U.S. v. Hillison

• Decision Date: 11 October 1984
• Docket Number: 82-1535 and 82-1536,Nos. 82-1525,s. 82-1525
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Irving HILLISON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Murray David JACOBSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Ketchum MANSFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 692

733 F.2d 692

UNITED STATES of America, Plaintiff-Appellee, v. John Irving HILLISON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Murray David JACOBSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Ketchum MANSFIELD, Defendant-Appellant.

Nos. 82-1525, 82-1535 and 82-1536.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 1983.

Decided May 22, 1984.

As Amended on Denial of Rehearing Oct. 11, 1984.

Patrick Swan, Asst. U.S. Atty., argued, Peter K. Nuney, U.S. Atty., Patrick Swan, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Barton C. Shella, III, San Diego, Cal., Brennan J. Newsom, San Francisco, Cal., Juanita Brooks, San Diego, Cal., for defendants-appellants.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN, TANG, and FLETCHER, Circuit Judges.

GOODWIN, Circuit Judge.

John Hillison, Murray Jacobson and Jeffrey Mansfield were each convicted of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841, based on evidence obtained on April 8 and 9, 1982. Each appellant appeals on the ground that the evidence used to convict him was obtained in violation of the Fourth Amendment. Jacobson additionally contends that the evidence was insufficient to support his conviction. We affirm the convictions of all three defendants.

I FACTS

On April 7, 1982, at about 2:30 p.m., federal drug agent Gary Kircher saw appellants Hillison and Jacobson arrive at San Diego International Airport on a flight from Denver, Colorado. Jacobson was carrying a briefcase and a rectangular canvas bag; Hillison carried a backpack. The two men proceeded directly to a car rental counter where Jacobson rented a car. Kircher decided that the pair merited further surveillance because they frequently glanced about and because they appeared unduly concerned about people standing nearby.

After Hillison and Jacobson boarded the car rental shuttlebus, Kircher examined the rental agreement and found that the car was rented in the name of Murray Jacobson. He ordered surveillance of the pair as they left the airport in the rented car. The surveilling agent watched as Hillison and Jacobson stopped at an office supply store, which Jacobson entered. He emerged carrying paper goods. The two men then drove to the Pacific Shores Inn, where they checked in at about 3:30 p.m.

The next day, at about 10:00 a.m. agents followed Jacobson to the Pacific Beach Post Office, where he left a package to be delivered via "priority mail" to an Illinois address. Agent Kircher immediately requested the Post Office to segregate this Meanwhile, other drug agents shadowed Hillison and Jacobson, who checked into another motel called the Inn at La Jolla. At this motel, the agents first observed appellant Mansfield, driving a gold Concord automobile with Hillison and Jacobson as passengers. A check on the car revealed that it had been rented in Las Vegas, Nevada, by a man giving the name "Jerry Thurston," the agents discovered that Mansfield had rented room 42 under the name Jeffrey Mansfield. Hillison and Jacobson had rented room 44. Hillison was later observed driving Mansfield on an errand to a liquor store. The three men spent the afternoon together between the two rooms. At 7:00 p.m., Mansfield left carrying a briefcase and a paper sack. Surveilling agents followed him to the residence of an unidentified woman.

package from the normal flow of mail. Later in the morning, Hillison and Jacobson checked out of the Pacific Shores Inn. After their departure, drug agents inspected the vacated motel room, where they found brown wrapping paper and a brown paper bag that contained marijuana seeds. The investigating agents then summoned a narcotics detector dog to sniff the package Jacobson had mailed. The dog alerted strongly on the package. Based on this information, the agents obtained a warrant and searched the package at 5:00 p.m. They discovered 70.1 grams of cocaine inside.

The next morning, Mansfield returned to the La Jolla motel, where he again met Hillison and Jacobson. Hillison and Jacobson left the motel shortly afterwards and drove back to the San Diego Airport, where they were arrested and searched. Packages containing over 100 grams of cocaine were found in each of Hillison's socks.

At about 11:00 a.m. Mansfield left the motel. He stopped at a fast-food restaurant, where he was arrested by drug agents. Mansfield refused to give permission to search his car. The agents held Mansfield and the car in the restaurant parking lot for five hours, while they waited for issuance of a search warrant. During this period, another drug agent inspected Mansfield's vacated room at the La Jolla motel, finding marijuana seeds and debris. When the search was executed, the trunk of Mansfield's car was found to contain 258.1 grams of marijuana and 338.2 grams of cocaine.

Each of the appellants moved to suppress the evidence against them, claiming that it had been obtained in violation of the Fourth Amendment. Each motion was denied. Each appellant was afterwards tried to the court on stipulated facts, and each was convicted.

II DISCUSSION

A. Fourth Amendment Challenge by Hillison and Jacobson.

The procedure used to investigate, arrest, and search appellants Hillison and Jacobson violated no Fourth Amendment rights. The initial phase of investigation was triggered by nothing more than the subjective assessment by drug agents that Hillison and Jacobson behaved suspiciously in the San Diego Airport. While the agents' observations might under some circumstances justify a brief stop for questioning, see United States v. Post, 607 F.2d 847, 850 & n. 3 (9th Cir.1979); United States v. Chatman, 573 F.2d 565, (9th Cir.1977), they certainly did not give probable cause to suspect criminal activity, see Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1323 n. 7, 75 L.Ed.2d 229 (1983). The subsequent observations that Hillison and Jacobson purchased supplies, checked into a motel, and later mailed a package did not add any new incriminating information to the agents' knowledge. If probable cause were required for the segregation of Jacobson's mailed package, the segregation and detention of the package would not have been authorized by law.

The Supreme Court has held, however, that probable cause is not needed to support a brief segregation and delay of a mailed package. United States v. Van Leeuwen, 397 U.S. 249, 253, 90 S.Ct. 1029 1032, 25 L.Ed.2d 282 (1970). While "theoretically" an unduly long detention of mail could become unreasonable enough to intrude upon privacy interests protected by the Fourth Amendment, id. at 252, 90 S.Ct. at 1032, the main Fourth Amendment interest in a mailed package attaches to the privacy of its contents, not the speed with which it is delivered, id. at 253, 90 S.Ct. at 1032. For this reason, the Court ruled that no interest protected by the Fourth Amendment is invaded by forwarding a package on the following day rather than the day it is deposited. ¹ Id.; see also United States v. Martell, 654 F.2d 1356, 1367-68 (9th Cir.1981) (Nelson, J., dissenting) cert. denied --- U.S. ----, 103 S.Ct. 3551, 77 L.Ed.2d 1397 (1983). The Court recently adhered to the holding of Van Leeuwen, characterizing the case as one in which "the defendant was unable to show that the invasion intruded upon either a privacy interest in the contents of the packages or a possessory interest in the packages themselves." United States v. Place, --- U.S. ----, 103 S.Ct. 2637, 2643 n. 6, 77 L.Ed.2d 110 (1983) (quoting 3 W. LaFave, Search & Seizure Sec. 9.6, at 60; see also id. at 2650 n. 5 (Brennan, J., concurring).

This case is very similar to Van Leeuwen. As in Van Leeuwen, the drug agents segregated the package mailed by Jacobson without a sufficient basis to justify examining its contents. As in Van Leeuwen the agents, through independent investigation, within a few hours of the segregation acquired probable cause to believe that the package contained evidence of criminal activity. The total duration of the period of detention of the package prior to the search was nine hours, far less than the 29 hours held reasonable in Van Leeuwen. Based on Van Leeuwen, we conclude that the segregation and detention of the package mailed by Jacobson did not violate the Fourth Amendment.

The investigation that uncovered facts amounting to probable cause to search the package was also conducted in a lawful manner. The agents did not disturb, test, inspect, or allow the trained dog to sniff the segregated package until after they had searched the motel room vacated by Hillison and Jacobson. ² There they discovered scraps of brown wrapping paper, ten marijuana seeds and marijuana debris, items that suggested the package mailed by Jacobson might contain marijuana. Whether or not this information gave probable cause to search the package, it certainly provided the founded suspicion, if any, needed to justify a dog sniff. See Florida v. Royer, 103 S.Ct. at 1328 n. 10 (plurality opinion); see also United States v. Place, --- U.S. ----, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983) (dictum). When the concededly reliable dog strongly alerted on the mailed package, the agents plainly had probable cause to believe that it contained illegal drugs. United States v. Spetz, 721 F.2d 1457 (9th Cir.1983).

When the search warrant authorizing examination of the package contents was executed, the agents discovered that it actually contained cocaine. They therefore had probable cause to believe that Hillison and Jacobson were engaged in criminal activity, and to arrest the pair the next morning at the San Diego airport. The search of Hillison's socks was valid as a search incident to his arrest. See Chimel v. California, 395...