A package shipped from Peru and addressed to King Kelly, arrived at the Honolulu International Airport mail room on September 9, 1983. The package was subjected to a dog sniff. The trained dog indicated a potential contraband substance in the package. Customs Officer Jerome Tomaino opened the package and found a photo album that had bulges in the front and back cover which contained cocaine. DEA agents cut open the back cover of the album and removed four out of five packets of cocaine.

The agents replaced the four packets of cocaine with four packets of fake cocaine. Also inserted in the back cover of the album was a beeper, which would enable the agents to monitor the location of the package and to learn when the back cover of the album was being opened. The agents made a "controlled delivery" of the package on the same day to Kelly at the University of Hawaii School of Business. Kelly signed for the package and went upstairs to a conference room. He then exited from the building carrying a knapsack, which emitted signals from the beeper.

The officers followed Kelly to his residence, commenced surveillance of the house, and monitored the beeper signals. After five to seven minutes, the signals from the beeper changed to a droning tone indicating that the back cover of the album had been opened. The officers eventually entered the house and recovered the album from Kelly and noticed the back cover of the album had been torn open exposing the beeper. Kelly was then arrested.

Was the warrantless installation a beeper into the back cover of the photo album a "search" or "seizure"?

Was the warrantless monitoring of the beeper located in the private residence of Kelly to determine the location and the opening of the photo album a violation of the Fourth Amendment?

Submitted by Deborah Sanders

Wake Forest University

Answer

Compare State v. Kelly, 708 P.2d 820 (Haw. 1985)

The Court held the following:
(1) the warrantless seizure and unreasonable detention of the photo album for the purpose of installing a beeper in the back cover was an unreasonable seizure of property in violation of the Fourth Amendment.
(2) even if it was a justifiable search under the Fourth Amendment and not a seizure, it violates the State constitution
(3) there was not a valid excuse for failing to procure a warrant

(1) warrantless seizure and unreasonable detention of photo album received through mail, which was discovered to contain cocaine, for purpose of installing beeper in back cover of album constituted unreasonable seizure of property in violation of Fourth Amendment; (2) even if beeper installation was not unreasonable “seizure” of property, but justifiable “search” under the Fourth Amendment, nevertheless, warrantless seizure and unreasonable detention of album for purpose of installing beeper violated State Constitution; and (3) lack of particularity as to place or persons to be searched by beeper would not excuse failure to procure warrant.