On appeal from Superior Court, Law Division, Union County, whose opinion is reported at 160 N.J. Super. 576.
Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D. (retired, temporarily assigned).
This appeal primarily implicates the question whether a 1977 inspection and search of an air freight shipment by an airlines employee is to be regarded as a governmental search for constitutional purposes. Our determination of the question is in the negative, and we reverse an order to suppress evidence based on a contrary ruling in the Law Division. 160 N.J. Super. 576 (1978).
Defendants were indicted for the unlawful possession of methaqualone, a controlled dangerous substance, and for possession thereof with intent to distribute. The indictment
arose out of the facts accurately stated in the Law Division as follows:
Based on evidence presented at the second hearing, I find the following occurred in Los Angeles. United offers Small Package Dispatch ("SPD") airflight service, which provided speedy and predictable carriage of small packages in the baggage compartments of regularly scheduled passenger planes. SPD is available only for packages weighing less than 50 pounds and having a value between $50 and $500 that are given to United no later than 30 minutes before departure of the flight to which they are assigned.
A United clerk received the package in question from a young man ("shipper") who, in accordance with long-standing tariff regulations, declared its contents and value. The declaration is necessary not only to compute the rate, but also to identify cargo that a shipper might not realize is dangerous, such as a battery containing acid. The shipper declared the contents to be clothing, including shoes, and their value to be $50, the minimum. The clerk computed the fee to be $38.50, which the shipper paid. Because the clerk's suspicions were aroused, he asked for the shippers' driver's license and noted its number. Two things bothered the clerk: the package seemed too small to contain shoes and its declared value too modest to warrant the expense of shipping it SPD.
After waiting on some other customers, the clerk took the package to an X-ray machine. The machine disclosed the contents to be three lightly outlined shapes that later turned out to be two bags, each containing about 500 tablets, and a bundle of bills totaling $5,000. The clerk was satisfied that the shapes were not shoes -- they did not look like shoes and there was no sign of metal that might have been nails or buckles. There was nothing on the X-ray screen even so dense as to indicate a leather sole.
The clerk turned over the package to his supervisor, Charles Knudson, who opened the package, removed its contents, telephoned the Los Angeles police, and notified his Newark office to advise anyone who showed up for the package that it was lost. The police took custody of the package and its contents. Two days later they arranged for the controlled delivery previously described.
[160 N.J. Super. at 585-586]
The court's description of the "controlled delivery" was as follows:
The Los Angeles police arranged for the pilot of the plane to deliver the package to the federal agents at ...