Lead Opinion
OPINION OF THE COURT
The warrantless police search and seizure of a parcel at its Kennedy Airport destination, when viewed in conjunction with a prior valid search and seizure accomplished at an airline terminal in Los Angeles and the continuity of police control throughout, was not constitutionally offensive.
Defendant was arrested at Kennedy after she retrieved a package shipped by air to her from California. The package was seized, her handbag was searched and narcotics were found in both. There followed an indictment for two counts of criminal possession of a controlled substance in thе third degree, two for such possession in the seventh degree and one for unlawful possession of marihuana.
Based on allegedly improper police activity prior to her arrest, defendant sought to suppress the physical evidence found in her possession. She was successful at Criminal Term as to the bundle’s contents, but the Appellate Division modified so as to deny suppression in the entirety.
At the suppression hearing, the events leading to defendant’s arrest were related by Officer David McCarthy of the Queens Narcotics Bureau. A report of the Los Angeles Police Department, dated October 21, 1977, describing the events in California was also received. Without objection, McCarthy testified that on October 21 a message was received from an agent of the Federal Drug Enforcement Administration notifying the Queens bureau of the shipment to New York of a quantity of narcotics from Los Angeles addressed to "J. Adler” on United Airlines flight No. 8 scheduled to arrive that evening. Following receipt of this message, a member of the Queens bureau contacted Los Angeles Police Officer Lott, the source of the Drug Enforcement Administration report, to
McCarthy and two fellow officers were present at Kennedy when United flight No. 8 touched down at 8:45 p.m. No inquiries concerning the package were made by 11?30 that evening. McCarthy then opened the item and discovered a quantity of pills, which he recognized as amphetamines and barbituates, as well as the markings placed by Officer Lott. McCarthy delivered the container to the police precinct and had the drugs analyzed. United’s personnel were instructed to inform anyone making inquiries about the package that it had been lost in transit and was being traced. Following several inquiries, the consignee was told that the package could be picked up in the afternoon of October 24. That afternoon, defendant appeared at the airport to claim the package and, upon signing for the package and taking possession of it, she was arrested and searched. Found in defendant’s pocketbook were a capsule, a pill and a small quantity of marihuana.
Crediting the People’s evidence, Criminal Term concluded that the New York police had probable cause to arrest defendant and seize the package and that the initial search of it in Los Angeles was proper. However, the subsequent search in New York without a warrant, two days prior to defendant’s arrest, was held improper. Determining that probable cause to arrest existed independent of the tainted search and that the search of defendant’s pocketbook was valid as incident to a lawful arrest, Criminal Term suppressed only the evidence found in the package.
On appeal by the People pursuant to CPL 450.20 (subd 8) and 450.50, the Appellate Division agreed that the inspection of the package by the airline agent and the Los Angeles officer
Considered as a search discrete from that in Los Angeles, the New York police action was violative of the Fourth Amendment proscription against warrantless searches. Certainly, defendant had a legitimate privacy interest in the contents оf the package addressed to her (see United States v Van Leeuwen,
While the New York warrantless search, standing alone, cannot be supported, that search must be viewed in connection with the antecedent search and seizure in Los Angeles, which, as both courts below found, was properly effected.
Nor did the airline employee become an agent of the police merely by surrendering the package to Officer Lott. A citizen who discovers contraband in his private capaсity does not become a police agent simply by relinquishing the suspected contraband to the authorities. Here, the existence of illicit drugs had been discovered in the course of a private search; any invasion of defendant’s privacy interests was complete at that point. No new or different search was effected by the immediate surrender to and inspection by the police officer (see United States v McDaniel, 574 F2d 1224, cert den
Regarding the New York police conduct as a continuation of the episode in California, there is no infirmity. When the Los Angeles police took custody of the property, the package legitimately was withdrawn from the stream of transit from the sender to the addressee and was lawfully under the control of the Los Angeles Police Department. Although that department thereafter sent the package on to New York, in no sense was the property returned to the original stream of transit. Rather, described in detail and marked by the Los Angeles inspector, it continued on to New York effectively under the dominion of the authorities. That the identity of the authority exerting control changed upon arrival of the parcel does not signify a break in the police chain of dominion. There can be no meaningful distinction between the events as they occurred and a situation where a police officer accompanies the package, physically transfers the property to another officer who examines it and thereafter seеs it delivered to the intended recipient. Nor does the relinquishment of physical possession to United Airlines for the flight to New York serve to break the chain, for the police exerted control over the package both before and after the flight with no other intervening events. Thus, when the New York police searched the package, there was no independent intrusion requiring a warrant, but simply a continuation of the valid search and
Of course, not all searches of this nature can be so justified. The control exerted by the police after an initial search must remain effectively unbroken. If by a break the property returns to the original stream of transit, the police may not search or seize the property in the absence of independent justification cognizable under the Fourth Amendment (see United States v Edwards, 602 F2d 458, 467, n 9). The property here, however, once lawfully seized and under continuous police control, simply was permitted to come into the suspect’s hands as bait in a trap set not by the police but apparently by the suspect herself. Under the circumstances presented, there was no constitutional infirmity.
Accordingly, the order of the Appellate Division should be affirmed.
Notes
. The Appellate Division dismissed defendant’s сross appeal concerning the denial of the motion to suppress the evidence found in her handbag on the ground that no statutory authority supported such an appeal. There was no error in this respect (see CPL 450.10, 450.15; compare CPL 450.20, subd 8).
. We note the dissent’s dissatisfaction with the hearing procedure in this case. At no time, however, has defendant urged that her due process rights were violated by the use of hearsay. Indeed, there was no objection to the presentation of proof and no
. The dissent disputes the validity of the finding that the agent acted in the interest of the airline rather than the authorities. However, that finding, affirmed by the Appellate Division, is supported by the record and should not now be disturbed. Particularly in the absence of some basis for believing that the agent acted at the behest of the police, the People were not required to negate further the possibility of a police motive.
. That the drugs were subjected to laboratory analysis does not alter the nature of
Concurrence Opinion
(concurring). I agree that there should be an affirmance of defendant’s conviction and for the reasons stated by the majority, except that I do not concur in its treatment of the recent decision of the United States Supreme Court in Walter v United States (447 US —,
I cannot subscribe to the implication in the majority opinion (pp 737-738, n 4, and associated text) apparently distinguishing Walter on the ground that there is an analytical difference, for purposes of application of the constitutional provisions prescribing the right of the people to be seсure against unreasonable searches, between a verification of the contents of the labeled boxes of film in that case by projection of the films and a verification of the contents of the pills in this case by chemical testing. If the position stated in the opinions of Mr. Justice Stevens and Mr. Justice Stewart were taken to be a statement of the present law, I would conclude that there should be a reversal in this case.
With members of the Supreme Court divided as they were in Walter, however, both as to result and as to predicate rationale, I do not know whether Walter should be deemed to control our disposition in this case. Accordingly, with greatest respect, for that reason I am constrained to conclude that we
Dissenting Opinion
(dissenting in part). Respectfully I dissent from so much of the Appellate Division’s order as modified Criminal Term’s suppression of the contents of the package. The majority concedes, and I agree, that considered separately from the Los Angeles seizure, the action of the New York police constituted an unlawful search. I agree also that a search by a private person is not within the constraints of the Fourth Amendment, so long as that person acts in his own interest and not as an agent or in the interest of the government, and that the fact that аn airline tariff provision permits an airline employee to open a package shipped air freight is not, by itself, sufficient to constitute government involvement in the opening of a package by an airline employee (see, generally, Ringel, Searches and Seizures, Arrests and Confessions [2d ed], §§ 2.3, 16.2; Admissibility, in Criminal Case, of Evidence Obtained By Search By Private Individual, Ann., 36 ALR3d [supp, § 6.5]). Moreover, I concede that there is nothing evil per se in co-operation between an airline aware that it has possession of contraband and the police of the area in which the discovery is made or between law enfоrcement personnel (State or Federal) of that area and their counterparts in the area of destination. Contraband validly seized at the point of shipment does not lose its police custody status because it is returned to the airline for transportation or until such time as it leaves police-airline custody (as, for example, by delivery to the recipient, United States v Edwards, 602 F2d 458). Absent such a break in custody, therefore, arrest of the recipient at the point of destination when he seeks to take possession of the package, suitcase, footlocker or similar container in which the contraband wаs shipped will generally be proper and "seizure” of the contraband at that point, because it is but the continuation of the earlier valid seizure, need not be otherwise justified.
Having said all of that I nevertheless cannot accept the conclusion of the majority that the evidence here presented demonstrates the validity of the Los Angeles search or permits the inferences (necessary to the result it reaches) that the majority draws. I am troubled also, apart from the insufficiency of the evidence, by its evident unreliability.
Warrantless searches or seizures are, as we held in People v Hodge (
The legal conclusion must be viewed in light of the Supreme Court’s June 20, 1980 decision in Walter v United States (447 US —,
Defendant’s motion to suppress was denied and the Fifth Circuit Court of Appeals by a divided court affirmed. The Supreme Court reversed, the majority concluding that there was in the FBI’s viewing of the film "an unreasonable invasion of their owner’s constitutionally protected interest in privacy” (447 US —, —, —,
While there were prior to the Walter decision cases holding it immaterial whether a package was open or closed when the private searcher turned it over to the police officer (People v McKinnon, 7 Cal 3d 899, 915-916; United States v Pryba, 502 F2d 391, 401; United States v Blanton, 479 F2d 327, 328-329), the authority of those cases is now seriously in question.
There is nothing to show that Orr had any basis for concluding that the pills he found were not wholly innocuous. The majority’s finding that "the private search revealed the presence of contraband” is a quantum leap from the evidence presented by New York Police Officer McCarthy, the only witness presented. He testified that he identified the pills as amphetamines and barbituates from the markings of the capsules and his knowledge of the Physician’s Desk Reference
Nor can Los Angeles Officer Lott’s search be justified on the theory of exigent circumstances. The People argue that the package had been turned over to the airline for shipment on a рarticular flight. There is, however, nothing in the record to establish that the shipper instructed or requested that a particular flight be used. The Los Angeles police report in evidence shows only that at 9:20 a.m. a man "brought a pkg. to the United Airline ticket counter to be sent to Little Neck, N.Y.” and that it was, in fact, "sent on United flight #8 to JFK Airport LAX (1200 hours), arrival at JFK (2015 hours).” The People also contend, based on United States v Ford (525 F2d 1308, supra), that exigency can be found in the possibility that failure to ship the contraband promptly may have alerted the New York consignee (defendant) and thus frustrated the investigation and arrest process. The contention overlooks the airline tariff provision (referred to in People v McGrew, 1 Cal 3d 404, 410, cert den
The majority disposes of any agency issue by stating (p 737) that the airline employee’s action was "taken not in furtherance of some objective of the government but on behalf of the airline”. While there is nothing in the record to show that United Airlines employee Orr had been previously known to Los Angeles Police Investigator Lott, there also is nothing
That response vividly illustrates the all but impossible burden on the defendant when the presumption of invalidity of a warrantless search is permitted to be overcome by evidence of the type here offered. Defendant’s memorandum after the suppression hearing protested the type of information supplied to the New York police by the Los Angeles police. Notwithstanding the fact that CPL 710.60 (subd 4) makes hearsay "admissible to establish any material fact” in a suppression hearing, we have had occasion to comment on the necessity of the People producing a particular officer as a witness because of the danger of relying upon a "tenuously balanced * * * pyramid of hearsay” (People v Havelka,
Whether, notwithstanding the admissibility of hearsay at suppression hearings, fourth-hand hearsay is so unreliable that its use presents a due process problem it is not necessary now to decide. Clearly, the People have not come forward with proof sufficient to overcome the presumption. When to that fact is added the essential unreliability of the evidence they have produced, I have no hesitancy in applying the exclusionary rule to suppress the contraband.
For the foregoing reasons, I would hold both the New York seizure and the Los Angeles search in violation of defendant’s constitutional rights and would, therefore, modify the order of the Appellate Division and reinstate the order suppressing the cоntents of the package (People v Havelka,
Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur with Chief Judge Cooke; Judge Jones concurs in a separate opinion; Judge Meyer dissents in part and votes to modify in an opinion.
Order affirmed.
. The majority’s footnote 3 turns the presumption referred to in the cited cases on its head.
. The majority distinguishes the Walter case (at pp 737-738), claiming that it involved, First Amendment considerations and that in the present case the police did not go beyond the private search. But the First Amendment was mentioned only to emphasize the importance of scrupulous observation of the general Fourth Amendment principle that "an officer’s authority to possess a package is distinct from his authority to examine its contents” (447 US, at p —,
. In any event they can be distinguished on their facts: McKinnon, because the officer could see the shape of the marihuana brick and smell its odor (7 Cal 3d, at p 917); Pryba, because the record showed the box remained open (502 F2d, at p 401, n
. The majority does not rely on a plain view theory, but since United States v De Berry (487 F2d 448), on which it does rely, does (id., at p 451), I note that "plain view alone is never enough to justify the warrantless seizure of evidence” (Coolidge v New Hampshire,
. That the airline employee at the point of shipment is oftеn dangerously close to acting as a government agent is suggested by McConnell v State (