People v. Adler 50 N.Y.2d 730

OPINION OF THE COURT

Chief Judge Cooke.

The warrantless police search and seizure of a parcel at its Kennedy Airport destination, when viewed in conjunction with a prior valid search and seizure accomplished at an airline terminal in Los Angeles and the continuity of police control throughout, was not constitutionally offensive.

Defendant was arrested at Kennedy after she retrieved a package shipped by air to her from California. The package was seized, her handbag was searched and narcotics were found in both. There followed an indictment for two counts of criminal possession of a controlled substance in the third degree, two for such possession in the seventh degree and one for unlawful possession of marihuana.

Based on allegedly improper police activity prior to her arrest, defendant sought to suppress the physical evidence found in her possession. She was successful at Criminal Term as to the bundle’s contents, but the Appellate Division modified so as to deny suppression in the entirety.1 There should be an affirmance.

At the suppression hearing, the events leading to defendant’s arrest were related by Officer David McCarthy of the Queens Narcotics Bureau. A report of the Los Angeles Police Department, dated October 21, 1977, describing the events in California was also received. Without objection, McCarthy testified that on October 21 a message was received from an agent of the Federal Drug Enforcement Administration notifying the Queens bureau of the shipment to New York of a quantity of narcotics from Los Angeles addressed to "J. Adler” on United Airlines flight No. 8 scheduled to arrive that evening. Following receipt of this message, a member of the Queens bureau contacted Los Angeles Police Officer Lott, the source of the Drug Enforcement Administration report, to *735obtain additional information about the shipment. Lott described the package in detail and recounted how the contraband was discovered. A United Airlines employee in Los Angeles, one Orr, informed Lott that an individual had delivered the package for shipment, stating that it contained a vase. The individual appeared nervous and Orr, becoming suspicious, X-rayed the package. Suspecting hazardous material, Orr opened the package and discovered a large quantity of pills. So apprised, Officer Lott proceeded to the Los Angeles airport and took custody of the package. Laboratory analysis disclosed the presence of amphetamines and barbituates. Lott thereafter inscribed his initials, a number and the date on the inside of the package and returned it to the carrier for shipment to New York.

McCarthy and two fellow officers were present at Kennedy when United flight No. 8 touched down at 8:45 p.m. No inquiries concerning the package were made by 11?30 that evening. McCarthy then opened the item and discovered a quantity of pills, which he recognized as amphetamines and barbituates, as well as the markings placed by Officer Lott. McCarthy delivered the container to the police precinct and had the drugs analyzed. United’s personnel were instructed to inform anyone making inquiries about the package that it had been lost in transit and was being traced. Following several inquiries, the consignee was told that the package could be picked up in the afternoon of October 24. That afternoon, defendant appeared at the airport to claim the package and, upon signing for the package and taking possession of it, she was arrested and searched. Found in defendant’s pocketbook were a capsule, a pill and a small quantity of marihuana.

Crediting the People’s evidence, Criminal Term concluded that the New York police had probable cause to arrest defendant and seize the package and that the initial search of it in Los Angeles was proper. However, the subsequent search in New York without a warrant, two days prior to defendant’s arrest, was held improper. Determining that probable cause to arrest existed independent of the tainted search and that the search of defendant’s pocketbook was valid as incident to a lawful arrest, Criminal Term suppressed only the evidence found in the package.

On appeal by the People pursuant to CPL 450.20 (subd 8) and 450.50, the Appellate Division agreed that the inspection of the package by the airline agent and the Los Angeles officer *736was proper. The court ruled in addition that the subsequent action of the New York police was also permissible on the theory that the New York events were simply a continuation of the lawful seizure in Los Angeles and, consequently, the motion to suppress the contents of the package was denied.

Considered as a search discrete from that in Los Angeles, the New York police action was violative of the Fourth Amendment proscription against warrantless searches. Certainly, defendant had a legitimate privacy interest in the contents of the package addressed to her (see United States v Van Leeuwen, 397 US 249). Armed with ample information to support a probable cause determination, the police undoubtedly could have obtained a warrant. At least the initial search, effected two days prior to defendant’s arrest, cannot be justified as an incident thereto (see Coolidge v New Hampshire, 403 US 443, 457; compare People v De Santis, 46 NY2d 82; United States v Garcia, 605 F2d 349). Nor is there justification in the People’s claim of exigency based on the arrival of the flight and the desire to avoid alerting the recipient. Even if such a claim were valid, the argument loses force when viewed in light of the apparent lack of concern for delay, as evidenced by the instruction simply to inform persons inquiring of the package that it had been lost and was being traced. However, assuming that the seizure of the package could be justified by some exigency existing in New York, the warrant-less search of the package following the seizure was improper. At that point, no demanding circumstances existed to justify an immediate search, for the property then was within the control of the police. And, where exigency is employed to justify a seizure but the threat of harm or of destruction of evidence has been neutralized by police dominion over the property, the Fourth Amendment mandates the intervention of a detached Magistrate and the issuance of a warrant before there occurs a further intrusion on an individual’s privacy interests (Arkansas v Sanders, 442 US 753; United States v Chadwick, 433 US 1).

While the New York warrantless search, standing alone, cannot be supported, that search must be viewed in connection with the antecedent search and seizure in Los Angeles, which, as both courts below found, was properly effected.2 It is *737well settled that a search by a private person, even an unlawful search, does not implicate Fourth Amendment considerations (People v Gleeson, 36 NY2d 462, 465; People v Horman, 22 NY2d 378, 381-382; Burdeau v McDowell, 256 US 465, 475). True, private conduct may be so imbued with governmental involvement that it loses its character as such and calls into play the full panoply of Fourth Amendment protections (see People v Esposito, 37 NY2d 156, 160; Corngold v United States, 367 F2d 1), but here there was no governmental involvement until after the private search revealed the presence of contraband. The agent’s action, taken not in furtherance of some objective of the government but on behalf of the airline, was private conduct not subject to Fourth Amendment challenge (see People v De Santis, 46 NY2d 82, supra; United States v Pryba, 502 F2d 391, 398, cert den 419 US 1127).* *3

Nor did the airline employee become an agent of the police merely by surrendering the package to Officer Lott. A citizen who discovers contraband in his private capacity does not become a police agent simply by relinquishing the suspected contraband to the authorities. Here, the existence of illicit drugs had been discovered in the course of a private search; any invasion of defendant’s privacy interests was complete at that point. No new or different search was effected by the immediate surrender to and inspection by the police officer (see United States v McDaniel, 574 F2d 1224, cert den 441 US 952; United States v Blanton, 479 F2d 327). Indeed, the Fourth Amendment simply was not implicated by the voluntary transfer of the package to the police, for no governmental seizure in the constitutional sense exists in such a situation (see United States v Sherwin, 539 F2d 1, cert den 437 US 909). The police did not go beyond the private search when they examined the contents of the package (cf. Walter v United States, 447 US —, 48 USLW 4807 [Stevens and Stewart, JJ.]).4 It is thus immaterial whether the airline agent knew or *738reasonably suspected the illicit nature of the package’s contents, or whether the package remained open when the police arrived in response to the agent’s call (see United States v Blanton, 479 F2d 327, 327-328, supra [airline employees suspected but were not sure that the object found in an attaché case was a silencer for a firearm]). This case does not involve a closed container in the constitutional sense, for the container in which the drugs were found had been opened and examined by the airline agent. The police intruded upon no privacy interest not already invaded by the private party and thus lawfully seized the evidence proffered.

Regarding the New York police conduct as a continuation of the episode in California, there is no infirmity. When the Los Angeles police took custody of the property, the package legitimately was withdrawn from the stream of transit from the sender to the addressee and was lawfully under the control of the Los Angeles Police Department. Although that department thereafter sent the package on to New York, in no sense was the property returned to the original stream of transit. Rather, described in detail and marked by the Los Angeles inspector, it continued on to New York effectively under the dominion of the authorities. That the identity of the authority exerting control changed upon arrival of the parcel does not signify a break in the police chain of dominion. There can be no meaningful distinction between the events as they occurred and a situation where a police officer accompanies the package, physically transfers the property to another officer who examines it and thereafter sees it delivered to the intended recipient. Nor does the relinquishment of physical possession to United Airlines for the flight to New York serve to break the chain, for the police exerted control over the package both before and after the flight with no other intervening events. Thus, when the New York police searched the package, there was no independent intrusion requiring a warrant, but simply a continuation of the valid search and *739seizure effected in Los Angeles (see United States v De Berry, 487 F2d 448; United States v Ford, 525 F2d 1308; McConnell v State, 595 P2d 147 [Alaska], cert den sub nom. McConnell v Alaska, 444 US 918; State v Pohle, 166 NJ Super 504, cert den 81 NJ 328).

Of course, not all searches of this nature can be so justified. The control exerted by the police after an initial search must remain effectively unbroken. If by a break the property returns to the original stream of transit, the police may not search or seize the property in the absence of independent justification cognizable under the Fourth Amendment (see United States v Edwards, 602 F2d 458, 467, n 9). The property here, however, once lawfully seized and under continuous police control, simply was permitted to come into the suspect’s hands as bait in a trap set not by the police but apparently by the suspect herself. Under the circumstances presented, there was no constitutional infirmity.

Accordingly, the order of the Appellate Division should be affirmed.

Jones, J.

(concurring). I agree that there should be an affirmance of defendant’s conviction and for the reasons stated by the majority, except that I do not concur in its treatment of the recent decision of the United States Supreme Court in Walter v United States (447 US —, 48 USLW 4807).

I cannot subscribe to the implication in the majority opinion (pp 737-738, n 4, and associated text) apparently distinguishing Walter on the ground that there is an analytical difference, for purposes of application of the constitutional provisions prescribing the right of the people to be secure against unreasonable searches, between a verification of the contents of the labeled boxes of film in that case by projection of the films and a verification of the contents of the pills in this case by chemical testing. If the position stated in the opinions of Mr. Justice Stevens and Mr. Justice Stewart were taken to be a statement of the present law, I would conclude that there should be a reversal in this case.

With members of the Supreme Court divided as they were in Walter, however, both as to result and as to predicate rationale, I do not know whether Walter should be deemed to control our disposition in this case. Accordingly, with greatest respect, for that reason I am constrained to conclude that we *740should determine that the decision in Walter does not govern this appeal.

Meyer, J.

(dissenting in part). Respectfully I dissent from so much of the Appellate Division’s order as modified Criminal Term’s suppression of the contents of the package. The majority concedes, and I agree, that considered separately from the Los Angeles seizure, the action of the New York police constituted an unlawful search. I agree also that a search by a private person is not within the constraints of the Fourth Amendment, so long as that person acts in his own interest and not as an agent or in the interest of the government, and that the fact that an airline tariff provision permits an airline employee to open a package shipped air freight is not, by itself, sufficient to constitute government involvement in the opening of a package by an airline employee (see, generally, Ringel, Searches and Seizures, Arrests and Confessions [2d ed], §§ 2.3, 16.2; Admissibility, in Criminal Case, of Evidence Obtained By Search By Private Individual, Ann., 36 ALR3d [supp, § 6.5]). Moreover, I concede that there is nothing evil per se in co-operation between an airline aware that it has possession of contraband and the police of the area in which the discovery is made or between law enforcement personnel (State or Federal) of that area and their counterparts in the area of destination. Contraband validly seized at the point of shipment does not lose its police custody status because it is returned to the airline for transportation or until such time as it leaves police-airline custody (as, for example, by delivery to the recipient, United States v Edwards, 602 F2d 458). Absent such a break in custody, therefore, arrest of the recipient at the point of destination when he seeks to take possession of the package, suitcase, footlocker or similar container in which the contraband was shipped will generally be proper and "seizure” of the contraband at that point, because it is but the continuation of the earlier valid seizure, need not be otherwise justified.

Having said all of that I nevertheless cannot accept the conclusion of the majority that the evidence here presented demonstrates the validity of the Los Angeles search or permits the inferences (necessary to the result it reaches) that the majority draws. I am troubled also, apart from the insufficiency of the evidence, by its evident unreliability.

Warrantless searches or seizures are, as we held in People v Hodge (44 NY2d 553, 557), presumptively unreasonable per se *741and it is the People who have the burden of overcoming that presumption (id.; Coolidge v New Hampshire, 403 US 443, 455; People v Wise, 46 NY2d 321, 329; cf. People v Di Stefano, 38 NY2d 640, 652).1 It was, therefore, the People’s burden to show that the Los Angeles handling of the parcel, upon which the majority relies, was proper (see United States v Ford, 525 F2d 1308, 1313). The majority’s holding that the warrantless Los Angeles seizure was constitutionally proper rests upon its legal conclusion that there was "no governmental seizure in the constitutional sense” in the handling of the package by the Los Angeles police after receipt of it from airlines agent Orr (p 737), and its inferences that "the private search revealed the presence of contraband” (p 737) and that the airlines agent’s action was not taken in furtherance of some governmental objective (p 737). The legal conclusion is irrelevant because it is the propriety of the search not whether there was a seizure that governs. Nor are the majority’s factual inferences warranted.

The legal conclusion must be viewed in light of the Supreme Court’s June 20, 1980 decision in Walter v United States (447 US —, 48 USLW 4807). There a package of obscene film was misdelivered by the carrier to a company with a name similar to that of the consignee. Having opened the cartons and believing from the labels and suggestive drawings on the individual boxes of film contained in them that they contained obscene film, but being unable because of the size of the film to determine the actual content of the film without a projector, the recipient called an FBI agent, who picked them up and, thereafter, without obtaining a warrant, viewed the films with a projector.

Defendant’s motion to suppress was denied and the Fifth Circuit Court of Appeals by a divided court affirmed. The Supreme Court reversed, the majority concluding that there was in the FBI’s viewing of the film "an unreasonable invasion of their owner’s constitutionally protected interest in privacy” (447 US —, —, —, 48 USLW 4807, 4808, 4811, supra). The court split 5 to 4, with Mr. Justice Marshall concurring in the judgment without stating his reason for so doing, Justices Stevens and Stewart joining in an opinion holding that, assuming there was no seizure there was nevertheless an *742improper search, and Justices White and Brennan taking the view that even if the recipient had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for its subsequent screening of them. The Stevens opinion pointed out that an officer’s authority to possess a package is distinct from his authority to examine its contents, that the Government may not exceed the scope of the private search unless it has the right to make an independent search, and that the opening of the cartons by a third party "does not alter the consignor’s legitimate expectation of privacy. The private search merely frustrated that expectation in part. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection.” It concluded that "[sjince the additional search conducted by the FBI — the screening of the films — was not supported by any justification, it violated that Amendment” (447 US, at p —, 48 USLW, at p 4810).2 The White opinion agreed that the warrantless projection of the films constituted a search despite the fact that the Government had acquired the films from a private party, stating flatly that "The notion that private searches insulate from Fourth Amendment scrutiny subsequent governmental searches of the same or lesser scope is inconsistent with traditional Fourth Amendment principles” (id.).

While there were prior to the Walter decision cases holding it immaterial whether a package was open or closed when the private searcher turned it over to the police officer (People v McKinnon, 7 Cal 3d 899, 915-916; United States v Pryba, 502 F2d 391, 401; United States v Blanton, 479 F2d 327, 328-329), the authority of those cases is now seriously in question.3 *743Moreover, there were as many if not more cases holding or implying that the circumstances attending the officer’s possession of the property bear materially on the constitutionality of his search of it, including several on which the majority rely. Thus, McConnell v State (595 P2d 147 [Alaska], cert den sub nom. McConnell v Alaska, 444 US 918) held no more than that "law enforcement officials must come into lawful possession of the contraband. Seizure of contraband after it is observed in plain view is one method of acquiring lawful possession” (595 P2d, at p 154; emphasis supplied).* **4 The decision in State v Pohle (166 NJ Super 504, cert den 81 NJ 328) may be read as indicating that the contents were removed from the package before both were turned over to the police (see NJ Super, at pp 507, 513) and possibly that the airline employee was able to identify (cf. 166 NJ Super, at p 513) the contraband (described simply as "about 500 tablets, and a bundle of bills totaling $5,000”, see 166 NJ Super, at p 507) before turning it over to the police. In United States v Ford (525 F2d 1308, 1312, supra) the court noted that it was "the duty of the officers to further investigate the open box * * * to determine whether the suspicious substance in plain view was in fact contraband.” Thus, whether viewed in light of the Walter holding or the prior case law on which the majority rely, the warrantless search by the Los Angeles police was improper, unless airlines agent Orr in fact identified what the pills were, or there was an exigency justifying search without a warrant.

There is nothing to show that Orr had any basis for concluding that the pills he found were not wholly innocuous. The majority’s finding that "the private search revealed the presence of contraband” is a quantum leap from the evidence presented by New York Police Officer McCarthy, the only witness presented. He testified that he identified the pills as amphetamines and barbituates from the markings of the capsules and his knowledge of the Physician’s Desk Reference *744concerning the meaning of those markings, but as to the Los Angeles events he could only testify that Los Angeles Detective Lott told him that airline employee Orr "suspected narcotics” when he opened the package and found pills. What an airline employee observes cannot be equated with the observations of a police detective who has become an expert through long work in the narcotics field. To say that the airline employee’s observations "revealed the presence of contraband” is, therefore, to allow a warrantless seizure on nothing more than the airline employee’s suspicion (see United States v Haes, 551 F2d 767, 771; cf. United States v Rodriguez, 596 F2d 169, 174; but see People v De Santis, 46 NY2d 82, 86). Yet if one thing is clear in Fourth Amendment law it is that the major purpose of the amendment was to forestall search or seizure based solely on rumor or suspicion.

Nor can Los Angeles Officer Lott’s search be justified on the theory of exigent circumstances. The People argue that the package had been turned over to the airline for shipment on a particular flight. There is, however, nothing in the record to establish that the shipper instructed or requested that a particular flight be used. The Los Angeles police report in evidence shows only that at 9:20 a.m. a man "brought a pkg. to the United Airline ticket counter to be sent to Little Neck, N.Y.” and that it was, in fact, "sent on United flight #8 to JFK Airport LAX (1200 hours), arrival at JFK (2015 hours).” The People also contend, based on United States v Ford (525 F2d 1308, supra), that exigency can be found in the possibility that failure to ship the contraband promptly may have alerted the New York consignee (defendant) and thus frustrated the investigation and arrest process. The contention overlooks the airline tariff provision (referred to in People v McGrew, 1 Cal 3d 404, 410, cert den 398 US 909; and People v McKinnon, 7 Cal 3d 899, 906, cert den 411 US 931, supra) permitting shipment on a "space available” basis, a possibility which it is essential for the People to negate in the first instance if the presumption against validity of a warrantless seizure is to retain any meaning.

The majority disposes of any agency issue by stating (p 737) that the airline employee’s action was "taken not in furtherance of some objective of the government but on behalf of the airline”. While there is nothing in the record to show that United Airlines employee Orr had been previously known to Los Angeles Police Investigator Lott, there also is nothing *745to show that he had not acted in many prior instances in the same capacity or that he was not acting in this particular instance at Lott’s request. To overcome the presumption the People had to show not only that Orr could have (or even did) have an airline motive for opening the package, but also that he was not acting at the instigation or behest of the Los Angeles police, whether as to the instant case or as a matter of general arrangement between them.5 The issue is, however, nowhere touched upon in the exhibits or in the direct testimony. The only reference to agency was defendant’s attorney’s rather poignant question on cross-examination to McCarthy: "Did anyone inquire as to whether or not Mr. Orr had been requested by the law enforcement agencies in Los Angeles to look for such packages or to disclose to them that he had suspicious packages?” To that question McCarthy responded only "I don’t know.”

That response vividly illustrates the all but impossible burden on the defendant when the presumption of invalidity of a warrantless search is permitted to be overcome by evidence of the type here offered. Defendant’s memorandum after the suppression hearing protested the type of information supplied to the New York police by the Los Angeles police. Notwithstanding the fact that CPL 710.60 (subd 4) makes hearsay "admissible to establish any material fact” in a suppression hearing, we have had occasion to comment on the necessity of the People producing a particular officer as a witness because of the danger of relying upon a "tenuously balanced * * * pyramid of hearsay” (People v Havelka, 45 NY2d 636, 641). Here, as noted, the sole witness at the suppression hearing was New York Police Officer McCarthy. He testified that the Queens Narcotics area office received a telephone message from Drug Enforcement Agency Officer Perori at Kennedy Airport that Investigator Lott of the Los *746Angeles police had alerted Perori to the parcel and that another officer of Queens Narcotics, probably Detective Rabacki, then telephoned Lott, who told that officer what airline employee Orr had said and done. Thus, McCarthy’s testimony about Orr’s acts is at least fourth-hand hearsay. Had Orr or Lott been produced as suppression hearing witnesses, the gaps in the evidence would not have existed.

Whether, notwithstanding the admissibility of hearsay at suppression hearings, fourth-hand hearsay is so unreliable that its use presents a due process problem it is not necessary now to decide. Clearly, the People have not come forward with proof sufficient to overcome the presumption. When to that fact is added the essential unreliability of the evidence they have produced, I have no hesitancy in applying the exclusionary rule to suppress the contraband.

For the foregoing reasons, I would hold both the New York seizure and the Los Angeles search in violation of defendant’s constitutional rights and would, therefore, modify the order of the Appellate Division and reinstate the order suppressing the contents of the package (People v Havelka, 45 NY2d 636, 643-644, supra).

Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur with Chief Judge Cooke; Judge Jones concurs in a separate opinion; Judge Meyer dissents in part and votes to modify in an opinion.

Order affirmed.