# Record and brief — Russo v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1032

## Text

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.

---

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