State v. Rosborough , 62 Haw. 238 ( 1980 )

CONCURRING AND DISSENTING OPINION OF

MENOR, J.,

WITH WHOM RICHARDSON, C.J., JOINS

I concur with the majority of this court that the match box was improperly searched. With respect to the search of the footlocker, however, I must dissent. In my opinion it was properly seized and searched by the Honolulu police without a warrant.

While apparently recognizing the validity of the “controlled delivery” or “reassertion of control” theory, the majority of this court have sought to avoid its effect by attempting to distinguish the facts of this case from those where the doctrine has been applied.

The majority opinion points out that in United States v. Andrews, No. 79-1963 (10th Cir. March 19, 1980), detectives removed some cocaine from the plastic bag found in a package presented at an airline cargo service office for shipment; that in McConnell v. State, 595 P.2d 147 (Alaska 1979), the Los Angeles police took the boxes containing marijuana to the police department where the contents were photographed and tested, two bricks were kept as evidence, and the box was then resealed; that in United States v. Ford, 525 F.2d 1308 (10th Cir. 1975), the police officer, after confirming that the package, contained heroin, marked the package, placed his business card inside it and resealed the package; and that in United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973), the officer removed one of the bricks of marijuana from the suitcase and marked the remaining bricks and the suitcase with.his initials. The majority opinion then goes on to say: “There is lacking in the instant case a similar act of dominion and control by the Los Angeles police which would constitute a seizure. . . . Thus it cannot be said that the footlocker containing the contraband was constructively seized by the police in Los Angeles and that the Honolulu police, in searching its contents, were reasserting actual dominion over an item already under government control.” (Emphasis added)

.1 would suggest that the majority have misinterpreted the significance of those facts to which they have given prominence and to which they have given dispositive effect. In Ford, for example, the marking of the package and the placing of the police card within it were not the determinative factors.¹ The court said:

Realistically, the contraband was seized by officers in California before it was ever shipped to Oklahoma. See United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973). The California officers marked the package and placed a business card inside it. Upon receiving the assurances of cooperation from Oklahoma City officers, they authorized its shipment. This action constituted the initial act of control and dominion over the contraband, for without government authorization the airline officials could not have shipped the contraband. This official dominion continued unbroken because close surveillance followed the seized contraband, insuring that it remain within official possession. Actual physical control was in fact reasserted by the Oklahoma City police when the arrest process was completed. These material facts are indistinguishable ixom DeBerry, supra, and we adopt the analysis of that case in concluding that the official seizure of the contraband occurred in San Francisco when the government asserted dominion over it. The seizure must be judged against the Fourth Amendment as of that time and place.

525 F.2d at 1312-1313 (emphasis added).

I would further suggest that they have failed to appreciate the real issue in this case which is: Did the Los Angeles police intend to exercise dominion and control over the footlocker with the contraband, and did they in fact assert dominion and control over the contraband? Id., State v. Edwards, 197 Neb. 354, 248 N.W.2d 775 (1977). If the answer is in the affirmative, then the finding must be that there was a seizure of the contraband by the Los Angeles police. Id. Cf. State v. Lloyd, 61 Haw. 505, 606 P.2d 913 (1980). In making this determination the totality of the police conduct must be considered. Facts in a given case are not to be viewed in isolation, one independent of the other. This is nothing more than an elementary evaluative principle. The majority, however, have failed to take all of the circumstances into consideration, and therein I think lies the flaw in their analysis.

I agree that the removal and retention by the Los Angeles police of part of the contraband before sending the balance on to Honolulu would have been a relevant consideration. I also concede that marking the footlocker and placing a police business card inside it would also have been a relevant consideration. But when the real issue is understood and properly addressed, it becomes evident that such conduct would merely be among the factors to be considered within the totality of the circumstances. When thus viewed, the absence of such specific conduct would not necessarily be determinative of whether the Los Angeles police intended to, and did, exercise dominion and control over the contraband. So that in holding that “[tjhere is lacking in the instant case a similar act of dominion and control by the Los Angeles police which would constitute a seizure,” the majority have misconceived the analytical process by which the issue is to be resolved.

The critical issue here can only be resolved by considering the totality of police conduct in this case. Here the record indisputably shows that it was the Los Angeles police who directed and authorized the shipment of the contraband. Only they could authorize it and they did. United States v. Ford, supra. It was they who made the arrangements with the Honolulu police and provided them with the description of the footlocker which contained the marijuana, the name and address of the consignee, the name of the airline, the flight number, and the expected date and time of arrival. The following from the Honolulu police report is particularly revealing:

After discovering the suspected marijuana, [the airline employee] contacted the airport office of the L.A.P.D., Narcotics detail, and reported his discovery. Detective McGraff responded and confirmed that the locker’s contents were that of marijuana. The locker was closed and sent to Honolulu for further investigation.² (Emphasis added)

Thereafter Detective McGraff of the Los Angeles police spoke not once but twice with the Honolulu police regarding the contraband. Extending their cooperation to the Los Angeles police, the Honolulu police initiated a surveillance which eventually led to the arrest of the defendant and the seizure of the contraband. Under these circumstances, it can hardly be said that the Los Angeles police did not assert and maintain official dominion and control over the contraband until it was physically seized by the Honolulu police. When the Los Angeles police directed that the footlocker be sent on to Honolulu for further investigation, “this action constituted the initial act of control and dominion over the contraband, for without government authorization the airline officials could not have shipped the contraband.” United States v. Ford, supra at 1312. This official dominion continued unbroken until actual physical control was reasserted by the Honolulu police. Id.

When considered in its entirety, the evidence clearly shows that the contraband was under government control from the time it was placed aboard the Honolulu-bound flight until it was recovered by the Honolulu police. It could not have been otherwise. Once the Los Angeles police were brought into the picture and the contents of the footlocker were confirmed by them to be contraband, the airline thereafter was powerless to act with respect to it other than by direction and authorization of the Los Angeles police. Every movement of the footlocker thereafter was by police request and authorization. The role of the airline in shipping the contraband to Honolulu became that of a cooperator in the apprehension of law violators, rather than that of a common carrier engaged in its usual business enterprise. The part played by the Honolulu police in this contained episode was that of a partner, in the law enforcement context, continuing the surveillance and effecting the eventual apprehension of the criminal and the reassertion of actual physical control over the contraband. United States v. Ford, supra; State v. Edwards, supra. The majority’s finding, therefore, that the contraband was not then “under government control” at the timé the Honolulu police took it into custody does violence, in my opinion, not only to the obvious state of the record but also to the well established principle that where an individual (in this case the Los Angeles police), although not in actual possession of an object, knowingly has both the power and the intention at a given time to exercise dominion or control over the object, either directly or through another person, he is deemed to be in constructive possession of that particular object. See generally, 8A Words and Phrases 577-87 (perm, ed. 1951).

That contraband may be seized within the meaning of the Fourth Amendment without being taken into the actual and physical custody of the police is not open to dispute. The majority have conceded this point, and this court has so held. State v. Lloyd, supra. In that case we said in effect that where the police have brought contraband so far under their subjection that they can and do exercise dominion and control over it, a constructive seizure of the contraband will have occurred. There, police in one room of the suspect’s residence were simply keeping contraband in another room under observation while a search warrant was being obtained. No one could go near it, however, without the approval of the police. Under those circumstances we held that in practical and legal contemplation a seizure of the contraband had occurred.

On facts remarkably similar to the facts here, the Supreme Court of Nebraska in State v. Edwards, supra, held that a seizure had been effected at the point of origin. In that case, a suitcase containing the contraband was opened by an airport employee in Grand Island, Nebraska, when he detected the odor of marijuana emanating from the suitcase. He opened it, found the marijuana, and called the police. When the officer arrived, another airport employee reopened the suitcase for the purpose of displaying its contents to the officer. The officer viewed the contents and took down the information shown on the tag attached to the suitcase. The suitcase was then forwarded to North Platte, Nebraska, and the police there were alerted to its expected arrival. The North Platte police initiated a surveillance of the suitcase after it arrived, and when the defendant claimed it they followed him to his mother’s residence where he was arrested and the suitcase seized. The Nebraska supreme court found that the initial seizure had taken place at the Grand Island terminal and not at North Platte as claimed by the defendant, and, expressly adopting the rationale of United States v. Ford, supra, upheld the trial court’s denial of the defendant’s motion to suppress.

I would reverse the trial court’s suppression of the footlocker and its contents.

1 Obviously, the marking of the package and the placement of the police card within it were made for the purpose of facilitating the later identification of the package and its contents. In a later case, United States v. Andrews, supra, the same court that decidedFord outlined what it considered to be the pertinent facts in Ford:

In Ford, . . . [t]he package, when opened by the airline agent was found to contain a powdery substance. Local police were called in. The police conducted an on-the-spot field test which showed that the powdery substance was heroin. The police resealed the package which was then shipped on a flight to Oklahoma City, where law enforcement officers had been alerted. When the package arrived in Oklahoma City, Linda Ford’s mother, Kathryn, appellant in the case, claimed it at the airline office. She proceeded, under surveillance, with the package to a .waiting car. After entering the car with the package, she threw it out a window when she observed police officers approaching. The officers arrested Ford, retrieved the package and secured its contents.

United States v. Andrews, supra, slip op. at 16-17.

The material facts in the instant case are thus no different from those that led the Ford court to find a seizure for controlled delivery purposes at the point of origin.

2 The sole purpose for sending the contraband on to Honolulu for further investigation was to make possible the apprehension of the addressee and others who might have been involved in the criminal scheme. The role of the Honolulu police under these controlled conditions was essentially to await the arrival of the contraband, maintain surveillance over it, and then seize both the suspect and the contraband after delivery to the claimant had been made.