Tracy Linn Hurley v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Frank and Humphreys
Argued by teleconference
TRACY LINN HURLEY
OPINION BY
v. 	Record No. 2159-00-1 	JUDGE ROBERT J. HUMPHREYS
JULY 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Joseph A. Leafe, Judge
John D. Hooker, Jr. (Hooker & Migliozzi,
P.C., on brief), for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Tracy Linn Hurley appeals her conviction, after a bench
trial, of conspiracy to distribute marijuana. 	Hurley contends the
trial court erred in denying her motion to suppress the evidence
against her, which she alleged was seized in violation of her
Fourth Amendment rights.
I. 	Background
On January 11, 2000, Officers Maurice S. Joseph and Steven D.
Stevens were conducting routine parcel interdiction at Federal
Express in Norfolk, Virginia. 	The officers stood at the conveyor
belts with Federal Express employees observing the packages as
they were placed on the conveyor belt from the freight cans in
which they arrived at the station. 	The officers watched for

packages that met certain criteria. 	Specifically, the officers
were looking for packages coming from certain drug source cities,
packages of an unusual size and weight, or packages with unusual
wrapping and/or address labeling. 	Officer Joseph, who was a
trained member of the Norfolk Vice and Narcotics Division since at
least 1993, eventually pulled approximately ten to twenty
suspicious packages from the conveyor belt and placed them on the
floor near the belt. 	One of the packages that the officers
regarded as suspicious was a "real large" box, with an "unusual
weight," sent by priority overnight delivery from Hong Kong
International Tailors, Albuquerque, New Mexico to W.R. Barker,
Hong Kong International Tailors at 410 Briar Hill Road, Suite 105,
Norfolk, Virginia. 	The mailing label on the box was handwritten.
Within minutes of placing the box on the floor with the
others, officers brought a drug detection dog past the boxes and
the dog alerted on the box addressed to Barker. 	Officer Joseph
"took the box and signed for it from Federal Express." 	Stevens
obtained a search warrant for the box and the officers "brought
the box with [them] here to the court where [they] executed the
search warrant." 	Inside the box, they found "aluminum foil
around big bundles that were Saran Wrapped." 	Officer Joseph
"cut into the bundles with [his] knife," and observed "masking
agents that looked like detergent or some type of bleach
detergent and . . . dryer sheets [, as well as] multiple wraps
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of Saran Wrap." 	A field test revealed that the substance inside
the bundles was marijuana.
The officers resealed the box and assembled a team to
facilitate a controlled delivery of the package. 	When the team
arrived at Hong Kong Tailors, they found that it was closed.
Steven Charles Thomas, an employee with the radio station
located next to the tailor shop, signed for the box. 	Shortly
thereafter, Officer Joseph identified himself to Thomas, read
him his rights, and explained the situation to him. 	Thomas left
a message on the Hong Kong Tailors' answering machine and told
them the package was at the radio station and that they could
pick it up at any time. 	The officers then took the box for the
evening and secured it in their "evidence room."
Early the next day, the radio station manager called the
police team to let them know that "somebody was going to come
and get the box." 	The team assembled again and delivered the
box to the radio station. 	They observed as Hurley, an employee
with the tailor shop, entered the radio station. 	After a brief
conversation, Thomas carried the heavy box to the tailor shop
for Hurley. 	Hurley then opened the trunk of her car, went into
the tailor shop, picked up the box and put it into her trunk.
At that point, Hurley was arrested and advised of her
Miranda rights. 	Hurley consented to have her car, house and
business searched. 	Hurley later informed police that she had
contacted "Anthony," a former employee with the shop, whom she
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knew the box to belong to. 	Anthony told her not to open the box
but to deliver it to a shopping center parking lot, put the box
next to an older model red Firebird, and leave. 	Anthony told
her he would pay her $100 for doing so. 	Hurley admitted to
police that she thought the package contained "pot." 	Hurley was
charged with possession with intent to distribute more than five
pounds of marijuana, and conspiracy to distribute more than five
pounds of marijuana.
At the beginning of trial, Hurley moved to suppress the
evidence against her, contending that the officers improperly
seized the box in violation of her Fourth Amendment rights. 	The
Commonwealth contended that Hurley lacked standing to assert
such a claim, and, in the alternative, that the officers acted
properly. 	After taking evidence on the issue, the trial court
held that Hurley had standing to assert a privacy interest in
the box. 	However, the trial court denied the motion to
suppress, finding that "there [was] no problem with lifting the
box off and setting it on the floor to be examined by the drug
dog."
At the close of the Commonwealth's evidence, Hurley moved
to strike, contending that the chain of evidence was tainted and
that the evidence was insufficient to support the charges. 	The
trial court overruled the motions but ultimately dismissed the
charge of possession with intent to distribute, finding the
evidence insufficient on that charge.
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II. 	Analysis
We consider the evidence and all reasonable
inferences fairly deducible therefrom in the
light most favorable to the Commonwealth,
the prevailing party at trial. 	We apply the
same standard when, as here, we review the
trial court's denial of the defendant's
motion to suppress the evidence. 	However,
determinations of reasonable suspicion in
the context of a Fourth Amendment challenge
involve questions of both law and fact and
consequently are to be reviewed de novo on
appeal. 	In performing such a review we give
deference to the factual determinations
established in the record and independently
determine whether under the established law
those facts satisfy the constitutional
standard.
Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000)
(citations omitted).
Hurley correctly asserts that "[t]he Fourth Amendment
protects the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures." 	United States v. Place, 462 U.S. 696, 700-01 (1983).1
"Sealed packages are, [thus], entitled to Fourth Amendment
protection against warrantless searches and seizures, just as
1 The issue of whether Hurley possessed the requisite
standing to assert a Fourth Amendment claim with respect to the
box is not before us. 	See United States v. Givens, 733 F.2d
339, 341 (4th Cir. 1984) ("It is firmly established that Fourth
Amendment rights are personal and may not be vicariously
asserted, and that the exclusionary rule's benefits run only to
those whose Fourth Amendment rights have been violated. 	To
claim the protection of the Fourth Amendment, a defendant must
have 'a legitimate expectation of privacy in the invaded
place.'").
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any other private area." 	United States v. Givens, 733 F.2d 339,
341 (4th Cir. 1984).
The United States Supreme Court has opined that
[a]lthough in the context of personal
property, and particularly containers [or
sealed packages], the Fourth Amendment
challenge is typically to the subsequent
search of the container rather than to its
initial seizure by the authorities, our
cases reveal some general principles
regarding seizures. 	In the ordinary case,
the Court has viewed a seizure of personal
property as per se unreasonable within the
meaning of the Fourth Amendment unless it is
accomplished pursuant to a judicial warrant
issued upon probable cause and particularly
describing the items to be seized. 	Where
law enforcement authorities have probable
cause to believe that a container holds
contraband or evidence of a crime, but have
not secured a warrant, the Court has
interpreted the Amendment to permit seizure
of the property, pending issuance of a
warrant to examine its contents, if the
exigencies of the circumstances demand it or
some other recognized exception to the
warrant requirement is present.
Place, 462 U.S. at 700-01. 	"A 'seizure' of property occurs when
there is some meaningful interference with an individual's
possessory interests in that property." 	United States v.
Jacobsen, 466 U.S. 109, 113 (1984).
When the wrapped parcel involved in this case was delivered
to Federal Express, its contents were unquestionably subject to
protection by the Fourth Amendment. 	However, a party has no
reasonable expectation of privacy in the size, weight or other
exterior characteristics of a package or parcel placed into the
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stream of commerce. 	See United States v. Van Leeuwen, 397 U.S.
249, 251 (1970) (citing Ex Parte Jackson, 96 U.S. 727, 733
(1878)). 	Furthermore, the United States Supreme Court has held
that "[s]ome brief detentions of personal effects may be so
minimally intrusive of Fourth Amendment interests that strong
countervailing governmental interests will justify a seizure
based only on specific articulable facts that the property
contains contraband or evidence of a crime." 	Place, 462 U.S. at
706.
Here, the officers confined their investigation of the
package to what was, in effect, an on-the-spot inquiry and a
relatively immediate exposure to a trained narcotics detection
dog. 	Given the observation by trained narcotics officers of
several suspicious characteristics, such as the place of origin
of the package, the size and weight of the package, the method
of mailing, as well as the handwritten label addressed to and
from a business, we find that the officers had a reasonable,
articulable suspicion to briefly seize the item for purposes of
further investigation, in order to confirm or dispel their
suspicions.
As the United States Supreme Court stated in Van Leeuwen,
[t]he "protective search for weapons" of a
suspect which the Court approved in Terry v.
Ohio, 392 U.S. 1, 20-27 [(1968),] even when
probable cause for an arrest did not exist,
went further than we need to go here. 	The
only thing done here on the basis of
suspicion was detention of the [package].
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There was at that point no possible invasion
of the right "to be secure" in the "persons,
houses, papers, and effects" protected by
the Fourth Amendment against "unreasonable
searches and seizures" . . . for [the]
investigation was certainly not excessive;
and at the end of that time probable cause
existed for believing that the [package] was
part of an illicit project."
397 U.S. at 252.
Accordingly, based upon the totality of the circumstances
and balanced against the de minimus nature of the detention, we
find that the trial court correctly denied Hurley's motion to
suppress the results of the search of the box. 	Therefore, we
affirm the judgment of the trial court.
Affirmed.
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