Appeals from the District Court of Morton County, South Central Judicial District, the Honorable David E. Reich, Judge.
Julie A. Lawyer (argued), Burleigh County Assistant State's Attorney, and Paul R. Emerson (on brief), for plaintiff and appellee.
Garrett D. Ludwig, for defendant and appellant William Joseph Nickel.
Richard E. Edinger, for defendant and appellant Ryan Michael Zueger.
[¶ 1] Ryan Zueger and William Nickel appeal from criminal judgments entered after the district court denied their motions to suppress evidence and a jury found them guilty of conspiracy to deliver controlled synthetic cannabinoids. We conclude the district court erred in denying the motions to suppress, and we reverse the convictions.
[¶ 2] William Nickel and Zueger are the owners of Big Willies ATP. On October 4, 2011, William Nickel's sister, Casandra Nickel, brought a package to We Ship, Etc., a United Parcel Service ("UPS") shipping outlet in Mandan, for shipment by next-day-air service from Big Willies to Intermedia in California. According to Kent Danielson, the owner of We Ship, he asked Casandra Nickel about the contents of the package, and she appeared nervous and did not respond immediately, but ultimately told Danielson the package contained returnable merchandise. Danielson had previously refused to ship packages for Big Willies because of concerns about the legality of the items shipped, and he became suspicious about the contents of the package in conjunction with his observations of Casandra Nickel and the $143.55 cost of the next-day-air service.
[¶ 3] Danielson has a store policy permitting him to open and inspect any suspicious packages, and he went to the Mandan Police Department to report the suspicious package so law enforcement officers could be present when he opened the package at We Ship. The Mandan Police Department informed Bureau of Criminal Investigation Special Agent Casey Miller about the package, and four officers working with the Metro Area Narcotics Task Force, including Agent Miller, went to the Mandan Police Department to talk to Danielson. Danielson had not brought the package to the police department, and the four officers working with the task force accompanied him to We Ship to examine the package.
[¶ 4] When the officers arrived at We Ship, Danielson showed them the $143.55 credit card receipt signed by Casandra Nickel for next-day-air service along with a bill of lading stating the package was being sent from Big Willies to Intermedia in California. In the presence of the officers, Danielson opened the package and unfolded the flaps of the box, stating to the effect, "See, I told you, " or "I knew it, " and stepping aside without touching or removing the contents of the package. According to Agent Miller, after Danielson opened the package and stepped aside, the officers saw in plain view several large Ziploc bags containing plant material in labeled clear plastic tubes.
[¶ 5] Agent Miller testified he "had no idea what the plant material was, " but knew Big Willies was a "smoke shop" selling items used for ingestion of tobacco and controlled substances and Big Willies had sold controlled synthetic cannabinoids in the past. According to Agent Miller, the plant material had the appearance of marijuana, but he confirmed it was not marijuana. Agent Miller testified that on the basis of his experience, a synthetic cannabinoid is usually in a powder form, which can be added to water and soaked in plant material, resulting in synthetic cannabinoid on the plant material. According to Agent Miller, the term "synthetic cannabinoid" includes both legal and illegal substances and he was not able to look at the contents of this package and determine whether the plant material was legal or illegal. Agent Miller testified he believed the plant material was a synthetic cannabinoid but he did not know whether it was legal or illegal.
[¶ 6] After Danielson opened the package and the officers observed the contents, the officers inventoried the package without a warrant, removing and opening 15 Ziploc bags that contained 315 plastic tubes. The majority of the plastic tubes were labeled "Green Cross Private Reserve." Agent Miller testified he thereafter took the contents of one plastic tube to the state crime lab for testing because there was no standard field test for determining whether the plant material contained a controlled substance. The other law enforcement officers took the rest of the contents of the package to the Bismarck law enforcement center. Later that evening, an employee of the state crime lab informed Agent Miller the plant material tested negative for any controlled substances. Agent Miller informed Danielson about the test results, and law enforcement officers resealed the package on October 4, 2011, and delivered it to UPS in Bismarck for shipping to its destination in California.
[¶ 7] On the morning of October 5, 2011, an employee of the state crime lab informed Agent Miller the crime lab may have conducted the wrong test on the plant material and the material may contain a controlled substance. An employee of the state crime lab later informed Agent Miller that preliminary testing indicated a strong likelihood the substance contained JWH-122, a controlled substance. Agent Miller contacted Danielson to retrieve the package, which was out for delivery in California, and Danielson had the package returned to We Ship the next day. Later on October 5, 2011, an employee of the state crime lab confirmed the plant material contained JWH-122, and Agent Miller retrieved the package from We Ship the next day.
[¶ 8] On October 6, 2011, law enforcement officers contacted William Nickel and Zueger about the package. According to William Nickel and Zueger, they had been purchasing Green Cross Private Reserve from Intermedia in California since August 2011. They claimed they were concerned about the legality of the product, but were initially informed by representatives of Intermedia that it was not illegal in North Dakota. They claimed a representative of Intermedia subsequently informed them North Dakota was on the "no send" list for Green Cross Private Reserve and the product needed to be returned to Intermedia for a refund. According to William Nickel and Zueger, the product was packaged and delivered to We Ship on October 4, 2011, for shipment by next-day-air service to Intermedia in California.
[¶ 9] The State charged Zueger, William Nickel, and Casandra Nickel with conspiracy to deliver controlled synthetic cannabinoids by agreeing to arrange for the shipment or delivery of the substance to another. The defendants moved to suppress evidence allegedly obtained in violation of their constitutional rights, claiming the package had been unlawfully searched and seized without a warrant. The district court denied the defendants' motions to suppress, ruling Danielson conducted a private party search when he opened the package in the presence of law enforcement officers at We Ship. The court decided the officers' information and knowledge from the opened package was sufficient to establish probable cause and the plain view exception to the warrant requirement permitted the warrantless seizure of the contents of the package. The court decided the subsequent removal of a single plastic tube from the package and testing at the state crime lab was not a search under the Fourth Amendment and any permanent loss of the substance was de minimis. The court ruled a second warrantless search and seizure of the package after the state crime lab initially indicated the substance was not illegal and the package was returned to North Dakota from California was justified by exigent circumstances and by the fact the defendants did not have a reasonable expectation of privacy in the package after law enforcement officers lawfully viewed the contents of the package at We Ship.
[¶ 10] After the State presented its evidence at a jury trial, the district court granted Casandra Nickel's motion for judgment of acquittal under N.D.R.Crim.P. 29, and the jury thereafter found William Nickel and Zueger guilty of conspiracy to deliver controlled synthetic cannabinoids to another.
[¶ 11] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeals from the criminal convictions were timely under N.D.R.App.P. 4(b), and we have jurisdiction under N.D. ...