McGee v. State

MANNHEIMER, Judge,

concurring.

I am writing separately to highlight what I perceive to be the rationale of our decision.

The question presented is whether the police had reasonable suspicion to believe that the Federal Express package contained contraband when they removed the package from the normal stream of commerce and subjected it to an ion seanner. As we noted in State v. Moran, 667 P.2d 734 (Alaska App.1983), the concept of "reasonable suspicion" is "[njecessarily ... somewhat vague".¹ Nevertheless, in Moran we approved Professor Wayne R. LaFave's suggestion that "reasonable suspicion" means "a substantial possibility that criminal conduct has occurred, is occurring, or is about to occur². We also quoted the formulation employed by the United States Supreme Court in United States v. Cortes:

Terms like "articulable reasons" and "founded suspicion" are not self-defining; they fall short of providing clear guidance [for resolving] the myriad factual situations that arise. But the essence of all that has been written [about "reasonable suspicion") is that the totality of the circumstances-the whole picture-must be taken into account. Based upon that whole picture,] the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

Id. (citing 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 LEd.2d 621, 628-29 (1981)).

The essential dispute in the present case involves the proper interpretation of this last-quoted sentence from Cortes: specifical ly, the meaning of the phrase "particularized and objective basis for suspecting ... criminal activity".

The State argues that the testimony presented to the superior court established particularized and objective reasons for suspecting that the package contained contraband: the person who shipped the package paid extra for overnight delivery; the shipping fee was paid in cash (rather than by check or credit card); the shipping envelope appeared to hold another container inside it; the shipping label was written by hand; and the shipment originated in a city from which many shipments of illicit drugs are sent to Alaska. According to the State, all of these articulated factors show that the police did not randomly pull the package out of the stream of commerce, but rather they acted on identifiable indicators that the package contained contraband.

But as Judge Pengilly suggested in his written decision, and as Judge Stewart suggests in this Court's lead opinion, the problem with the State's articulable factors is that they describe too many innocent shipments. As the United States Supreme Court stated in Delaware v. Prouse, the circumstances offered to validate an investigative stop must serve to differentiate the person stopped from the general public.³ Likewise, the circumstances offered to justify the temporary detention of mail or mail-like articles shipped through commercial carriers like Federal Express and United Parcel Service must serve to distinguish the detained package from the general body of shipments.

I assume, for purposes of argument, that there is some reason to believe that packages shipped overnight are more likely to contain contraband than packages shipped on a slower delivery schedule. Likewise, I assume that there is some reason to believe that a package is more likely to contain contraband if the shipper pays the fee in cash, or addresses the package with a handwritten label. Finally, I assume that there are identifiable cities which are the origination points for a large number of drug shipments to Alaska. But if the Fourth Amendment to the United States Constitution and the search and seizure provision of Alaska's Constitution (Article I, Section 14) are to act as curbs to government intrusion, it is not enough for the State to point to identifiable reasons to suspect that a package contains contraband. The State's reasons must also serve to differentiate the suspected package from the body of innocent packages.

Doubtless, some ascertainable and predictable percentage of all mailings and commercial shipments contain drugs or other contraband. Thus, the State could properly assert that there is an identifiable, non-negligible possibility that any package, selected at random, will contain drugs. But if people are to have any privacy in the letters and packages they send, this fact can not serve as a justification for subjecting all mailings to government serutiny.

In the present case, the factors that the State relies on to justify its seizure and search of the package deseribe too many innocent mailings. As Judge Stewart points out in his opinion, Federal Express normally requires all persons to use the company's shipping envelopes (even when the item being shipped is already enclosed in a coritainer). Thus, the fact that McGee's package may have been "double packaged" does not differentiate it from a great number of other Federal Express shipments. The same is true regarding the fact that the shipping label was handwritten and the fee was paid in cash. One could reasonably expect to find handwritten labels affixed to most of the packages shipped by individuals and businesses who do not routinely ship items through express commercial carriers. Moreover, since the standard fee for express delivery is slightly over $20, one could expect that many of these people would pay in cash. Finally, as Judge Pengilly pointed out, the fact that a large number of drug shipments come to Alaska from Tacoma, Washington is unremarkable if, overall, a similarly large percentage of all shipments to Alaska come from Tacoma.

In other words, if we allowed the State to temporarily seize packages and subject them to ion seanning based on the factors offered in the present case, we would potentially be . authorizing wholesale government seizure and inspection of the majority of envelopes and packages shipped by individuals and small businesses. Such a result would be at odds with the constitutional guarantees of privacy embodied in the search and seizure clauses of our federal and state constitutions.

One might argue that there is no need for alarm, since the physical intrusion is minimal (no physical opening of the package, and only a slight delay in its shipment), and since the ion scanning device is designed to detect only drugs and explosives. But we live in an age when someone who wishes to know another person's words and activities need not engage in physical intrusion to discover them. Technological advances have given us devices that "see" through opaque containers and through the walls of residences, devices that can pick up and record conversations in another building, devices that can scan the contents of e-mails as they move across the Internet-even devices that can detect and record each of my keystrokes as I compose this concurring opinion.

If the government were free to use such devices to investigate its citizens based on the sorts of factors presented in this case, the result would be a significant chilling of personal and political discourse. As our supreme court noted in State v. Glass,

In a pluralistic society dedicated to liberal democratic traditions, confidential communication serves as a lubricant for the smooth functioning of social and political institutions. Without "uninhibited, robust, and wide-open" public and private expression on the great issues of our day, as well as private discussion about the mundane, the trivial, and the banal, a once free society will soon become a nation of "hagrid-den and furtive" people.

583 P.2d 872, 877 (Alaska 1978)⁴

In Glass, our supreme court perceived- and took action to protect Alaska society against-"It]he corrosive impact of warrant-less participant monitoring on our sense of security and freedom of expression"⁵ The present case does not involve electronic monitoring of speech, but rather electronic scanning of the contents of the letters and packages we mail to each other. And yet the adverse consequences of unrestrained government intrusion would be similar. For these reasons, I join in this Court's decision.

1 . 667 P.2d at 735.

2 . Id.

3 . 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59; L.Ed.2d 660, 672 (1979).

4 . Quoting Judge Hufstedler's dissent in Holmes v. Burr, 486 F.2d 55, 65-66 (9th Cir.1973).

5 . Glass, 583 P.2d at 877.