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Thompson v. Anderson and Mail Boxes Etc., Inc. (1/24/92), 824 P 2d 712
Notice: This is subject to formal correction before publication
in the Pacific Reporter. Readers are requested to bring
typographical or other formal errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made prior to permanent
THE SUPREME COURT OF THE STATE OF ALASKA
PATRICK THOMPSON a/k/a )
PATRICK THOMPSON-STERLING, ) Supreme Court No. S-4252
Appellant, ) Trial Court No.
) 3AN-89-4300 Civil
) O P I N I O N
SHAWN ANDERSON and MAIL BOXES )
ETC., U.S.A., INC., )
) [No. 3803 - January 24, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Dana Fabe, Judge.
Appearances: Lawrence A. Pederson, Paul
J. Nangle & Associates, Anchorage, for
Appellant. Terry C. Aglietti, Aglietti,
Rodey & Offret, Anchorage, for Appellee Mail
Boxes, Etc., U.S.A., Inc.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Patrick Thompson claims that Shawn Anderson and Mail
Boxes, Inc. breached their contract and committed the tort of
conversion. Thompson attempted to send a package from the Mail
Boxes facility Anderson managed. Anderson alerted the Anchorage
Police Department that the transaction appeared suspicious, then
inspected the package and discovered it contained approximately
$20,000. A police officer seized the package and it became
evidence in Thompson's criminal prosecution. The superior court
granted summary judgment in favor of Anderson and Mail Boxes. We
FACTUAL AND PROCEDURAL BACKGROUND
On May 2, 1989, Investigator Cooper of the Anchorage
Police Department contacted Shawn Anderson, an employee of Mail
Boxes, Etc., a private mail drop facility, inquiring whether any
persons fitting descriptions of suspected drug traffickers had
recently used their services. He asked Anderson to notify him of
any shipments made by "foreign persons who were dressed in flashy
clothes, appeared to be carrying large amounts of cash or wore
expensive jewelry and appeared to be Jamaican."1 Later that
day, Patrick Thompson, a black Jamaican, came to Anderson's Mail
Boxes location and purchased two boxes. Anderson recognized his
accent as Jamaican. Thompson was wearing an open shirt and a
necklace with a gold medallion and was accompanied by another
individual who appeared to be Jamaican. They told Anderson they
would return later to send the boxes.
Thompson returned with a package to be shipped.
Thompson filled out a Federal Express airbill and paid for the
$45.50 charge using a fifty dollar bill pulled from a three-inch
wad of bills. According to Anderson, Thompson "appear[ed]
nervous"while in the store.
After Thompson left, Anderson learned that Federal
Express' pickup deadline had passed and she called another
carrier, DHL, to make other shipping arrangements for Thompson's
package. She then called the phone number Thompson had written
on the Federal Express airbill to get Thompson's approval for the
change. The woman who answered the phone did not recognize
Thompson's name, but when Anderson said it concerned a Federal
Express package "she suddenly knew who [Anderson] was talking
about"and said she would have Thompson call Mail Boxes.
Thompson agreed to the change and Anderson kept him on
the phone while she filled out the DHL airbill. One of the
questions contained on the DHL airbill asks for the contents of
the package. Thompson said the package contained clothing.
After scheduling a pickup with DHL, Anderson phoned Investigator
Cooper and told him about the suspicious nature of the
transaction. Cooper came to the store and shook the package and
then had a dog sniff it. The dog did not respond. Cooper also
showed Anderson several photographs and she identified the photo
of Thompson as the person who had brought the package in. Cooper
left and told Anderson to send the package if the DHL courier
Anderson called both DHL and Federal Express to
determine whether she could open a package as their agent.
Representatives from both companies said that she could.2 A
short time later, Cooper phoned and said that he had also done
some checking and felt that Anderson could open the package. He
then waited on the phone as Anderson opened the package, saw that
it contained clothing and a large bundle of cash,3 and resealed
the package. Upon hearing of the contents, Cooper went to Mail
Boxes and seized the package without a warrant.
Eventually, the United States charged Thompson with
distributing cocaine. Thompson moved to suppress the package and
its contents contending that the warrantless search and seizure
of the box was unconstitutional. The federal magistrate ruled
that Anderson's search of the box was private; the government's
involvement was not so pervasive as to make Anderson an agent of
the state and thus, the fourth amendment did not apply to her
search of the box. The magistrate specifically found that
"Anderson opened the package of her own independent choice and
not at the direction or suggestion of Investigator Cooper."
However, the magistrate concluded that Thompson's fourth
amendment rights were violated by the government's comparison of
the seized bills to bills known to have been used in drug
transactions and the laboratory analysis of the money for drug
residue. The magistrate recommended that the details concerning
the seized money be suppressed. The magistrate did not expressly
rule on whether the seizure of the package, by Cooper, as
distinct from the examination of the money, was legal. However,
he suggested implicitly that the seizure alone was legal, by
concluding that it was the government's act of subjecting the
bills to close analysis which was unlawful.4
The federal district court adopted the magistrate's
conclusion that the search by Anderson was private. The court
also adopted the magistrate's recommendations concerning Cooper's
actions and ordered the suppression of evidence about the
currency acquired following its seizure by Cooper. Thompson was,
nonetheless, convicted of three counts of distributing cocaine.
In this action, Thompson seeks civil damages from Anderson and
Mail Boxes alleging that Anderson's failure to prevent Officer
Cooper from seizing the box constituted conversion and breach of
contract.5 Thompson seeks actual damages of $20,000 plus the
value of clothing included in the package, punitive damages for
"the wanton, willful, acts of conversion undertaken with reckless
disregard of plaintiff's rights,"and special damages since
Thompson allegedly would have used the $20,000 to purchase a
residence and was deprived of the opportunity by Anderson's
All parties moved for summary judgment. The trial
court granted Anderson's and Mail Boxes' motion, and denied that
of Thompson. Thompson appeals.
A conversion is "an intentional exercise of dominion or
control of a chattel which so seriously interferes with a right
of another to control it that the actor may be justly required to
pay the other the full value of the chattel." McKibben v. Mohawk
Oil Co., 667 P.2d 1223, 1228 (Alaska 1983) (quoting Restatement
(Second) of Torts 222A (1965)). More concretely, delivery of
property by a bailee to a third person who is not entitled to the
property can be a form of conversion. "Perhaps the most common
way that conversion is committed is by an unauthorized transfer
or disposal of possession of the goods to one who is not entitled
to them." W. P. Keeton, Prosser and Keeton on Torts 15 at 96
(5th ed. 1984) (emphasis added).
Thompson argues that Officer Cooper was not legally
entitled to possession of the package because he did not have a
warrant. Thompson also argues the seizure did not fall within an
exception to the warrant requirement.6 Regardless of whether
Cooper's seizure of the package was lawful, we hold that
appellees are not liable for conversion.
Professor Keeton notes that a bailee is not liable for
conversion when the bailee delivers property to "an officer armed
with legal process." Id. at 97. We believe that this does not
go far enough where property is delivered on the demand of a
police officer or seized by an officer.7 In our view, it should
not be a tort for a bailee to obey the command of a police
officer to turn over property in the bailee's possession. First,
there are situations where an officer can lawfully seize property
without a warrant. 2 W. R. LaFave, Search and Seizure 4.1 at
118 (2d ed. 1987). Whether a seizure is lawful depends on what
the policeman knows, not on the knowledge of the bailee. See
Id., Vol. 1 3.1(d) at 552.8 Thus the bailee is in no position
to judge the lawfulness of a warrantless seizure. Further, even
if the bailee suspects or knows that a police seizure is
unlawful, there is nothing, practically speaking, that she can do
to prevent it. To require a bailee to resist a police demand to
turn over property would be to promote public disorder and
potentially dangerous confrontations.
Thompson also claims that Anderson and Mail Boxes
breached their contract by not shipping the package. Appellees
have a clear defense to this claim, namely that DHL's airbill
specifically states "DHL will not carry: currency" Since
Thompson's package was not delivered because it contained
currency, Anderson and Mail Boxes did not breach the contract.9
For these reasons the judgment is AFFIRMED.
1 According to Anderson, it is Mail Boxes' policy to call the
police if any transaction looks suspicious.
2 Both the DHL and Federal Express airbills provide their
agents with the right to open and reject any packages.
3 Specifically the package contained $19,440. $800 of the
bills matched previously recorded drug buy bills which were used
in an April 17, 1989 purchase.
4 The magistrate's summary states:
The search and seizure of the
package by Shawn Anderson, manager for Mail
Boxes Etc. USA, Inc. was a private search
without sufficient governmental involvement
to constitute state action and render
applicable to the search the Fourth
Amendment. A government agent's viewing of
what a private party has freely made
available for his inspection does not violate
the Fourth Amendment. United States v.
Jacobsen, [466 U.S. 109 (1984)].
Investigator Cooper infringed the privacy
interest of the package owner when he seized
the package and went beyond the parameters of
the private search without a warrant.
Sterling still retained a privacy interest in
whether the monies could be identified or
associated with any known drug activity.
5 The breach of contract claim is not included in Thompson's
complaint. He, however, argued this theory before the trial
court, and Anderson has responded to it.
6 As we noted earlier, the Federal Magistrate in Thompson's
criminal trial did not expressly decide whether Cooper's seizure
was lawful. For the reasons discussed below, we find it
unnecessary to decide this issue.
7 Our holding does not apply to situations where the bailee
has the option of not delivering the property to the police
officer. As to that situation, we express no opinion. In the
present case, the record does not show that Anderson voluntarily
delivered the package to Officer Cooper. What the record
indicates is that "Cooper . . . seized the box,"and that Cooper
"took the package, opened it, counted the money that was in it,
and left a receipt."
8 See Restatement (Second) of Torts 243, comment b ('[A]
bailee is not liable for conversion for failing to prevent a
sheriff from seizing goods under process, even though the process
may be entirely void.')
9 Thompson argues that he should not be bound by the terms of
DHL's airbill because he "could not have seen . . . DHL['s] . . .
list of unacceptable items because he was not physically at the
Mail Boxes business"when Anderson filled out the DHL airbill.
However, in the absence of misrepresentation, a party is bound by
the terms of a standardized contract even if he neglects to read
it, unless the unknown terms "are beyond the range of reasonable
expectation." Lauvetz v. Alaska Sales and Serv., __ P.2d __, Op.
No. 242 (Alaska, November 15, 1991) (quoting Restatement (Second)
of Contracts 211 at comment f (1981)); see also 3 A. Corbin,
Corbin on Contracts 607 (1960). In the present case, Anderson
did not misrepresent the terms of DHL's airbill and DHL's
limitation on items it will ship is not unreasonable. Moreover,
Thompson could have visited Mail Boxes to read and personally
complete DHL's airbill.