State v. Phaneuf ( 1991 )

ROBERTS, Justice.

Raymond Phaneuf appeals his conviction in the Superior Court (Aroostook County, Pierson, J.) of possession of a Schedule W drug in violation of 17-A M.R.S.A. § 1107 (1983). Phaneuf entered a conditional plea of guilty and, on appeal, challenges the denial of his motion to suppress cocaine found as a result of the seizure of a package mailed to Phaneuf. Because we conclude that a dog sniff search of Phaneuf’s package did not violate his rights under the fourth amendment of the United States Constitution, we affirm the judgment of conviction.

I.

On the morning of December 4, 1987, the U.S. Attorney’s Office in Bangor received information via a postal inspector in Boston that Raymond Phaneuf was suspected of sending and receiving illegal drugs from the Blaine Post Office. The office promptly advised Maine State Police Detectives Marvin Hayes and Gary Crafts of this information. The detectives then contacted Tim Taylor, the postmaster in Blaine.

At about noon they met Taylor at the Blaine Post Office. Taylor showed the detectives a package addressed to Phaneuf and described Phaneuf’s contacts with the post office. These contacts tended to confirm the information received from the informant. Taylor agreed to the detectives’ request that he hold the package until they could bring in a specially trained dog to sniff the package for illegal drugs.

A short time later, Phaneuf arrived at the Blaine post office in a Winnebago registered in Massachusetts. He asked Taylor whether an express mail package had arrived for him. In accord with his arrangement with the detectives, Taylor told Pha-neuf that the package had not yet arrived but that it might arrive by 3:00 p.m. Pha-neuf said that he would check back before 3:00 and left the post office. About an hour later, Phaneuf’s Winnebago again arrived at the post office. This time a person identifying himself as Tim King entered and asked if the package had arrived. When King was told that it had not arrived, he left a number for Taylor to call if the package arrived that day. Shortly thereafter, a state trooper arrived with a specially trained dog to perform a sniff test on the suspect package. The dog, Chico, indicated that Phaneuf’s package contained contraband, and arrangements were made for backup in the event an arrest was necessary.

A few minutes after 4:00 p.m., Taylor called Phaneuf and King to inform them that their package had arrived. Phaneuf, along with King and another companion, retrieved the package a short time later. As Phaneuf left the post office, Hayes stopped him and asked him to return to the post office. Phaneuf was advised of, and waived, his Miranda rights. Crafts then explained to Phaneuf that he believed the package contained illegal drugs and that a search by a trained dog tended to confirm his suspicion. Phaneuf admitted that there was cocaine in the package and agreed to open it for the detectives. He also signed a consent-to-search form. Before opening the package, Crafts again asked Phaneuf if he was aware of his rights. Phaneuf again stated that he was. When he opened the package, Crafts discovered a double packet of cocaine hidden inside a book.

II.

Phaneuf argues that Chico’s sniff of the package mailed to him, conducted without a warrant and in the absence of exigent circumstances, violated his fourth amendment rights. The State counters that Pha-neuf’s argument is contrary to the Supreme Court’s opinion in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). We agree with the State.

In Place, the Court, in broad dictum, found that a canine sniff search of luggage at an airport was constitutional in that it was strictly limited to finding contraband. According to the Court “the sniff only discloses the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited.” Id. at 707, 103 S.Ct. at 2644. Although the statements in Place were strictly dicta¹, the Court has intimated on other occasions that such searches are permissible. In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), for example, the Court upheld a field test of white powder that had been found by Federal Express employees after they had damaged a package. The defendant contested the field search as a violation of the fourth amendment. The Court, however, held the search permissible, noting that “the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the fourth amendment.” Id. at 124, 104 S.Ct. at 1662. Importantly, the Court noted that tests that could only determine the presence, or the existence, of contraband did not violate one’s privacy interests in the situations presented in those cases. According to the Court:

Congress has decided — and there is no question about its power to do so — to treat the interest in “privately” possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably “private” fact, compromises no legitimate privacy interest.

Id. at 123, 104 S.Ct. at 1662. With this language the Court indicates that use of searches that can detect only the presence or absence of illegal substances place a minimal burden on privacy interests protected by the fourth amendment.

III.

Phaneuf argues, nevertheless, that he had a heightened expectation of privacy in a first class package. Phaneuf attempts to support his assertion by pointing to the Supreme Court decision in United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), and the Second Circuit decision in United States v. Thomas, 757 F.2d 1359 (2d Cir.1985). Van Leeuwen held that the fourth amendment governs any search of first class mail. Thomas overturned fruits of a search conducted on the basis of a warrant obtained with information garnered from a dog sniff of a door of a suspected drug dealer’s apartment. In Thomas the court found that a heightened expectation of privacy in residences prevented officers from bringing a trained dog to the door of the defendant’s apartment to sniff for drugs.

In utilizing these two cases to bolster his argument, however, Phaneuf does not demonstrate that the Supreme Court would apply a heightened privacy expectation in first class mail akin to that in a person’s domicile. Van Leeuwen held packages in the mail are protected by the fourth amendment and, unlike other classes of mail, are not subject to discretionary inspection. Van Leeuwen, 397 U.S. at 250-251, 90 S.Ct. at 1031-1032. We reject Phaneuf’s contention that the fourth amendment creates a heightened expectation of privacy in the mail akin to that in one’s domicile.

The entry is:

Judgment affirmed.

McKUSICK, C.J., and WATHEN and COLLINS, JJ., concur.

1 . The Court upheld the suppression order because the luggage was detained for an entire weekend.