State v. Weinstein

• Decision Date: 19 June 1997
• Docket Number: CA-CR,No. 2,2
• Citation: 947 P.2d 880,190 Ariz. 306
• Parties: 246 Ariz. Adv. Rep. 45 The STATE of Arizona, Appellee, v. Allen Michael WEINSTEIN, aka Allen Michael Weistein, Appellant. 96-0580.
• Court: Arizona Court of Appeals

Page 880

947 P.2d 880

246 Ariz. Adv. Rep. 45

The STATE of Arizona, Appellee, v. Allen Michael WEINSTEIN, aka Allen Michael Weistein, Appellant.

No. 2 CA-CR 96-0580.

Court of Appeals of Arizona Division 2, Department B.

June 19, 1997.

Review Denied Dec. 16, 1997.

Grant Woods, Attorney General by Paul J. McMurdie and Robert S. Golden, Phoenix, and Donna J. Lam, Tucson, for Appellee.

Robert Truman Hungerford, Tucson, for Appellant.

OPINION

ESPINOSA, Judge.

Appellant Allen Michael Weinstein was convicted of fourteen drug-related offenses and sentenced to concurrent, presumptive prison terms, the longest of which was five years. On appeal, Weinstein challenges the trial court's denial of his motion to suppress heroin found in a package he attempted to ship to San Francisco and other narcotics found in his vehicle, shirt pocket, and home. For the reasons set forth below, we affirm.

Facts and Procedural Background

In reviewing the trial court's denial of a motion to suppress, we consider the evidence presented at the suppression hearing in the light most favorable to upholding the ruling. State v. Moore, 183 Ariz. 183, 901 P.2d 1213 (App.1995). So viewed, the evidence showed the following. In October 1995, a man driving a new white Jeep Cherokee went to a Mail Boxes Etc. (MBE) store to send a package overnight to San Francisco. MBE employees suspected the package contained contraband because the customer had vacant eyes, looked disheveled and groggy, lacked coordination, and "appeared to be under the influence of something." They opened the package, found an envelope wrapped in plastic wrap, pulled back the wrap, and discovered "something in it that wasn't a letter." One of the employees notified MANTIS, ¹ as was MBE's practice when employees suspected contraband was being shipped from their store.

Department of Public Safety detective James Oien responded to the MBE store and the employees asked him to remove the package if he found it contained contraband because they did not want it on the premises. Oien looked inside it and saw a black tarlike substance that smelled of vinegar, indicating the presence of heroin. He took the package and left the MBE employees an "undercover" phone number to give to anyone calling to inquire about its whereabouts. The first call came two days later, from a female who identified herself as Erin Gilmore, the addressee of the package. Police determined that Gilmore lived at the return address, although another name was listed on the package. A second caller inquired about "his package," and identified himself as "just Allen," refusing to give his last name. The signature line on the packing label appeared to read "Allen Wested." Another message was recorded from a caller who identified himself as "Allen" and left a phone number. Subscriber information showed that the number belonged to Allen Weinstein at an address on West Laguna. Among the vehicles registered to Weinstein was a Jeep Cherokee.

Posing as a UPS representative, detective Oien made arrangements to deliver the package to Erin Gilmore at her Tucson address at 3:00 p.m. a few days later. Shortly after police arrived in a UPS van, Weinstein drove up in a white Jeep Cherokee and parked directly across the street from Gilmore's house. Detective Michael Garcia approached Weinstein and, after Weinstein produced identification, asked him if he knew anything about the package. Weinstein replied he "was just a good friend." He then spent several minutes using a cellular phone in his Jeep. Weinstein was asked to exit the Jeep while two officers checked the front seat area for the vehicle identification number and registration. Twenty to thirty minutes later, a narcotics dog was brought to the vehicle and it "alerted" at both the driver and passenger doors. The dog was then let into the vehicle where it alerted on the console between the front seats. Two bottles containing heroin were found there, and a brown paper bag containing currency was found in the back seat. More heroin was later found in Weinstein's shirt pocket.

MANTIS personnel went to Weinstein's house, entered and conducted a "protective sweep" of the residence, going room-to-room looking for people. Oien then obtained a search warrant and police reentered and found several varieties of narcotics, cash, drug paraphernalia, and numerous firearms. While the warrant was being executed, Weinstein was detained in a police car parked in front of his house, but he was released later that day. ²

Weinstein was subsequently indicted on charges of attempted unlawful transfer of a narcotic drug, possession of a narcotic drug for sale, possession of marijuana, possession of drug paraphernalia, possession of a deadly weapon during a drug offense, and nine counts of drug possession. Weinstein moved to suppress evidence of the contents of the package and the items found during the searches of his vehicle, shirt pocket, and home. After a hearing, the trial court denied Weinstein's motion, and he was convicted on all counts.

Discussion

Weinstein challenges the trial court's denial of his motion to suppress the contents of the package, arguing that the MBE employee who opened it was acting as an agent of the state and should therefore be "held to Constitutional standards concerning search and seizure." He further contends the evidence found in his vehicle, shirt pocket, and home should have been suppressed as the "fruit of six hours of police custody, during which ... he was never arrested." We review the trial court's ruling on a motion to suppress evidence for clear and manifest error. State v. Rodriguez, 186 Ariz. 240, 921 P.2d 643 (1996); State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991).

a. Contents of the package

Weinstein first contends that because MBE and its employees had an ongoing relationship with the state for the purpose of aiding law enforcement, they were subject to Fourth Amendment requirements governing search and seizure. A wrongful search or seizure by a private citizen does not offend the Fourth Amendment, United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), but when a private citizen conducts a search or seizure acting as an " 'instrument' or agent of the state," Fourth Amendment concerns are implicated. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564, 595 (1971).

In the only other reported Arizona case involving similar facts, another panel of this court considered a similar constitutional challenge to the opening of a shipped package by UPS employees who then notified police, turned the package over to them, and provided the auto license plate number of the shipper. State v. Best, 146 Ariz. 1, 703 P.2d 548 (App.1985). The court found no violation of the Fourth Amendment, but provided no rationale, only citing Jacobsen. In Jacobsen, the Supreme Court found no unconstitutionality in the opening of a suspicious package by a private carrier's employees and upheld its seizure by police as not unreasonable under the Fourth Amendment. The Court did not, however, address the issue of governmental involvement in a private search.

As Weinstein points out, the question whether a private party acted as an agent or instrument of the state has been addressed by the Ninth Circuit in United States v. Walther, 652 F.2d 788 (9th Cir.1981). There, the court held that the issue should be determined on a case-by-case basis, focusing on "(1) the government's knowledge and acquiescence, and (2) the intent of the party performing the search." Id. at 792. Weinstein's brief does not address the government's knowledge and acquiescence in the search of his package. However, the record reflects some sort of ongoing relationship between MBE and MANTIS. Oien previously had given his business card to the MBE store and requested that employees contact MANTIS if they found or suspected contraband was being transported in order to keep it from being transferred. MBE employees had complied and had turned over suspicious packages before.

In evaluating the government's conduct in a relationship between an airline employee and the Drug Enforcement Agency, the Walther court stated:

While a certain degree of government participation is necessary before a private citizen is transformed into an agent of the state, de minimis 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. The government must be involved either directly as a participant or indirectly as an encourager of the private citizen's actions before we deem the citizen to be an instrument of the state.... The requisite degree of governmental participation involves some degree of knowledge and acquiescence in the search.

652 F.2d at 791-92 (citation omitted).

Oien did not ask MBE personnel to open packages, nor did he contact them about specific packages or senders. Steven Sweet, the MBE employee who notified MANTIS of the package Weinstein had shipped, testified he was told by his co-workers to contact MANTIS about suspicious packages and had done so several times, but he had never been paid by the police, nor did they contact him about any package he had turned over. ³ We find this level of police involvement insufficient to meet the requisite degree of governmental participation necessary to convert Sweet into an agent of the state. Cf. United States v. Reed, 15 F.3d 928 (9th Cir.1994) (police officers' presence during hotel employee's search of guest's belongings and failure to discourage him from searching beyond that necessary to secure hotel property constituted governmental knowledge and acquiescence); Walther (airline employee who opened package found to be acting as government agent where he had previously been a documented and paid informant of the Drug Enforcement Administration, and expected compensation if the package...