US v. Sklar

• Decision Date: 21 September 1989
• Docket Number: Crim. No. 89-30008-F.
• Parties: UNITED STATES of America v. David F. SKLAR, Defendant.
• Court: U.S. District Court — District of Massachusetts

721 F. Supp. 7

UNITED STATES of America v. David F. SKLAR, Defendant.

Crim. No. 89-30008-F.

United States District Court, D. Massachusetts.

September 21, 1989.

Kevin O'Regan, Asst. U.S. Atty., Springfield, Mass., for plaintiff.

Michael Ascher, Springfield, Mass., for defendant.

MEMORANDUM AND ORDER

FREEDMAN, Chief Judge.

I. INTRODUCTION

Before the Court is defendant David Sklar's ("Sklar") motion to suppress evidence obtained by the United States as a result of a search conducted of an Express Mail Package by Postal Inspector Willfred Moores ("Moores"). The search was conducted by Moores pursuant to a search warrant issued by United States Magistrate Michael A. Ponsor on January 24, 1989.

Sklar proffers a variety of objections to the search, which will be dealt with in detail below. These objections run the gamut of modern criminal evidentiary disputes: there was no reasonable suspicion to justify a canine sniff of his mail, the canine Harko was unreliable, the sniff was inherently intrusive, and various administrative procedures were not adhered to by either the Postal Inspector or the Magistrate. As will be seen, however, none of these objections is weighty enough to merit burying the seized materials.

II. BACKGROUND

The relevant facts, about which there is no dispute, are as follows. On January 24, 1989, Postal Inspector Moores submitted to Magistrate Ponsor an application and affidavit for a search warrant. In the Matter of the Search of Express Mail Package No. B51550087, Case No. 89-1602-MP (D.Mass. Jan. 24, 1989). In his affidavit, Moores made the following statements:

(a) That he, Moores, has been a postal inspector for eight years, five of which have been spent investigating prohibited mail, including narcotics and controlled substances. In May, 1988, he attended a week-long course at Postal Headquarters, focusing solely upon the detection of controlled substances in Express Mail Packages. Moores Affidavit, ¶ 1.

(b) As a result of the Postal Service's increased awareness of the use of Express Mail to send controlled substances, Express Mail delivery receipts are now reviewed regularly. Based on his experience as a Postal Inspector, Moores has learned that southern Florida, including the area of Boca Raton, "is known to be a source for the distribution of controlled substances." Id., ¶ 3.

(c) During a recent review of Express Mail receipts in the Springfield, MA post office, Moores uncovered what he considered to be eleven suspicious mailings from Boca Raton, FL. Ten were addressed to the defendant at Box 35, Montereay sic, MA 01245. The eleventh was addressed to the defendant at Box 730, Stockbridge, MA 01262. The labels appeared to have been written by the same individual using the same name, but four different return addresses, three of which were subsequently found to be non-existent. Id., ¶ 4.

(d) On or about January 17, 1989, Moores requested that postal officials in Stockbridge notify him if any Express Mail packages were received for delivery to the defendant. On January 23, 1989, Stockbridge postal officials notified Moores that an Express Mail package addressed to David Sklark sic had been received. The package bore an originating/return address of R.J. Textils, 1470 Southwest 5th Ave., Boca Raton, FL 33432. Moores checked with postal officials in Boca Raton, FL, and learned that there is no R.J. Textils at the address given. Id., ¶¶ 6-7.

(e) Moores then requested that U.S. Postal Inspector A.R. Dockus go to Stockbridge and bring the package back to the Springfield office of the Postal Inspection Service, where a trained narcotics dog would be allowed to "sniff" the package. Id., ¶¶ 8-9.

(f) At the Postal Inspection Service Office, Moores met with Massachusetts State Trooper John Giammarco and his trained narcotics dog "Harko." Moores was told by Trooper Giammarco that both Giammarco and Harko had graduated ten days earlier from "a 17 week school in canine detection sponsored by the Massachusetts Department of Public Safety." Giammarco further stated that Harko was trained to detect the controlled substances cocaine, heroin, marijuana, and hashish. Id., ¶ 10.

(g) When Inspector Dockus returned with the package from Stockbridge, Moores laid out five other Express Mail packages of similar shape and size to the one addressed to the defendant. However, none of the five dummy packages contained any controlled substances. The six packages were placed in a row on the floor of a vacant office. Trooper Giammarco allowed Harko to search the area. Harko "bit, scratched and clawed" at the Express Mail package addressed to the defendant, but did not respond to the five dummy packages. Moores was advised by Trooper Giammarco that Harko's reaction was his indication that a package contained some kind of controlled substance. Id., ¶ 11.

(h) Following Harko's reaction of the package, Moores took possession of the Express Mail package at approximately 1:30 p.m. on January 23, 1989. Id., ¶ 12.

Based on Moore's affidavit, Magistrate Ponsor issued a search warrant allowing Moores to examine the contents of Express Mail Package No. B51550087. Upon doing so, Moores discovered approximately three ounces of a substance which field tested positive for cocaine. Moores replaced the substance in the package, drove to Stockbridge, and left a notice in the defendant's P.O. Box indicating that an Express Mail package had been received.

At approximately 4:40 p.m. on January 24, 1989, the defendant's brother, Neal Sklar, picked up the notice from the P.O. Box. About ten minutes later, the defendant picked up the package itself from the Stockbridge post office. Once Sklar left the post office with the package, he was apprehended and arrested by Moores. Upon being advised of his Miranda rights, Sklar admitted that he knew what was inside the package.

The question before the Court now is whether any of the defendant's objections highlight legitimate flaws in Moores' handling of the sniff of this particular Express Mail package. For various reasons, the Court concludes that no errors were made.

III. DISCUSSION

A. There Was Reasonable Evidence Upon Which to Base Scrutiny of the Package

The affidavit of Postal Inspector Moores reveals him to be a well-trained investigator, with particular expertise in the use by criminals of Express Mail packages for the distribution of controlled substances.

In his affidavit in support of a search warrant, Moores listed several indicia which made him suspicious of the package in question. The Court has reviewed the evidence, and concludes that Moores was amply justified in his skepticism regarding the legality of the package's contents. Specifically, the Court finds it significant, as did Moores, that: the defendant received several packages within a short time from a known drug source area; that while the packages apparently originated from the same person, they also originated from several different addresses; and finally, that a cursory check revealed that all but one of the return addresses was fraudulent.

Under the circumstances, Moores' suspicion as to the contents of Express Mail Package No. B51550087 was reasonable.

B. Alleged Violations of 39 C.F.R. § 233.3 Do Not Justify Exclusion

As one of its investigative tools, the Postal Service has devised the process of "mail cover," by which "a record is made of data appearing on the outside of mail to obtain information pertaining to the commission or attempted commission of a crime." 39 C.F.R. § 233.3(c)(1). The defendant argues that Postal Inspector Moores failed to obtain authorization for the "mail cover" employed in the investigation of this case. In light of Moores' failure to abide by the approval procedures set out in 39 C.F.R. § 233.3, the defendant argues that the evidence obtained as a result of the investigation should be suppressed. Defendant's Memorandum of Law in Support of Defendant's Motion to Suppress Evidence at 22-23.

The government responds that with respect to the Express Mail package at issue, Moores did obtain authority for a mail cover on or about January 17, 1989. The Court has searched for clear evidence in the record before to support that statement, and has been unable to find it. However, even assuming for the moment that the government's claim is false and that Moores did not obtain authority for any "mail cover," the Court agrees that a failure to do so would not be fatal in this case, since a failure to obtain authority for mail cover does not raise issues of constitutional import.

The Supreme Court has held that "a court's duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law." United States v. Caceres, 440 U.S. 741, 749, 99 S.Ct. 1465, 1470, 59 L.Ed.2d 733 (1979). In this particular case, it is clear that the regulation embodied in 39 C.F.R. § 233.3 is not required by either the Constitution or federal law. While the Supreme Court has emphatically stated that first-class mail "is free from inspection by postal authorities, except in the manner provided by the Fourth Amendment," United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S.Ct. 1029, 1031, 25 L.Ed.2d 282 (1970), it has also clearly found that the protections of the Fourth Amendment are not triggered by mere inspection by postal authorities of information contained on the outside of a piece of first-class mail. Van Leeuwen, 397 U.S. at 252, 90 S.Ct. at 1032; see generally United States v. Clark, 695 F.Supp. 1257, 1261-1263 (D.Me.1988) (collecting cases).

The law is clear, then, that even if the factual dispute as to whether or not Moores obtained authorization for the use of "mail cover" is resolved in the defendant's favor, the breach of postal regulations was not so severe as to merit suppressing the evidence obtained.

C. Moores' Reliance on a "Drug Profile" Was Not Erroneous

Sklar argues that Moores based his entire suspicion of Express...