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Section 331.11 of the Postal Manual

In this Drug crime, a motion to suppress physical evidence upon which a hearing was ordered. At the conclusion of the People’s proof the Defendant moved to dismiss and the Court directed that a memorandum of law be submitted as to the ‘standing’ of the defendant to suppress the evidence.

A Suffolk County Criminal lawyer said that in February 1968, a Detective attached to the Narcotics Squad of the Suffolk County Police Department, received a telephone call from a postal inspector at the Rocky Point, Suffolk County County, New York, Post Office.

The detective was advised that a package had been received addressed to an individual. This call was made to him pursuant to a prior request by the Narcotics Squad that it be notified if said individual received any packages since the Squad suspected him of dealing in criminal narcotics. Together with another detective, the detectives went to the Post Office at about 2:30 p.m. where he met with the postmistress and was shown a package consisting of brown paper covering a shoe box within which was newspaper and a brown paper bag containing a plastic bag which in turn contained approximately a kilo of marijuana. All of this was not visible to the detectives at that time. The package was received at the Post Office, and is so marked, in a damaged condition with the brown paper torn off one of the ends and the shoe box opened about 1 1/2 inches in width along the entire and of the shoe box.

The detective picked up and shook the box and looked inside the opening. Inside he could see the brown paper bag in the middle surrounded by crumpled newspaper, and in the newspaper he saw some green flake and seed which to him appeared to be marijuana. The detective’s experience and training are sufficient for him to identify marijuana.

Without in any way changing the opening of the box in its damaged condition, The detective reached into the box and extracted several of the green flake and seed which he placed in a separate wrapper. At that time, he was satisfied from his inspection of what he extracted that said material was marijuana and he, then, believed that the package as a whole contained marijuana.

The package was returned to the post office shelf for delivery, and the Detectives maintained surveillance on the package until the post office closed. On Saturday, February 3rd, the surveillance was continued by the Detective together with another until the post office closed at 12:30 p.m. The package was thereafter opened and found to contain the large quantity of marijuana as previously stated.

Except for the damaged condition of the package the description of it as given by the Detective indicates that it constituted ‘matter closed against inspection’ and as such is deemed first class mail.

Additionally, the wrapping contained postage consistent with the postage due on a package of its size shipped as either air parcel post or first class mail and inconsistent with mail shipped as second, third or fourth class mail.

It would, further, appear that there is no longer any mailing class distinction between air parcel post and domestic air mail which latter is expressly classified as first class mail.

Effective since October 19, 1967, Section 331.11 of the Postal Manual, as promulgated by the Postmaster General, reads as follows:’Do not break, or permit to be broken, the seal of first class mail or open unsealed first class mail or parcels while in the custody of the Postal Service, unless you are employed for that purpose in a dead letter branch, or dead parcel post branch. You must observe this rule always, even though you know the letter contains unmailable matter, criminal matter, or evidence for the conviction of a crime.’

In view of the clear provisions of the U.S.Code, the Postal Manual and the decisions of the United States Supreme Court, there can be no ‘plain view doctrine’ applied to mail in the custody of the Post Office Department. If the package was broken, it was the fault of the postal department; certainly constitutional rights cannot thus be erased. If an unsealed letter cannot be inspected, neither can a mishandled package.

The search incident to the arrest flowed from the illegal search; in no other way can probable cause for the arrest be asserted. The initial taint of illegality invalidates this second search as to all who have the requisite standing to complain of the first search,

In this case, we have no co-defendants, nor (1) was this defendant present At the time of the post office search, nor (2) is she charged with possession.

A violation of someone else’s constitutional rights does not confer standing under sec. 813-c, Code of Criminal. Most recently, the sender of a first class letter was found to having standing to challenge an illegal search conducted prior to actual physical delivery to the addressee,

By all logic, the addressee as ultimate owner of the property should be afforded the same rights. This defendant claims to be neither sender nor addressee; she stands charged with the knowing and unlawful possession of the contents of the package.

Whether the person claiming ‘standing’ has been a ‘victim’ of a constitutional infringement or one against whom an unconstitutional stitutional act was ‘directed’ depends on the precise factual background of each search and seizure and the movants relation to the object seized or premises searched.

The arrest of this defendant establishes that the unconstitutional act was directed’ at her or anyone else who might have picked up the package, and she certainly has been a ‘victim’ of that same constitutional infringement.

The Court concluded that the defendant has requisite standing under § 813-c, Code of Criminal Procedure; that the search conducted in the post office was illegal and, hence, there was no probable cause for the arrest of the defendant on February 5, 1968, and that the search conducted as an incident to that arrest was, likewise, illegal. Pursuant to the stipulation of the parties the hearing is considered closed and terminated. The motion to suppress is granted.

Criminal cases should be referred to diligent and smart lawyers like our Suffolk County Criminal lawyers here in Stephen Bilkis and Associates. We also have Suffolk County Marijuana Possession attorneys, who will advise you in drug cases.

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