Notice: This opinion is subject to formal
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THE COURT OF APPEALS OF THE STATE OF ALASKA
JUDITH M. BERGMAN, )
) Court of Appeals No. A-4696
Appellant, ) Trial Court No. 4FA-S92-981CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1348 - May 27, 1994]
)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Niesje J.
Steinkruger, and James A. Hanson, Judges.
Appearances: Marcia E. Holland, Assistant Public
Defender, Fairbanks, and John B. Salemi, Public
Defender, Anchorage, for Appellant. James L.
Hanley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau, for
Appellee.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge.* [Bryner,
Chief Judge, not participating.]
COATS, Judge.
Judith M. Bergman appeals her conviction for importing
alcohol into the village of Allakaket1 in violation of AS
04.11.496(b). We affirm.
In September of 1991, Bergman planned to travel from
Allakaket to Fairbanks. Before departing, Bergman received a sum
of money from two of her brothers, Albert and Wayne Bergman. The
three agreed that Bergman would use the money to purchase whiskey
after she arrived in Fairbanks. The Bergmans were aware that it
was unlawful to import liquor into Allakaket.
When Bergman arrived in Fairbanks, she purchased one
case of whiskey for herself and one case each for Albert and
Wayne. She packed the whiskey into three white cardboard boxes
and sent the boxes to Allakaket via fourth-class mail without a
return address. Meanwhile, another of Bergman's
brothers, Shawn Bergman, overheard Albert talking on the
telephone to someone in Fairbanks about the importation of
whiskey into the village. Shawn was apparently concerned about
alcohol-related problems within his family and reported the
impending shipment to the Village Public Safety Officer, Harold
David. Shawn informed Officer David that the whiskey would be
arriving via Wright's Air Service and would be packaged in three
white boxes.
The following morning Officer David alerted the
Allakaket Postmaster that some whiskey, packaged in three white
boxes, might soon be arriving by mail. The mail, including the
boxes of whiskey, arrived by Wright's Air Service later that day.
The postmaster notified Officer David that the suspected boxes
had arrived and then telephoned United States Postal Inspector
William Skytta Jr. for further instructions.
Skytta was aware that, pursuant to postal regulations,
he could authorize the warrantless inspection of fourth-class
packages to determine whether such packages contained prohibited
or nonmailable materials (e.g. alcoholic beverages). After
determining that the boxes had been mailed fourth-class, Skytta
instructed the postmaster to inspect them. The inspection
revealed eleven bottles of whiskey in each of two boxes and
twelve bottles of whiskey in a third box. At Skytta's request,
the postmaster repacked the boxes and sent them to Skytta's
office in Anchorage. When Skytta received the boxes, he
confirmed that they had originally been mailed with fourth-class
postage and that each box contained the aforementioned quantities
of whiskey. Under such circumstances, the routine procedure in
the Anchorage postal inspector's office is not to seek
prosecution on a federal level, but to notify local law
enforcement officials and determine whether they wish to pursue
prosecution at the state level. If local officials do not wish
to pursue the matter, postal inspectors ordinarily confiscate the
nonmailable materials and destroy them. Consistent with this
procedure, Skytta telephoned Alaska State Troopers who indicated
that they wished to investigate the importation of whiskey into
Allakaket. Skytta then shipped the boxes of whiskey back to the
Allakaket postmaster with the intent that Alaska State Troopers
would eventually seize the boxes. Skytta apparently directed the
postmaster to hold the boxes until a trooper could pick them up.
Thereafter, Alaska State Trooper Jeffrey Manns traveled
to Allakaket to investigate the alleged importation of whiskey
into the village. Manns was aware that postal authorities had
previously inspected the boxes and found them to contain whiskey.
Upon arriving in Allakaket, Manns telephoned Skytta who confirmed
that the boxes contained whiskey and that, as fourth-class mail,
they were subject to warrantless inspection by the post office.
Manns also telephoned the Fairbanks District Attorney's Office
and was advised that he did not need a warrant to search and
seize the boxes because they had already been searched by postal
authorities. Manns proceeded to the Allakaket post office and
seized the boxes of whiskey without a warrant. He completed his
investigation by obtaining confessions from Bergman and her
brothers, Albert and Wayne.
A grand jury indicted Bergman on one count of
prohibition of sale and importation of alcoholic beverages. AS
04.11.496(b) and AS 04.16.200(e)(2). Before trial, Bergman moved
to suppress the whiskey, arguing that the warrantless search and
seizure of the boxes was unlawful because postal authorities had
opened the boxes at the direction of the state, rather than
pursuant to their official duties as postal employees. The state
opposed Bergman's motion, claiming that no warrant was required
because the state did not take possession of the boxes until
after postal employees had independently undertaken a valid
inspection of the boxes and had seized them without encouragement
or participation from the state.
In response to Bergman's motion, an evidentiary hearing
was held before Superior Court Judge Niesje J. Steinkruger.
Judge Steinkruger denied Bergman's motion and found that although
postal authorities had inspected the boxes as a result of Officer
David's tip, their inspections were authorized because the boxes
were fourth-class mail and because, rather than acting as agents
of the police, the postal employees were acting in their official
capacity to prevent the delivery of nonmailable matter. Judge
Steinkruger concluded that Trooper Manns' warrantless search and
seizure of the boxes did not violate the Alaska or federal
constitutions because Manns had simply asserted state control
over evidence which had already been legally obtained by postal
authorities.
Bergman was tried and convicted before Superior Court
Judge James A. Hanson. On appeal, Bergman renews her claim that
the warrantless search and seizure of her boxes was illegal, but
abandons her earlier argument that the initial warrantless postal
inspections were conducted at the state's behest. Bergman now
concedes that the initial inspections of her boxes by postal
authorities were conducted for a lawful postal purpose
independent of state involvement. Yet, Bergman argues that
because various postal regulations prevented postal authorities
from surrendering the boxes of whiskey directly to state law
enforcement officers, Trooper Manns' warrantless search and
seizure of the boxes was unreasonable. Bergman concludes that
the warrantless search did not fall within any recognized
exception to the warrant requirement and therefore violated both
the Alaska and federal constitutions.
The Fourteenth Amendment to the United States
Constitution and article I, section 14 of the Alaska Constitution
bar unreasonable searches and seizures. A warrantless search is
per se unreasonable and the police may not ordinarily search a
package without a warrant unless the search falls within a
recognized exception to the warrant requirement. Ahkivgak v.
State, 730 P.2d 168, 171 (Alaska App. 1986). Since no warrant
was obtained in this case, the state bears the burden of proving
that the search of Bergman's boxes was reasonable. Bell v.
State, 519 P.2d 804, 806 (Alaska 1974).
One exception to the warrant requirement permits the
warrantless inspection of fourth-class packages to determine the
mailability of their contents. Ex parte Jackson, 96 U.S. 727
(1877); United States v. Riley, 554 F.2d 1282, 1283 (4th Cir.
1977); Santana v. United States, 329 F.2d 854, 856 (1st Cir.),
cert. denied, 377 U.S. 990 (1964). "[I]t is obvious that one who
chooses to transmit a parcel through the mails using fourth class
postage accepts the possibility that the contents will be
examined by postal authorities in the performance of their
duties." 3 Wayne R. LaFave, Search & Seizure 10.3(b) at 681
(2d ed. 1987) (quoting Commonwealth v. Dembo, 301 A.2d 689, 692
(Pa. 1973)). Bergman had no greater expectation of privacy in
shipping her package by mail than she would have if she had sent
it by another common carrier. See Bell v. State, 519 P.2d 804
(Alaska 1974).
Having conceded the lawfulness of the initial
intrusion, Bergman simply had no reasonable expectation of
privacy in the transmitted boxes. Once the whiskey had been
lawfully exposed to the plain view of postal authorities, nothing
of constitutional significance prevented those authorities from
surrendering the whiskey, as contraband, and without a warrant,
to law enforcement officers charged with investigating violations
of state law. Bell, 519 P.2d at 806. Trooper Manns' recovery of
the boxes effectuated no greater intrusion than that which
resulted from the preceding postal inspections. No superseding
event or change in circumstances occurred between the postal
inspections and Trooper Manns' recovery of the boxes that would
have given Bergman a reasonable expectation of privacy in her
fourth-class parcels.2 Under these circumstances, Trooper Manns'
warrantless search and seizure of Bergman's boxes was entirely
reasonable and violated neither the Alaska nor the federal
constitutions.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made under article IV, section
16 of the Alaska Constitution.
1. Allakaket is an established village located
northwest of Fairbanks on the Arctic Circle. The village has
elected to prohibit the sale and importation of alcoholic
beverages within its boundaries. AS 04.11.496(b) and AS
04.16.200(e)(2).
2. We need not consider Bergman's contention that
surrender of the boxes by postal authorities offended some postal
regulation. Bergman did not argue this proposition to the trial
court so we review for plain error only. Because evidence
obtained in violation of an agency regulation does not
necessarily require suppression, we find no plain error occurred
in this case. United States v. Caceres, 440 U.S. 741 (1979);
United States v. Irvine, 699 F.2d 43, 46 (1st Cir. 1983); United
States v. Clark, 695 F. Supp. 1257, 1262 (D. Me. 1988).
