George AGUIAR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 436

350 N.E.2d 436

370 Mass. 490

COMMONWEALTH

v. George AGUIAR.

Supreme Judicial Court of Massachusetts, Bristol.

Argued March 1, 1976.

Decided June 14, 1976.

Daniel F. Featherston, Jr., Boston, for defendant.

John D. Sheehan, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

WILKINS, Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, following his conviction of knowing or intentional possession of cocaine with intent to distribute. ¹ He contends that his motion to suppress a package containing cocaine should have been allowed. He challenges both the search of the package in incoming foreign mail, as a result of which the cocaine was discovered by customs officials, and the seizure of the package after its delivery to his New Bedford apartment. He also argues that his motion for a directed verdict at the close of the Commonwealth's case should have been allowed because the evidence did not warrant a finding that he knew the package contained cocaine. There was no error.

In April, 1974, during a routine examination of incoming mail in Miami, Florida, a Federal customs inspector, who was acting on the basis of intuition, opened a package mailed in Bogota, Colombia, and addressed to Dick Roper, c/o Agar, 156 Chestnut Street, New Bedford, Massachusetts. The customs declaration on the outside of the package identified the contents as two wine flasks. The description was accurate, as far as it went. The package contained two hooves and lower legs of an animal, made to hold two wine flasks, and an envelope which the inspector did not open. Out of curiosity, because the weight seemed 'a little bit heavy,' the customs agent opened the flasks and discovered inside each a plastic bag holding a white powder. A field analysis disclosed that the powder was probably cocaine.

The package was repacked and sent to Boston, and Federal agents in Boston were notified. When it arrived in Boston, a search warrant was obtained; the powder was 'laboratory tested'; and some of the powder, determined to be cocaine, was replaced with a harmless white substance. The Federal agents learned that no one named Dick Roper or Agar lived at 156 Chestnut Street, New Bedford, but that one George Aguiar, the defendant, lived in an apartment at that address.

The Federal agents decided to make a 'controlled delivery' of the package, an apparently routine delivery with government agents standing by to take appropriate action. They arranged for the assistance of State and local police. ²

On April 30, 1974, the Federal agents, of whom two were from the Drug Enforcement Division and one was a postal inspector, brought the package to New Bedford. They met two local police officers and gave the package to the regular postal route carrier, Coholan. They the local police officers, the Federal agents, and two State police officers assumed positions of surveillance near 156 Chestnut Street.

Coholan took the package to the front door at 156 Chestnut Street and rang the defendant's bell. No one responded at first, but, after some delay, the defendant appeared at an upstairs window. Coholan said that he had a package addressed to Roper in care of Agar. The defendant came down to the door. At trial, Coholan believed that he said to the defendant that he assumed 'they' had misspelled the defendant's name. He informed the defendant that it was a registered package which required a signature. The defendant accepted the package, signing both 'Dick Roper' and his own name.

About twenty or thirty minutes later, the defendant came out of his apartment, entered a motor vehicle parked behind 156 Chestnut Street, and drove off. ³ A New Bedford police sergeant, Turcotte, who had been on surveillance, followed the defendant. Several blocks away, Turcotte stopped the defendant advised him of his Miranda rights, and said that he had probable cause to believe that the defendant had a controlled substance in his possession. However, no narcotics were found in the motor vehicle or on the defendant. Another New Bedford police officer arrived, and they informed the defendant that there were police officers at his house. He then voluntarily returned to his apartment accompanied by the newly arrived police officer.

When the defendant arrived back outside 156 Chestnut Street, he immediately said to Sergeant Turcotte, in the presence of a State police officer, Lowney, 'Hey, Turcotte, if it's about the package, I will give it to you.' Sergeant Turcotte replied that he did not want it; but Lowney said he did. The defendant led Lowney into the apartment. The defendant went to a closet, picked up the package, and gave it to Lowney.

One of the Federal agents, who was also present, testified that the package was still tied but one corner was open. On questioning, after being advised of his rights, the defendant denied that he knew anyone named Dick Roper, anyone with the name of the purported sender, anyone else in Bogota, Colombia, or anybody in South America. The defendant said that the corner of the package was open and that he had looked inside and read the letter. He stated that, after reading the letter, he realized that the package contained a gift and that it was not for him. ⁴

A State police officer assigned to the narcotics section testified that the six ounces of powder in the plastic bags was sixty-four per cent cocaine, having a 'street' or retail value in New Bedford at that time of $57,600.

The judge denied the motion to suppress the package and its contents. He questioned the defendant's standing to object to the customs search. He agreed with the defendant that there were no exigent circumstances justifying an immediate, warrantless search of the defendant's apartment. He recognized that one must be very suspicious of consent given by a person in custody and noted that the defendant was not advised that his consent to a search could be withheld. However, he concluded that the circumstances did not involve consent to search but rather, even on the defendant's testimony a voluntary surrendering of the package, spontaneously offered by the defendant when he returned to 156 Chestnut Street. 'His conduct (was) more consistent with that of a person seeking to establish his innocence and offering to give to the authorities a package that he had already concluded was not his and should be returned to the post office.' He did not find, as the defendant asserts, that the defendant did not know that the package contained narcotics.

1. The defendant argues first that the customs search of the package in Miami was unlawful and, relying on Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), that all subsequent events relating to the package were so tainted by that illegality that his motion to suppress the package and its contents should have been allowed.

We pass over, without decision, the question whether the defendant, as an addressee of a package opened by a customs official in Miami and as one who disavows any interest in the package, has any standing to assert that the search violated his rights. See Brown v. United States, 411 U.S. 223, 228--229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). See also COMMONWEALTH V. SANDLER, --- MASS. --- , 335 N.E.2D 903^A (1975); Commonwealth v. Campbell, 352 Mass. 387, 401, 226 N.E.2d 211 (1967); Commonwealth v. Myer, 349 Mass. 253, 255, 207 N.E.2d 686 (1965), cert. denied, 385 U.S. 853, 87 S.Ct. 97, 17 L.Ed.2d 81 (1966).

Mail coming into the United States is generally subject to search without any necessity for probable cause to conduct the search. The constitutional right to be secure from unlawful searches and seizures, as it applies to domestic mail (United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), citing Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878)), does not apply to the search of incoming foreign mail in these circumstances. United States v. King, 517 F.2d 350, 352--353 (5th Cir. 1975). United States v. Odland, 502 F.2d 148, 151 (7th Cir. 1974). United States v. Beckley, 335 F.2d 86, 88--89 (6th Cir. 1964), cert. denied sub nom. Stone v. United States, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965). At least at the point of entry, constitutional restrictions on the search of incoming foreign mail are no greater than the restrictions on a border search of an arriving international traveler. United States v. Doe, 472 F.2d 982, 984 (2d Cir.), cert. denied sub nom. Rodriquez v. United States, 411 U.S. 969, 93 S.Ct. 1260, 36 L.Ed. 691 (1973). United States v. Beckley, supra at 89. United States v. Carpenter, 403 F.Supp. 361, 363 (D.Mass.1975). Cf. United States v. Stornini, 443 F.2d 833, 835 (1st Cir.), cert. denied, 404 U.S. 861, 92 S.Ct. 162, 30 L.Ed.2d 104 (1971) (border search of a person's clothing); United States v. Feldman, 366 F.Supp. 356, 361--362 (D.Hawaii 1973).

A package may be opened properly by a customs inspector on the basis of mere speculation without running afoul of any statutory restriction on the right to open such a package. ⁵ United States v. King, supra at 352. United States v. Doe, supra at 984--985. United States v. Beckley, supra at 88. If any postal regulation was violated by the government, a point not established on the record, such a violation does not support the conclusion that the evidence seized in the inspection must be suppressed. United States v. Beckley, supra at 90. United States v. Feldman, supra [370 Mass. 496] at 362. United States v. Sohnen, 298 F.Supp. 51, 55--56 (E.D.N.Y.1969). The regulations referred to by the defendant which may have been violated do not concern the propriety of searches of incoming foreign mail but rather concern action which must be taken after articles are seized or a sample of the contents of a package is taken.

2. The defendant argues next that the package and its contents should have been...