Com. v. Varney

Decision Date01 February 1984
Citation461 N.E.2d 177,391 Mass. 34
PartiesCOMMONWEALTH v. Donald VARNEY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Thomas F. Heffernon, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS and NOLAN, JJ.

ABRAMS, Justice.

After trial by jury, the defendant, Donald Varney, was convicted of unlawful possession with an intent to distribute more than 200 grams of a mixture containing cocaine, a Class B controlled substance. G.L. c. 94C, § 32E(b )(3), inserted by St.1980, c. 436, § 4. Pursuant to § 32E(b )(3), Varney was sentenced to the Massachusetts Correctional Institution, Walpole, for a term of ten years. Varney's sentence was stayed pending resolution of his appeal. We transferred the case to this court on our own motion.

On appeal, the defendant argues error in the denial of his motion to suppress and in the prosecutor's summation. Varney also challenges the constitutionality of G.L. c. 94C, § 32E(b )(3), as applied to him, and the validity of the sentence imposed pursuant to that section. We affirm the conviction. 1 However, for the reasons stated in Commonwealth v. Marrone, 387 Mass. 702, 705-707, 442 N.E.2d 735 (1982), we vacate the sentence and remand for resentencing pursuant to the general provision of G.L. c. 94C, § 32E(b ). See Commonwealth v. Beverly, 389 Mass. 866, 867, 452 N.E.2d 1112 (1983).

1. Motion to suppress. We summarize the facts. 2 On September 15, 1980, one David Baldwin delivered a package to an air freight office at West Palm Beach International Airport. The package was addressed to Donald Varney. At the time Baldwin presented the package, the air freight office was very busy. Baldwin, who appeared intoxicated, called to one of the air freight handlers as though he were acquainted with the employee and insisted repeatedly that the package be placed on a specific flight to Boston. In response to a question about the contents of the box, Baldwin asserted that he was shipping neckties that were going to revolutionize the tie industry. Baldwin asked to use the telephone behind the counter but kept dropping the receiver. Baldwin paid for the delivery service and left the office.

About 6:30 P.M., when business at the freight office began to slow down, the employees discussed Baldwin's behavior. The employees recently had received a bulletin concerning safety precautions, which instructed the employees to ask for identification from persons sending packages who were not regular customers. No such identification had been obtained from Baldwin. Because of Baldwin's intoxicated condition, his insistence that the package be shipped on a particular flight, and his unexplained familiarity with the freight handler's name, one of the freight office employees, prompted by safety concerns, decided to open the package. An inspection of the contents revealed glassine bags containing a white powdery substance and a green herb. The bags were secured with towels. The employee, who suspected narcotics, called his supervisor and requested that the police be notified.

Responding to the supervisor's telephone call, an agent of the Palm Beach sheriff's office came to the air freight office, spoke to the employee, and inspected the package. The agent conducted a field test on the powder and obtained positive results for cocaine. On the basis of training and experience, the agent also determined that the green herb in the package was marihuana.

After the drugs had been taken to the local police station and weighed, the drugs were returned to the package, the package was resealed, marked for identification, and placed on the flight Baldwin had requested. The agent then telephoned the Massachusetts State police and informed them that a package destined for Logan Airport contained cocaine and marihuana. The Massachusetts officers were told that the package was addressed to one Donald Varney, had been delivered to an air freight service in West Palm Beach, Florida, by David Baldwin, and would arrive at Logan Airport on a scheduled flight at 12:30 A.M. on September 16.

At approximately 10 A.M. on September 16, Varney presented himself at the delivery service's counter, stated to an employee that he was looking for a package addressed to him, and recited the package's waybill numbers to the employee. The employee went into a separate room, ostensibly to search for the package, and, as prearranged, contacted the police. Approximately eight minutes later, a police officer brought the package to the airline terminal and gave it to the employee. The police officer remained outside while the employee took the package and brought it to the counter. The defendant presented his Massachusetts driver's license as identification and signed the airbill, which described the package's contents as neckties.

Taking the package, the defendant left the freight service's office, bypassed a bank of public telephones immediately outside the office, and walked 100 yards to another group of public telephones and made a telephone call. Varney then proceeded to his automobile. As he neared the automobile, he was approached by police officers, who, after giving the defendant the Miranda warnings, informed him that the police had reliable information that the package contained narcotics. The defendant disclaimed knowledge of the contents of the package and stated that he was picking it up for a friend, David Baldwin.

The defendant accompanied the officers to the State police office at the airport. He waited there while a search warrant was obtained. During this interval, the defendant placed a telephone call to his lawyer. An officer returned with the search warrant, and the package was opened in the defendant's presence. A field test conducted at the station revealed that a white powder found in the package was cocaine. The package also contained marihuana. The defendant was arrested and taken to the East Boston Division of the District Court for arraignment on charges of trafficking in cocaine and possession of marihuana.

Varney claims that the field testing of the contents of the package in Florida required a search warrant. Varney contends that the warrant obtained in Massachusetts, although facially valid, is predicated on the illegally obtained results of the Florida field test, and therefore the evidence must be suppressed. We do not agree.

The Commonwealth acknowledges that police must obtain a warrant if police intend to search any place in which the defendant has a legitimate expectation of privacy. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). We assume that, as the addressee of the package, the defendant had the requisite privacy interest in the package's contents at the time Baldwin delivered the package to the air freight service. See Ex parte Jackson, 96 U.S. 727, 733, 104 S.Ct. ---, ---- 24 L.Ed. 877 (1878) (person sending letter or sealed package through the mail has privacy interest in contents); United States v. Jacobsen, 683 F.2d 296, 298 n. 2 (8th Cir.1982), cert. granted, 460 U.S. 1021 103 S.Ct. 1271, 75 L.Ed.2d 493 (1983) (sender and intended recipient of a package have interest sufficient to confer standing to contest search or seizure). 3

The defendant's rights under the Fourth Amendment to the Constitution of the United States were not infringed by the private search of the package by the air freight service employees. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921). District Attorney for the Plymouth Dist. v. Coffey, 386 Mass. 218, 221, 434 N.E.2d 1276 (1982). The issue raised by the defendant is whether police must obtain a search warrant before a white powder in a glassine bag may be tested to determine its chemical properties. We conclude that a search warrant is not required in those circumstances. The only thing "private" about the white powder at the time the police came into possession of it was the powder's chemical composition. We are unprepared to trivialize the concept of "privacy" by incorporating in it an alleged right to protect from inspection by government agents that which is lawfully obtained and appears to be contraband. 4

The defendant's argument requires us to ignore the transparent quality of glassine and to conclude that the glassine bag or the white powder were "containers" which "concealed" their "contents" (cocaine). Were we to accept these characterizations, we would be holding that the police must obtain a warrant any time lawfully obtained evidence is to be subject to scientific testing. See People v. Adler, 50 N.Y.2d 730, 737-738 n. 4, 431 N.Y.S.2d 412, 409 N.E.2d 888 cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). We think that such a result "imposes substantial burdens on law enforcement without vindicating any significant values of privacy." Robbins v. California, 453 U.S. 420, 429, 101 S.Ct. 2841, 2847, 69 L.Ed.2d 744 (1981) (Powell, J., concurring in the judgment), overruled on other grounds, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), relied on by the defendant, does not compel a contrary conclusion. In Walter, the Supreme Court ruled 5 that the warrantless projection by FBI agents of films uncovered by a private search of sealed cartons was illegal, even though the films were turned over to the FBI in boxes covered with drawings and labels from which it could be inferred that the films were obscene. A plurality concluded that the consignor 6 of the cartons in which the films were shipped had a legitimate expectation of privacy in the contents, and that "[t]he private search merely frustrated that expectation in part." Id., 447 U.S. at 659, 100 S.Ct. at 2403 (opinion of Stevens, J.). The projection of the previously unviewed films by...

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