People v. Boylan

• Decision Date: 12 July 1993
• Docket Number: No. 93SA47,93SA47
• Citation: 854 P.2d 807
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robyn BOYLAN and Mark Boylan, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 807

854 P.2d 807

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robyn BOYLAN and Mark Boylan, Defendants-Appellees.

No. 93SA47.

Supreme Court of Colorado En Banc.

July 12, 1993.

Stephen K. ErkenBrack, Dist. Atty., Martha L. Kent, Chief Deputy Dist. Atty., Grand Junction, for plaintiff-appellant.

Edward J. Nugent, P.C., Edward J. Nugent, Grand Junction, for defendant-appellee Mark Boylan.

Foster, Larson, Laiche & Griff, Stephen L. Laiche, Grand Junction, for defendant-appellee Robyn Boylan.

Justice MULLARKEY delivered the Opinion of the Court.

The questions before the court in this interlocutory appeal are whether a dog sniff of a private express courier package is a search and, if so, whether such a search was valid under Article II, section 7 of the Colorado Constitution. The trial court suppressed the fruits of the search warrant obtained after the dog "alerted" on a package addressed to the defendants. It held that the dog sniff was a search and, under our decisions in People v. Wieser, 796 P.2d 982 (Colo.1990), and People v. Unruh, 713 P.2d 370 (Colo.1986), that the police did not have a reasonable suspicion based on specific and articulable facts to believe that the package contained contraband. While we agree that the dog sniff was a search, we disagree with the trial court that the police did not have reasonable suspicion for such a search. Therefore, we reverse the trial court's suppression order and remand the case for further proceedings consistent with this opinion.

I.

In January 1992, Detective Timothy Grimsby of the Grand Junction Police Department, assigned to the Mesa County Narcotics Enforcement Team, spoke with Dan Ellegood who worked for United Artists, a cable television company. Ellegood had come to the Mesa County Sheriff's office on his own initiative with information concerning drug dealing in Mesa County. Specifically, Ellegood told Grimsby that he had spoken with someone who had identified himself as "Peter Boylan," a person who had signed a contract with United Artists permitting the installation of cable television in Evelyn's Restaurant in Mesa, Colorado. Peter told Ellegood that he wanted his name removed from the contract because the owners of the restaurant, Robyn and Mark Boylan, were involved in drugs. Peter also told Ellegood that the Boylans received their drugs through Federal Express and that Mark Boylan was his uncle. Ellegood also showed Grimsby a copy of a cable television contract that had been signed by "Peter Boylan."

In February 1992, a confidential informant told Investigator Bill Booth of the Mesa County Sheriff's Office that Mark Boylan made frequent trips to New York, and that, while in New York, Boylan obtained cocaine which he brought back to Grand Junction via the airlines. After Detective Grimsby learned of the information from the confidential informant, he contacted Sandra Erickson of Federal Express and requested her to be on the alert for packages addressed to Mark or Robyn Boylan from New York because they might contain cocaine.

On February 22, 1992, Erickson noted that a package coming through the Grand Junction Federal Express office was addressed to Robyn Boylan at a Grand Junction address. She contacted the Federal Express Security Office in Denver and was told to contact Grimsby and allow him to inspect the package. Grimsby asked her to hold the package until he could get a narcotics-sniffing canine to the office to inspect the package. Grimsby went to the Federal Express office accompanied by Pepper, a dog trained to sniff for cocaine and marijuana. When allowed to sniff at an array of five packages, including the one addressed to Robyn Boylan, the dog alerted on the Boylan package several times. Grimsby interpreted the dog's alerts as indicating that the package contained a controlled substance.

Equipped with this information, Grimsby swore out an affidavit and obtained a search warrant to open the package. The package was opened and the substance within the package was field tested. The substance tested positive for cocaine. A controlled delivery was then attempted (at approximately the same time the package would have been delivered in the normal course of events), but no one was present at the residence. A note was left saying that delivery would be attempted again on the next business day. After the package was delivered, the police executed a search warrant for the residence. ¹

The Boylans were each charged by information with possession of cocaine with intent to distribute, ² as special offenders, ³ and with tampering with physical evidence. ⁴ The Boylans moved to suppress the evidence seized as a result of both the search warrant for the package and the warrant for the residence. The trial court granted the motions to suppress, and the district attorney appealed the suppression order pursuant to section 16-12-102(2), 8A C.R.S. (1992 Supp.), and C.A.R. 4.1. We reverse the trial court's suppression order and remand the case for further proceedings consistent with this opinion.

II.

Article II, section 7 of the Colorado Constitution ⁵ protects the people of this state against unreasonable searches and seizures by government agents. People v. Unruh, 713 P.2d at 374. The defendants assert that the police detention of the package and the subjection of that package to a sniff by the narcotics detection dog were an unreasonable seizure and search of the package, violative of the state constitution. This is not the first time that this court has considered whether a sniff by a narcotics detection dog is a search or the standards by which to judge such a dog sniff.

In Unruh, the police recovered the defendant's safe from burglars and, while the safe was in police custody, subjected the safe to a sniff by a dog trained to detect narcotics. We held that the dog sniff was a search but, because of the unique character of the search, a reasonable suspicion based on specific and articulable facts, rather than probable cause, was all that was required to support the search. In determining that the dog sniff in that case was a search, we considered whether it was an intrusion into something that the individual reasonably expected to be private. In Unruh, we concluded that there was a reasonable expectation of privacy in the safe, because the defendant could have had no expectation that the privacy of that safe, which was locked in the basement of his home when it was stolen, would be subject to any governmental investigation at all. Id. at 378.

In Wieser, the court divided. In that case, the police observed the defendant associating with a suspected methamphetamine dealer who had flown into town. After the suspected drug dealer left town, the defendant was seen in a public storage facility at his storage locker for five or six days in a row. Each time, he carried a backpack and rode one of three motorcycles, but all of the motorcycles had the same California license plate. A dog sniff of the door of the locker indicated that the locker contained narcotics. A search warrant was obtained and executed, resulting in the seizure of narcotics. Three justices concluded that a dog sniff was not a search, relying on the United States Supreme Court's decision in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). A majority of the court, however, concluded that a dog sniff was a search because of the intrusion, albeit minimal, of the dog sniff into an individual's reasonable expectation of privacy. Id. at 987 (Mullarkey, J., concurring in the judgment) and 988 (Quinn, J., dissenting). Of these four, three found that the dog sniff of the defendant's storage locker was supported by the police's reasonable suspicion, Id. at 987 (Mullarkey, J., concurring in the judgment), and only one justice concluded that the search was improper. Id. at 988 (Quinn, J., dissenting).

III.

Here, we must ask the same questions that we did in Unruh and Wieser. First, did the defendants have a reasonable expectation of privacy with regard to the contents of the Federal Express package. If no, the inquiry is complete because the dog sniff is not a search under either the state or federal constitution. If yes, however, we then must ask whether the search was reasonable, that is, whether the police had a reasonable suspicion, based on specific and articulable facts, that the package contained illegal drugs. We address these questions in order below.

A.

A package sent by a private courier service bears many similarities to a letter sent via the United States Postal Service. Mail being sent by first class postage traditionally was defined by statute as "matter closed against postal inspection." 3 Walter R. LaFave, Search and Seizure § 10.3(b) at 677 (2d ed. 1987) (quoting former 39 U.S.C. § 4251(a)). Currently, first class mail is still generally closed to postal inspection and may not be opened except pursuant to a search warrant or to determine an address at which a letter can be delivered. Id. (quoting 39 U.S.C. § 3623(d)). While first class mail is closed to inspection, other types are not. The postal service provides a listing which identifies the mailings that are open to inspection and those that are not, giving the consumer an opportunity to choose. Id.

That an addressee of a package sent via a private courier service has some expectation of privacy in the package's contents is axiomatic. ⁶ Cf. People v. Hillman, 834 P.2d 1271 (Colo.1992) (no reasonable expectation of privacy in contents of garbage bags left for collection). The package is sent in a sealed, opaque envelope. As such, the contents of the package are hidden from view. Any revelation of the contents of such a package would require some prying into what was hidden from view and, when done by a state actor, is a search.

The use of a drug-sniffing dog to determine the contents of a Federal Express package, therefore, is a search under the interpretation of ...