Record and brief — Russo v. California

UdHHed

Office -Supreme Court, U.S,

81-489 FILED

‘No.

JUL14 1981

ALEXANG.2 Lo Sc dAS,

In the Supreme Court of the Uni ates

OCTOBER TERM, 1981

ANTHONY PAUL RUSSO, Petitioner

Vv.

STATE OF CALIFORNIA

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DISTRICT

JERROLD M. LADAR

507 Polk Street

Suite 310

San Francisco, California 94102

(415) 928-2333

Attorney for Petitioner

QUESTION PRESENTED

Whether the warrentless unreasonable in-

vasion by a D.E.A. agent of a sender's

constitutionally protected interest in the

privacy of a fully wrapped and sealed pack-

age, consigned to a common carrier violates

the rules of Walter v. United States, 447

U.S. 649 (1980), Arkansas v. Sanders, 442

U.S. 753 (1979), United States v. Chadwick,

433 U.S. 1 (1977) and Katz v. United States,

389 U.S. 347 (1967).

INDEX

Page

Opinion Below .cccccccccccccccscccccccceces

JUTASGICCION ccccccedeccccccccescccceccs cece

Question Presented .... cee ccceeecsccsccecse

Constitutional Provision Involved ........

Statement of the Case .....ccecccccccscees

Reasons For Granting The Writ .......... o<

CONCLUSION cccccccccccccccccccccccccccccse AG

Appendix (Opinion of the Court ......... 17

of Appeal)

Aw HY & -&

TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders,

442 U.S. 753 (1979) .....-. 2, 7, 8, 14

Bell v. Santa Clara

Superior Court,

101 Cal.App.3d 238 (1980) ......... 13

Chambers v. Maroney,

399 U.S. 42 (1970) “eee eee eer eeeeee 12

Coolidge v. New Hampshire,

403 U.S. 443 (1971) ..cceceeeceeeee 10

Corngold v. United States,

367 F.2d 1 (9th Cir. 1966) ........ 12

Katz v. United States,

389 U.S. 347 (1967) wcccce Be Fe 8B, IS

Oregon v. Mathiason,

429 i 492 (1977) ene eeeeeeneee eve 7

ii

Page

Cases - Continued:

People v. Dalton, 24 Cal.3d 850,

598 P2d 467 (1979) ere eeveeevee 13, 14

People v. Kaplan, 6 Cal.3d 150,

491 P.zd l (1971) eee eevee eneeeeeeeee ll

a? People v. Lanthier, 5 Cal.3d 751,

' 488 P.2d 625 (1971) wcccceceeeeeeeee 9

People v. McKinnon, 7 Cal.3d 899, 500

P.2€ 1097 (1972) .cccccccee AB, 13, 164

People v. Minjares, 24 Cal.3d 410,

591 P.2d 514 (1979) ..cccccceee 13, 14

Schneckloth v. Bustamonte,

412 Te wie 218 (1973) “ee wewee#eeee#ee#r°re*e#stt « ll

Stoner v. California,

376 U.S. 483 (1964) cccccccccsecccs o ak

United States v. Chadwick,

G33 6.6. 2 CRS77) cece Be te Be BBe aS

United States v. Rivera,

486 F.Supp. 1025, (N.D. Tex. 1980). 15

United States v. Rodriguez,

596 F.2d 169, (6th Cir. 1979) .. 9, ll

United States v. Ross, F.2d _,

No. 79-1624, (D.C. Cir. 3/31/81) .. 15

United States v. Sherwin,

539 F.2d 1 (9th Cir. 1976) cccccccce 9

Walter v. United States,

° 447 U.S. 649 (1980) . 2, 7, 10, 15, 16

In the Supreme Court of the United States

OCTOBER TERM, 1981

No.

ANTHONY PAUL RUSSO, Petitioner

Vv.

STATE OF CALIFORNIA

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DISTRICT

The petitioner ANTHONY PAUL RUSSO re-

spectfully prays that a writ of certiorari

issue to review the judgment and opinion

of the Court of Appeal of California, First

Appellate District, filed February 19, 1981.

OPINION BELOW

The opinion of the District Court of

Appeal for the State of California is in-

cluded in the Appendix to the petition.

JURISDICTION

The District Court of Appeal opinion was

filed on February 19, 1981. Hearing was

sought in the California Supreme Court

and was denied on May 18, 1981. The juris-

diction of this Court is invoked under

28 U.S.C. 1257.

QUESTION PRESENTED

Whether the warrantless unreasonable in-

vasion by a D.E.A. agent of a sender's

constitutionally protected interest in the

privacy of a fully wrapped and sealed pack-

age, consigned to a common carrier violates

the rules of Walter v. United States, 447

U.S. 649 (1980), Arkansas v. Sanders, 442

U.S. 753 (1979), United States v. Chadwick,

433 U.S. 1 (1977) and Katz v. United States,

389 U.S. 347 (1967).

CONSTITUTIONAL PROVISION INVOLVED

"The right of the people to be

secure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures,

shall not be violated, and no War-

rants shall issue, but upon probable

cause, supported by Oath or affirma-

tion, and particularly describing

the place to be searched, and the

persons or things to be seized."

Fourth Amendment to the Constitution

of the United States.

STATEMENT OF THE CASE

Petitioner RUSSO was convicted on his

plea of nolo contendere to a felony

charge of having violated California

Health & Safety Code §11379 (importation

of a controlled substance, methylenedioxy

amphetamine, "MDA"). Prior to his convic-

tion, Russo's motion to suppress pursuant

to California Penal Code §1538.5 was

denied.

Pursuant to California procedure allow-

ing review of search and seizure claims

On appeal from a plea of guilty, Russo

appealed.

The judgment of conviction was affirmed

by a California three judge District Court

of Appeal panel, one justice dissenting.

The California Supreme Court, denied a

hearing on May 18, 1981, one justice dis-

senting.

In June of 1978, a person identified as

"P. Johnson" (who is not alleged to be

Russo) left a package with the United Par-

cel Service, a common carrier, in Atlanta,

Georgia, for delivery to a location in

Illinois. (This package is referred to

as “package one". A U.P.S. “Loss Pre-

vention Supervisor", James Wilburne, acting

within the scope of his duty, slit the

package open to insert a routing slip

and noticed that the contents did not

appear to be gloves as indicated on the

shipping documents. In order to prevent

a fraudulent loss claim, Wilburne opened

the package and discovered a plastic bag

enclosing a brown powdery substance which

he suspected might be a narcotic drug.

He reported this to his supervisor who

then had Wilburne call the local office

of the United States Drug Enforcement Ad-

ministration (DEA). Wilburne spoke to DEA

Agent Tyrone Yarn. Yarn told Wilburne to

hold the package for him and that he would

come and inspect it. Wilburne then re-

inserted the bag into the package, closed

it, re-wrapped it, and put it into the

U.P.S. “evidence locker" (a term used by

the U.P.S. employee) where it remained for

two days. Wilburne learned from other

U.P.S. personnel that "Johnson" had seemed

nervous and he alerted the shipping clerks

to be watchful for Johnson and similar

packages.

On June 30, 1978, two days after pack-

age one had been left with U.P.S., "P.

Johnson" left with U.P.S. another package

which was, as package one had been, the

size and shape of a shoe box, covered

with plain brown paper, and sealed with

plastic tape. The second package was ad-

dressed to petitioner Russo at his home

in Palo Alto, California. (This package is

referred to as the “Russo package".)

A shipping clerk recognized Johnson and

followed him to his car to obtain a license

number. Wilburne opened the Russo package

and found a plastic bag containing a

brown powdery substance. He telephoned

DEA Agent Yarn with this information and

was again instructed by Yarn to hold the

package until he arrived. Wilburne then

put the bag back into the package, re-

wrapped and re-sealed the package and

put it into the “evidence locker."

Yarn arrived at U.P.S. a few hours

later. He and Wilburne removed package

one and the Russo package from the evidence

locker. Yarn instructed Wilburne to un-

seal and unwrap both packages, thus

exposing the contents to Yarn, who field

tested the powder in the packages. Yarn

did not have, nor had he sought to obtain,

a search warrant.

The packages were later shipped, at

the direction of the DEA, via U.P.S.

to their respective destinations. In

Palo Alto, the federal narcotics agents

executed a "controlled delivery” of the

Russo package.

Immediately prior to the controlled

delivery, the agents obtained a California

State Court search warrant for Russo's

residence and the package. The affidavit

upon which this search warrant was issued

was based solely on the information ob-

tained by Yarn during his warrantless

search in Atlanta of the Russo package.

After delivering the package into Russo's

home, agents waited a short time and then

entered the premises under the authority

of the search warrant. Russo had not

opened the package and the execution of

the search warrant recovered the MDA in

the Russo package.

REASONS FOR GRANTING THE WRIT

The warrantless unreasonable invasion

of the sender's constitutionally protected

interest in the privacy of a sealed and

wrapped package violates this Court's inter-

pretation of the protections of the Fourth

Amendment as set forth in Walter v.

United States, 447 U.S. 649 (1980),

Arkansas v. Sanders, 442 U.S. 753 (1979),

United States v. Chadwick, 433 U.S. l

(1977) and Katz v. United States, 389 U.S.

347 (1967). The California Court relies

upon federal constitutional principles

which are misinterpreted by that court.

Cf. Oregon v. Mathiason, 429 U.S. 492,

493 (1977).

The facts present an unreasonable inva-

sion of the sender's constitutionally pro-

tected interest in privacy. DEA Agent

Yarn's activity “...was a search; there

was no warrant; the owner had not con-

sented; and there was no exigent

circumstances." Walter v. United States,

447 U.S. 649, 654 (1980).

Petitioner does not raise any challenge

to the first opening of the Russo package -

the opening by Wilburne who then telephoned

Yarn. The focus of this petition is on the

second opening of the Russo package when

Yarn and Wilburne took the sealed package

out of the U.P.S. evidence locker and

opened it.Y/ That opening constituted a

search and it required a search warrant.

This Court has clearly stated that in

the absence of sone recognized exception

to the warrant requirement, police of-

ficers are required by the Fourth

Amendment to obtain a search warrant be-

fore opening and searching luggage,

packages, or other repositories of per-

sonal effects. Arkansas v. Sanders, 442

U.S. 753 (1979). A warrantless opening

of such an item is presumptively impermis-

Sible. Katz v. United States, 389 U.S.

347 (1967).

None of the exceptions to the warrant

requirement are in existence here:

1) There are no exigent circumstances;

2) There is no plain view; 3) There is

no consent.

The exigent circumstance exception does

not apply because by the time that Agent

Yarn arrived at the U.P.S. office, the

1 Strictly speaking, it was Wilburne, a

private individual, who opened the Russo

package on June 30, 1978. However, he

did so in the presence of and at the com-

mand of Agent Yarn, a fact which permits

the conclusion that it was Yarn who really

opened it.

Russo package was securely stored in the

U.P.S. evidence locker, safely out of the

reach of any drug trafficker. Neither

Agent Yarn nor U.P.S. entertained any be-

lief that that package and its contents

endangered anyone's personal safety.2/

Finally, the U.P.S. evidence locker as-

sured that the evidence would not be lost

or destroyed before a warrant was obtained.

United States v. Chadwick, 433 U.S., (1977).

The plain view exception does not apply

because when Agent Yarn first observed the

Russo package, its contents were not

visible: the package was closed, wrapped

and sealed. This is not a case where a

common carrier opens a package and leaves

it open so that when the police arrive they

observe the contents in plain view, obviat-

ing the necessity for a warrant. Cf.

United States v. Rodriguez, 596 F.2d 169,

(6th Cir. 1979), United States v. Sherwin,

539 F2d 1 (9th Cir. 1976). Nor is ita

¢ For example, the package did not emit

an odor. In some situtations this has

been found to be an “exigent circumstance."

See People v. Lanthier, 5 Cal. 3d 751, 488

P.2d 625 (1971).

10

case where the incriminating nature of

the contents of a package is apparent

from its appearance. The shoe box size

package, tightly wrapped in plain brown

paper and sealed signalled nothing other

than a legitimate article. Therefore,

under the test established by this Court

in Coolidge v. New Hampshire, 403 U.S.

433, 464-473 (1971), the plain view ex-

ception is inapplicable.

The fact that the Russo package pre-

viously had been opened by Wilburne prior

to Yarn's arrival does not mean that the

contents were, for Fourth Amendment pur-

poses, in plain view when Yarn arrived.

In other words, it might be argued that

the zone of privacy, already having had

been breached by U.P.S., was no longer ex-

tant when Yarn arrived and opened the

package. This argument was expressly re-

jected in Walter v. United States, 447

U.S. 649, 655-657 (1980) where this Court

held illegal warrantless viewing of motion

picture film which was found in a package

previously opened by a common carrier.

In Walter it was held that the police are

not relieved of the obligation to obtain

a warrant even though they are fully aware

ll

of the nature of the contents of a pack-

age opened by a common carrier:

"Nor does the fact that the

packages and one or more of

the boxes had been opened by

a private party before they

were acquired by the FBI ex-

cuse the failure to obtain a

search warrant." 447 U.S.

at 655.

Finally, the consent exception to the

warrant requirement does not apply be-

cause the sender2/ did not either expressly

or impliedly consent to U.P.S. exposing

to the police the contents of the Russo

package. In this situation, it is not

reasonable to conclude that the relation-

ship between the sender and U.P.S. was

such that the sender assumed the risk of

disclosure to the police. Cf. United

States v. Rodriguez, 596 F.2d, 169

(6th Cir. 1979), Schneckloth v. Bustamonte,

412 U.S. 218 (1973), Stoner v. California,

376 U.S. 483 (1964).

3 Petitioner does not admit to having

any connection with either package or

with Johnson. In California, People v.

Kaplan, 6 Cal.3d 150, 491 P.2d 1 (1971)

permits petitioner vicariously to raise

Johnson's exclusionary rights.

12

In Corngold v. United States, 367 F.2d

1 (9th Cir. 1966) the Ninth Circuit held

that a common carrier's customer implicitly

consents to an inspection of the package by

the common carrier but does not necessarily

thereby also consent to a search by the

police. In other words, the customer im-

plicitly waives his expectation of privacy

as to the common carrier only, and retains

his expectation of privacy as to everyone

else, including the police.

The California District Court of Appeal,

below, relied upon People v. McKinnon, 7

Cal.3d 899 103 CR 897, 500 P.2d 1097 (1972)

to uphold the search. McKinnon however,

expressly relies upon a pre-Chadwick

analogy between packages and automobiles

which characterizes packages as "movables"

under Chambers v. Maroney, 399 U.S. 42

(1970) and which thereby permits the war-

rantless opening of packages. This package-

automobile equation was disclaimed by

Chadwick and subsequent California cases:

4 There is no suggestion that the measure

of the consignor's expectation of privacy

is diminished in any way in this case. Cf.

Walter v. United States, 447 U.S. 649 at

n.12 (1980).

13

People v. Dalton, 24 Cal.3d 850, 598 P.2d

467 (1979) and People v. Minjares, 24

Cal.3d 410, 591 P.2d 514 (1979). Several

California appellate courts have recognized

the demise of McKinnon:

"...that portion of McKinnon hold-

ing that a police officer need not

obtain a warrant before opening a

closed container has indeed been

impliedly overruled (see, e.g.,

People v. Dalton, (1979), 24 Cal.3d

650. People v. Sapper, i601 Cal.

App.3d 301, 304 (1980).

“What remains, too, of the decision

in People v. McKinnon. . .?

"The McKinnon court sustained

the warrantless search on the ground

that the cartons were "readily

movable," relying on Chambers v.

Maroney, (1970) 399 U.S. 42 ..."

"But in Chadwick, supra, the

United States Supreme Court said,

"Nor does the footlocker's mobility

justify dispensing with the added

protections of the Warrant Clause”

once it had been reduced to the

possession of the federal agents ..."

Hopefully, the next time our high

court has the occasion to address

the question, we and the trial courts

will be given clearer guidance.

Bell v. Santa Clara

Superior Court, 101

Cal.App.3d 238, 244,

(1980) (Emphasis added.)

14

However, the majority in the court below

felt constrained to follow McKinnon be-

cause the California Supreme Court has yet

to expressly repudiate it. The dissent in

this case stated:

"The majority relies upon People

v. McKinnon (1972) 7 Cal.3d for

holding that the motion to sup-

press was properly denied. If

McKinnon were still good law, I

might be inclined to agree with

the majority, but McKinnon has

been so undermined by United

States v. Chadwick, (1977) 433

U.S. 1; Arkansas v. Sanders,

(1979) 442 U.S. 753; People v.

Minjares, (1979) 24 cal 3d 410;

and People v. Dalton, (1979) 24

Cal.3d 850 as to no longer be

authoratative. If there has been

doubt about that proposition,

it was resolved, in my view, by

Walter v. United States and

Sanders v. United States, (1980)

_U.S.__, 100 S.Ct. 2395."

[The full text of the majority

and dissenting opinions appear

in the Appendix to this petition]

The dissent in the proceedings for inter-

locutory relief expressed the same view

and the majority of that panel implicitly

stated that, for better or for worse,

15

McKinnon controlled unless and until re-

pudiated.

We do not request that this Court adopt

any new position or that it once again

delve into the seemingly endless compli-

cations>/of defining which items are, or

are not, “luggage” or “packages” for pur-

poses of the Fourth Amendment as explained

in Chadwick. Instead, the petition re-

quests that this Court continue to apply

the principles set forth in Katz, Chadwick,

Sanders, and Walter, all of which have been

succinctly stated by district court Judge

Higgenbotham:

"...-if the contents of a sealed

package or parcel are not re-

vealed by the package and you

have exclusive control with no

fear of harm from its contents

--obtain a warrant."

United States v. Rivera, 486

F.Supp. 1025, 1034 (N.D. Tex.

1980).

The record below presents a situation

where it is perfectly obvious tuaat tie

: See Footnote Three of Judge Tamm's

dissent in United States v. Ross, __

P.2d__, No. 79-1624 (D.C. Cir. 3/31/81)

at pp. 6-10.

16

agent's reason for viewing the contents

of the box and field testing the powder

contained therein was to determine wheth-

er a federal offense existed. The record

presents less justifiable arguments than

those proposed (unsuccessfully) by the

government in Walter, supra. This case

is one in which certiorari should be

granted and the judgment summarily reversed

under Walter, supra.

CONCLUSION

The writ should be granted.

Respectfully submitted,

JERROLD M. LADAR

JERROLD M. LADAR

Counsel for Petitioner

July 10, 1981

APPENDIX

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

vs.

ANTHONY PAUL RUSSO, 1 Crim. 21178

Defendant and Appellant. (Sup. Ct. No.

7841905)

/

Appellant Anthony Russo was convicted

on his plea of nolo contendere to a vio-

lation of Health and Safety Code section

11379 (importing a controlled substance,

MDA). Appellant challenges the propriety

of the court's ruling denying his motion

to suppress certain evidence.

On June 28, 1978, James Wilburn, a loss

prevention supervisor for United Parcel

Service (UPS) in Atlanta, Georgia, opened

a package sent by a "P. Johnson " and des-

tined for Columbus, Ohio. His purpose was

to insert a routing slip inside the package.

Although the outside labe. on the package

indicated the contents were gloves, Wilburn

discovered an envelope which contained a

plastic baggie holding a suspicious look-

17

ing brown powder he thought to be heroin.

Wilburn telephoned the Drug Enforcement

Administration (DEA) where he spoke with

Agent Tyrone von Yarn. After Wilburn de-

scribed what he had found inside the package,

von Yarn told him to hold the package until

the DEA could send someone to investigate.

Wilburn replaced the envelope and baggie

inside the package, resealed it, and placed

it inside an evidence locker. The DEA agent

did not suggest or imply in anything he

said that Wilburn should pursue any fur-

ther investigation. Wilburn, however, on

his own volition instructed all the receiv-

ing clerks to call his loss prevention unit

if they received any more packages addressed

in a similar manner.

On June 30, 1978, "P. Johnson" deposi-

ted a second package with UPS. This pack-

age also purported to contain gloves, and

was addressed to Palo Alto, California.

After the second package was taken to

Wilburn pursuant to his instructions,

Wilburn opened it and discovered another

envelope which contained a plastic baggie

with brown powder similar to that found

inside the Columbus package. Wilburn

called the DEA a second time and spoke

with von Yarn. Von Yarn asked Wilburn

to hold this second package with the

first. Wilburn resealed the second

package and placed it in the evidence

locker. After von Yarn arrived later

that afternoon, Wilburn removed the pack-

ages, placed them in front of von Yarn,

and removed their contents. Von Yarn

then performed a preliminary field test

and determined that the substance was

heroin. After the envelopes and baggies

were replaced inside the packages, von

Yarn directed Wilburn to have the Palo

Alto package sent to the DEA office in

San Francisco.

On July 11, 1978, a controlled de-

livery of the package was effected at

the home of appellant. A short time

later, agents of the DEA and the San

Jose Drug Task Force, acting under the

authority of a search warrant, entered

the home and seized the package. Sub-

sequent analysis of the contents of the

baggie disclosed that it was methylene-

dioxy amphetamine, also known as MDA,

not heroin as originally suspected. Ap-

pellant challenges the search by arguing

that the events in Atlanta constituted

illegal police conduct, and that since

the affidavit relied upon von Yarn's ac-

count of those events, the warrant itself

is invalid. We disagree and affirm the

judgment.

Our determination in this case is con-

trolled by the holding in People v.

McKinnon (1972) 7 Cal.3d 899. Here, as

in McKinnon, the examination of the pack-

age being shipped through United Parcel

Service was being done in the normal

course of business. The packages here

were opened to ensure that they reached

their proper destinations. Wilburn's

intrusion into the package was not as a

police agent. Such fact was implied in

the court's denial of the motion to sup-

press.

Wilburn was not hired by the police

to search for evidence of a crime, nor

did he comply with a police request to

participate in a search, nor did he search

for the benefit of police who stood

"silently by." (People v. Sapper (1980)

102 Cal.App.3d 301, 304-305.) Once

Wilburn determined that the package ap-

peared to contain contraband, he had the

duty to notify a law enforcement agency.

(See McKinnon, 7 Cal.3d at p. 914.) The

second package, the one that was ultimately

seized pursuant to the search warrant in

appellant's residence, was not opened at

the behest or suggestion of the drug en-

forcement agent. Therefore, as in the

case of the first package, the search did

not constitute state action which would

have required a search warrant. The fact

that Wilburn resealed both packages and

placed them in storage until the drug en-

forcement officer arrived, at which time

the packages were reopened, does not con-

stitute an impermissible search. (People

v. Lanthier (1971) 5 Cal.3d 751; McKinnon,

at pp. 915-916.) The court did not err in

denying appellant's motion to suppress.

Judgment is affirmed.

Scott, Acting P.J.

I concur:

Deal, J.

I dissent.

The majority relies upon People v.

McKinnon (1972) 7 Cal.3d 899 for holding

that the motion to suppress was properly

denied. If McKinnon were still good law,

I might be inclined to agree with the

majority, but McKinnon has been so under-

mined by United States v. Chadwick (1977)

433 U.S. 1; Arkansas v. Sanders (1979)

442 U.S. 753; People v. Minijares (1979)

24 Cal.3d 410; and People v. Dalton (1979)

24 Cal.3d 850 as to no longer be authori-

tative. If there has been doubt about

that proposition, it was resolved, in my

view, by Walter v. United States and

Sanders v. United States (1980) _U.S.__,

100 S.Ct. 2395.

I would hold that the opening of the

package by Wilburn in the presence of

DEA Agent von Yarn and von Yarn's field

test of the contents thereof was a search

in violation of the Fourth Amendment to

the Constitution.

Feinberg, J.