                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued by teleconference


TRACY LINN HURLEY
                                                  OPINION BY
v.   Record No. 2159-00-1                 JUDGE ROBERT J. HUMPHREYS
                                                JULY 3, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                      Joseph A. Leafe, Judge

          John D. Hooker, Jr. (Hooker & Migliozzi,
          P.C., on brief), for appellant.

          Susan M. Harris, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Tracy Linn Hurley appeals her conviction, after a bench

trial, of conspiracy to distribute marijuana.    Hurley contends the

trial court erred in denying her motion to suppress the evidence

against her, which she alleged was seized in violation of her

Fourth Amendment rights.

                            I.   Background

     On January 11, 2000, Officers Maurice S. Joseph and Steven D.

Stevens were conducting routine parcel interdiction at Federal

Express in Norfolk, Virginia.    The officers stood at the conveyor

belts with Federal Express employees observing the packages as

they were placed on the conveyor belt from the freight cans in

which they arrived at the station.    The officers watched for
packages that met certain criteria.      Specifically, the officers

were looking for packages coming from certain drug source cities,

packages of an unusual size and weight, or packages with unusual

wrapping and/or address labeling.    Officer Joseph, who was a

trained member of the Norfolk Vice and Narcotics Division since at

least 1993, eventually pulled approximately ten to twenty

suspicious packages from the conveyor belt and placed them on the

floor near the belt.    One of the packages that the officers

regarded as suspicious was a "real large" box, with an "unusual

weight," sent by priority overnight delivery from Hong Kong

International Tailors, Albuquerque, New Mexico to W.R. Barker,

Hong Kong International Tailors at 410 Briar Hill Road, Suite 105,

Norfolk, Virginia.    The mailing label on the box was handwritten.

     Within minutes of placing the box on the floor with the

others, officers brought a drug detection dog past the boxes and

the dog alerted on the box addressed to Barker.       Officer Joseph

"took the box and signed for it from Federal Express."       Stevens

obtained a search warrant for the box and the officers "brought

the box with [them] here to the court where [they] executed the

search warrant."     Inside the box, they found "aluminum foil

around big bundles that were Saran Wrapped."      Officer Joseph

"cut into the bundles with [his] knife," and observed "masking

agents that looked like detergent or some type of bleach

detergent and . . . dryer sheets [, as well as] multiple wraps



                                 - 2 -
of Saran Wrap."   A field test revealed that the substance inside

the bundles was marijuana.

     The officers resealed the box and assembled a team to

facilitate a controlled delivery of the package.    When the team

arrived at Hong Kong Tailors, they found that it was closed.

Steven Charles Thomas, an employee with the radio station

located next to the tailor shop, signed for the box.    Shortly

thereafter, Officer Joseph identified himself to Thomas, read

him his rights, and explained the situation to him.    Thomas left

a message on the Hong Kong Tailors' answering machine and told

them the package was at the radio station and that they could

pick it up at any time.    The officers then took the box for the

evening and secured it in their "evidence room."

     Early the next day, the radio station manager called the

police team to let them know that "somebody was going to come

and get the box."    The team assembled again and delivered the

box to the radio station.    They observed as Hurley, an employee

with the tailor shop, entered the radio station.    After a brief

conversation, Thomas carried the heavy box to the tailor shop

for Hurley.   Hurley then opened the trunk of her car, went into

the tailor shop, picked up the box and put it into her trunk.

     At that point, Hurley was arrested and advised of her

Miranda rights.     Hurley consented to have her car, house and

business searched.    Hurley later informed police that she had

contacted "Anthony," a former employee with the shop, whom she

                                 - 3 -
knew the box to belong to.    Anthony told her not to open the box

but to deliver it to a shopping center parking lot, put the box

next to an older model red Firebird, and leave.    Anthony told

her he would pay her $100 for doing so.    Hurley admitted to

police that she thought the package contained "pot."    Hurley was

charged with possession with intent to distribute more than five

pounds of marijuana, and conspiracy to distribute more than five

pounds of marijuana.

        At the beginning of trial, Hurley moved to suppress the

evidence against her, contending that the officers improperly

seized the box in violation of her Fourth Amendment rights.       The

Commonwealth contended that Hurley lacked standing to assert

such a claim, and, in the alternative, that the officers acted

properly.    After taking evidence on the issue, the trial court

held that Hurley had standing to assert a privacy interest in

the box.    However, the trial court denied the motion to

suppress, finding that "there [was] no problem with lifting the

box off and setting it on the floor to be examined by the drug

dog."

        At the close of the Commonwealth's evidence, Hurley moved

to strike, contending that the chain of evidence was tainted and

that the evidence was insufficient to support the charges.      The

trial court overruled the motions but ultimately dismissed the

charge of possession with intent to distribute, finding the

evidence insufficient on that charge.

                                 - 4 -
                             II.    Analysis

             We consider the evidence and all reasonable
             inferences fairly deducible therefrom in the
             light most favorable to the Commonwealth,
             the prevailing party at trial. We apply the
             same standard when, as here, we review the
             trial court's denial of the defendant's
             motion to suppress the evidence. However,
             determinations of reasonable suspicion in
             the context of a Fourth Amendment challenge
             involve questions of both law and fact and
             consequently are to be reviewed de novo on
             appeal. In performing such a review we give
             deference to the factual determinations
             established in the record and independently
             determine whether under the established law
             those facts satisfy the constitutional
             standard.

Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000)

(citations omitted).

     Hurley correctly asserts that "[t]he Fourth Amendment

protects the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures."     United States v. Place, 462 U.S. 696, 700-01 (1983). 1

"Sealed packages are, [thus], entitled to Fourth Amendment

protection against warrantless searches and seizures, just as




     1
       The issue of whether Hurley possessed the requisite
standing to assert a Fourth Amendment claim with respect to the
box is not before us. See United States v. Givens, 733 F.2d
339, 341 (4th Cir. 1984) ("It is firmly established that Fourth
Amendment rights are personal and may not be vicariously
asserted, and that the exclusionary rule's benefits run only to
those whose Fourth Amendment rights have been violated. To
claim the protection of the Fourth Amendment, a defendant must
have 'a legitimate expectation of privacy in the invaded
place.'").

                                   - 5 -
any other private area."     United States v. Givens, 733 F.2d 339,

341 (4th Cir. 1984).

     The United States Supreme Court has opined that

          [a]lthough in the context of personal
          property, and particularly containers [or
          sealed packages], the Fourth Amendment
          challenge is typically to the subsequent
          search of the container rather than to its
          initial seizure by the authorities, our
          cases reveal some general principles
          regarding seizures. In the ordinary case,
          the Court has viewed a seizure of personal
          property as per se unreasonable within the
          meaning of the Fourth Amendment unless it is
          accomplished pursuant to a judicial warrant
          issued upon probable cause and particularly
          describing the items to be seized. Where
          law enforcement authorities have probable
          cause to believe that a container holds
          contraband or evidence of a crime, but have
          not secured a warrant, the Court has
          interpreted the Amendment to permit seizure
          of the property, pending issuance of a
          warrant to examine its contents, if the
          exigencies of the circumstances demand it or
          some other recognized exception to the
          warrant requirement is present.

Place, 462 U.S. at 700-01.    "A 'seizure' of property occurs when

there is some meaningful interference with an individual's

possessory interests in that property."      United States v.

Jacobsen, 466 U.S. 109, 113 (1984).

     When the wrapped parcel involved in this case was delivered

to Federal Express, its contents were unquestionably subject to

protection by the Fourth Amendment.      However, a party has no

reasonable expectation of privacy in the size, weight or other

exterior characteristics of a package or parcel placed into the


                                 - 6 -
stream of commerce.    See United States v. Van Leeuwen, 397 U.S.

249, 251 (1970) (citing Ex Parte Jackson, 96 U.S. 727, 733

(1878)).   Furthermore, the United States Supreme Court has held

that "[s]ome brief detentions of personal effects may be so

minimally intrusive of Fourth Amendment interests that strong

countervailing governmental interests will justify a seizure

based only on specific articulable facts that the property

contains contraband or evidence of a crime."    Place, 462 U.S. at

706.

       Here, the officers confined their investigation of the

package to what was, in effect, an on-the-spot inquiry and a

relatively immediate exposure to a trained narcotics detection

dog.   Given the observation by trained narcotics officers of

several suspicious characteristics, such as the place of origin

of the package, the size and weight of the package, the method

of mailing, as well as the handwritten label addressed to and

from a business, we find that the officers had a reasonable,

articulable suspicion to briefly seize the item for purposes of

further investigation, in order to confirm or dispel their

suspicions.

       As the United States Supreme Court stated in Van Leeuwen,

            [t]he "protective search for weapons" of a
            suspect which the Court approved in Terry v.
            Ohio, 392 U.S. 1, 20-27 [(1968),] even when
            probable cause for an arrest did not exist,
            went further than we need to go here. The
            only thing done here on the basis of
            suspicion was detention of the [package].

                                - 7 -
          There was at that point no possible invasion
          of the right "to be secure" in the "persons,
          houses, papers, and effects" protected by
          the Fourth Amendment against "unreasonable
          searches and seizures" . . . for [the]
          investigation was certainly not excessive;
          and at the end of that time probable cause
          existed for believing that the [package] was
          part of an illicit project."

397 U.S. at 252.

     Accordingly, based upon the totality of the circumstances

and balanced against the de minimus nature of the detention, we

find that the trial court correctly denied Hurley's motion to

suppress the results of the search of the box.   Therefore, we

affirm the judgment of the trial court.

                                                         Affirmed.




                              - 8 -
