State v. Eiseman, 81-502-C

• Decision Date: 10 June 1983
• Docket Number: No. 81-502-C,81-502-C
• Citation: 461 A.2d 369
• Parties: STATE v. Stephen EISEMAN. A.
• Court: Rhode Island Supreme Court

Page 369

461 A.2d 369

STATE v. Stephen EISEMAN.

No. 81-502-C.A.

Supreme Court of Rhode Island.

June 10, 1983.

Dennis J. Roberts, II, Atty. Gen., Marc DeSisto, Sp. Asst. Atty. Gen., for plaintiff.

Matthew J. Faerber, Newport, Brian J. McMenimen, Boston, Mass., for defendant.

OPINION

WEISBERGER, Justice.

This is an appeal from a judgment of conviction in the Superior Court for possession of cocaine with intent to deliver. On appeal, the defendant contends that the trial justice erred in denying a motion to suppress evidence that the defendant claims was seized in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Further, the defendant alleges that his conviction was based upon insufficient evidence. As will become evident, our determination of these contentions makes a remand of the case necessary. The pertinent facts are as follows.

On September 9, 1980, a woman who identified herself as Michelle Robinson (Robinson) presented a heavily taped package to an employee of the Federal Express Company (Federal Express) at Boeing Field in Seattle, Washington. Stating that the package contained a watch, Robinson requested that Federal Express ship the package to "Paul Lennon, Racquet Road, Jamestown, Rhode Island." Robinson informed the Federal Express employee that the addressee would pick up the package at the airport office of Federal Express in Rhode Island. She then paid the shipping fee and left the office even though the Federal Express employee had told her that she would have to wait for change. Because Robinson behaved nervously, the employee became suspicious. She therefore contacted her supervisor, Roger Finley (Finley). He opened the package and found a small watch box. A small plastic bag that contained a white powdery substance was inside the box. Finley then telephoned Agent Keith Earnst (Earnst) of the Drug Enforcement Administration (DEA) in Seattle. Earnst instructed another DEA agent to investigate. The agent went to the Federal Express office and conducted a field test on the substance. The results of that test indicated that the bag contained cocaine. The agent reported this discovery to Earnst, who in turn contacted Agent Richard Scovel (Scovel) of the DEA in Providence. Earnst then requested that Federal Express rewrap the package and send it to Rhode Island.

Agent Scovel informed Senior Narcotics Inspector Domenic F. Capalbo, Jr. (Capalbo), of the Division of Drug Control in Providence of the discovery of the cocaine and the impending arrival of the package at the Federal Express office. Capalbo obtained a search warrant for the package and, accompanied by Scovel and another state narcotics inspector, began surveillance at the office. The package arrived in Rhode Island on the morning of September 10. Sometime that afternoon defendant arrived to claim it. As he was leaving Federal Express with the package, the officers approached defendant and notified him that they had a search warrant for the package. They then opened the package, discovered the cocaine, and arrested defendant.

A criminal information charged defendant, inter alia, with possession of cocaine with intent to deliver in violation of G.L.1956 § 21-28-4.01, as enacted by P.L.1974, ch. 183, § 2. The defendant waived his right to a jury trial. Prior to trial, defendant filed a motion to suppress from introduction into evidence the cocaine that had been seized at the Federal Express office in Rhode Island. The defendant based this motion on the following arguments. First, defendant claimed that because the affidavit that served as the basis for the search warrant was facially deficient, no probable cause existed to justify the warrant's issuance. Second, defendant contended that the field test that the DEA agent in Seattle conducted on the cocaine constituted a significant expansion of the private search that concededly did not implicate defendant's Fourth Amendment rights. The defendant argued, therefore, that the test conducted without a warrant was an unlawful search proscribed by the Fourth and Fourteenth Amendments to the United States Constitution.

The trial justice, however, disagreed. He ruled (1) that the affidavit sufficiently set forth facts and circumstances to establish probable cause for the issuance of a search warrant and (2) that the field test was justified by exigent circumstances. Accordingly, the trial justice denied defendant's motion to suppress. After trial, he found defendant guilty of possession of cocaine with intent to deliver.

On appeal, defendant claims that the trial justice erred in denying his motion to suppress. The defendant reasserts his challenge to the sufficiency of the affidavit and to the validity of the field test. Further, defendant contends that his conviction was based upon insufficient evidence. Specifically, he argues that he possessed an amount of cocaine that was wholly consistent with possession for personal use and that the state introduced no additional evidence to support a finding of intent to deliver. Accordingly, he urges this court to reverse his conviction. Before we address this contention, we must review the propriety of the trial justice's denial of the motion to suppress.

I Sufficiency of the Affidavit

The defendant argues that the affidavit that was the basis for issuance of the search warrant failed to set forth sufficient underlying facts and circumstances to establish probable cause. The affiant stated in part:

"On 9 Sept 80, at 10:00 P.M. Special Agent Richard Scovel of the Drug Enforcement Administration office in Providence, R.I. received information from Special Agent Keith Arnst [sic] of the Federal Drug Enforcement Administration in Seattle, Washington that an envelope being sent via Federal Express from Seattle to Warwick, R.I. contained a quantity of powder which a field test concluded that the material is Cocaine. The Agent in Seattle stated that the envelope was sent by a subject named Michele [sic] Robinson of 10670 Exeter, N.E. Seattle, Washington 98125 on 9-9-80 addressed to Paul Lennon Racquet Rd. Jamestown, R.I. 02832 * * *."

In support of this contention, defendant points out that the affidavit failed to state the following: (1) whether Agent Earnst personally observed the package or its contents, and if not, who did; (2) who tested the powder and how that person gained access to the powder; (3) what type of test was conducted or how reliable that test was; (4) whether or not there was an informant; and (5) when the information was obtained. In addition, defendant claims that the affidavit fails to establish the source of the factual assertion that the substance in the envelope was cocaine.

In United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), the Supreme Court of the United States postulated that "affidavits for search warrants * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion." The defendant argues, however, that the underlying facts and circumstances set forth in the affidavit do not establish probable cause as required by the Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We disagree. In Aguilar the affidavit stated:

"Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of law." Id. at 109, 84 S.Ct. at 1511, 12 L.Ed.2d at 725.

Clearly, the affidavit in this case, when read in a common sense fashion, sets forth facts and circumstances that far exceed the mere conclusion set forth in the Aguilar affidavit. Moreover, we are mindful of the Ventresca Court's admonition that "[a] grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." United States v. Ventresca, 380 U.S. at 108, 85 S.Ct. at 746, 13 L.Ed.2d at 689; see State v. Read, R.I., 416 A.2d 684, 689-90 (1980); State v. Joseph, 114 R.I. 596, 598, 337 A.2d 523, 525 (1975).

Similarly, we reject defendant's contention that the affidavit was "sourceless." Admittedly, the affidavit did not identify the DEA agent in Seattle who conducted the field test. Only an "unduly technical and restrictive reading" of the affidavit, however, could compel us to conclude that anyone other than an agent of the DEA conducted the field test that resulted in the conclusion that the substance was cocaine. See Ventresca, 380 U.S. at 111, 85 S.Ct. at 747, 13 L.Ed.2d at 691.

Moreover, the two cases upon which defendant relies are distinguishable. In United States v. Goldstein, 321 F.Supp. 959 (D.Mass.1971), a handwritten statement at the end of the affidavit stated that a particular parcel had been brought to a specific location. The statement, however, lacked any indication of the source of this information. Acknowledging the applicability of the Ventresca Court's rationale, the federal district court found nonetheless that this deficiency rendered the affidavit fatally defective. Goldstein, 321 F.Supp. at 960. In this case, on the other hand, the affidavit specifically identifies the DEA agent who informed the affiant that the package was being shipped from Washington to Rhode Island.

Additionally, we are not persuaded by the holding of the Federal District Court for the District of Massachusetts in United States v. Curwood, 338 F.Supp. 1104 (D.Mass.1972). In Curwood the court held that the affiant's phrase "I have determined," which preceded his description of the location of the suspected contraband, was insufficient because it was ambiguous and failed to disclose the source of the information. Id. at 1119. Unlike the affiant in Curwood, the affiant in this case never asserted that he had personally inspected...