State v. Cooper

• Decision Date: 10 November 1994
• Docket Number: No. 93-490,93-490
• Citation: 652 A.2d 995,163 Vt. 44
• Parties: STATE of Vermont v. Alexander COOPER.
• Court: Vermont Supreme Court

Page 995

652 A.2d 995

163 Vt. 44

STATE of Vermont v. Alexander COOPER.

No. 93-490.

Supreme Court of Vermont.

Nov. 10, 1994.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

William K. Sessions III and Marybeth McCaffrey of Sessions, Keiner, Dumont & Barnes, P.C., Middlebury, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

GIBSON, Justice.

Defendant Alexander Cooper appeals from a conditional guilty plea to one count of conspiracy to deliver marijuana in violation of 13 V.S.A. § 1404. On appeal, defendant challenges the trial court's denial of his motion to suppress evidence of an Express Mail package that contained marijuana and served as the basis for the charge against him. We affirm.

On November 25, 1991, United States Postal Inspector Robert Sticht of Tucson, Arizona became suspicious of an Express Mail package addressed to a post office box in Manchester, Vermont. He contacted United States Postal Inspector Terrence Loftus in Hartford, Connecticut, advising Loftus that he suspected the package contained illegal narcotics. Inspector Sticht informed Inspector Loftus that the package was sent via Express Mail, a service commonly used by narcotics distributors, that it originated from Tucson, a known narcotics distribution point, and that it contained a false return address. Inspector Loftus made arrangements to intercept the package in White River Junction, Vermont on November 26.

Inspector Loftus arrived in White River Junction on the evening of November 26. He retrieved the suspicious package from the White River Junction Post Office, and arranged to have a dog trained to detect narcotics sniff the package in Springfield at 7:00 a.m. the next morning. Inspector Loftus took the package to Springfield the following morning where it was placed on the floor with seven other packages of similar size. The dog reacted positively to the suspicious package, and the test was repeated; the dog singled out the suspicious package a second time. The package was then routed to Manchester while Inspector Loftus went to the United States District Court in Rutland to obtain a search warrant. After the search warrant issued and the package arrived in Manchester, the Manchester police opened it and found what they believed to be marijuana. The package was resealed and delivered to the addressee shortly after 12:00 p.m. on November 27. The addressee was subsequently arrested and named defendant as the person who mailed the package.

Defendant raises four arguments on appeal. Defendant first claims that Inspector Loftus did not have reasonable suspicion to justify his seizure of the Express Mail package in White River Junction, and therefore the seizure was illegal under the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution. Alternatively, he argues that even if there was reasonable suspicion to detain the package, the length of detention was unreasonable and therefore violated both the Fourth Amendment and Article 11. Defendant also argues that the evidence should be suppressed because the search warrant affidavit failed to meet the standard of V.R.Cr.P. 41(c). Finally, defendant contends that the canine sniff was an illegal search under Article 11. We address defendant's arguments in turn.

I.

A.

Defendant first claims that Inspector Loftus did not have reasonable suspicion to detain the Express Mail package as required by the Fourth Amendment. He argues that the package met only two of the seven elements that comprise the drug package profile used by the postal service to detect illegal narcotics in the mails, specifically, the fictitious return address and the package's size and shape. ¹ For reasonable suspicion, defendant contends, the package must fit a majority of the seven elements. The district court concluded that reasonable suspicion was established by the false return address, the fact that the package was sent Express Mail, the size, shape and weight of the package, and Inspector Loftus's knowledge that Tucson is a known origination point for illegal drug distribution. Thus, the court concluded, Inspector Loftus could lawfully detain the package to dispel or confirm his suspicions. We agree.

The Fourth Amendment to the United States Constitution protects individuals from unreasonable government searches and seizures. U.S. Const. amend. IV. Although postal authorities generally must have probable cause and a warrant to open and inspect mail, they may detain a mail package if they have reasonable suspicion that it is involved in criminal activity. United States v. Van Leeuwen, 397 U.S. 249, 251-52, 90 S.Ct. 1029, 1031-32, 25 L.Ed.2d 282 (1970); see also United States v. Lux, 905 F.2d 1379, 1382 (10th Cir.1990) (temporary detention of mail for investigative purposes not unreasonable seizure if based on reasonable suspicion of criminal activity). "Investigatory stops are permitted where 'specific and articulable facts which, together with the rational inferences taken therefrom, reasonably warrant the intrusion.' " State v. Siergiey, 155 Vt. 78, 81, 582 A.2d 119, 121 (1990) (quoting State v. Ryea, 153 Vt. 451, 454, 571 A.2d 674, 675 (1990)). We examine the totality of the circumstances in evaluating the existence of reasonable and articulable suspicion to justify an investigatory detention. State v. Crandall, 162 Vt. 66, ----, 644 A.2d 320, 323 (1994). We agree with the district court that there were sufficient specific and articulable facts to support a finding of reasonable suspicion warranting an investigatory detention of the Express Mail package.

The district court found that Express Mail is used regularly by drug traffickers to distribute narcotics, and packages containing contraband are often labeled with a fictitious return address. The court also found that Tucson is known by the Postal Service as a hub for illicit drug distribution. The Express Mail package defendant sent had all three of these characteristics, and it was these characteristics together that raised the suspicions of Inspectors Sticht and Loftus. Although defendant maintains that each factor is insufficient to establish reasonable suspicion because each is consistent with innocent activity, law enforcement officers and courts are not required to look at each factor in isolation. Reasonable suspicion exists in cases like this where several specific and articulable facts, together with the inferences reasonably drawn therefrom, lead the officer to conclude that criminal activity may be afoot. We note that other courts have found reasonable suspicion to exist on similar facts. See, e.g., State v. Gross, 57 Wash.App. 549, 789 P.2d 317, 318-19 (1990) (reasonable suspicion to hold Federal Express package for canine sniff where package had false return address, was sealed with duct tape, and was lightweight for package of its size); State v. Gordon, 159 Wis.2d 335, 464 N.W.2d 91, 94 (Ct.App.1990) (reasonable suspicion to detain- Express Mail package and submit for canine sniff where officer knew, through training and experience, that drugs are often distributed through the mails, package was mailed from state commonly known as drug distribution source, and anonymous informant tipped police that defendant was going to receive package containing marijuana). We agree with the district court that Inspector Loftus had reasonable suspicion to detain the package for further investigation.

B.

Defendant also argues that Chapter I, Article 11 of the Vermont Constitution requires a higher standard of reasonable suspicion than does the Fourth Amendment, and that the higher standard was not met in this case. He contends that Article 11 gives privacy interests more protection than the Fourth Amendment, and because of that greater protection, Article 11 requires a different and higher reasonable suspicion standard. Defendant has not, however, identified any privacy interest implicated by the detention of the Express Mail package to justify a new and more stringent test in this case.

Chapter I, Article 11 of the Vermont Constitution, ² like the Fourth Amendment, protects individuals from unreasonable government searches and seizures. Its protection is aimed at an individual's possessory and privacy rights. State v. Savva, 159 Vt. 75, 89, 616 A.2d 774, 781 (1991). It is well settled that government seizures of personal property implicate possessory interests while searches implicate privacy interests. Id.; see also State v. Platt, 154 Vt. 179, 188, 574 A.2d 789, 794 (1990) (police seizure of vehicle intruded upon defendant's possessory rights, but privacy rights not implicated until police searched the vehicle). The detention of the Express Mail package was a seizure, not a search. We decline to articulate a heightened test for reasonable and articulable suspicion under Article 11 based on a privacy interest defendant fails to show was intruded upon by the detention.

II.

Defendant next argues that Inspector Loftus unreasonably detained the Express Mail package in contravention to the Fourth Amendment and Article 11. The essence of defendant's argument is that because of the interception and canine sniff, the package was delivered three to three and one-half hours late. Defendant contends that the district court erred in finding that there was no delay because the package was delivered to Manchester on the day it was due. He argues that the three to three and one-half hours that elapsed between the scheduled and actual deliveries was unreasonable and interfered with his privacy interests.

We will not disturb the trial court's findings of fact on appeal unless they are clearly erroneous or unsupported by the evidence. State v. Zaccaro, 154 Vt. 83, 86, 574 A.2d 1256, 1258 (1990). During the suppression hearing, Inspector Loftus testified that Express Mail from Tucson to Vermont takes two...