A private shipping company, We Ship, in Mandan, ND affiliated with UPS had a company policy allowing employees to open suspicious packages. Here, the employee invited the police to come and look. The opening was still a private search, but it could not be said that the contents were legitimately in plain view. Also, seizure of the contents for a lab test was unreasonable. It turned out to be synthetic drugs, JWH-122. State v. Nickel, 2013 ND 155, 836 N.W.2d 405 (2013):
[*P28] Assuming without deciding the law enforcement officers had probable cause immediately after Danielson opened the package at We Ship and stepped aside to permit the officers to look into the package, we conclude plain view does not justify the warrantless seizure of the package for testing of the contents of one plastic tube at the state crime lab and the warrantless seizure of the rest of the contents of the package for transport to the Bismarck law enforcement center.
[*P29] In State v. Garrett, 1998 ND 173, ¶ 16, 584 N.W.2d 502 (quoting Coolidge, 403 U.S. at 465), we said that “[p]lain view alone, however, is never enough to justify the warrantless search or seizure of evidence [and] … ‘no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.”‘” We explained that officers with plain view of contraband which gives rise to probable cause are not immunized from the rule that a “‘warrantless search and seizure is unreasonable unless it falls within one of the exceptions to the constitutional requirement that a search be conducted pursuant to a valid search warrant.'” Id. (quoting State v. Koskela, 329 N.W.2d 587, 591 (N.D. 1983)).
[*P30] In Horton v. California, 496 U.S. 128, 133-37, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990), the United States Supreme Court distinguished plain view for searches and for seizures and discussed plain view in the context of seizures. See also 1 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 2.2(a) (5th ed. 2012). The Horton Court described essential predicates for a valid warrantless seizure of evidence, stating an officer must not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, the object must not only be in plain view, its incriminating character also must be immediately apparent, and the officer also must have a lawful right of access to the object itself. 496 U.S. at 136-37.
[*P31] Agent Miller testified at the suppression hearing he “had no idea what the plant material was” in the package or whether it was a controlled substance, because there was no way to tell by visual observation. The district court found that “[b]elieving that the plant material may be a controlled substance, Miller removed a single tube” and took it to the state crime lab for testing. The court also said Agent Miller “thought the plant material might be a controlled substance.” This record does not establish the immediate incriminating character of the seized evidence, and the State has cited no exigent circumstances justifying the warrantless seizure of the package at We Ship. In DeCoteau, 1999 ND 77, ¶ 15, 592 N.W.2d 579 (quoting City of Fargo v. Lee, 1998 ND 126, ¶ 10, 580 N.W.2d 580), we said “exigent circumstances ‘has been defined as an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.'” Here Agent Miller testified the officers “could have applied for a warrant, … but … didn’t.” The facts in this case do not rise to the level of exigent circumstances justifying the warrantless seizure of the package at We Ship, and we conclude the district court erred in relying on plain view or exigent circumstances to justify the warrantless seizure of the package at We Ship.
[*P32] To the extent the law enforcement officers inventoried the package at We Ship without obtaining a warrant, the officers’ actions were in the midst of a criminal investigation, and there is no evidence the officers were protecting or safeguarding their interests or the property owners’ interests. See Ressler, 2005 ND 140, ¶¶ 23-24, 701 N.W.2d 915 (rejecting claim of exception to warrant requirement for inventory search made during midst of investigation and not for purpose of protecting or safeguarding officer’s interests or owner’s property interests). As in Ressler, at ¶¶ 23-24, the inventory exception provides no justification for the warrantless seizure of the package at We Ship.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
