State v. Stanphill

• Court: Washington Court of Appeals
• Writing for the Court: MUNSON
• Citation: State v. Stanphill, 769 P.2d 861, 53 Wn.App. 623 (Wash. App. 1989)
• Decision Date: 16 March 1989
• Docket Number: No. 9036-1-III
• Parties: STATE of Washington, Respondent, v. Vickie Jo STANPHILL, Appellant.

Page 623

53 Wn.App. 623

769 P.2d 861

STATE of Washington, Respondent, v. Vickie Jo STANPHILL, Appellant.

No. 9036-1-III.

Court of Appeals of Washington Division 3, Panel One.

March 16, 1989.

William Edelblute, Walla Walla, for appellant.

Donald W. Schacht, Pros. Atty., and Gabriel Acosta, Deputy Pros. Atty., Walla Walla, for respondent.

MUNSON, Acting Chief Judge.

Vickie Jo Stanphill appeals her conviction for possession of a controlled substance. She contends the court erred in denying her motion to suppress evidence obtained from her residence pursuant to a search warrant. We affirm.

On June 27, 1987, Detective Matthew Wood of the Walla Walla Police Department received information from Pete Lewis, a correctional officer at the Washington State Penitentiary in Walla Walla, that a woman named Vickie residing at 427 S. First Street, Apartment 3, Walla Walla, would be receiving a package containing marijuana and cocaine. This package was to be shipped either Federal Express or United States Postal Service express mail; it was to be sent from a Mr. Rod Hill, residing at 4826 S. 164th Street, Seattle, Washington. Mr. Lewis had received this information from an unnamed correctional officer at the penitentiary who, in turn, had received it from an unnamed inmate. Detective Wood subsequently confirmed that Vickie Stanphill was married to a penitentiary inmate and had lived at 427 S. First Street in the recent past. He contacted Federal Express and security officials at the U.S. Postal Service requesting notification should a package arrive addressed to Vickie Stanphill from Mr. Hill.

On Thursday, July 2, Bill Keezer, a postal inspector stationed in Spokane, notified the Walla Walla Police Department that a package matching the police description had arrived and was currently at the Walla Walla Post Office. At approximately 3 p.m., Deputy Mark Franklin of the Walla Walla County Sheriff's Office arrived at the Walla Walla Post Office with "Till," a member of the canine unit of the sheriff's office. "Till" was accredited by the Washington State Canine Association as being able to detect various drugs, including cocaine and marijuana. Three separate canine sniff inspections were made of various packages, all resulting in "Till" exhibiting a drug alert for the package mailed to Mrs. Stanphill. The record does not indicate the amount of time this operation took.

July 3, 4, and 5 were nonjudicial days. In Spokane on Monday, July 6, Postal Inspector Keezer applied for a federal search warrant regarding the package based on the information noted above. The search warrant was issued at 9:15 a.m. The package was searched at the post office, revealing balloons filled with a substance testing "presumptive positive" for marijuana. The contents were subsequently repacked in the original package.

Detective Wood went to 427 S. First Street but was unable to locate apartment 3. He did find one at 427 1/2 S First Street and observed a letter in the mailbox outside the door mailed to Vickie Stanphill, apartment 3. Further, a vehicle parked in the driveway was registered to Mrs. Stanphill. Detective Wood applied for a state search warrant for 427 1/2 S. First Street. His affidavit was based on the material disclosed by the sender and on notification from Mr. Lewis that Mrs. Stanphill had a scheduled visit with her husband the same day at 4 p.m. The warrant was issued; the package was delivered; the subsequent search produced the marijuana.

Mrs. Stanphill was charged with possession of a controlled substance with intent to deliver. The court denied her motion to suppress. She was convicted of the lesser included offense of possession of a controlled substance. She appeals.

First, Mrs. Stanphill contends the release of information by the U.S. Postal Service at the request of the police regarding the existence and arrival of a package addressed to her unreasonably intruded upon her private affairs in violation of article 1, section 7 of the Washington State Constitution. ¹ She analogizes her factual situation to those in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986) (use of telephone toll call records and pen register tapes) and State v. Butterworth, 48 Wash.App. 152, 737 P.2d 1297, review denied, 109 Wash.2d 1004 (1987) (unlisted telephone number). There the courts held that police, by obtaining information from a telephone company's toll records without a warrant or other valid legal process, violated Const. art. 1, § 7.

While Mrs. Stanphill's argument is cogent, In re Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878) detracts from its persuasiveness. Jackson recognizes the Fourth Amendment protections for contents of sealed letters and packages, but it declines to extend this protected status to information on the exterior of the parcel: "Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domicils." (Italics ours.) Jackson, 96 U.S. at 733; see also United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S.Ct. 1029, 1031, 25 L.Ed.2d 282 (1970).

The primary focus of both Gunwall and Butterworth is the expectation-of-privacy issue. Gunwall 106 Wash.2d at 67-68, 720 P.2d 808, relying on cases from other jurisdictions, ² found persuasive that the telephone is a "necessary component of modern life" and that disclosure of the information to the telephone company was made "for a limited business purpose and not for release to other persons for other reasons." Additionally, Butterworth notes the defendant had requested an unpublished listing, which adds support for the expectation of privacy.

Washington courts have not yet extended the Gunwall and Butterworth analysis to information located on the exterior of postal packages, i.e., addresses. Although Mrs. Stanphill would have this court do so, we decline. Federal courts have dealt with somewhat similar cases involving a "mail cover," the process by which the postal service furnishes the requesting governmental agency with the information appearing on the face of an envelope or package. Generally, in absence of abuse, a mail cover does not violate the Fourth Amendment. See Annot., 57 A.L.R.Fed. 742 (1982) and cases cited therein. United States v. Choate, 576 F.2d 165, 177 (9th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978) rationalized that even if a mail cover constituted a search under the Fourth Amendment, it is not "unreasonable":

[T]he senders' placement of their names and addresses on the mail in question waives any privacy claim because the information would foreseeably be available to postal employees and others looking at the outside of the mail. Certainly the defendant could not keep that information invisible, and yet the Fourth Amendment only bars intrusions upon a person's "reasonable expectation of privacy."

We acknowledge that part of the rationale for upholding the mail cover process is the analogous pen register cases at the federal level. Vreeken v. Davis, 718 F.2d 343, 347 (10th Cir.1983). We find the intrusiveness in acquiring the information involved here does not rise to the same level as that required for pen registers or toll records. The expectation of privacy as to information on the outside of envelopes and packages is minimal. This is particularly true here where only a single package is involved. Extension of Gunwall and Butterworth is not warranted.

Second, Mrs. Stanphill contends the delay in delivery of the U.S. Postal Service at the request of the police constituted a seizure in violation of the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution. Although detention and inspection of first class mail is generally impermissible, it is not "beyond the reach of all inspection". Van Leeuwen, 397 U.S. at 252, 90 S.Ct. at 1032. Detention must be within the bounds of reason. Van Leeuwen, 397 U.S. at 252, 90 S.Ct. at 1032.

Here, the postal inspector stationed in Spokane notified the Walla Walla Police Department that the package in question had arrived and was currently being held at the Walla Walla Post Office. ³ The record reflects that this notification occurred on Thursday, July 2, 1987; the precise time of notification is not indicated in the record. That same day at 3 p.m., the canine unit arrived and confirmed the presence of drugs. The record does not reflect the amount of time required to complete the canine investigation. As such, we do not find the delay unreasonable.

Mrs. Stanphill contends the State's "4-day" delay in obtaining a warrant was unreasonable. The package was to be delivered in 1 day as it was "express mail." However, it was detained from Thursday, July 2, 1988 through early Monday, July 6, 1988, by the United States Postal Authority in the U.S. Post Office. Although the court found "exigent circumstances" due to the impending holiday and the likelihood the evidence would disappear before a warrant could be obtained, she contends the State had sufficient time on July 2 to apply for a warrant.

To support this contention, Mrs. Stanphill cites State v. Ringer, 100 Wash.2d 686, 701, 674 P.2d 1240 (1983), overruled in part on other grounds, State v. Stroud, 106 Wash.2d 144, 150, 720 P.2d 436 (1986) (which requires consideration of the time to obtain a warrant in examining a situation's exigency) and RCW 2.28.100(3) which provides access to magistrates in criminal cases. ⁴ This availability of access, Mrs. Stanphill claims, in conjunction with CrR 2.3(c) ⁵ which authorizes telephonic warrants, supplied the State with the opportunity to act immediately and secure a warrant.

While Ringer requires the court to consider the availability of telephonic warrants in determining the exigency of a situation, this consideration is made when the police have chosen, on the basis of...