State v. Kopsa, 20984

• Decision Date: 20 December 1994
• Docket Number: No. 20984,20984
• Citation: 126 Idaho 512,887 P.2d 57
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Brenda Kay KOPSA, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 57

887 P.2d 57

126 Idaho 512

STATE of Idaho, Plaintiff-Respondent, v. Brenda Kay KOPSA, Defendant-Appellant.

No. 20984.

Court of Appeals of Idaho.

Dec. 20, 1994.

Lynn, Scott, Hackney & Jackson, Boise, for appellant. John C. Lynn argued.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent. Michael A. Henderson argued.

WALTERS, Chief Judge.

This is an appeal from a judgment of conviction entered upon jury verdicts finding the appellant, Brenda Kopsa, guilty of delivery of and trafficking in methamphetamine, I.C. §§ 37-2732, 37-2732B(a)(3). For the reasons expressed below, we affirm the judgment of conviction.

I. FACTS AND PROCEDURAL HISTORY

This case began on December 28, 1992, with the delivery of a package to the Horizon Airlines baggage office at a Portland, Oregon, airport. The package was addressed to Brenda Kopsa in Boise and the shipper identified herself as Diane Wilkenson, with an address and telephone number in Vancouver, Washington. Wilkenson advised the Horizon employee that the package contained a belated Christmas gift of a napkin holder or pen holder.

The employee gave Wilkenson a form provided to all customers, which stated that Horizon Airlines reserved the right to inspect the contents of packages shipped. The Horizon employee became suspicious of the package because it felt too light for what Wilkenson claimed it contained. Moreover, the employee believed Wilkenson appeared very nervous and looked and behaved as though she might have been under the influence of drugs. Based on this suspicion, the employee opened the package after Wilkenson left and found a white powdery substance in a plastic baggy covered by multiple layers of packaging.

At approximately 2:30 p.m., the Horizon employee telephoned Detective Robert Erickson of the Portland Airport Interagency Narcotics Team (PAINT), stating that she had received a package which might contain controlled substances. Erickson responded to the telephone call and was shown the open package. Erickson then took the package to the PAINT office located inside the airport, where he conducted a test of the white powder and found that it tested positive for the presence of methamphetamine. Erickson also discovered that both the name "Diane Wilkenson" and the address Wilkenson had given were fictitious. Erickson then contacted Special Agent Kim Pieper of the Idaho Bureau of Narcotics and arranged for a controlled delivery of a quantity of the methamphetamine to Kopsa. Erickson repackaged approximately 27.02 grams of the methamphetamine and forwarded the package to Agent Pieper via Horizon Airlines.

At approximately 9:50 p.m., Kopsa arrived at the Horizon baggage claim office in Boise to pick up the package. A friend who had accompanied Kopsa to the airport remained in Kopsa's vehicle outside the building. Agent Pieper, who was undercover and attired in a Horizon uniform, met Kopsa inside the office. After having Kopsa sign for the package, Pieper informed her that the package had been opened in the baggage room, that he knew what was inside the package and that he wanted a "pinch" of the substance or he would contact the police. Pieper handed Kopsa an empty chewing tobacco can in which she was to place the substance. Kopsa denied knowledge of the contents of the package and asked Pieper twice if he was a "cop," to which he replied that he was not.

Kopsa then agreed to provide Pieper with some of the contents in the package and proceeded toward her car, which was parked directly outside the office. As Kopsa was exiting the building, Pieper told her that he had her license plate number and that if she left without providing the sample, he would turn her into the police. Kopsa went into her car and Pieper followed her, handing her a box knife through the window of her car. Kopsa then returned to the baggage office and handed Pieper the chewing tobacco can containing a quantity of methamphetamine. She then returned to her car and began backing out, whereupon agents arrested her and searched her car without a warrant. The vehicle was registered in the names of Kopsa and another individual.

The officers seized the delivered package, which was still unopened, as well as an "STP" can, located behind the driver's seat on the floorboard. The STP can had a false bottom and contained two plastic baggies in which was found an additional 6.85 grams of methamphetamine. From Kopsa's wallet, the officers seized two money orders made out from Kopsa to an individual named Kelly Nichols in Portland, Oregon. One of the money orders was dated December 23, 1992, and was in the amount of $900 and the other was dated December 27, 1992, and was in the amount of $1,000. The officers also found a list containing the name "Kelly" followed by a phone number with an Oregon area code. Erickson later located a Kelly Nichols living in Portland.

Following a jury trial, Kopsa was found guilty of delivery of and trafficking in methamphetamine, in violation of I.C. §§ 37-2732 and 37-2732B(a)(3), respectively. Kopsa appeals, assigning several bases of error to the district court.

II. ANALYSIS

A. Whether the airline employee in Portland, Oregon, was acting as an agent of the state when she conducted a search of the package.

Kopsa argues that the initial search of the package was a governmental search requiring probable cause and a warrant and that the trial court erred in refusing to suppress the methamphetamine. The standard of review when a trial court has ruled on a motion to suppress evidence on constitutional grounds is one of deference to factual findings unless they are clearly erroneous, but free review of whether the trial court correctly applied the law to the facts. State v. Weber, 116 Idaho 449, 451-52, 776 P.2d 458, 460-61 (1989); State v. Rusho, 110 Idaho 556, 559, 716 P.2d 1328, 1331 (Ct.App.1986).

As a preliminary matter, we note that the district court made no explicit findings of fact regarding Kopsa's motion to suppress. The minutes of the suppression hearing state only that the district court "does not believe a reward policy would make her an agent of the Police." In reviewing a ruling on a suppression motion where the trial court did not make explicit findings of fact, the appellate court should examine the record to determine the implicit findings that underlie the judge's order. State v. Middleton, 114 Idaho 377, 380, 757 P.2d 240, 243 (Ct.App.1988).

It is firmly established that evidence obtained through a private search, even though wrongfully conducted, is not excludable under the fourth amendment unless government officials instigated the search or otherwise participated in a wrongful search. State v. Pontier, 103 Idaho 91, 94, 645 P.2d 325, 328 (1982). See also State v. Johnson, 110 Idaho 516, 519, 716 P.2d 1288, 1291 (1986); State v. Castillo, 108 Idaho 205, 207, 697 P.2d 1219, 1221 (Ct.App.1985). However, where a private party acts as an instrument or agent of the state in effecting a search or seizure, fourth amendment interests are implicated. United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981). The burden of proving governmental involvement in a search conducted by a private citizen rests on the party objecting to the evidence. United States v. Koenig, 856 F.2d 843, 847 (7th Cir.1988).

This Court has stated that "there is 'a "gray area" between the extremes of overt governmental participation in a search and the complete absence of such participation.' " State v. Crawford, 110 Idaho 577, 579, 716 P.2d 1349, 1351 (Ct.App.1986), quoting Walther, 652 F.2d at 791. These "gray area" inquiries can best be resolved on a case-by-case basis, consistently applying certain principles. Id. at 580, 716 P.2d at 1352. One of these principles is that de minimus or incidental contacts between the citizen and law enforcement agents prior to or during the course of a search or seizure will not subject the search to fourth amendment scrutiny. Id. The government must be involved either directly as a participant or indirectly as an encourager of the private citizen's actions in order to bring those actions within the purview of the fourth amendment. Id. In analyzing whether the person conducting the search is acting as a government agent, two critical factors must be considered: (1) government knowledge and acquiescence, and (2) the private party's intent in making the search. Id.

In support of her contention that the airline employee acted as an agent of the state, Kopsa directs attention to Detective Erickson's testimony that PAINT agents introduced themselves to airline employees, handed out business cards to them, and left stacks of "profile sheets" on the counters, which the employees would sometimes pass around. However, the airline employee testified that she did not receive any training from PAINT regarding the discovery of drugs. She also stated that she never saw PAINT's profile sheet, though she was aware of a certain profile provided to employees by Horizon. Kopsa also points out that PAINT had previously given rewards of $100-200 to airline employees who provided PAINT with packages containing controlled substances, and that the employee knew of past rewards from PAINT to other employees. However, the employee testified that she had no expectation of receiving a payment when she opened the package and that in opening the package, she was simply "doing [her] duty as a citizen."

We hold that the government's involvement in the search of Kopsa's package was too attenuated to convert the airline employee into an agent of the state. Because the employee's search of Kopsa's package was a private search, Kopsa's fourth amendment rights were not implicated.

B. Whether the trial court erred in refusing to compel disclosure of the identity of the airline employee who opened the package.

Prior to trial Kopsa filed a motion to compel disclosure of the identity of the Horizon employee who opened the...