McConnell v. State

• Decision Date: 04 May 1979
• Docket Number: No. 3872,3872
• Citation: 595 P.2d 147
• Parties: Gary McCONNELL, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 147

595 P.2d 147

Gary McCONNELL, Appellant, v. STATE of Alaska, Appellee.

No. 3872.

Supreme Court of Alaska.

May 4, 1979.

Walter L. Carpeneti, Asst. Public Defender, Juneau, and Brian Shortell, Public Defender, Anchorage, for appellant.

Patrick J. Gullufsen, Asst. Atty. Gen., Daniel W. Hickey, Chief Pros., and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

BOOCHEVER, Justice.

Gary McConnell appeals his conviction of possession of a drug for sale, in violation of AS 17.12.010. McConnell contends that the superior court erred in denying his motions to suppress evidence based on alleged illegal search and seizure and illegal arrest. We hold that there was no unreasonable search or seizure. We do not reach the issue of the validity of McConnell's arrest. Accordingly, we affirm his conviction.

On Friday, February 25, 1977, Jim Adams delivered two cardboard boxes to the Western Airlines Air Cargo Terminal at Los Angeles International Airport for shipment to Anchorage, Alaska. The combined weight of the two packages was 69 pounds and they were consigned to Gary McConnell. The air freight bill specified McConnell's address and telephone number in Anchorage. The contents were declared to be "personal effects." An unidentified customer service representative of Western Airlines (hereinafter Western) accepted the packages for shipment. Terry Powledge, another customer service representative with Western, observed the transaction.

Powledge is a person of some notoriety in the field of airline cargo search and seizure. In his capacity as a Western employee, Powledge has uncovered drugs in air freight shipments on approximately thirty different occasions in the span of about two years. Powledge testified that he opens approximately 90 to 100 parcels per month to ascertain if contents have been misdeclared. ¹ Powledge's detection of drugs has led to his acquaintance with about a dozen law enforcement officers and a certain familiarity with the law of search and seizure. As a result of his drug discoveries, Powledge has been called upon to testify in criminal proceedings in several different states, including Alaska, for which he has received standard witness fees and sometimes travel expenses. He has received letters of commendation from the Los Angeles Police Department for his discoveries. Powledge has not, however, received direct encouragement to continue his searches from law enforcement personnel nor has he received any direct compensation from a law enforcement agency. Although Western Airlines provides employees with formal instruction on detection of restricted articles, Powledge has not received any special treatment or consideration from Western as a result of his discoveries.

Powledge's prior experience in airline cargo dealings caused him to scrutinize the delivery of the boxes by Jim Adams, the consignor, to the other Western employee. Powledge felt that Adams was "acting somewhat strange." Based on Adams' repetitive speech, exaggerated gesticulation, scribbled handwriting, possibly dilated eyes, and general nervousness, Powledge thought that Adams might be "under the influence of something." Adams' behavior raised Powledge's suspicions that the contents of the packages might be misdeclared. ² Powledge noted the license number of the automobile being driven by the consignor.

Immediately after the consignor departed, Powledge cut open one of the boxes. ³ Powledge was aware from conversations with the police and from past experience that while officers could not open and inspect air freight parcels without a search warrant, he could. He testified, however, that officers had never specifically asked that a particular package be opened. Upon opening one of the boxes, Powledge discovered several plastic trash bags covered with talcum powder and he concluded that they contained drugs. Powledge opened the second box and found essentially the same thing he found in the first. ⁴ He then opened some of the plastic bags and observed what he believed to be bricks of marijuana.

Powledge and other Western employees had earlier been instructed by Narcotics Division officers that narcotics were being shipped on the airlines and that the police should be notified if any employee discovered drugs being shipped via air freight. Powledge called the airport substation of the Los Angeles Police Department to inform them of his find. Officer Burke of the Narcotics Task Force responded to the call. Powledge had removed some of the marijuana bricks from the opaque plastic trash bags; the bricks were further sealed in clear plastic bags. He placed the visible bricks back in the carton and purposefully left the boxes open; ⁵ thus, when Officer Burke arrived, the marijuana was in plain view.

Officer Burke seized the two boxes and took them to the Los Angeles Police Department, where the contents were photographed and tested. Two bricks of marijuana were removed to keep as evidence; the remaining bricks were repacked in the same boxes and the boxes were resealed. Officer Burke contacted authorities in Anchorage, and arrangements were made with Investigator Leo Brandlen of the Metropolitan Drug Enforcement Unit (hereinafter METRO) in Anchorage to ship the packages to Anchorage on Monday.

On Monday, February 28, 1977, the packages were placed on a Western flight to Anchorage. When they were placed on the airplane, both packages were fully sealed. Brandlen and other METRO officers were on hand at the airport when the shipment arrived. A copy of the Los Angeles Police Department report, attached to one of the boxes, plus a description of the shipment provided by Officer Burke, allowed Brandlen to identify the boxes.

Utilizing the information contained in the Western shipping invoice, Brandlen called Gary McConnell and, posing as a Western employee, notified McConnell that the shipment he was expecting had arrived. McConnell appeared alone an hour and one-half later at the Western air freight terminal and signed for the packages. Brandlen, dressed as a Western employee, loaded the two boxes into the back of McConnell's pickup truck. McConnell departed.

The location of McConnell's residence was known to officers prior to the time he took possession of the boxes. ⁶ Surveillance teams tailed McConnell's vehicle to his residence. McConnell did not enter his residence nor did he unload the boxes; rather, he remained in his vehicle, which he backed into a parking area.

McConnell left the parking area. Brandlen stopped McConnell, gave him Miranda warnings, ⁷ and asked McConnell to accompany him to the closest police station. The boxes were seized by officers, and McConnell and the boxes were taken to the trooper station. At the station, McConnell was interviewed, placed under formal arrest, and incarcerated. The boxes were then transported to the Lake Hood METRO office, where the damaged box was opened and the contents tested. Both boxes were subsequently secured in the METRO evidence locker. One or two days later the second box was opened and its contents were examined.

At no time during the course of the above events was an arrest or search warrant sought or obtained, either by Los Angeles or Anchorage law enforcement officials.

The superior court found McConnell guilty of possession of a drug for sale upon his plea of nolo contendere. ⁸ McConnell raises three issues in this appeal. First, he contends that Terry Powledge was acting as a state agent when he opened the boxes consigned to McConnell, thereby violating the fourth amendment's proscription against unreasonable searches and seizures. Second, McConnell argues that Anchorage officers violated the fourth amendment when they failed to obtain a search warrant to open at a later time the boxes seized incident to his arrest. Finally, McConnell contends that his warrantless arrest by officers in Anchorage was not based on probable cause, requiring suppression of the evidence seized incident to the arrest.

SEARCH BY AIRLINE EMPLOYEE

The first issue on appeal is whether Powledge was acting as a private citizen or as a state agent at the time he opened the parcels naming McConnell as consignee. If Powledge was acting as a state agent, his conduct was subject to the warrant requirement in the fourth amendment ⁹ and the similar provisions embodied in the Alaska Constitution. ¹⁰ If Powledge was acting as a private citizen, however, the warrant clauses have no application, for the proscriptions against unreasonable searches and seizures contained in the United States and Alaska Constitutions apply only to governmental action. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 1051 (1921); Bell v. State, 519 P.2d 804, 807 (Alaska 1974).

In several prior decisions, we have upheld inspections conducted by airline employees because we found that the searches were conducted by private citizens acting for legitimate, employment-related purposes. ¹¹ The general principle of law governing this area was most recently announced in Snyder v. State, 585 P.2d 229 (Alaska 1978), where we stated that:

(S)earches by airline employees, acting for an independent and legitimate airline purpose and not in conjunction with or at the direction of the police, do not violate constitutional prohibitions against unreasonable search and seizure.

Id. at 231 (footnote omitted).

We believe that Snyder is dispositive of the first issue presented by McConnell. In Snyder, we dealt with an airline inspection conducted by the same employee whose status is in issue here: Terry Powledge. In Snyder, we concluded that Powledge's previous contact with the police and his previous discovery of drugs were insufficient to warrant treating Powledge as a police agent. 585 P.2d at 232. The background facts as to the relationship between law enforcement personnel and Powledge are the same in Snyder as they are...