{"id":9390,"date":"2013-10-04T06:44:20","date_gmt":"2013-09-04T05:24:41","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-09-04T05:24:41","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=9390","title":{"rendered":"ND: Private shipper opened packages for LEO who unreasonably seized contents for lab test"},"content":{"rendered":"

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<\/a>, 2013 ND 155, 836 N.W.2d 405 (2013):<\/p>\n

<\/p>\n

[*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.<\/p>\n

[*P29] In State v. Garrett, 1998 ND 173, \u00b6 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)).<\/p>\n

[*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 \u00a7 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.<\/p>\n

[*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, \u00b6 15, 592 N.W.2d 579 (quoting City of Fargo v. Lee, 1998 ND 126, \u00b6 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.<\/p>\n

[*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, \u00b6\u00b6 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 \u00b6\u00b6 23-24, the inventory exception provides no justification for the warrantless seizure of the package at We Ship.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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