State v. Pontier

• Decision Date: 06 May 1982
• Docket Number: No. 13450,13450
• Citation: 103 Idaho 91,645 P.2d 325
• Parties: STATE of Idaho, Plaintiff-Appellant, Cross-Respondent, v. John Joseph PONTIER, Defendant-Respondent, Cross-Appellant.
• Court: Idaho Supreme Court

Page 325

645 P.2d 325

103 Idaho 91

STATE of Idaho, Plaintiff-Appellant, Cross-Respondent, v. John Joseph PONTIER, Defendant-Respondent, Cross-Appellant.

No. 13450.

Supreme Court of Idaho.

May 6, 1982.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A. I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-appellant, cross-respondents.

David W. Cantrill, Boise, for defendant-respondent, cross-appellant.

BAKES, Chief Justice.

The state appeals an order of the trial court granting a motion to suppress evidence in a criminal prosecution for the possession of controlled substances with intent to deliver. We reverse.

On August 23, 1978, Wayne Tellis, California State Narcotics Agent, spoke on the telephone with Glenn Ford, Special Agent in Charge of the Bureau of Narcotics for the State of Idaho. Tellis advised Ford that two individuals had delivered a package to the UPS center at Chico, California, and stated that they wanted to insure it for $1,000. The box was about 15 X 12 X 8 , and had the Pabst Blue Ribbon name and logo in blue, red and white. When the individuals were asked what the package contained, they informed the UPS agent that it was towels. Because the UPS agent was suspicious he opened the package and discovered that it contained a white powder substance and marijuana.

After the package was opened by the UPS employee, law enforcement officials were called in. Tellis went to the UPS center in Chico where he observed the package and identified the suspected drugs as being cocaine and marijuana. At the direction of Agent Tellis, the package was then resealed, additionally wrapped and addressed to Michael Stevens, manager of the Garden City UPS center, and forwarded to Garden City. Tellis then contacted Agent Ford in Idaho and relayed the above information.

After the package arrived in Garden City, Agents Ford and Bottger took possession of it from Michael Stevens at the Garden City UPS terminal on August 28, 1978, at approximately 1:00 p. m. The package was opened by Agent Ford and both Agent Ford and Agent Bottger looked inside and inspected the contents. The package was then resealed, and arrangements were made to have Agent Bottger deliver the package to the defendant addressee Pontier at the Taco Bell restaurant located at 2801 Overland. After unsuccessfully attempting to telephone the defendant that same day, Agent Bottger retained the package until approximately noon on the next day, August 29, 1978. At that time Bottger dressed up as a UPS driver, took the package to the Taco Bell restaurant, and delivered it to the defendant who accepted delivery of the package and signed the receipt.

After delivering the package, Bottger returned the UPS truck to UPS, changed his clothes, and then joined other agents who were surveilling the defendant at the Taco Bell restaurant. The surveillance team watched the activities of Pontier for between 60 and 90 minutes, during which time Pontier carried the package which he had received to a room located in the back of the premises, which Pontier entered through an outside entrance. The defendant remained in the back room for 10 to 20 minutes. He traveled between the business premises and the back room a number of times and made a trip to his pickup truck. Pontier then left the business premises and drove away in his truck. Bottger pursued the defendant, stopped and arrested him. Pontier was then taken back to the Taco Bell.

Immediately after the arrest of Pontier, Bottger appeared before a magistrate and presented an oral affidavit in support of his request for a search warrant. Bottger related the events surrounding the interception and delivery of the package. It is clear from the oral affidavit that Bottger had received information concerning the activities of the California agents only through his superior, Agent Ford, and that Bottger had no personal knowledge of the conversation between Ford and Tellis other than what Ford had told him. Bottger did indicate, however, that he had met Tellis before. Bottger also made no mention in the oral affidavit of the fact that he and Ford had looked into the package while at the Garden City UPS terminal. Search warrants were issued for both the Taco Bell restaurant and the defendant's pickup truck. The searches of both places revealed cocaine and marijuana.

On September 26, 1978, a preliminary hearing was held, and the defendant was bound over for trial. On October 31, 1978, Pontier filed a motion to quash the search warrants and to suppress the evidence on the basis that the search warrants were based upon unreliable hearsay. On December 22, 1978, the motion was heard in district court. The court denied the motion, finding that the testimony of Bottger was "sufficient for the magistrate to conclude that the source was credible and that there was a factual basis for the information furnished."

The defendant entered a plea of not guilty to both counts, and on August 16, 1979, a jury trial began. After the seating of the jury and the opening statement, the jury was excused and defense counsel made a Motion In Limine to "refrain from having (the prosecutor) or any of his witnesses at any time mention the fact that narcotic agents in this town opened the box at the UPS station." The motion was denied, and the prosecution began presenting its case. After the prosecution's first witness testified, the noon recess was taken. During the recess the court did additional research concerning the search of the box at the Garden City UPS center. The court then reconsidered its ruling on the motion in limine, and after hearing argument, the court decided to reverse its decision on the Motion to Suppress the Evidence. Applying the then very recent case of Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) in which the United States Supreme Court ruled a warrantless search of luggage to be unconstitutional, the district court concluded that the warrantless search of the package at the Garden City UPS Center by Agents Ford and Bottger was illegal. The evidence was suppressed, and the state now appeals that decision.

I

The state asserts that the search of the package by the Idaho narcotics agents at the Garden City UPS terminal did not require a warrant and was not illegal because the package had already been legally searched and seized by law enforcement officials in California as a result of the private search by UPS. It is argued that following the seizure and forwarding of the package and contents by the California authorities, the package and contents remained in a state of "continuous seizure" through the time when the package and contents were received and inspected by the Idaho agents. We agree.

Analysis of the search involved here must begin with the initial search of the package by the UPS employee in California. 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. ¹ Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). See Annot. 36 A.L.R.3d 553 (1971 & Supp.). The recent plurality decision of the United States Supreme Court in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), does not change that rule, except perhaps ² where the private search has not placed the evidence in "plain view," so as to destroy the defendant's expectation of privacy.

In Walter, private parties opened a package carrying film containers which held obscene films. The films were unviewable without the aid of a projector; however, their nature was evidenced by various labels. The containers and films were turned over to the FBI, and the films were then viewed by FBI agents without first obtaining a warrant. A plurality of justices held that the warrantless viewing of the films violated the fourth amendment rights of the defendant. While the justices in the majority differed in their rationale behind the judgment, the plurality did agree that Walter was not a "plain view" case due to the unviewable nature of the films, and they strongly intimated that the result would have been different had it been a "plain view" case. As was stated by Justice Stevens and joined in by Justice Stewart: "Some circumstances-for example, if the results of the private search are in plain view when materials are turned over to the government-may justify the government's reexamination of the materials ...." 100 S.Ct. at 2402 (Stevens joined by Stewart); see 100 S.Ct. at 2404 (White joined by Brennan).

The instant case clearly presents a "plain view" situation. The UPS employees in California opened the package and examined the contents. On the basis of that examination, they called in law enforcement officials. The controlled substances were in "plain view" when California narcotics agent Tellis arrived. He seized the contraband by physically appearing and taking control over it and by ordering that it be resealed and forwarded to Idaho law enforcement officials in care of the manager of the Garden City UPS terminal. Idaho officials were then alerted by Tellis. The uncontradicted facts clearly show that the contraband was exposed to "plain view" as a result of the private UPS search, and that therefore the initial seizure of the contraband by California agent Tellis was not in violation of the fourth amendment.

The next question is whether the law enforcement officials, having thus legally seized the contraband, at any time lost custody of that contraband prior to the opening of the package by Agent Ford at the Garden City UPS center. If not, then no warrant was required for the Idaho agent to open the package, since the contraband which it contained still remained in police custody. It is argued by the defendant that government custody of the contraband was relinquished when the...