Opinion
Court of Appeals No. A-10527.
November 2, 2011.
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge, Trial Court No. 1KE-08-906 CR.
Jane B. Martinez, Attorney at Law, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Sherri Yeltatzie tried to send a package of cocaine from Ketchikan to an accomplice in Metlakatla. Airline employees opened the package and discovered seven bindles of cocaine hidden inside. Then the police discovered ten more identical bindles of cocaine in Yeltatzie's purse. She was charged with possession of cocaine with intent to deliver the bindles in the package and simple possession of the bindles in her purse. A jury convicted her of both charges and she received separate sentences for each conviction. On appeal, Yeltatzie contends that the airline employees were acting as the State's agents, and the warrantless search of her package violated her right to be free of unreasonable searches. She also argues that there was insufficient evidence to prove that the bindles in her purse contained cocaine. Lastly, she argues that the two counts should merge for sentencing purposes. For the reasons that follow, we affirm the superior court's judgment and sentence.
Background
Pacific Airways (Pac Air) is a regional airline based in Ketchikan and owned in part by Stephen Montanus. In 2008, the Metlakatla Police Department began to suspect that two women — Sherri Yeltatzie and Deana Nelson — were transporting money and drugs back and forth from Ketchikan to Metlakatla on Pac Air planes. However, because Nelson worked as Pac Air's Metlakatla station agent, the Metlakatla police were not able to conduct an investigation without arousing suspicion. The police therefore contacted Investigator John Brown of the Alaska State Troopers, Alaska Bureau of Alcohol and Drug Enforcement, for assistance. Brown contacted Montanus and told him that he was investigating possible illegal drug trafficking between Yeltatzie and Nelson. He asked Montanus to call him if he "notice[d] anything suspicious or out of the ordinary."
About a month later, Heidi Doyon, a Pac Air employee based in Ketchikan, was expecting business materials from Nelson. Doyon opened an interoffice mail envelope, believing it to be the business materials from Metlakatla. Instead, Doyon discovered cash with a note that said something like, "600 for four." Doyon then turned the envelope over and saw that it was addressed to Yeltatzie.
Doyon was not aware that Yeltatzie and Nelson were suspected of drug trafficking, nor was she aware that the Troopers offer cash rewards for information leading to drug seizures. But Doyon "immediately just thought drugs," given the suspicious note. She gave the envelope to Montanus.
Montanus could see through the perforated holes in the envelope that it contained a large sum of cash. And he knew that the envelope's addressee — Yeltatzie — was one of Brown's suspects. Montanus immediately called Brown. However, before Brown arrived, Yeltatzie appeared at the Pac Air office to pick up the envelope and drop off a package for delivery to Nelson in Metlakatla. Doyon told Yeltatzie that the envelope had accidentally been left on the plane and was therefore unavailable. Yeltatzie dropped off the package and left.
Montanus proceeded to take the package into his office and open it by himself. He testified that he did so out of "[p]ure suspicion" and not because Brown directed him to do so. Moreover, the knowledge of a potential "several hundred dollar[s]" from the Troopers' cash reward was insignificant motivation compared to his concern for Pac Air's reputation in the community.
After Montanus had opened the package, Brown came into his office and watched as Montanus removed its contents. Brown did not say anything to encourage Montanus to open the package or its contents. Inside the package was a hair care product carton, and inside the carton were bindles of what appeared to be drugs. Brown seized the package and its contents.
Before Brown departed, Yeltatzie called Pac Air and said she would be returning to pick up the package that she had just dropped off. So Brown put the drugs and the carton back in the package. Yeltatzie picked up the package and the envelope of cash, and Brown intercepted her in the parking lot as she was returning to her vehicle.
Yeltatzie initially denied that she was Sherri Yeltatzie, but when Brown pointed out that she was carrying a package with Sherri Yeltatzie's name on it, she admitted her identity. She then provided contradictory explanations about the contents of the package and envelope. Eventually Brown asked Nelson for permission to search the package and envelope, and Nelson agreed. Brown also obtained a warrant to search the package, the envelope, and Yeltatzie's car. The search revealed seven bindles of what appeared to be drugs in the hair care product carton, along with ten bindles in Yeltatzie's purse, and $600 cash in the envelope. Testing later confirmed that the bindles contained cocaine.
Yeltatzie was indicted on one count of third-degree misconduct involving a controlled substance for possessing cocaine in the package with the intent to deliver it to Nelson and one count of fourth-degree misconduct involving a controlled substance for possessing cocaine in her purse. A jury convicted her of both charges. Superior Court Judge Trevor N. Stephens imposed a sentence of three years' imprisonment with two years suspended on the third-degree misconduct conviction and a concurrent sentence of two years with all but ninety days suspended on the fourth-degree misconduct conviction. She now appeals.
AS 11.71.030(a)(1).
AS 11.71.040(a)(3)(A).
Discussion
Yeltatzie did not establish that the Pac Air employees were working as agents of the state.
A "private search" does not fall within the constitutional protections against unreasonable searches and seizures. A private search is "one that is neither instigated nor joined in by the state."
Schaffer v. State, 988 P.2d 610, 612 (Alaska App. 1999).
Id. (quoting Long v. State, 772 P.2d 1099, 1101 (Alaska App. 1989)).
A routine search of an airline passenger for safety reasons prior to boarding is a governmental search, even if conducted by private airline employees. However, an airline may have a legitimate purpose to search bags or freight, independent of the government interest in preventing smuggling or terrorism. These independent purposes may include "ensuring that airline facilities are not being used in the commission of a crime." The ultimate question "is whether, under the particular circumstances, the government so substantially instigated or insinuated itself into the private person's action that the search can no longer be deemed `private.'"
Id. at 613 n. 6 (citing United States v. Davis, 482 F.2d 893, 897 (9th Cir. 1973) (holding that the search of an airline passenger's carry-on luggage was government action because it was "part of a nationwide anti-hijacking program conceived, directed, and implemented by federal officials in cooperation with air carriers")).
Snyder v. State, 585 P.2d 229, 231 n. 2 (Alaska 1978) (quoting Note, Airport Freight and Passenger Searches: Application of Fourth Amendment Standards, 14 Wm. Mary L. Rev. 953, 961 (1973)).
Schaffer, 988 P.2d at 612.
In this case, Yeltatzie filed a pretrial motion to suppress the evidence obtained from Investigator Brown's search of the package and envelope, arguing that the Pac Air employees who first opened the package and envelope were acting as state agents. Judge Stephens conducted an evidentiary hearing and received testimony from Brown, Montanus, and Doyon. Judge Stephens denied the motion to suppress in a written order, making extensive findings of fact consistent with the testimony presented above.
Judge Stephens found that Investigator Brown had not asked Pac Air employees to open any packages. Rather, during his frequent visits to Pac Air and other businesses, Brown would simply tell employees to contact him if they encountered anything suspicious. Judge Stephens also found that the Pac Air employees were not motivated by the promise of a financial reward. Moreover, because Nelson was a Pac Air employee, and Montanus knew that she was suspected of trafficking drugs, Montanus had a particularly strong motivation to protect the company's interests. This was an independent purpose not connected to law enforcement goals.
Judge Stephens also found that the envelope containing personal cash and the suspicious note naturally led Montanus to suspect a drug transaction. This gave him reasonable suspicion to believe that the package contained a shipment of drugs. Judge Stephens concluded that the Pac Air employee searches were not state actions, so Yeltatzie's constitutional rights were not violated.
On appeal, Yeltatzie argues that Brown initiated the searches of Yeltatzie's property by providing Pac Air with Yeltatzie's and Nelson's names and repeatedly visiting the Pac Air office to see if the employees had noticed any suspicious packages. But this court accepts the trial court's findings of fact in ruling on a motion to suppress unless clearly erroneous. In this case, the judge's findings are reasonably supported by the record of the evidentiary hearing. We are not left with a "definite and firm conviction" that the trial court erred.
Chilton v. State, 611 P.2d 53, 55 (Alaska 1980).
See State v. Abbott, 498 P.2d 712, 727 (Alaska 1972).
It is possible that Brown's notification that Nelson and Yeltatzie might be running drugs might have contributed to Montanus's decision to open the package. Indeed, Montanus testified that he otherwise would never have expected Nelson to be involved in drugs. If he had not received Brown's warning, then it is possible that he would not have taken the next step of opening the package. However, this does not mean that Brown's warning necessarily turned Pac Air's searches into state actions.
In Snyder v. State, for instance, an airline employee named Terry Powledge became suspicious of two individuals who delivered packages for freight transport from Los Angeles to Anchorage. The police had advised airline employees that while the police could not open packages without a warrant, "airline employees have a right to open packages if they have reason to believe that something is wrong." Burr Snyder (the Anchorage recipient of the package) moved to suppress the drugs that Powledge discovered "on the theory that Powledge acted only to uncover drugs for police purposes rather than for the benefit of the airline and that this purpose brought his actions within the prohibitions against unreasonable searches and seizures." The Alaska Supreme Court held that this search was private and did not violate Snyder's constitutional rights:
Id.
Id.
Powledge was not hired or paid by the police, was not involved in a "joint operation" with the police and did not open the specific package at the express direction or request of law enforcement authorities. He was performing his duties as a private employee of a private company in opening the package received under circumstances reasonably arousing suspicion.
Id. at 232.
The situation in Yeltatzie's case is very similar to Snyder. The Pac Air employees were not hired by the police. They did receive a $300 reward after the investigation, but they testified that the possibility of a reward played no part in their decisions. Montanus did not open the package at the direction of Investigator Brown; indeed, Brown was not even in the room when Montanus decided to open the package. Doyon and Montanus were simply performing their roles as an employee and manager of a private company, who had discovered an envelope full of cash and a corresponding package for air delivery under suspicious circumstances. The superior court reasonably concluded that the Pac Air employees were not acting as agents of the police.
There was sufficient evidence that the bindles found in Yeltatzie's purse contained cocaine.
As explained above, the police recovered seventeen bindles from Yeltatzie. Seven were initially discovered in the hair care product carton inside the package she tried to ship to Nelson and ten more were discovered in her purse in her car. The bindles were sent to the state crime lab for testing.
At trial, forensic scientist Jack Hurd testified that the crime lab does not generally test every piece of evidence submitted by police. Rather, the lab employs a "triage method" in which they try to test evidence that has the most probative or evidentiary value. It is a way to test "representative items in order to come to a reasonable scientific conclusion without having to go to the time and expense of testing everything."
Pursuant to this policy, Hurd did not test any of the bindles seized from Yeltatzie's purse. The substance he examined from the hair care carton tested positive for cocaine. Hurd "didn't see any need to test another [bindle] of cocaine," presumably since the seventeen bindles appeared to be almost identical — wrapped in the same type of paper and seized from the same person at the same time.
Yeltatzie moved for a judgment of acquittal on the ground that the crime lab did not test the bindles from her purse. She argued that the lab did not use a representative sample, especially since the bindles were found in two discrete locations. The court denied the motion, noting that Yeltatzie controlled both her purse and the package at the same time and place, and that the packaging was similar if not identical.
Yeltatzie renews this argument on appeal. In reviewing a claim of insufficient evidence, this court views the evidence presented at trial, and all reasonable inferences arising therefrom, in the light most favorable to the State. Evidence is deemed sufficient when "reasonable jurors could conclude that the accused's guilt has been established beyond a reasonable doubt."
Silvernail v. State, 777 P.2d 1169, 1172 (Alaska App. 1989).
Id.
Yeltatzie argues that "the state must present some evidence that the substance possessed was in fact a controlled substance." She asserts that the ten bindles in her purse "were in a completely different location" from the seven bindles in the hair care product carton. And she claims that the purse bindles could have contained sham drugs or something other than cocaine. She argues that her conviction for possessing the bindles in her purse must be reversed since no evidence showed that those bindles contained cocaine.
The State presented evidence that at least one of the bindles tested positive for cocaine. And it presented circumstantial evidence that the two groups of bindles were discovered in the possession of the same woman, at the same time, and in almost the same place. They were all wrapped in the same type of paper and looked virtually identical. Based on this circumstantial evidence the jury could reasonably conclude that all seventeen bindles contained the same contents — cocaine. The seven bindles in the air delivery package and the ten bindles in Yeltatzie's purse supported separate convictions that do not merge for sentencing purposes.
See Elson v. State, 633 P.2d 292, 298-99 n. 6 (Alaska App. 1981).
Yeltatzie's final argument on appeal is that her two convictions must merge for sentencing purposes. She contends that her conviction for possessing cocaine with intent to deliver should encompass her conviction for mere possession.
In Whitton v. State, the Alaska Supreme Court established a test to determine whether the violation of two different criminal statutes during a single criminal event should be treated as a single punishable offense under the double jeopardy clause of the Alaska Constitution:
479 P.2d 302 (Alaska 1970).
The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. . . .
If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated.
Id. at 312.
We applied this test in an unpublished decision in Christensen v. State, where the defendant was charged with one count of possession with intent to deliver (for being found with one pound of cocaine in a hotel room) and one count of simple possession (for a small amount of crack cocaine found in his shirt pocket). On appeal, Christensen argued that the two counts should merge for sentencing purposes, maintaining "that the crack cocaine found in his shirt was possessed not for personal use, but as samples for the larger amount of cocaine which he intended to deliver." He argued that since both the sales sample and the larger quantity of cocaine "were integrally related to the one enterprise of delivering cocaine, the differences in conduct and intent inherent in the two separate possessions were insubstantial and insignificant."
Mem. Op. J. No. 2398, 1992 WL 12153165, at *1-2, *4 (Alaska App. Apr. 15, 1992).
Id. at *4.
Id.
This court rejected Christensen's argument, holding that "[t]he conduct underlying the possession with intent to deliver charge in this case was separate and distinct from that which constituted the simple possession count." The court further explained that the two charges required different intent requirements, with specific intent required to convict on the possession with intent to deliver charge. Accordingly, there was no double jeopardy violation.
Id.
Id.
Turning to the facts of Yeltatzie's case, it is clear that as soon as Yeltatzie parceled out the seven bindles for shipment to Metlakatla, she divided the cocaine into two separate end uses. If she had planned to keep the remaining ten bindles for her own personal consumption, then separate punishment would be warranted because the societal interest in protecting individuals from their own destructive behavior is separate and distinct from the societal interest in protecting others from the dangers of drug dealing. On the other hand, if Yeltatzie had kept the ten bindles simply because she had not yet found a buyer for them, then separate punishment would be appropriate because she intended to sell cocaine to two separate buyers.
See Stuart v. State, 698 P.2d 1218, 1223 (Alaska App. 1985) (affirming separate sentences for attempted delivery to an undercover agent and possession with intent to deliver because defendant had fifteen ounces of cocaine at his house available for sale to others).
No matter what Yeltatzie intended to do with the ten bindles in her purse, that purpose was separate from the shipment of the seven bindles to Metlakatla. The two counts therefore represent substantially separate criminal conduct and intent, and Yeltatzie can be separately punished for each count.
Conclusion
We AFFIRM the superior court's judgment and sentence.