US v. Clark

• Decision Date: 07 October 1988
• Docket Number: Crim. No. 88-0035-P-02.
• Parties: UNITED STATES of America v. Eric CLARK.
• Court: U.S. District Court — District of Maine

695 F. Supp. 1257

UNITED STATES of America v. Eric CLARK.

Crim. No. 88-0035-P-02.

United States District Court, D. Maine.

October 7, 1988.

Jonathan R. Chapman, Sp. Asst. U.S. Atty., Portland, Me., for plaintiff.

Laurie D. West, Portland, Me., for defendant.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

I. Findings of Fact

Hearing having been had on Defendant's motions to suppress evidence, the Court finds the pertinent facts to be as follows. In the afternoon of December 10, 1987, Defendant delivered a package to one Carrie King, an employee of the "Patchwork Place," for shipment by United Parcel Service to an address in Maine. The Patchwork Place is a gift shop which also serves as a contract package drop for UPS and as a United States Mail postal substation. The package was processed in the normal manner and came into the control of UPS personnel at its service facility. There, it was observed by Larry Stone, a Loss Prevention Supervisor for UPS then in the course of his duties. For reasons that are obscure, he opened the package for inspection. He did so on his own initiative, having had no prior contact with any law enforcement officer about the package.

In the course of the inspection, Stone observed that the package contained a brown mailing envelope, which he opened. Inside the mailing envelope he found a transparent plastic bag containing a white powder. Other than packaging materials, the package contained only the white powder. Stone set the package aside without resealing it and called the Delray Beach Police Department. He talked with a supervisor in that office, telling him that one of his couriers had picked up a package at the Patchwork Place and had brought the package to the UPS center in Deerfield Beach, that he found the package suspicious, and had opened it. He told the supervisor that he believed the package contained cocaine.

Officer Vincent Mintus of the Delray Beach Police Department was scheduled to report to work at 9:00 a.m. on December 11, 1987. He received a call at home from his supervisor, asking him to get in as quickly as possible. He reported to the police department between 8:00 and 8:45 a.m., and was told by his supervisor of the conversation with Mr. Stone at UPS. He was requested to investigate.

Officer Mintus then went straightaway to the UPS facility at Deerfield Beach and met with Mr. Stone in Mr. Stone's work area there. Stone advised Mintus when they first met that one of his couriers had picked up a package at Delray Beach and had brought it to the UPS distribution center. He said that he found this particular package to be suspicious in nature and he opened it.

Mintus observed the package in question on a table when it was pointed out to him by Mr. Stone. He walked to the table and looked into the box, the closure flaps of which were open. Mintus observed there a brown mailing envelope, opened at one end, in which he saw the end of a clear plastic bag. In the bag he could see a white powder. He then reached into the box, picked up the mailing envelope, and withdrew the plastic bag. Finding the plastic bag to have a "Ziplock" sealer on it, Mintus opened the Ziplock strip for the purpose of smelling the contents of the plastic bag. He had the capacity to recognize cocaine by smell due to the odor of the alkalies contained in it. He concluded that the substance "appeared to be cocaine," took nothing out of the bag, and performed no field test at that time. He then resealed the bag, placed it in the envelope, put the envelope back into the box, and took it in his vehicle to the Delray Beach Police Department.

Officer Mintus arrived at the police department at approximately 11:00 a.m. In the presence of his supervisor, the box was once again opened, and the brown envelope was removed and sent to another office to be dusted for fingerprints. Officer Mintus then opened the plastic bag once again and conducted a field test, using a Regency test kit. The field test was positive for the presence of cocaine. The box was then stored in an evidence safe.

Contact was then established with Maine authorities, which resulted in Officer Guy Godbout, a drug investigator with the Biddeford, Maine Police Department, going to the Delray Beach Police Station on December 12, 1988, in company with Officer Mintus. At the police station, the box was opened again, in the presence of Officer Godbout, Officer Mintus, and Mintus's supervisor. Officer Mintus put on a surgical glove, reached into the bag, took a small sample, a rock-like crystal, and put it into another plastic Ziplock bag. That bag was Ziplock sealed, initialed, dated, and sent to the crime lab for chemical analysis. Officer Godbout also did a field test of the substance contained in the plastic bag at that time. Throughout these proceedings, Officer Mintus believed the white powdery substance in the plastic bag to be cocaine.

Thereafter, the original plastic bag with the remainder of the white powder was returned to a mailing envelope identical to that originally contained in the box, both were placed in the box, and the box was resealed and delivered to Officer Godbout. He returned with the box to Maine and ultimately a controlled, police-observed delivery of the box was made to the location indicated by the address on the box. From the time the package left the UPS office until the time it was delivered in Maine, it was in the custody and control of law enforcement officials, primarily Officers Mintus and Godbout.

After receiving the box from Mr. Stone on December 11, 1987, and returning it to the Delray Beach Police Department, Officer Mintus went to the Patchwork Place and interviewed Carrie King, the employee who had received the box from the Defendant. In the course of that discussion, he told her that the box contained cocaine.

On December 14, a Saturday, the Defendant again appeared at the Patchwork Place and left four packages to be sent by fourth class United States Mail to a different address in Maine. Carrie King, by her design, was absent from the premises when that occurred. When she returned, she was informed by other employees that the Defendant had left the packages for mailing. She then attempted to call a postal inspector, but was unable to reach one. She called the Delray Beach Police Department and left a message for Officer Mintus to the effect that the same man who mailed the previous package had left four packages for mailing on December 14.

Officer Mintus ultimately received that message and went to look at the packages. He thereafter called Ronald Jensen, a United States Postal Inspector, and in due course Inspector Jensen met Officer Mintus at the Delray Beach Police Department. Jensen had also received a message from Carrie King, and he and Officer Mintus conversed about the four packages. Inspector Jensen, accompanied by Officer Mintus, then went to the Patchwork Place, where they were shown the four boxes in question.

Inspector Jensen opened the boxes in the presence of Officer Mintus and they both observed the contents of each box. They were found to contain no contraband. In one of the boxes, however, a document referred to as "a receipt" with a handwritten name on it, was found. This document was removed from the box and delivered to Officer Mintus. The boxes were then resealed, and it appears that they were processed in the normal course through the United States mails.¹

Defendant has moved to suppress all the evidence gained as a result both of the warrantless search and seizure of the UPS package and of the search and seizure of the receipt from the fourth class mail packages.

First Search

The Court finds that the motion to suppress evidence obtained as a result of the first search is controlled by United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). The facts of that case, involving seizure and a field test by a Drug Enforcement Agency Agent of a white powder initially found in multiple layers of packaging by a Federal Express employee, are virtually identical to those in this case up to the point of the field test. The Court there held that the seizure of the powder and performance of a field test on it did not violate the Fourth Amendment. Acknowledging Jacobsen, Defendant Clark argues that he is challenging not the agent's field test, but rather the agent's subsequent seizure of 1.16 grams of the powder for a full chemical test.

The Supreme Court in Jacobsen stated that a seizure lawful at its inception can violate the Fourth Amendment if its execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on unreasonable seizures. The Court found that Jacobsen's possessory interests had been intruded upon because some of the white powder had been destroyed to perform the field test. To assess the reasonableness of the conduct, the Court suggested a balancing test in which the nature and quality of the individual's Fourth Amendment interests are weighed against the importance of the governmental interests alleged to justify the intrusion.

Applying this test, it is clear, as it was in Jacobsen, that the law enforcement interests justifying the seizure were substantial. The circumstances here militate even more strongly in favor of the Government than in Jacobsen, for after a field test identifying the substance as cocaine had already been performed, there were not only the surrounding indicia that the substance tested was indeed cocaine, but also a high level of certainty based on chemical analysis. The police have a strong interest in keeping contraband away from the public, and a citizen has no possessory interest in substances that have been established to be illegal drugs. 21 U.S.C. § 844 ("it shall be unlawful for any person knowingly or intentionally to possess a controlled substance ...").

In Jacobsen, the Court went on to minimize the property interest of the respondent because...