State v. Gallant

• Decision Date: 31 July 1973
• Citation: 308 A.2d 274
• Parties: STATE of Maine v. Thomas A. GALLANT.
• Court: Maine Supreme Court

Page 274

308 A.2d 274

STATE of Maine v. Thomas A. GALLANT.

Supreme Judicial Court of Maine.

July 31, 1973.

Henry N. Berry, III, County Atty., Peter G. Ballou, Asst. County Atty., Portland, for plaintiff.

Francis C. Rocheleau, Westbrook, Edward J. Ridge, Portland, for defendant.

Before WEBBER, WEATHERBEE, WERNICK, and ARCHIBALD, JJ.

WEATHERBEE, Justice.

The Defendant's home in Westbrook was searched by Westbrook police officers by authority of a search warrant which they had obtained largely as a result of evidence disclosed throught a search by a U.S. Customs officer of undelivered first class international mail addressed by Defendant. After the mail was delivered to Defendant, his home was searched and heroin was found. The trial Justice in the Superior Court denied Defendant's motion to suppress evidence regarding delivery of heroin to the Defendant and possession of heroin by the Defendant. Later, at jury-waived trial, the same Justice admitted this evidence over the objections of the Defendant. Defendant was convicted of illegal possession of heroin. His appeal urges us that the evidence should not have been introduced at trial.

We deny Defendant's appeal.

Officer Ashley of the Westbrook Police Department received information that the Defendant, a 22-year-old recently returned Viet Nam veteran who was living at his father's home in Westbrook, was a dealer in hard drugs and was receiving shipments of hard drugs through the mails from Viet Nam. He requested the postal inspectors to place a watch on mail coming to the Defendant.

On April 27, 1971 two sealed envolopes from Viet Nam addressed to Defendant arrived in the Westbrook Post Office and were delivered to Defendant's residence. Both were thick and appeared to contain something other than ordinary correspondence. When Defendant took the envelopes from the family mail box he was observed to act in a furtive manner.

A third envelope from Viet Nam addressed to Defendant arrived in the Westbrook Post Office on April 28 and a fourth on April 29. Both of these had been mailed under the free mailing privileges afforded service men stationed in that Republic. Both were marked 'Photo. Do Not Fold', and one was additionally marked 'Happy Birthday' although Defendant's birthday was some 4 1/2 months distant.

The Westbrook Postal authorities withheld delivery of these last two envelopes and turned them over to a Special Agent of the Bureau of Customs of the United States Treasury Department on the 29th of April. The Customs officer made a manual examination of the envelopes and found that both appeared much thicker than ordinary mail and that each contained a 'slight lump' of some material which was about four inches by five inches in area and a little less than 1/4 inch thick. He took these letters to the Customs Building in Portland, and on May 3 he took them to a private laboratory in Wakefield, Massachusetts where the still unopened letters were subjected to radiograph scanning which penetrated the fabric of the envelopes sufficiently to reveal that each envelope contained stapled packets of a powdery substance. The Customs officer then returned to Portland where a United States Magistrate issued a warrant to search the two envolopes. The Customs officer then steamed open the two envelopes in Officer Ashley's presence and found that one envelope contained two packets and the other contained one packet, all three packets filled with a fine white powdery substance. A sample taken from each packet was analyzed at the United States Customs Laboratory in Boston on May 6 and the powdery substance was determined to be heroin hydro-chloride.

The Customs officer returned again to Maine where he took out all but a small quantity of the heroin from each envolope, added cornstarch to duplicate the original bulk, resealed the envelopes and returned them to a Westbrook postman for controlled delivery to the addressee, the Defendant.

After one unsuccessful attempt by the postman to deliver the latters at a time when the Defendant was at home, on May 8 the postman delivered the two letters to the Defendant's home. The area was under surveillance by local police who observed the mail carrier deliver the morning mail (including these letters) to Defendant's father. Defendant's father then handed some of these articles to the Defendant who had been working on a car in the yard and who had immediately left the car to receive these articles from his father. Although the police were not able to identify the articles, they were in fact the letters from Viet Nam. The Defendant took them into the house at once. The Defendant soon returned to the yard but ran back into the house when he saw a police car approaching.

As soon as Defendant had taken the letters into the house, Officer Ashley executed an affidavit which included substantially all the information above recited (except the details of the May 8 delivery of the letters) and a Complaint Justice who was waiting nearby issued a warrant authorizing the officer to search the Defendant's home for heroin. The officers searched for, found and seized the heroin and cornstarch. Laboratory analysis again confirmed its illicit nature.

It is the Defendant's contention that the acts of the Postmaster in withholding letters mailed to Defendant and the seizure of these letters by the Customs officer were illegal acts and that the Customs officer's radiographic examination of these letters in Wakefield was an unauthorized and unjustified search. The information which was received as a result of this Wakefield examination, the Defendant says, was fruit of the poisonous tree and, as it apparently formed the basis for the issuance of the federal search warrant which was in turn a necessary part of the basis for the issuance of the Maine search warrant, invalidates the acts of both magistrates and also the search of Defendant's home. While the Defendant does not dispute that the information in Officer Ashley's affidavit constituted probable cause for the issuance of the Maine search warrant, he urges us that it would be insufficient without the evidence obtained (illegally, he says) by the federal officers and handed by them to Officer Ashley 'on a silver platter'. ¹

As there is no bar to officers of one jurisdiction accepting and using evidence legally seized by officers of another jurisdiction, the sole issue in this case is the legality of the actions of the federal officers.

It is not necessary for us to consider whether the information contained in Officer Ashley's affidavit-exclusive of that obtained through the efforts of the federal officers-would have satisfied the probable cause requirements for a Maine search because we are satisfied that the federal officers proceeded legally in their procedures relating to the envelopes mailed to Defendant.

Conduct of the Postal authorities in Westbrook

Our attention is called first to the issue of whether the conduct of the Postal officers in Westbrook constituted an illegal seizure of Defendant's envelopes. Federal statutes forbid willful obstruction of the passage of mail (18 U.S.C.A. § 1701), the taking of any letter out of the post office with the design to obstruct the correspondence or to pry into the secrets of another or to open such mail (18 U.S.C.A. § 1702), or the unlawful detaining or opening of any letter entrusted to him by any Postal Service employee (18 U.S.C.A. § 1703).

The Postal officials and employees in Westbrook made no search but, in permitting the Customs officer to take the envelopes sent to the Defendant into his possession, they did detain that mail and obstruct its passage. However, in this action, they were merely cooperating with the Customs officer in facilitating the Customs officer's examination of the letters. The issue really is whether 19 U.S.C.A. § 482 authorized the Customs officer to take possession of the envelopes in the Westbrook post office, which we will later discuss.

In light of the circumstances causing the week and a half detention of Defendant's envelopes, we are not persuaded that such was excessive. ²

Was the radiographic scanning a Fourth Amendment search?

The keystone of this case is the issue of whether the radiographic scanning under Customs' authority in Wakefield, Massachusetts was lawful conduct under the Fourth Amendment proscription against unreasonable searches. This area of the law delineating the legality of searches has seen a thorough overhauling in recent years, from which has evolved a clearer and more intellectually satisfying understanding of the nature of a search. The issue of whether government action does or does not constitute a search is now understood to depend less upon the designation of an area-that is, home, office, car or telephone-than upon a determination of whether the examination is a violation of privacy on which the individual justifiably relied as secure from invasion. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, 583 (1967). Similarly, the means of intrusion has become subordinate to the issue of justified expectation of privacy.

'. . . (I)t becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.' (Emphasis supplied) Katz v. United States, supra.

Thus, to discover whether the questioned conduct before us now is a search within the meaning of the Fourth Amendment or whether it is only an authorized Customs border examination of material being introduced into the country but conduct less intrusive than a 'search', we must determine whether the person who forwarded the mail from Viet Nam to the Defendant justifiably relied on the privacy of his letter. [ ^{3 4}

What security from invasion of privacy can the person bringing or mailing material into this Country reasonably believe he has? Our examination of the federal decisions convinces us that the right of the government to...