Mark Alfred Garmon v. Robert Foust, (Two Cases)

HEANEY, FAGG, Before ROSS Cir- Judges. cuit FAGG, Judge. Circuit Garmon, Mark a student at a university, brought rights a civil action un- § alleging der U.S.C. that Robert Foust, officer, municipal police violated rights by his Fourth Amendment unlawful- ly seizing searching without a that had mailed to been which was undelivered and in the cus- but university the time tody employees the officer took of it. dis- trict court held that Foust immune search, from for the directed a take cus- liability student residences that he would on the issue for Garmon verdict tody and submitted and secure a search for seizure jury. damages alone to the information prepared issue of Foust warrant. one a verdict of jury returned After the it and the for a search warrant took award- district court damages, dollar unopened package before an Iowa district ap- contends on attorney’s fees. Foust ed signing judge. Before court immu- qualified he entitled to peal that was however, open judge ordered Foust to agree. matter of law. We nity as a complied marijua- package. the Foust and entry of Hence, and remand for we reverse package. package The na was found in the on the issue of in favor of Foust immediately Later in the was resealed. accordingly vacate the district liability and day 18 the was re- on December attorney’s fees. court’s award turned to the residence hall and a notice 17, 1975, special-delivery a December On advising placed was in Garmon’s mailbox to Mark package addressed first-class mail being held for him. him that a receptionist was delivered Garmon picked up package, po- the After Garmon hall. Ac- university residence Garmon’s lice officers executed a search warrant for postal em- practice a cording to the usual room, opened package his seized the day’s mail for the deliver the ployee would marijuana, him. The did and arrested state mail room. It was to the hall’s residents pursue charges criminal after the not mail receptionist’s task to sort the then the suppressed. seized evidence in individual mail- place the mail items large fit into If an item was too to boxes. quali Police officers are afforded a place receptionist would a mailbox the immunity liability fied from suits to paper in the addressee’s mailbox slip of § brought under U.S.C. 1983. Pierson being parcel that a notify the student 1213, Ray, 87 S.Ct. receiving After Garmon’s held. 1219, (1967). 18 L.Ed.2d 288 In Harlow v. put it in the room. receptionist the 800, 2727, Fitzgerald, 457 U.S. 102 S.Ct. however, she no- handling the (1982), held the Court very strong smell ticed that it emitted enjoy qualified immunity “are officials who hay. that it felt as if it contained Be- damages from for civil shielded pack- of the peculiar qualities of the cause as their conduct does not violate insofar age, receptionist called the hall director clearly statutory or constitu established him examine it. After exam- and asked to person rights of tional which reasonable director, who ining package, the hall known.” 102 S.Ct. would have Id. training in detection of had received at 2739. suspected that ages containing marijuana, objective Reliance on the reasonableness marijuana indeed conduct, as measured of an official’s resi- director of student and called the law, clearly reference to established dences, communicated with who then * ** permit should the resolution university employees squad. The narcotics many summary insubstantial claims on away the mail area from took the summary judgment, the judgment. On for safe- hall director’s office and to the determine, judge appropriately may not keeping. law, currently applicable only the but package the came to examine the Foust clearly that law was established whether brought He day, December 1975. next at the time an action occurred. trained to detect dog specially him a with omitted). (footnotes Unlike the Id. cocaine, dog and heroin. The marijuana, un- did not involve an action Harlow hidden in package after it was found the § 1983; nevertheless, der U.S.C. package was office. The hall director’s in a that the im- indicated footnote university employees or by the opened not announced in that ease munity standards agreement then reached an Foust Foust. apply 1983 suits. of would also to section and the director hall director 30, 465, 475, at 2738-39 n. 41 S.Ct. 65 L.Ed. 1048 at 818 n. 102 S.Ct. id. Economou, (1921). Butz v. U.S. quoting L.Ed.2d Foust contends that the time (1978). facts show that undisputed If the he took it had “clearly established” did not violate Foust already by university employ been seized rights when he took Amendment Fourth receipt ees and that his package, summary judg- possession of the from these did individuals favor have been entered his ment should subject require amount to a seizure by the district court. ments of the Fourth Amendment. Within Amendment ensures The Fourth Amendment, meaning of the Fourth people secure in “right property ‘seizure’ of occurs when there “[a] effects, houses, persons, papers, and their meaningful is some interference with an and sei against searches unreasonable possessory individual’s interests in that of the Fourth zures.” property.” Jacobsen, su Amendment extends to items in the mails. (footnote omitted). 104 pra, S.Ct. at 1656 Leeuwen, 397 v. See United States Van In the Court held that a seizure Jacobsen 249, 251, 1029, 1031, U.S. 90 S.Ct. 25 Drug occurred when Enforcement Adminis (1970); Jackson, parte L.Ed.2d 282 Ex 96 agents custody package tration took of a 727, 733, (1878). (6 Otto) 24 U.S. L.Ed. 877 and employees pri its contents from of a us, only In the case before we consider by govern vate carrier. decision “[T]he liability arising from his issue of Foust’s mental authorities to exert dominion and unopened package taking possession of the control over the for their own transporting it from the residence hall purposes clearly constituted a ‘seizure’ having without obtained a Gar warrant. * * *.” Id. at 1660 n. 18. We that believe challenge investiga mon does not Foust’s Foust’s assertion of dominion and control incident, including exposure tion of the of over the and its contents for his addition, dog. In we Hence, purposes own was a seizure. we any way in are not concerned with the reject argument must Foust’s that he was lawfulness of the search of the summary judgment entitled to because his cross-appeal since Garmon did not actions did not constitute a seizure of the holding im district court’s that Foust is package within meaning of the Fourth mune from for the search because Amendment. judge. it was undertaken at the of a behest granted Even if we take for propriety Nor are concerned we with the package was still in the mail when Foust university employees. the actions of the seized it without a his conduct did The by afforded the Fourth not violate the Fourth Amendment if the “consistently Amendment has been con * * * seizure was reasonable. See United States proscribing only govern strued as Jacobsen, supra, v. 104 S.Ct. at 1660-61 action; wholly inapplicable mental it is ‘to a 18; n. Place, United v. 462 States U.S. seizure, search or even an unreasonable 696, 2637, 2641-45, 103 one, S.Ct. 77 L.Ed.2d by effected individual not (1983). Supreme 110 Court has indi- acting agent as an of the Government or may cated that a the mail participation knowledge any with the or ” suspi- detained on the basis of reasonable governmental official.’ United v. States — -, pend- cion to believe it contraband Jacobsen, 1652, contains 104 U.S. S.Ct. ing 1656, (1984), investigation further directed toward quoting 80 L.Ed.2d 85 Walter States, establishing probable sup- cause which will v. 100 United port (1980) issuance of a search warrant. S.Ct. 65 Leeuwen, (Blackmun, J., dissenting); supra, United States v. 397 see also Cool- Van 443, 252-53, Hampshire, 403 U.S. at 90 S.Ct. at 1032-33. No idge v. New U.S. 487- 2048-50, 90, 2022, protected by 29 L.Ed.2d 564 interest the Fourth Amend- McDowell, (1971); ment was invaded in Burdeau v. U.S. Van Leeuwen for- unimportant whether the detained following day, rather warding packages day they deposited were accompa- residence hall or on the same remained at the than at 1032. 90 S.Ct. mail. Id. in the The detention this case has nied Foust. packages for this limited Detention as the detention in the same attributes Van prudent course to deemed time was delivery was de- Leeuwen: take, letting them enter the than rather access to it law enforcement layed and later to trying to retrieve them mails the addressee’s officers was assured but search warrant. Id. Unit- execute the respected the contents privacy was because Hillison, 733 F.2d 692 ed States invaded. were not Cir.1984), Leeu- the court relied case, however, there was In the segregation and it held wen when stronger for detention of the basis package on of a mailed nine-hour detention since, unlike the age than Van Leeuwen subjective assessment of of a the basis behavior, proba- Foust had full pending a determina- officers suspicious cause, did not violate the probable tion of cause to believe ble at 695-96. Amendment. See id. Fourth dog positively once the reacted contraband Amendment interest main Fourth Robinson, “[T]he to it. See United States privacy package attaches to a mailed (4th Cir.1983); F.2d States contents, speed which is its (2d Cir.1982), Waltzer, 682 F.2d 696, citing Id. delivered.” — cert, denied, U.S.-, 103 S.Ct. Leeuwen, supra, 397 U.S. at v. Van (1983); 77 L.Ed.2d apply these at 1032. We now (5th Cir.), Goldstein, the case us. to the facts of before principles cert, denied, 452 U.S. 101 S.Ct. possession he took At the time (1981); States v. least, at the on the package Foust had the (7th Cir.1980). Klein, 626 F.2d information he had received of the basis Thus, are unchal- through actions that his university employees and own Garmon, him by Foust had before a lenged unopened package, a of the examination probable cause to package which he had reasonable, suspicion, premised articulable Foust was marijuana. contained believe facts, that con objective on package, at least permitted to seize the Hence, per contraband. Foust was tained of a warrant temporarily, pending issuance package pending mitted to detain package. of the authorizing a search of a search warrant. See Van issuance Jacobsen, supra, 104 United States 252-53, Leeuwen, supra, 397 U.S. at 1660-61; Brown, 460 U.S. at Texas v. S.Ct. Leeuwen, at 1032-33. As Van S.Ct. 1535, 1540-41, L.Ed.2d 103 S.Ct. invasion of an there was this case no (1983). protected by the Fourth Amend interest as-a result of the detention of Gar ment of the is further Foust’s seizure package. significant mon’s Garmon’s by the existence of cir- supported pri was in the Fourth Amendment interest cumstances: vacy package, of the but Foust did not have law enforcement authorities Where he the contents of the until invade cause to believe that a container probable by judge. instructed to do so Under crime, or evidence of a holds contraband custody circumstances Foust’s of the warrant, not secured a but have seeking a search package while interpreted the Amendment to has a form of the limit nothing more than pending property, permit seizure by Leeuwen. authorized ed detention examine its of a warrant to issuance appear pack Although it does not contents, exigencies if of the circum- transported after their detention ages were recog- it or some other stances demand Leeuwen, one this distinction is in Van require- exception to the warrant nized difference, respect since with to without present. is rights it is ment Fourth Amendment Garmon’s Place, supra, pack- ees “on their initiative took the own investigation age App. 2641. Once Foust’s con- out of the mail.” 48. Because suspicion firmed the that Garmon’s summary judgment the cross motions for contraband, age exigent circum- facts, undisputed were decided on no find- justified the stances officer’s warrantless ings of fact can be inferred from the dis- seizure of the since had he not ruling trict court’s on motions. Com- possession obtaining taken of it before ments from the bench the district court search there was a risk that the dissent, post cited in the 1075-1076, lost, through would be either mis- were not made until after the motions for delivery taken to or in some other summary judgment upon, were ruled way. package’s The risk See id. hence, they pertinent are not to our deter- disappearance before a warrant could be mination whether the district court should outweighed obtained Garmon’s interest granted have summary judgment id.; possession. See see also Arkansas Foust. Sanders, undisputed it Since was before the (1979). 61 L.Ed.2d 235 Cf. district court that the had been Leeuwen, supra, States Van atU.S. mail, taken out of the we must view this (warrantless 90 S.Ct. at 1032 detention fact By taking as established. it out of the justified prevent to packages movement of university employees mail the had intruded obtained). mail before warrant Al- right possession Garmon’s to though with the advantage hindsight package. they voluntarily When relin may appear package’s that the risk of the quished possession of to Foust small, disappearance was Foust was not deprivation he effected no further of Gar required to entrust this valuable evidence right possession mon’s than had been private parties. of crime to accomplished by private Al individuals. Up point to this in our discussion we though transport Foust did have assumed Garmon’s away hall, from the residence we do not posses- the mail at the time Foust took believe that signifi this action constitutes a it, sion of assumption and based on that we deprivation cant right held that Van authorized deten- Leeuwen beyond brought about the universi package. tion of the undisputed, It is how- ty personnel. Nor did Foust exceed in ever, that Garmon’s had been di- scope any privacy invasion of Garmon’s by university employees verted which occurred when university em normal course it would have followed after ployees seized unopened and examined the delivery its to the residence hall. Instead package. Because Foust’s actions with re notifying of package’s Garmon of the arriv- spect go significant did not it, setting al and it aside until he called for ly beyond private intrusion Gar employees of the university took the possessory interests, mon’s privacy he age away delivery from the mail area of unreasonably did not upon any intrude kept the hall and it in the hall director’s “clearly established” Fourth Amendment pending office a arrival of law enforcement right when he unopened pack carried the In ruling officer. on cross motions for age away from the residence hall in order summary judgment which addressed the to secure a search warrant. See United qualified immunity issue of Foust’s the dis- Jacobsen, supra, States v. 104 S.Ct. at undisputed trict court noted: “The facts 1657-59. in pretrial stipulation are set forth a final parties of the filed on Garmon contends that under October a (8th copy plaintiff’s Kelly, of which is States v. 529 F.2d attached to mo- Cir. 1976), summary judgment.” police receipt a tion Garmon v. officer’s of items 77-367-2, Foust, slip op. private Civil No. at 1 from a individual who took them 11, 1983). (S.D.Iowa According Feb. to one constitutes a seizure meaning within the of stipulations, university employ- Amendment, of these the Fourth which to be lawful Moreover, Kelly imposed exi- the seizure. if by a warrant or accompanied must be stringent requirements for the Kelly In an FBI more sei- gent circumstances. present in maga- zure that case than we do of books and agent took in Kelly specif- we note that the court by to him made available zines that were ically greater considered the Fourth carrier which employee of a common Amendment afforded materials ship them. Id. at 1368. hired to had been enjoy protected a First Amendment which employee discovered shipper’s The Kelly, supra, v. status. See United States contain- magazines after cartons books and is, 529 F.2d at 1371-73. This consideration parties The damaged. were Id. ing them course, of not in the involved case. governmental no agreed that there was discovery initial since the search opinion In view of the Court’s recent resulted from a routine packaged materials Jacobsen, important way another there is by the damage inspection conducted carri- Kelly differs from the case before which Thus, the ini- employee. Id. at 1371. er’s posses- the officer took Kelly, us. after beyond was tial search of the containers magazines, sion of the books and but be- scope exclusionary rule because of fore he he examined obtained that the search it had not been established way scope the items in a that exceeded the by instigated or assisted law enforce- private Kelly’s privacy intrusion into discussion the ment officials. Id. Without Kelly, interests. See United States v. su- agent’s receipt that the FBI court assumed pra, Jacobsen, 529 F.2d 1368. Under magazines to amounted of books implicated the Fourth Amendment was be- went on to decide whether the seizure and through cause his examination the officer was unreasonable within the mean- seizure respect obtained “information with Amendment. ing of the Fourth Id. expectation privacy which of ha[d] magazines are court noted that books already been frustrated.” United States protected by the First presumptively Jacobsen, supra, v. S.Ct. 1659. Cf. Amendment, Haes, and that their seizure de- to the Fourth greater Cir.1977) (warrantless mands a adherence government requirement, id. at viewing exceeding scope Amendment of films Kentucky, illegal). search citing Roaden 496, 504, 93 37 L.Ed.2d qualified entitled to Because Foust was (1973),and held that in the absence law, immunity as a matter of we reverse police exigent circumstances in which must judgment the district court and re- immediately preserve evidence of the act entry for the mand his crime, pro- seizure of materials warrantless disposition issue favor. Our unrea- tected the First Amendment is unnecessary the attor- makes it to consider Kelly, supra, sonable. United States ney’s fees issue. We thus do not reach F.2d at 1372. Since no circum- argument that of attor- Foust’s the amount present, the sei- stances were warrantless contingent ney’s fees was limited fee and the evidence zure was unreasonable note, however, pan- that a agreement. We suppressed. at 1372-73. See id. held, recently of this court el Sisco Co., 733 F.2d 57 Alberici Construction Kelly that is inconsist- We do not believe (8th Cir.1984), agree- contingent fee that a in the ent with the result we reach automatically upper ment does not set concluded, Foust’s ac- As we have case. limit on fee awards. to a seizure amounted within tions the Fourth Amendment. meaning of the HEANEY, Judge, dissenting. Circuit Jacobsen, supra, 104 States United finding and n. 18. We have also respectfully 1660 dissent. In that I determined, however, package that the seizure was was rea- the seizure of Garmon’s reasonable, permit- sonable, primarily relies on finding majority that Foust was the University employees probable assumption cause that the on the ted to seize the from the already and removed it contained contraband had that to believe possession Foust took of it. justified mail at the time further exigent circumstances that 110-111) (Tr. findings assumption contrary is to the This presided court which over of both the state holding In that the in trial district Garmon’s criminal and the seized, the mail at the time it was the court’s court Because the district below. majority joint stipulation relies on a erroneous, I clearly would finding was not parties University which states that the violat- affirm conclusion that the search its “on their employees own initiative took the firmly ed fourth amendment established point out of the mail.” This principles. rejected specifically considered and the Moreover, court, the “the initial court. the According to state district district legally seizure without warrant of the court’s conclusionwas both and fac in with- question tually was from the mails correct. In U.S. Maxwell States, (8th showing Cir.1956), out a of circumstances 235 F.2d we * * (5th No. 7580 purposes pro State for the held statute 21, 1976) April (unpublished dist. Iowa or- scribing mail that tampering, is der). ruling summary its on In placed “in the mail” from the time it is in motions, specifically the court held: district it the mailbox to the time when reaches the clearly it was established in law that addressee. Accord United States v. Ask the (8th Cir.1976); ford, reached yet first class mail had not Ross States, subjected the could F.2d lawfully addressee be v. United Cir.1967). execution only by reasoning applies to search and seizure The same lawfully of a issued search and warrant when fourth amendment interests are at nothing suggest there in the person’s expectation law to A privacy stake. in requirement that the warrant would be her his or mail should receive the same abrogated involved if a individual passes level of whether or not it process distributing in the mail into through private parties hands of en the hands of the delivered addressees route to the addressee. a first item to a class mail accept Once we the district court's deter- policeman. mail, mination that the was in the Foust, 77-367-2, Garmon v. Civil No. then issue becomes whether the war- (S.D.Iowa 11, 1983) 5-6 (unpublished Feb. rantless seizure was nonetheless reason-

rulings). Leeuwen, In able. addition, bench, rulings in 397 U.S. court reiterated its (1970), conclusion Supreme was still time it mail at the clearly stated that the fourth amendment was seized: right people to be secure their

[Tjhere against papers unreasonable has been some talk about the searches and package being applied equal seizures out of the mail. That force whether again papers term used. I has would note those were transit the mail or been postal mail, are that the service locked at home. in the papers facts While relinquished had custody packages only its opened “can age by delivery, along with the other examined under like issued mail, dormitory, affirmation, Drake to Drake or to the similar oath or particularly de- yet gotten but that it had not scribing seized, thing to be as is re- addressee, University peo- Drake quired papers subjected when are to search ple physical people were the who had the own (quoting one’s household.” Id. Ex custody pass of it in order to on to the Jackson, parte 6 Otto addressee. (1878)). majority L.Ed. seeks to really any sig-

I attach particular requirement don’t avoid charac- terizing nificance the fact that temporary seizure as a detain- physically room in pending moved from one ment issuance a warrant citing dormitory over to room Leeuwen. another Van The crucial difference be- it retained. where was tween Van Leeuwen and this how- merely- was not ever, is office, took it but Foust post held at headquarters. This is police

back based on a limited detention type of suspicion authorized reasonable

Leeuwen. alternative, majority holds that

In the justified the seizure circumstances a search warrant without a risk that “there was

because lost, through mistaken de- either

would be way.” or in some other

livery to only is that Not factual

Supra at 1074. the district inconsistent with

conclusion amendment vio- finding of a fourth

court’s

lation, encourages a definition of it but nearly

exigency is so broad requirement. The

abrogates the warrant University in the hands of

package was put already it aside

officials who had possi- Only the remotest

police inspection. package would have

bility exists that the accidentally given to Garmon. lost or

been

Thus, primarily I think the dis- because finding that

trict court’s seized it is not

in the mail at the time Foust erroneous, I affirm the dis-

clearly would including judgment,

trict court’s attorney’s fees awarded.

amount of Petitioners, COSBY, al., et

Ronald L. COMMIS-

INTERSTATE COMMERCE and United States

SION

America, Respondents.

Burlington Northern Railroad

Company, Intervenor. 84-1110.

No. Appeals,

Eighth Circuit. 15, 1984. June

Submitted Aug. 1984.

Decided Rehearing En Banc

Rehearing and 18, 1984.

Denied Oct.

Case Details

Case Name: Mark Alfred Garmon v. Robert Foust, (Two Cases)

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 20, 1984

Citation: 741 F.2d 1069

Docket Number: 83-1563, 83-1857

Court Abbreviation: 8th Cir.