State v. Earl

Decision Date24 June 2009
Docket NumberNo. 2008AP1580-CR.,2008AP1580-CR.
Citation770 N.W.2d 755,2009 WI App 99
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Dwan J. EARL, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark D. Richards and Christy M. Hall of Richards & Hall, S.C.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and J.B. Van Hollen, attorney general.

Before ANDERSON, P.J., SNYDER and NEUBAUER, JJ.

¶ 1 NEUBAUER, J

Dwan J. Earl appeals from a judgment of conviction for possession of marijuana with intent to deliver, contrary to WIS. STAT. § 961.41(1m)(h)2. (2007-08).1 Earl contends that the trial court erred in denying his motion to suppress evidence of the contents of a Federal Express package which was not addressed to him and was sent to the address of a vacant apartment. Earl argues police violated his constitutional rights by unreasonably seizing and searching the package without a warrant. We reject Earl's argument. We conclude that Earl failed to establish that he had a legitimate expectation of privacy in the package at the time it was searched. We uphold the trial court's order denying his motion to suppress and affirm the judgment.

BACKGROUND

¶ 2 The record and transcript from the suppression hearing provides the following facts and procedural history. In early March 2007, Chris Kazanecki, a FedEx operations manager, advised Detective Kenneth Polzin of the Kenosha County Sheriff's Department about suspicious packages addressed to "712 Sheridan Road, No. 204." The apartment manager at that address had advised a FedEx driver that the apartment was vacant. On March 16, 2007, at 8:35 a.m., Polzin again spoke with Kazanecki about the arrival of another suspicious package addressed to 712 Sheridan Road, No. 204. Prior to that second call, Polzin confirmed that Apartment 204 at 712 Sheridan Road was vacant.

¶ 3 After speaking with Kazanecki, Polzin called Officer Kenneth Free, the group supervisor in the Lake County, Illinois, Metropolitan Enforcement Group, who went to the FedEx hub with a "narcotic-sniffing" dog. Shortly thereafter, Free informed Polzin that the dog had alerted on the package and he would be bringing the package to Polzin at the public safety building in Kenosha.

¶ 4 Polzin testified that because the package was a priority overnight shipment from Seattle to an address on Sheridan Road, it had to be delivered by 10:30 a.m. Polzin opened the package addressed to "Mark Harris" and discovered "peanut-type stuffing" and grocery bags containing heat-sealed bags filled with a substance which smelled like marijuana. Polzin opened one of the bags and a test of the substance produced a positive result for THC, or marijuana. Polzin resealed the package and met Kazanecki at a FedEx truck. Polzin rode in the back of the truck when the package was delivered to 712 Sheridan Road. Kazanecki went to the door of Apartment 204 but returned to the truck with the package. As they drove through the apartment complex, an individual in a "silver GM-type vehicle" approached the truck, conversed with Kazanecki, and took the package. That individual was later identified as Dwan Earl. The vehicle was subsequently stopped by the Kenosha County Controlled Substance Unit and the package recovered.

¶ 5 On March 19, 2007, the State filed a criminal complaint against Earl alleging possession with intent to deliver THC, second and subsequent offense, contrary to WIS. STAT. § 961.41(1m)(h)4. Earl filed a motion to suppress evidence recovered from the seizure and search of the intercepted package. In opposing the motion, the State questioned Earl's standing to challenge the search based on his lack of a reasonable expectation of privacy in the package at the time of the search. At the suppression hearing, the trial court asked the parties to address the issue of standing first. Defense counsel made the following offer of proof:

[I]f the court wishes, Mr. Earl would testify that on the date in question, March 16th of '07, he went to that location. He knew that a package was arriving, that the package was addressed to an individual by the name of Mark Harris. It was addressed to an apartment where he had previously resided, off and on, with his girlfriend, the mother of his child.... He went to the location, identified himself, picked up the package. He was stopped.

In response to the court's inquiry as to how he identified himself and, in particular, whether he identified himself as Mark Harris, defense counsel stated:

[Defense counsel].... He said he identified himself. And he said I'm looking for a package that was to be delivered to that address for Mr. Harris.

[Assistant District Attorney] I believe he identified himself as Dwan Earl.

[The Court] Okay. Dwan Earl picking up a package for Harris. He had some knowledge of the name on the package.

[Defense counsel] Yes.2

¶ 6 In his offer of proof, defense counsel stated that Earl's girlfriend would testify that she previously lived at the address and that Earl had spent nights at that address.3 While he acknowledged that he may have seen Earl with a prior tenant on occasion, the property manager testified that he did not know anyone by the name of Dwan Earl or Mark Harris to have rented an apartment at the Sheridan Road property. The property manager testified that Apartment 204 was vacant on March 16 and had been vacant since the previous January or early February. Earl provided no information about the sender of the package at the suppression hearing.4

¶ 7 The trial court denied Earl's motion, finding that, while Earl had a legitimate expectation of privacy in the package, the dog sniff did not constitute a search of the package and provided the police with probable cause to search its contents. Earl subsequently pled guilty to the charge. He now appeals.

DISCUSSION

¶ 8 On appeal, Earl challenges (1) the initial seizure of the package from the stream of commerce, (2) the transport of the package across state lines without obtaining a warrant, and (3) the opening of the package without a warrant or valid warrant exception. However, the State contends that Earl failed to allege a legitimate expectation of privacy sufficient to establish that his Fourth Amendment rights were violated by the challenged search and seizure. We agree that Earl failed to meet his burden to establish a legitimate expectation of privacy in the package searched.5

¶ 9 Sealed packages sent through the mail are entitled to full protection under the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In order to challenge a warrantless search or seizure, one must show a legitimate expectation of privacy in the thing or place searched or seized. State v. Ramirez, 228 Wis.2d 561, 566, 598 N.W.2d 247 (Ct.App. 1999). This showing entails both a manifestation of a subjective expectation of privacy as well as an indication that the privacy interest is one that society is willing to recognize as reasonable. Id. This standing requirement reflects the fact that Fourth Amendment rights are personal, and thus may not be asserted vicariously. Id. The burden of establishing that the search or seizure violated the challenger's rights, and not those of some third party, is on the challenger. Id.; Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Whether sufficient facts have been brought forth to demonstrate a reasonable expectation of privacy must be determined on a case-by-case basis. Ramirez, 228 Wis.2d at 567-68, 598 N.W.2d 247. Whether a party has standing to challenge the constitutionality of a search is a question of law we review de novo. Id. at 566, 598 N.W.2d 247.6

Earl Failed to Establish a Reasonable Expectation of Privacy in the Package.

¶ 10 In Ramirez, we held that "[w]hen the State seizes a package from the mail and searches it prior to its delivery to a person's residence," the defendant has an initial minimal burden of establishing some reasonable expectation of privacy in the package when the name on the package in question is not that of the resident. Id. at 564, 598 N.W.2d 247. In that case, the defendant, Domingo Ramirez, accepted a package delivered to his residence that was addressed to Gabriel Ramirez. Id. at 564-65, 598 N.W.2d 247. Domingo advised the postal agent that he was "Mr. Ramirez" when he accepted the delivery. Id. at 565, 598 N.W.2d 247. Because of the trial court's misunderstanding over the "quantum of proof necessary to establish a privacy interest," we remanded for an evidentiary hearing on whether Domingo Ramirez had a reasonable expectation of privacy in the package he accepted at his residence. Id. at 568-69, 598 N.W.2d 247.

¶ 11 In his motion to suppress, Earl argued that he had a legitimate expectation of privacy in the package addressed to a fictitious Mark Harris to raise a Fourth Amendment challenge. Citing to United States v. Pitts, 322 F.3d 449 (7th Cir.2003), Earl argued that individuals who send and receive packages using fictitious names have a reasonable expectation of privacy in the package. In Pitts, the Court of Appeals for the Seventh Circuit stated that under the Fourth Amendment "the expectation of privacy for a person using an alias in sending or receiving mail is one that society is prepared to recognize as reasonable." Id. at 459. Pitts is factually distinguishable and, as discussed below, the court's analysis supports rejection of Earl's arguments.

¶ 12 That Earl knew the package was arriving and that it would be addressed to Mark Harris does not establish a possessory interest or a reasonable expectation of privacy in the package. First, Earl did not testify at the suppression hearing and the offer of proof fails to identify the name Mark Harris as Earl's alter ego or...

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