Willet v. State, CA

• Decision Date: 25 June 1986
• Docket Number: No. CA,CA
• Citation: 712 S.W.2d 925,18 Ark.App. 125
• Parties: Peggy WILLETT, Appellant, v. STATE of Arkansas, Appellee. CR 85-221.
• Court: Arkansas Court of Appeals

Page 925

712 S.W.2d 925

18 Ark.App. 125

Peggy WILLETT, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 85-221.

Court of Appeals of Arkansas.

June 25, 1986.

Pruitt & Hodnett by Jerry D. Pruitt, Fort Smith, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Judge.

This appeal comes from the Baxter County Circuit Court. Appellant, Peggy Willett, appeals her conviction wherein she was found guilty of possession of cocaine and marijuana, fined $5,000, and sentenced to three years in the penitentiary, and six months in the county jail respectively. We affirm.

Appellant raises the following five points for reversal: (1) The court erred in refusing to grant appellant's motion to suppress on the basis that no probable cause existed to authorize the police to seize the package from the United Parcel Service office in Harrison; (2) the court erred in refusing to grant appellant's motion to suppress on the basis that police officers did not possess both probable cause and exigent circumstances to allow a seizure of the package without a warrant; (3) the court erred in failing to grant appellant's motion to suppress on the ground that the United Parcel Service driver was an agent of the state and, therefore, his first search violated appellant's fourth amendment rights; (4) the court erred in sustaining the state's objection to the question concerning the United Parcel Service guidelines in relation to opening the package that did not contain a last name; and (5) the court erred in refusing to give AMCI 204.

On June 8, 1984, Ron Walden, a delivery man for United Parcel Service, a private freight carrier hereinafter referred to as "UPS," received a package addressed to "Peg, Route 1, Box 101, Gassville, Arkansas." The package was marked "pictures." Appellant, Peggy Willett, lived at Route 1, Box 101, Gassville, Arkansas. Appellant's name, Peggy Willett, was printed on the mailbox outside her house. Walden testified that he did not see the name on the box and he passed the house by. Walden stated that he decided to open the package in an attempt to find an invoice which would give a last name for the addressee. Upon opening the package, Walden found five $100 bills and some white powder which had been placed in plastic bags and then wrapped in aluminum foil. Walden stated that he was suspicious of the white powder so he replaced the contents of the package and returned the package to the UPS office. He reported his discovery to the general manager of the UPS office, Ed Cross.

The following morning Cross contacted the Arkansas State Police and told them that he believed UPS was holding a package containing cocaine. Cross also opened the package and examined the contents.

Arkansas State Police Narcotics Investigator Bill Beach ordered Arkansas State Police Officer Robert Hicks, who was stationed at Harrison, to go over and pick up the package at the UPS office and take it to the Mountain Home Sheriff's Office. Hicks picked up the package without a search warrant.

In the Mountain Home Sheriff's Office, Investigator Beach opened the package to verify its contents and removed a small portion of the white powder which he field-tested. The test indicated that the powder was cocaine. Investigator Beach then made arrangements for Hicks to pose as a UPS delivery man and obtained a search warrant for the address listed on the package, appellant's home. Hicks made the delivery, posing as a UPS employee. After the delivery, Investigator Beach and other police officers searched appellant's house and found cocaine and marijuana.

Appellant was arrested and charged with possession of cocaine with intent to deliver and possession of marijuana. Appellant filed a motion to suppress. A hearing on the motion was conducted on December 13, 1984, wherein the motion was denied. The matter was set for trial. The trial was conducted on April 11, 1985, and the jury found appellant guilty of possession of cocaine and possession of marijuana.

Appellant, in her first point for reversal, cites United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Appellant argues that her motion to suppress should have been granted because the police did not have probable cause authorizing them to seize the package from the UPS office in Harrison. The facts in Jacobsen are very similar to those in the case at bar. In Jacobsen, during the examination of a damaged package, employees of Federal Express, a private freight carrier, observed a white powdery substance. The Federal Express employees notified the Drug Enforcement Administration (DEA) and replaced the contents of the package. A DEA agent arrived, examined the contents of the package, conducted a field test of the powder, and determined that it was cocaine. A warrant was obtained to search the address on the package. The search led to arrests of the correspondents.

The U.S. Supreme Court held in Jacobsen that the fourth amendment did not require that the DEA agent obtain a warrant before testing the white powder. The Court held as follows:

The first Clause of the Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated..." This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." [citation and footnote omitted]

When the wrapped parcel involved in this case was delivered to the private freight carrier, it was unquestionably an "effect" within the meaning of the Fourth Amendment. Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable. [footnote omitted] ... [I]n this case the fact that agents of the private carrier independently opened the package and made an examination that might have been impermissible for a government agent cannot render otherwise reasonable official conduct unreasonable. The reasonableness of an official invasion of the citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.

The initial invasions of respondents' package were occasioned by private action. Those invasions revealed that the package contained only one significant item, a suspicious looking tape tube. Cutting the end of the tube and extracting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were accidental or deliberate, [footnote omitted] and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character.

The additional invasions of respondents' privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search....

....

... Respondents could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents. The agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment. See Coolidge v. New Hampshire, 403 U.S. 443, 487-490 [91 S.Ct. 2022, 2048-2050, 29 L.Ed.2d 564], (1971); Burdeau v. McDowell, 256 U.S. 465, 475-476 [41 S.Ct. 574, 576, 65 L.Ed. 1048], (1921). [emphasis supplied]

Similarly, the removal of the plastic bags from the tube and the agent's visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. [footnote omitted] It infringed no legitimate expectation of privacy and hence was not a "search" within the meaning of the Fourth Amendment.

While the agents' assertion of dominion and control over the package and its contents did constitute a "seizure," [footnote omitted] that seizure was not unreasonable. The fact that, prior to the field test, respondents' privacy interest in the contents of the package had been largely compromised, is highly relevant to the reasonableness of the agents' conduct in this respect. The agents had already learned a great deal about the contents of the package from the Federal Express employees, all of which was consistent with what they could see. The package itself, which had previously been opened, remained unsealed, and the Federal Express employees had invited the agents to examine its contents. Under these circumstances, the package could no longer support any expectation of privacy; it was just like a balloon "the distinctive character [of which] spoke volumes as to its contents, particularly to the trained eye of the officer," Texas v. Brown, 460 U.S. 730, 743 [103 S.Ct. 1535, 1543, 75 L.Ed.2d 502] (1983) (plurality opinion); see also id., at 746 (POWELL, J., concurring in the judgment); or the hypothetical gun case in Arkansas v. Sanders, 442 U.S. 753, 764-765, n. 13 [99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235], (1979). Such containers may be seized, at least temporarily, without a warrant. [footnote omitted] Accordingly, since it was apparent that the tube and plastic bags contained contraband and little else, this warrantless seizure was reasonable, [footnote omitted] for it is well-settled that it is constitutionally reasonable for law enforcement officials to seize "effects" that cannot support a justifiable expectation of privacy without a warrant, based on probable cause to believe they contain contraband. [footnote omitted] [emphasis supplied]

....

A chemical test that merely...