People v. Riegler
| Decision Date | 30 October 1980 |
| Docket Number | Cr. 4230 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Robert Lawrence RIEGLER, Defendant and Appellant. |
In this case we consider the applicability of the container decisions to wrapped and sealed packages arriving by overseas mail which are opened by customs officials, resealed, delivered in a controlled delivery with a search warrant for the residence of the addressee, seized in a vehicle approximately 100 miles from that residence, returned to the city of the addressee, and subsequently opened by law enforcement officers without first obtaining a search warrant to open the packages. We conclude that while the seizure was proper, the warrantless search was not.
In the instant case Riegler pled guilty to a charge of possession of marijuana for sale after his motion to suppress was denied. He appeals asserting error in denial of the suppression motion.
The facts are these:
On November 8, 1977, a customs inspector at JFK Airport in New York City notified John Huber, a special agent with the Drug Enforcement Administration, that a detector dog had alerted the inspector to two packages sent from Germany and when the inspector opened them up he observed what he believed to be hashish.
Chemical analysis confirmed that the substance was hashish.
The packages were addressed to Selma and Mike Fortner, 1130 W Street, Merced, California.
The packages were resealed by the customs agent and Huber sent the packages to Patrick Dorn, a United States postal inspector in Fresno who received them on November 21, 1977.
Dorn brought the packages to Merced and contacted a Lieutenant Moore who was in charge of specialized manpower assigned to crime control (SMACC) in Merced County. Huber also had contacted Moore on November 21, 1977, and told him about the packages.
The plan was to have a controlled delivery and Agent Atkins with SMACC obtained a search warrant on November 22, 1977, for the premises at 1130 W Street.
On November 22nd, Lieutenant Moore and other agents took up surveillance at the Fortner residence. At approximately 1:30 Dorn gave the parcels to the regular mail carrier who delivered the parcels at approximately 1:40 and Michael Fortner took them.
About ten to fifteen minutes after the delivery of the packages a red Volkswagen pulled into the driveway at the Fortner residence.
Lieutenant Moore testified that between 1:40 and 2:11, when Riegler drove the Volkswagen away with the packages, nothing prevented Moore from going into the residence to execute the warrant. He did not immediately serve the warrant because he wanted to wait for the occupants to have time to open the package. He was also interested in where the hashish was going if it left the residence. He wanted to ascertain who else was involved in the case and whether he could arrest more people. He would follow suspects wherever they went, including on a plane.
Before the vehicle left, the packages were placed in the Volkswagen but a SMACC agent could not tell if both packages were put in.
After the Volkswagen left, the warrant was executed and served on Mike Fortner at 2:30, and the house searched, but nothing incriminating was found. Agent Austin overheard Michael Fortner on the phone say that a couple of packages came for Bob and "I gave them both to Bob."
The search warrant was apparently restricted to the premises, structures, rooms and receptacles of the Fortner residence at 1130 W Street, Merced, and did not provide for the search of any vehicle or persons.
When the vehicle left the Fortner residence SMACC agents including Moore, along with postal inspector Dorn, followed. Although several opportunities existed to detain the occupants, the officers chose not to do so until approximately 4:05 p. m., at which time the vehicle was stopped in Contra Costa County approximately 100 miles from the Fortner residence. The reason for the stop then was the fear of losing surveillance in East Bay traffic.
Riegler and a codefendant (Bannister) exited the vehicle and were arrested. Moore observed two packages in the back seat of the Volkswagen. The packages were identified as being the same ones previously seized, opened, rewrapped and delivered. The packages did not appear to have been opened after delivery to the Fortner residence. The seized packages were taken to the SMACC office in Merced where they were photographed and opened and found to contain hashish valued at approximately $100,000. No search warrant was obtained before the opening. Moore testified that when he took the packages back to the Merced office, he had no fear that something would happen to the packages.
Relying on United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538; People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, and their progeny of container cases, Riegler asserts that a search warrant for the packages should have been obtained before the packages were opened in Merced. We agree.
At the very least in this case there was an expectation that when the packages arrived at the Merced address the contents would remain private. The partial invasion of privacy by customs did not automatically justify a total invasion. In the words of Walter, --- U.S. ----, ----, 100 S.Ct. 2395, 2403, 65 L.Ed.2d 410:
"It did not simply strip the remaining unfrustrated portion of (the) expectation of all Fourth Amendment protection." (Fn. omitted.)
Of course, the expectation of privacy means more than a subjective expectation. The expectation must be reasonable. Under the present standards enunciated in Chadwick; Sanders; Minjares; Dalton; United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538; Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235; People v. Minjares, supra, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514; People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467 and their respective progeny, we cannot say that the expectation here was unreasonable. Under the factual circumstances present in this case, we conclude there was a justifiable expectation of privacy against unwarranted intrusion. Essentially an important element in these cases is foreseeability which is implicit in an analysis of subjective expectations. Here, the government should have anticipated a reasonable claim of privacy. (See United States v. Rivera (N.D.Tex.1980) 486 F.Supp. 1025, 1034.)
Rather than placing on the law enforcement officer on the street the difficult, if not impossible burden, of carrying a list of "searchable parcels," we believe that the standard to be followed by the officer is the one which was succinctly stated by Federal Judge Higginbotham in Rivera, supra, idem as follows:
" If the contents of a sealed package or parcel are not revealed by the package and you have exclusive control with no fear of harm from its contents-obtain a warrant." (Emphasis added.)
The packages were no longer subject to a warrantless search once they were delivered. (See People v. Whyte (1979) 90 Cal.App.3d 235, 152 Cal.Rptr. 280; but see United States v. Bulgier (7th Cir. 1980) 618 F.2d 472.) This is particularly true when as here considerable time had passed and the packages had been transported such a distance by the recipients or others. Not only had a considerable period passed from the time the vehicle left Merced and was finally stopped and the packages seized, but additional time (some four to five hours) also passed after the seizure of the packages and their subsequent opening at Merced.
The Attorney General argues that the warrant obtained for the house should be adequate to authorize the opening of the sealed packages. We are not persuaded. The warrant which was obtained did not authorize (and properly could not so authorize under the Fourth Amendment) seizure of the packages at any place where found.
Nor do we believe that the police were entitled to search the seized packages without a warrant because "their contents could be inferred from their outward appearance." (Arkansas v. Sanders, supra, 442 U.S. 753, 99 S.Ct. at 2593, fn. 13, 61 L.Ed.2d 235. 2 ) The fact that the police had ample probable cause to believe and perhaps even knew that the packages contained contraband does not mean their contents were apparent from the outside.
The meaning of the somewhat cryptic 3 footnote in Sanders need not concern us in this case. This is factually not a situation where the packages "by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance."
The vehicle here was properly stopped and the packages were properly seized. However, the fact that the packages were lawfully seized does not validate a warrantless search of the contents. While there was ample probable cause for the police officer's belief that the packages contained contraband, there were no exigent...
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