Rios v. State

• Decision Date: 31 January 2002
• Docket Number: No. 49A02-0105-CR-265.,49A02-0105-CR-265.
• Citation: 762 N.E.2d 153
• Parties: Rene RIOS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

762 N.E.2d 153

Rene RIOS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0105-CR-265.

Court of Appeals of Indiana.

January 31, 2002.

Ellen M. O'Connor, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary¹

In this interlocutory appeal, Rene Rios challenges the denial of his motion to suppress evidence, including cocaine and marijuana, seized at his residence pursuant to an anticipatory search warrant. We affirm.

Issues

Rios presents two issues for our review, which we restate as:

I. whether the search warrant for a package addressed to Rios lacked probable cause because it was detained for a canine sniff without reasonable suspicion that the package contained contraband; and

II. whether the anticipatory warrant served at Rios' residence lacked probable cause because the package search warrant, the execution of which revealed suspected cocaine in the package, was deficient and was the sole basis for the anticipatory warrant.

Facts

On July 15, 2000, Officer Joe Brannon of the Indianapolis Police Department was examining packages at a private shipping company when one addressed to Rios caught his eye. He deemed it suspicious because it had a handwritten label, was sent next day air, was paid for in cash, smelled like dryer sheets, and came from a "source area for the distribution of narcotics."² Appendix p. 51. The package then was placed with at least three other packages at the shipping company and was subjected to a sniff test by a trained narcotics canine. The dog alerted to the package. On the basis of the dog alert and the observations of Officer Brannon, a magistrate signed a search warrant at 8:45 a.m. to open the package, which appeared to contain cocaine when opened at 8:55 a.m.

Some of the cocaine was then repackaged, and Officer Brannon applied for an anticipatory search warrant for the premises where the package was to be delivered and the person who accepted the package. The warrant was approved, and it was executed after the package was delivered to and accepted by Rios at approximately 11:45 a.m. Officers seized marijuana, cocaine, two handguns, and miscellaneous records from the residence. Rios was charged with one count of possession of cocaine, one count of dealing in marijuana, and one count of possession of marijuana. He moved to suppress the evidence seized pursuant to the search warrants. After conducting a hearing at which no evidence was presented, the trial court denied the motion. We have now agreed to consider an interlocutory appeal from the denial of Rios' suppression motion.

Analysis

A reviewing court is to focus on whether a "substantial basis" existed for a warrant authorizing a search or seizure, and doubtful cases are to be resolved in favor of upholding the warrant. Houser v. State, 678 N.E.2d 95, 98 (Ind.1997). "Reviewing court" for these purposes includes both the trial court ruling on a motion to exclude the seized evidence and the appellate court reviewing that decision. Id. We review the trial court's "substantial basis" determination de novo. Id. We give significant deference, however, to the probable cause determination of the magistrate who initially issued the search warrant, focusing on whether reasonable inferences drawn from the totality of the evidence support the determination. Id. at 99. "A presumption of validity of the search warrant exists, and the burden is upon the defendant to overturn that presumption." Snyder v. State, 460 N.E.2d 522, 529 (Ind. Ct.App.1984).

I. Package Search Warrant

Rios first claims that the search warrant that allowed the package addressed to him to be opened before its delivery was deficient. He asserts that the facts posited or sworn to by officer Brannon—that the package was sent next day air, had a handwritten label, was paid for in cash, smelled like dryer sheets, and came from an address in South Gate, California—could not have provided probable cause to search the package or even reasonable suspicion to seize it. We tend to agree that these facts alone are consistent with innocent, not criminal, activity, especially where neither the probable cause affidavit reciting these facts nor anything in the record gives any indication of why these seemingly innocent characteristics created some level of suspicion that the package contained narcotics. We will assume for purposes of this opinion that the recital of these facts alone could not have provided probable cause to search the package or even that there was reasonable suspicion to seize it.

The alert of a dog trained to detect narcotics, however, is by itself sufficient to provide the probable cause necessary to obtain a search warrant to open a package. See Neuhoff v. State, 708 N.E.2d 889, 891 (Ind.Ct.App.1999)

. Additionally, smell testing by a trained dog is not a search within the meaning of the Fourth Amendment. Id. No level of suspicion thus was required to justify the canine sniff of Rios' package. Nevertheless, Rios argues that officer Brannon "seized" the package within the meaning of the Fourth Amendment when he removed the package from wherever he first found it and placed it alongside several other packages so that it could be subjected to the canine smell test, and that this "seizure" required reasonable suspicion that the package contained narcotics.

Rios cites U.S. v. Johnson, 171 F.3d 601 (8th Cir.1998), in support of his claim that the package addressed to him could not be set aside and subjected to a canine sniff without some reasonable, articulable suspicion for doing so. In that case, the Eighth Circuit did say, "[l]aw enforcement authorities must possess a reasonable suspicion based on articulable facts that a package contains contraband before they may detain the package for investigation." Johnson, 171 F.3d at 603. For this proposition, the court cited U.S. v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 1032, 25 L.Ed.2d 282 (1970). Although Van Leeuwen does mention the "suspicious" nature of the first-class mail packages at issue as justifying their twenty-nine hour detention in that case, we respectfully disagree that Van Leeuwen supports the Eighth Circuit's holding in Johnson. We do not read Van Leeuwen so broadly as to impose a "reasonable suspicion" requirement for any detention, however brief, of a mailed package for purposes of further law enforcement investigation.

In fact, the Van Leeuwen court never undertook to decide whether the facts of the case created "reasonable suspicion" that the packages contained contraband before their detention. It only noted the packages were "suspicious" without stating whether such suspicion was "reasonable," and expressly distinguished the detention of a mailed package for further investigation from a protective sweep for weapons upon the existence of "reasonable suspicion." Id. at 252, 90 S.Ct. at 1032 (citing Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 1879-83, 20 L.Ed.2d 889 (1968)). The Court stated that Terry "went further than we need go here," id., which we take to strongly imply that "reasonable suspicion" is not necessarily required to detain a mailed package for further law enforcement investigation in every case. The Van Leeuwen opinion also held that upon the detention of the packages,

[t]here was at that point no possible invasion of the right "to be secure" in the "persons, houses, papers, and effects" protected by the Fourth Amendment against "unreasonable searches and seizures." Theoretically ... detention of mail could at some point become an unreasonable seizure of "papers" or "effects" within the meaning of the Fourth Amendment. Detention for 1½ hours ... for an investigation certainly was not excessive.... No interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day when they were deposited. The significant Fourth Amendment interest was in the privacy of this first-class mail; and that privacy was not disturbed or invaded until the approval of the magistrate [for a search warrant] was obtained.

Id. at 252-53, 90 S.Ct. at 1032.

Contrary to the Eighth Circuit's view, we agree instead with the Ninth Circuit's assessment of Van Leeuwen and its implications for briefly detaining mailed packages for purposes of further law enforcement investigation. In U.S. v. England, 971 F.2d 419 (9th Cir.1992), the facts were similar to those in the case before us. There, law enforcement officials, apparently without any articulable suspicion, set aside two Express Mail packages to be sniffed by narcotics search dogs. Id. at 420. The dogs alerted to the packages, search warrants were obtained, and the packages were opened and revealed cocaine. Id. The Ninth Circuit held there was no seizure of the packages by setting them aside to be subjected to canine sweeps, hence, law enforcement officials needed no suspicion before doing so. Id. at 421. The court distinguished Van Leeuwen, to the extent it may require some level of suspicion before detaining a package for a substantial period of time, on the basis that delivery of England's packages had not been "substantially delayed by their detention." Id.

We likewise hold that there is no seizure of a mailed package within the meaning of the Fourth Amendment when it is briefly detained for further law enforcement investigation and its delivery is not substantially delayed. Because there is no seizure, the Fourth Amendment is not implicated, and law enforcement officials need not possess "reasonable suspicion" before briefly detaining a package. This holding is consistent with the accepted proposition that "[a] `seizure' of property... occurs when `there is some meaningful interference with an individual's possessory interests in that property.'" Soldal v. Cook County, Ill., 506 U.S. 56, 61, ...