State v. Stump

547 P.2d 305, 1976 Alas. LEXIS 291

• Court: Alaska Supreme Court
• Decided: March 22, 1976
• Docket: 2663
• Status: Published

Opinions

OPINION

ERWIN, Justice.

We granted réview of this case to decide whether an order by the trial court suppressing evidence was proper under the circumstances.

Respondent Mary Lynn Stump was indicted for possession of cocaine.¹ Her pre-trial motion to suppress was granted² and the State of Alaska petitioned for review.³ Since the order of the trial court would likely result in terminating- the prosecution⁴ and involves a controlling question of law,⁵ review by this court is appropriate.

For purposes of this appeal, the factual summaries of either side do not vary in material regard. In the early morning hours of April 25, 1975, Investigator Harter of the Alaska State Troopers was awakened by a telephone call from his office directing him to contact Victor Gedminas, the Assistant Manager of Western Airlines Freight at Anchorage International Airport. When Harter called Gedminas, he was informed that a Western . Airlines employee, William Krossa, had discovered some white powder in a package of T-shirts.

In the course of his duties, Krossa occasionally opened packages shipped by Western Airlines in order to determine that their contents were as described on the accompanying air bills. Prior to his involvement with the case at bar, Krossa had never found unlawful drugs in a package he inspected. Although he had on occasion discovered other items which were not supposed to be shipped by air, he had had no past dealings with police officers with regard to these items. On the day in question, Krossa’s attention was drawn to a package wrapped in 'brown .paper addressed to Dick York in care of respondent, Mary Stump. It had been shipped from San Francisco and was accompanied by an air bill stating its contents as “T-shirts.” The method of collecting payment was unusual, and, on the day of its arrival, Krossa received between four and eight telephone calls from a man and a woman inquiring whether the package had come in. Also, Krossa had been informed by a co-worker that a few days before, the package’s recipients had shipped a book upon which they had placed an unusually high value to an address in San Francisco.

These facts caused Krossa to suspect that the contents of the package might not be as described, and he therefore opened it for inspection. Krossa found that the package did indeed contain T-shirts. In addition, however, he discovered two plastic bags of a powder-like substance taped to the inside of one of the shirts. Krossa suspected that the substance was either cocaine or heroin. With the plastic bags still taped to the inside of the T-shirt, Kros-sa repackaged the goods in their original box, leaving the end open.

When Investigator Harter subsequently met with Krossa at the airport, he was shown a box wrapped in brown paper which had one end cut off. Krossa thereupon removed the contents of the box and showed Harter the T-shirt which contained the plastic bags. At that point Harter reached inside the T-shirt and removed the plastic bags. Some of the white powder reacted positively to a field test for cocaine.

The trial court found that the search of the package was conducted in conjunction with or at the direction of the police and that no exception to the prohibition against warrantless searches and seizures was applicable under the circumstances. Hence, the trial judge concluded that the search was unlawful and the evidence subject to suppression.

There are two separate components of the search⁶ which must be analyzed in order to rule on the search and seizure issue: (1) the initial inspection by Krossa; and (2) the later inspection by Krossa and Investigator Harter. Since no search warrant was obtained, the State has the burden of proving that the search in question met constitutional requirements.⁷

We begin with the initial inspection of the package by Mr. Krossa. At the time of the search, Krossa was acting in a purely private capacity, not as an agent of the police. There was no evidence that he had cooperated with the police in the past or had any previous contact with them pertaining to drug detection.⁸ As this court stated in Bell v. State, 519 P.2d 804, 807 (Alaska 1974).

A search by a private citizen not acting in conjunction with or at the direction of the police does not violate the constitutional prohibitions against unreasonable search and seizure.

Id. at 807, citing Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 1051 (1921), and other federal authorities. Hence, the search by Krossa did not violate Stump’s constitutional rights.⁹

Turning to the second inspection, we note that after Krossa discovered the powder,¹⁰ he called the police. He then repackaged the goods in their original box with the end cut off.¹¹ When Investigator Harter arrived, Krossa removed a T-shirt from the box¹² and showed Harter the plastic bag¹³ containing the powder. Har-ter then took the bag and tested the powder. It reacted positively for cocaine.

We are not persuaded that this inspection stands on any different footing than the first inspection. There is no indication it was done at the direction of the police, nor was there an attempt by the officer to open the original package. Investigator Harter was handed a T-shirt from a box opened by Krossa, and the powder contained in plastic bags was pointed out to him. No police search had occurred up until this time. There was no “prying into hidden places for that which is concealed” ¹⁴ by the officer, and thus the contraband was in plain view. Hence, the second inspection was permissible¹⁵ and the subsequent seizure justifiable.¹⁶

The decision of the trial court dated August 29, 1976, is reversed, and this case is remanded for further proceedings in conformity with this opinion.

RABINOWITZ, J., not participating.

1 . AS 17.12.010 prohibits the possession or sale of a depressant, hallucinogenic, or stimulant drug.

2 . Alaska R.Crim.P. 37(c).

3 . “[T]he state can invoke our discretionary review jurisdiction in criminal cases where the matter sought to be reviewed involves a non-final order or decision of the superior court.” State v. Browder, 486 P.2d 926, 931 (Alaska 1971). See State v. Davenport, 510 P.2d 78, 80 (Alaska 1973).

4 . Alaska R.App.P. 23(c)(1) allows the filing of a petition for review when an order affects a substantial right which “ . in effect terminates the proceeding or action and prevents a final judgment therein

5 . Alaska R.App.P. 23(d) permits the filing of a petition for review when a controlling question of law is involved.

6 .The fourth amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Alaska Constitution, Art. I, Sec. 14, provides :

The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

7 . Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971) ; Bell v. State, 519 P.2d 804, 806 (Alaska 1974).

8 . Thus we are not confronted with the situation involved in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), where government agents initiated and participated in a search of air cargo by TWA employees.

9 . We note that respondent concedes the legality of the initial intrusion by Krossa. (Respondent’s Brief at 7).

10 . According to Krossa, the plastic bags were “cellophane,” not opaque, and he could see they contained a brownish-gray powder. (Tr. 15)

11 . The box was 14" X 14" X2%" and was wrapped in brown paper.

12 . The exact testimony was a follows :

Q. Okay, and the contents were in the box?

A. He — apparently he had put them back in after he had checked them before I got there.

Q. Okay. And he took them out again for your observation?

A. Yes, ma’am.

Q. Okay. And the — he had not removed the items from inside the T-shirt?

A. No, they were still taped to the inside of the T-shirt.

Q. Okay. And he removed them from the T-shirt?

A. I did.

Q. You removed them from the T-shirt? You also took them out of the box?

A. You just asked me that.

Q. Was it you or him, I’m sorry.

A. He removed them from the box, showed me the plastic bag taped to the back of the shirt. I removed the bag from the shirt. (Tr. 29-30).

13 . Actually there were two smaller “cellophane” bags inside a larger bag which formed an outer covering.

14 . Brown v. State, 372 P.2d 785, 790 (Alaska 1962).

15 . See U. S. v. Blanton, 479 F.2d 327 (5th Cir. 1973); Wolf Low v. United States, 391 F.2d 61 (9th Cir. 1968); United States v. Hodges, 448 F.2d 1309 (6th Cir. 1971).

16 . The dissent contends that the seizure was not justified. In this regard see Daygee v. State, 514 P.2d 1159, 1162-1163 (Alaska 1973), where we said, “[i]t is not necessary that the contraband be positively identified before it is seized.” (Footnote omitted). Also see Bell v. State, 519 P.2d 804, 808 (Alaska 1974), where this court, citing Day-gee, made the following observation:

While Jones [a government employee] did not positively declare that he believed the substance was marijuana, it strains credulity to conjure some other identification for this material found in a carton shipped as “clothing”. Admittedly it could have been hay, tea or spices, but officers are not required to eliminate every far-fetched conjectural hypothesis before seizing an item as contraband.

Here, also, the manner of shipment, the concern shown by the addressees over the “T-shirts,” the method of packaging, and the material’s appearance do not allow any reasonable inference that the bags did not contain contraband.