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United States v. Notyce

United States District Court, D. Hawaii

November 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM NOTYCE, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

          ALAN C. KAY SR. UNITED STATES DISTRICT JUDGE.

         For the reasons set forth below, the Court DENIES Defendant Notyce's Motion to Suppress Evidence, ECF No. 92.

         BACKGROUND

         Defendant 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.

         On 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 2).[1] A jury trial is scheduled for November 28, 2017.

         On 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.

         DISCUSSION

         On 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.

         At 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.

         At 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. ¶ 7.

         The 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 light. Id.

         Jensen 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.

         At 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.

         At 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.

         Defendant 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 arrested.

         Around 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.[2]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.

         Around 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 apartment.

         At 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.

         At 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.

         I. The Parcel

         Defendant 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.

         a. Whether Defendant Notyce has Standing to Contest Detention and Search of the Parcel

         The 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).

         "Letters 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 Cir. 1992)).[3]

         Here, 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 . . .").

         b. Whether the Parcel was Properly Subjected to a Canine Sniff

         The 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 ...


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