United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
C. KAY SR. UNITED STATES DISTRICT JUDGE.
reasons set forth below, the Court DENIES Defendant
Notyce's Motion to Suppress Evidence, ECF No. 92.
William Notyce ("Defendant") is charged with two
drug trafficking crimes related to the distribution of
controlled narcotics in August 2016. The U.S. Postal
Inspector ("USPI"), the Honolulu Police Department
("HPD"), and the Drug Enforcement Agency
("DEA") jointly conducted the investigation that
led to Defendant's arrest.
September 7, 2016, Defendant was indicted by a grant jury on
two counts: (1) knowingly and intentionally conspiring to
distribute and to possess with intent to distribute 500 grams
or more of mixture or substance containing a detectable
amount of methamphetamine, its salts, isomers, and salts of
its isomers, a Schedule II controlled substance, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count
1); and (2) knowingly and intentionally distributing,
possessing with intent to distribute, and attempt to possess
with intent to distribute, 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine,
its salts, isomers, and salts of its isomers, a Schedule II
controlled substance, in violation of 21 U.S.C. §§
841(a) (1) and 841(b)(1)(A) and 18 U.S.C. § 2 (Count
A jury trial is scheduled for November 28, 2017.
August 3, 2017, Defendant Notyce filed his Motion to Suppress
Evidence ("Defendant Motion"). ECF No. 92. On
August 21, 2017, the Government filed its Response to
Defendant's Motion to Suppress. ECF No. 105. On October
23, 2017, Defendant Notyce filed a Notice of Partial
Withdrawal of Motion to Suppress, withdrawing the motion to
suppress evidence related to Exhibit 2 (the parcel search
warrant) and Exhibit 3 (the beeper warrant). ECF No. 118. On
October 26, 2017, the parties filed a stipulation of facts
for purposes of the hearing on the suppression motion. ECF
No. 131. An evidentiary hearing on the suppression motion was
held on October 27, 2017.
August 2, 2016, the United States Postal Inspection Service
was conducting an inbound profiling operation at the Honolulu
Mail Processing and Distribution Center. Stipulation, ECF No.
131 ("Stip.") ¶ 1. A United States Postal
Inspector ("USPI") examined a parcel, weighing
approximately six pounds and six ounces, which had been
mailed from California to a post office box in Honolulu.
Id. ¶¶ 2-3. A USPI observed several
characteristics of the parcel that his training and
experience showed him were characteristics of mailings
containing controlled substances, including, inter
alia, where the parcel was sent from, the use of tape
around the main seam, and other densely packed items inside
the parcel which were revealed when he shook it. Id.
In addition, the USPI searched the sender and addressee
information of the parcel through known law enforcement
databases and found that the name on the return address was
not associated with the address listed. Id. ¶
3. The parcel was identified as potentially containing
illegal substances and the postal inspector prepared an
affidavit at approximately 8:15 p.m. on August 2, 2016.
Id. ¶ 1.
approximately 8:36 p.m. on August 2, 2016, the parcel was
sniffed by the HPD's narcotics detector canine.
Id. ¶ 4. The canine exhibited a change in
behavior consistent with the detection of a controlled
substance's odor. Id. Thereafter, an application
for a search warrant for the parcel was prepared.
approximately 1:50 p.m. on August 3, 2016, a search warrant
for the parcel was issued. Id. ¶ 5. At
approximately 3:00 p.m. on that same date, the parcel was
searched and a large quantity of methamphetamine was found in
the parcel. Id. ¶ 6. Thereafter, an application
for a warrant authorizing the use of a tracking and beeper
device was prepared, and the warrant was issued at
approximately 9:40 a.m. on August 4, 2016. Id.
methamphetamine inside the parcel was replaced with
pseudo-methamphetamine and a beeper and tracking device were
installed inside the parcel. Id. ¶ 8. The
parcel was also dusted with "Sirchie" powder on the
inside, which becomes visible when exposed to ultraviolet
Rodrigues, a USPI, acting in an undercover capacity as a
United States Postal Service ("USPS") employee,
testified that on August 4, 2016, he delivered the parcel
containing pseudo-methamphetamine to the post office box that
the parcel was addressed to in Honolulu. The parcel was too
large to fit into the post office box. Consistent with USPS
procedures, USPI Rodrigues testified that he placed a pick-up
notice in the post office box. Later that day, DEA officers
surveilling the area observed a black BMW park in the rear
parking lot. USPI Rodrigues testified that on August 5, 2016
he viewed surveillance footage from the post office on August
4, 2016 and identified Defendant William Notyce as the person
who entered the post office and checked the post office box.
USPI Rodrigues testified that Defendant Notyce opened the
post office box and saw the slip but did not pick up the
parcel. Officer Echiberi testified that from a parked car
outside the post office, he saw Defendant Notyce's face
inside his car as he drove away from the post office.
approximately 10:10 a.m. on August 5, 2016, Keith Matsuda
("Defendant Matsuda") picked up the parcel at the
post office. Stip. ¶ 10. In the parking lot, Matsuda
delivered the parcel to an unknown male who then passed the
parcel to another man, later identified as Chaes Yanagihara
("Defendant Yanagihara"). Id. ¶ 11.
HPD drug task force officer Kyle Echiberi testified at the
hearing that law enforcement conducted surveillance of the
subject parcel from the post office parking lot to a secured
parking lot at 1655 Makaloa Street ("Kapiolani
Manor"). See Defendant Exhibit 1 at 000048.
approximately 10:48 a.m. on August 5, 2016, the beeper within
the parcel went off, indicating that the parcel was opened.
Id. ¶ 13. Law enforcement officers entered
Kapiolani Manor's secured parking structure. Id.
¶ 14. While on the parking structure's third floor,
they observed Defendant Notyce walking through the lot toward
his car. Id. Law enforcement officers then gave
Defendant Notyce verbal commands for him to get on the ground
face down, which Defendant Notyce complied without incident.
Officer Echiberi testified at the hearing that he and one
other officer then placed Defendant Notyce in handcuffs,
patted him down for the officers' safety, and found a
large amount of U.S. currency, a key ring with one house key,
a key fob, an electronic garage key, and a BMW key fob. The
keys found in Defendant Notyce's possession were later
discovered to belong to Apartment #608 of Kapiolani Manor.
Notyce was notified that he was being detained and was
advised of his Miranda rights. Defendant Exhibit 1
at 000049. Defendant Notyce waived those rights and stated
that he wanted to cooperate with law enforcement.
Id. After speaking with Defendant Notyce for a few
minutes, Officer Echiberi testified that the officers used an
ultraviolet light to check for signs of the
"Sirchie" powder that was inside the parcel.
According to Officer Bugarin, the officers first placed
Defendant Notyce inside her vehicle to use the ultraviolet
light. Because it was too light in that location, they moved
Defendant Notyce to a darker location in the garage. There,
the officers found traces of the Sirchie powder on his hands
while using the ultraviolet light. Defendant Notyce was then
that same time on August 5, 2016, DEA special agent William
Dituro testified at the hearing that he was informed that the
car that drove from the post office to Kapiolani Manor was
parked in a spot associated with an apartment on the sixth
floor. He also testified that he then went up to the sixth
floor and through a monitor he could determine that there was
a good possibility that the beeper and tracking device were
located there. Agent Dituro testified that he then went back
downstairs to the security office and that he was informed by
the security officer that Defendant Notyce's BMW was
parked in the stall that was assigned to Apartment
#608.While reviewing surveillance footage via a
closed circuit camera system, Agent Dituro testified that he
discovered that Defendant Yanagihara had walked from the
vehicle with the parcel and went to the elevator and
proceeded to the sixth floor. He also was informed that it
appeared that somebody had broken into Apartment #508.
that same time on that same date, Officer Echiberi testified
that he and two other members of law enforcement knocked on
the door of Apartment #608 and announced "Police, open
the door" approximately four times. Hearing no response,
they checked the door, which was unlocked. Because Apartment
#508 which is directly below Apartment #608 had been
burglarized, officers opened the door to check on the status
of the apartment and safety of any occupants. The testimony
at the hearing was not clear regarding whether the officers
knew that the security officer at Kapiolani Manor had
informed Agent Dituro that Defendant Notyce's BMW was
parked in the stall that was assigned to Apartment #608 when
they entered Apartment #608. Upon opening the door, officers
were able to observe the contents of the subject parcel on a
table in the kitchen along with the parcel box on the ground.
Defendant Exhibit 1 at 000051. At the hearing, Officer
Echiberi testified that he also observed a TV on the floor,
an inflatable bed, and a bathroom with towels hanging inside
the apartment. On cross examination, Officer Echiberi also
testified that he did not see safes near the bed. The
officers confirmed that there were no occupants in the
approximately 5:15 p.m. on August 5, 2016, a search warrant
for Apartment #608 and the BMW at Kapiolani Manor was
granted. Stip. ¶ 19. A warrant search was conducted and
resulted in the seizure of evidence, including some
methamphetamine and other drugs and approximately $552, 000
in U.S. currency. Defendant Exhibit 1 at 000053.
approximately 1:40 p.m. on August 10, 2016, law enforcement
officers obtained a warrant to search Defendant Notyce's
residence at 1039 Hilala Street in Honolulu, Hawaii. The
search warrant was executed and an undisclosed amount of U.S.
currency, electronic equipment, and documents were seized.
Defendant Exhibit 5.
Notyce appears to argue that law enforcement unlawfully
seized the parcel on August 2, 2016. Defendant contends that
there was not reasonable suspicion that the parcel contained
contraband when it was originally seized and that the canine
alert after the parcel's seizure was unlawful. Defendant
further argues that the parcel's seizure and removal from
the delivery process was not justified. The Court addresses
each of these arguments herein.
Whether Defendant Notyce has Standing to Contest Detention
and Search of the Parcel
Court finds that Defendant does not have standing to
challenge any search and seizure of the parcel because he did
not have a legitimate expectation of privacy in it. The
Fourth Amendment provides that persons shall be "secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const, amend.
IV. The Fourth Amendment protects against "not all
searches and seizures, but unreasonable searches and
seizures." Terry v. Ohio, 392 U.S. 1, 8 (1968)
(quoting Elkins v. United States, 364 U.S. 206, 222
(I960)). To contest the legality of a search under the Fourth
Amendment, "the defendant must demonstrate a legitimate
expectation of privacy in the place or item searched by
showing an actual subjective expectation of privacy which
society is prepared to recognize." United States v.
Davis, 932 F.2d 752, 756 (9th Cir. 1991); see United
States v. Lozano, 623 F.3d 1055, 1062 (9th Cir. 2010)
(0'Scannlain, J. concurring) ("It is axiomatic that
to claim the protections of the Fourth Amendment, defendants
must demonstrate that they had an expectation of privacy in
the property searched and that their expectation was
reasonable." (internal quotation marks and citation
omitted)). It is the defendant's burden to establish that
the search or seizure violated his legitimate expectation of
privacy in a particular place under the totality of the
circumstances. See Rawlings v. Kentucky, 448 U.S.
98, 104 (1980).
and other sealed packages are in the general class of effects
in which the public at large has a legitimate expectation of
privacy." United States v. Jacobsen, 466 U.S.
109, 114 (1984). A sender of a package "retains a
limited possessory interest in the mailed item, " and a
parcel's addressee "has a reasonable expectation
that the mail will not be detained by postal employees beyond
the normal delivery date and time." United States v.
Hernandez, 313 F.3d 1206, 1209-10 (9th Cir. 2002).
Generally, however, "a third party who is neither the
sender nor the addressee of a mailed package does not share
this privacy interest." United States v.
Sheldon, 351 F.Supp.2d 1040, 1043 (D. Haw. 2004) (citing
United States v. Pierce, 959 F.2d 1297, 1303 (5th
Defendant Notyce was neither the sender nor the addressee of
the package. The parcel was not addressed to him or a
physical location associated with him. Defendant Notyce did
not retrieve the parcel from the post office box or display
any other conduct that would demonstrate a privacy interest
in the parcel's contents. At minimum, Defendant Notyce
used three separate people-Defendant Yanagihara, Defendant
Matsuda, and an intermediary who was not charged in the
indictment-to deliver the parcel to him. Accordingly, the
Court finds that Defendant Notyce did not have a legitimate
expectation of privacy in the parcel and therefore does not
have standing to challenge its search and detention. See
Schulze v. United States, No. CR 02- 00090 DAE, 2011 WL
4590391, at *11 (D. Haw. Sept. 30, 2011) ("Petitioner
has not shown that he had an individual expectation of
privacy in the Fukumoto package outside of his connections
with his alleged co-conspirators who handled the package . .
. Since petitioner did not have an individual expectation of
privacy or property interest in the package, he would not
have had standing to move to suppress the drugs on Fourth
Amendment grounds . . .").
Whether the Parcel was Properly Subjected to a Canine
Court further finds that even if, assuming arguendo,
Defendant Notyce had standing to complain of the search and
detention of the parcel, the postal inspectors had reasonable
suspicion to detain the parcel to conduct an investigation.
Postal inspectors may detain a package to conduct an
investigation "if they have a reasonable and articulable
suspicion" that it contains contraband or evidence of
illegal activity. United States v. Aldaz, 921 F.2d
227, 229 (9th Cir. 1990). To determine whether reasonable
suspicion exists, reviewing courts "must look at the
totality of the circumstances' ... to see whether the
detaining officer has a 'particularized and objective
basis' for suspecting legal wrongdoing." United
States v. Arvizu, 534 U.S. 266, 273 (2002). Although the
determination of reasonable suspicion is ...