United States v. Augustine DeMoss

America, of STATES UNITED

Appellant, DEMOSS, Jr., Appellee.

Augustine Commission, as Airports

Metropolitan Minne operator of the

owner Air

apolis-St. International Paul Missouri, City Louis,

port; of St. operator of the Lambert-

owner Airport; Air Louis International

St. International, North

ports Council

America, representing an association oper

government bodies that own airports principal served

ate in the United air carriers

scheduled City,

States; City of Kansas as owner City Inter operator Kansas Airport, Amici on behalf

national

Appellant.

No. 01-1665. Appeals, States Court

Eighth Circuit. 17, 2001.

Submitted: Oct.

Filed: Feb. Petterson,

Nathan Atty., Asst. U.S. Min- MN, Brown, neapolis, argued (Anthony W. brief), Atty., appel- Asst. U.S. on the lant. Ross, MN, Minneapolis, argued

Kevin G. (Clifford Greene, brief), M. on the for Ami- ci in support Curiae of U.S. Menendez, Minneapolis, Katherine M. MN, argued, appellee. HANSEN,1 Judge,

Before: Chief BOWMAN, RICHARD S. ARNOLD and Judges. Circuit BOWMAN, Judge. Circuit appeals or- The United States adopting der of the District Court Magistrate Judge recommendation (and order, denying, gov- in a written objections Report ernment’s to the Recommendation) grant that the court Au- gustine suppression motion. The court held that evidence obtained Express result of a search of a Federal (FedEx) package, prose- used in the charges, drug cution of on federal Demoss was obtained in violation of Demoss’s February Appeals Eighth for the Circuit on 1. The Honorable David R. Hansen became - Judge Chief of the United States Court of heavily taped, with the seams vacate the rights. We Fourth sealed, the smell possibly to again limit all remand. order and pack- emanating from the illegal drugs developed during the facts were were listed age; phone numbers of which hearings, the first two course of recipient; the or the either the sender Magistrate Judge who the held was before cash; and the paid in charge was FedEx motion granting recommended overnight. With priority sent package was hearing was held The second suppress. to officer, as a narcotics Meyer’s experience Court, the law-en- District where in the raised his sus- in combination these factors initially identified officer who forcement contained an ille- package the picions that again at the at issue testified package the gal substance. gaps fill in the on court to request of the package the to point, Meyer took Transcript of At this matters.” “critical some 2001). (Jan. 19, facility. He at the FedEx another room Hearing at Clarification dog from his drug-detecting undisputed. his relevant facts are collected The to a canine subjected’the package car and morning of o’clock on the Around five sniff, packages that with several together Meyer, a Officer Mark August a few others that suspicious and were not veteran of the ten-year law-enforcement the that morn- Meyer taken from belt had Airport Com- (Minneapolis) Metropolitan suspi- he was somewhat ing about which mission, including years three with package to the cious. alerted handler, a canine was narcotics unit as Meyer ob- to “Joshua Smith.” addressed during the working drug interdiction warrant, package and the tained a search facility in at FedEx “morning sort” mg of a opened. Inside sub- was was visu- Meyer’s was to Minneapolis. mission methamphet- field tested as stance that they at a ally packages as moved inspect necessary steps then were amine. The ankle-high conveyor walking pace along an delivery to the taken to effect a controlled At belt, anything suspicious. looking for An the air indi- recipient address on bill. belt, employees sort- the end of the FedEx iden- determined be Demoss vidual later by location packages ed into containers posing as himself to the officer tified put then recipients of the intended delivery person as Smith” FedEx “Joshua delivery. At trucks for packages onto signed accepted for and and then a.m., things immediately two around 6:30 Demoss arrested package Meyer’s attention about caught incriminating to of- made statements some addressed to “Joshua drug charged with federal ficers. He was First, package the air bill on the Smith.” crimes. typed rather than or com- handwritten Second, puter-generated. District de novo the review We California, by Meyer from was sent known legal conclusion[ ]” Court’s “ultimate state, significant state of a “source” question violated Demoss’s the officer coming illegal drugs into Minne- origin by conducting a rights Fourth Amendment sota. suspi unsupported reasonable Rodriguez-Arreola, convey- cion. States v. Meyer lifted the off the Cir.2001). did, grant belt, or and as soon as he he noticed suppress both perfume, per- ing D'emoss’s motion strongly it smelled retrieved from methamphetamine of narcotics. haps to mask the smell bill, made the statements Demoss air Looking at the arrest, the District Court upon characteristics: also noticed additional not seized at the moment package was “seized” eluded that the it from the reasonable lifted so purposes when Fourth Amendment him to do According suspicion required was not belt. lifted it from court, so. Meyer lacked reason to the because on the information able based property “A ‘seizure’ of occurs time, him that the seizure available to when there some interfer rights and Demoss’s constitutional

violated ence with an individual’s inter was re obtained as result the evidence property.” ests in that United States v. con suppressed. Because we quired to be 109, 113, an court’s decision “reflects clude that the (1984). At the time law,” applicable we view of the erroneous Meyer package, lifted the “Joshua Smith” (quoting Id. suppression vacate the order. lim “possessory interests” were 1417, F.2d Layne, v. 973 sender, accord, ited. The of his own had denied, (8th Cir.1992), cert. U.S. party package turned the over to a third 1011, 1066, 113 S.Ct. to Demoss. While Demoss’s (1993)). expectation package that the would not be opened legiti en route was Meyer package took the searched When mate, there little about the see id. at 104 S.Ct. from the he knew only expectation package that could no that the suspicious package, nature of the physical not be handled or that its (diminishing handwritten would the air bill was attributes, not or not package was sent could be ob the likelihood that the business) served, Maryland, v. that it arrived in Minneso Smith cf. 735, 743-44, 2577, 61 L.Ed.2d 220 illegal drugs. 99 S.Ct. ta from a source state for (1979) (“This consistently has held to reasonable Court These facts do not amount legitimate expectation person under the Fourth that a has suspicion sufficient is, voluntarily privacy in information he package, that Amendment to detain parties.”). By to third entrust Vasquez, turns over to seize it. See United States (8th Cir.2000) delivery to (noting ing package to FedEx for 213 F.3d Demoss, Smith,” the sender “Joshua inadequate evidence of reason there was a/k/a any characteris virtually guaranteed suspicion package to seize a where the able package tic of the that could be observed incorrectly addressed even package “was so observed. And by the senses would be recipient had the though sender expectation that name; legitimate was no the air bill was handwrit there same last not be ten, officers would overnight,’ and con law-enforcement ‘priority marked concept of an number; among the “The pack and the observers. tained no account prepared California”); society privacy interest in age sent from is, by very its Johnson, recognize as reasonable States nature, mere Cir.1999) critically different from the inadequate (holding there was justified, however well suspicion expectation, to seize a of reasonable evidence to the attention facts will not come were hand-writ certain package where “the labels U.S. at ten, from of the authorities.” package was mailed one indi Further, any “inter 1652. at the same 104 S.Ct. to another individual vidual Meyer package with the when address, mailed from a ference” package insignificant. See state, it off the belt was and the return ad lifted narcotics source (holding that at 426 Vasquez, ac different from the zip dress code was code”). examining the outside “officers’ actions But we hold that the cepting zip suspicion.” Id. give rise to reasonable ... do not constitute package reasonable, Meyer’s experi- Taking 605. into account articula- requiring detention packages because, point, the ence in the interdiction at that suspicion ble taining illegal drugs, his collective observa- delayed or otherwise inter- officers had package tions of the “Joshua' Smith” processing of with the normal fered for the ob- only amounted to a sufficient basis held the package”). reasonable, suspicion suspi- jectively articulable observed additional briefly before he necessary and con- package was seize cious characteristics. a canine sniff. As moved pur- duct for Fourth not “seized” package away lifting it from the con- by Meyer’s poses sniff, for a canine detained the veyor belt. over the dominion and control “exert[ed] that the The conclusion is, package,” was seized not a Fourth Amendment purposes. for Fourth Amendment Jacob brings step the next our us to sen, at 121 n. seizure, analysis: by the time there was sup only needed to be But that seizure reasonable, there articulable reasonable, artic- ported by objectively an of support it? The determination suspicion package the con ulable government agent’s suspicion is whether a contraband, that it tained and we hold was. exceedingly constitutionally reasonable is question whether the totality the of remains fact-specific. examine We “Joshua arguably supporting subsequent a detention the circumstances was, canine sniff suspicion, package Smith” determination of reasonable extent,” an unreason they by its “nature and evaluating those circumstances legitimate upon those versed in able intrusion would be “understood privacy expectations. v. enforcement.” United the field of law Place, 696, 705, 2637, Cortez, 411, 418, 101 462 103 S.Ct. 77 U.S. States (1981) (1983). so, 690, If then the seizure (analyzing 66 L.Ed.2d 621 L.Ed.2d 110 S.Ct. case, In “in the absence of person). seizure of the this as becomes unreasonable package, probable suspicion he no cause”—reasonable Meyer soon as lifted the 709, heavy perfume longer enough. Id. at ticed the smell and the tape package, on the features 2637. hold that the detention of the excessive We that, package never un experience, his were intended to “Joshua Smith” became First, illegal drugs. mask the smell of See John reasonable. as we have noted be son, fore, at n. 2 not from Demoss’s (noting 605 the seizure was heavy person, party a taping Express package of an Mail but from third with whom delivery perhaps suspi is “a circumstance more the sender had contracted for (and Express permission par cious than the others in the” with the of the third 705, profile). ty). In the time it took See id. at 103 S.Ct. 2637. The Mail/Narcotics bill, Meyer him canine to read the air further detention of the brief, lasting only twenty min telephone noted the lack of numbers for sniff was (“[T]he 709, 103 payment, id. at 2637 recipient, sender and the cash utes. See S.Ct. brevity individual’s priority and that sent of the invasion alone, impor Fourth Amendment interests is an overnight. Considered each determining features noted is innocuous. But tant factor in whether the sei minimally as to consistent with innocent zure is so intrusive “[c]haracteristics can, together, justifiable suspicion.”). on reasonable use of the mail when taken

637 (1984). 1652, S.Ct. 80 L.Ed.2d Moreover, pursue[d]” his Meyer “diligently “[Ijndividuals Amendment have Fourth Id. There investigation into the from unreasonable right to be free that the little risk placed in searches and seizures of items appropriate it onto the have made ” ... mail.... United States v. Sund it. In truck,- dog not alerted to had the (8th Cir.1999). by, fact, packages Meyer suspicious the other is entitled to Fourth Demoss Whether morning the belt pulled from had case, protection Amendment this howev on the belt to continue put back were er, upon question: first turns a threshold dog’s time of the way. Up to the whether, meaning within the of the Fourth alert, necessary proba- provided which Amendment, Meyer “seized” this Officer while cause to detain ble Carter, parcel. See Minnesota U.S. the detention sought, search warrant S.Ct. wholly reasonable. (1998) (Scalia, J., concurring) (stating that sum, Meyer’s lifting of In we hold that has oc determination of whether “seizure” package from the question curred is threshold Fourth take an officer with the brief time would analysis). A “seizure” of reasonable, develop experience “occurs when there is property or effects that the suspicion articulable an indi some interference with contraband, By was not a seizure. tained prop in that vidual’s interests Meyer’s actions did become the time erty.” seizure, necessary had the reasonable S.Ct. and he did package, to detain the concluding “seized” reasonably. so mo- package in a constitutional sense suppression order The District Court’s conveyor it off the ment he lifted the case is remanded is vacated and in upon language district court relied proceedings, including the denial further Reeves, v. 233 F.3d 555 States United suppress. Demoss’s motion to Cir.2000), Sundby, and States v. United (8th Cir.1999), Johnson, F.3d stat- HANSEN, Judge, concurring. Circuit must authorities ing that “law enforcement wholeheartedly agree Although I with suspicion based on artic- have a reasonable result, I today’s separately I write because ulable, objective facts that occurred in this conclude that no seizure detaining it from before tains contraband Meyer infringed upon case until Officer Sundby, 186 the mail without a warrant.” delivery timely interest in the court’s and De- F.3d at 875. The district drug I also conclude that the package. cases is unfound- moss’s reliance these positive package generat- alert to the dog’s ed, however, simply do these cases because justify the seizure. probable cause to ed issue. the threshold seizure not address provides that Fourth Amendment Rather, Reeves, Sundby, The in and Johnson secure in “right people that a parties conceded or we assumed effects, houses, papers, occurred, persons, and we then resolved seizure had sup- and sei- unreasonable searches the seizure was against the issue of whether Const, zures, suspicion. by not be violated.” U.S. antecedent reasonable ported shall Johnson, inspection to a held that an parcel pri- A delivered In we amend. IV. officer did not have a reasonable mail carrier is an “effect” within vate express mail “intercept detain” an Fourth Amendment. meaning of Johnson, 171 F.3d at 605. We States package. (8th Cir.) denied, however, curiam), not, support- (per cert. recite the facts did Instead, merely assumption. we ing this undisputed (1992), it following proposition:

stated that for the there “intercepted and detained.” package was bags is “no seizure when officers moved Id., Similarly, Sundby, in 171 F.3d at 602. public baggage area to from overhead aisle assumed the simply we dog to facilitate sniff because owners were “seized,” any and thus failed to recite we taking place not aware the sniff in detailing facts the manner which the interrupted travel not have been if Sundby, it. F.3d authorities detained dog had not detected contraband.” Vas Reeves, affirmed the district at 874. In we added). quez, (emphasis at 426 213 F.3d court, concluding that the seizure of a upon We also relied supported reasonable sus- Ward, (7th Cir.1998), majority picion. opinion The did not recite proposition: “detention occurred case, nor the facts of the did address the only bag dog officer held for later when dissent, Judge Bye, in seizure issue. did sniff, interrupting bag’s transport and re case, facts of the recite the which are quiring placement dog on later bus if did markedly present- different from the facts (em Vasquez, alert.” Reeves, Nebraska, Sidney, ed here. In added). phasis Vasquez, Harvey, and postmaster rerouted a destined “meaningful Ward reveal that a interfer Sidney inspec- to Omaha for further ence” an individual’s inter with postmaster tion. The Omaha detained the luggage in or mail deposited est with a conducted, days package for two before something common carrier must involve of law of- with the assistance enforcement more than the mere of a off ficials, delivery of a controlled in sorting facility. a mail The assumed seizure Reeves was a “two- Harvey, police officers an boarded Reeves, day 233 F.3d at 560 detention.” empty Greyhound drug-sniffing bus with a J., Thus, (Bye, dissenting). indi- Reeves dog passengers after had exited the cates, issue, anything regard if to this alerted, during refueling. vehicle that a of mail “seizure” involves more indicating that narcotics were contained in process- substantial interference with the overhead bins. The officers moved the ing mail than oc- what luggage from the overhead bins to the in curred this case. dog dog aisle to facilitate a sniff. The opportunity We did have the to address bags, alerted to two of the and the officers the threshold in seizure issue United then located and arrested the owners Vasquez, States v. F.3d Cir. the bags. We held that “because there 2000). Vasquez, In we held officers’ appel- was no interference with in examining “actions the outside of [a] possessory lants’ interests in bag- subjecting and then the gage, ... no Harvey, seizure occurred.” dog to a sniff sat at the rear of [a] 961 F.2d at 1364. delivery truck do not constitute a deten- Ward, purchased In the defendant a reasonable, requiring tion a articulable Greyhound Angeles bus ticket from Los to suspicion.” Id. at 426. We reasoned Indianapolis. The defendant did not board there was no “seizure” because “the offi- bus; instead, bag he checked a delayed cers had not or otherwise inter- taining Greyhound cocaine at the fered terminal processing with the normal of the added). in package.” (emphasis Angeles flight Los and took a to sup- Id. India- napolis port proposition, bag of this to retrieve the we cited United its destina- Harvey, point. States v. 1363-64 tion En Indianapolis, F.2d route to Ward, 144 F.3d at viewing. others for stop Springfield, in a scheduled made bus Cf. (“He reasonably could have foreseen Agency Enforcement Drug The Missouri. handled, (DEA) moved inspected bag eastward bound that would be routinely around, Springfield, and taken off the bus.... He through even passing buses inspect transport- expectation the bus ... did could have no reasonable agents DEA touched, agents DEA re- bag. bag The would not be han ing Ward’s luggage compart- dled, bag prior from the bus moved the or even removed bag to a presented bag’s Indianapolis.”). ment of the bus in De- to the arrival alerted dog. The narcotics-detection in possessory having moss had no interest it, place the agents could but before particular convey- a routed on bus, departed the bus bag back on the area, particular in a or or sorted agents Spring- DEA in Indianapolis. sorting in a any particular stored bin for agents prepare and had field called ahead particular only pos- amount of time. His delivery Indianapo- in bag a look alike timely in sessory interest arrested when he agents lis. The Ward delivery, Meyer’s and until Officer actions bag at the India- attempted to retrieve the interest, upon that there was no impinged terminal. The Ward Greyhound napolis in Meyer’s merely seizure. Officer action was as if he had court stated that “[i]t parcel off a Greyhound.” shipped with inspection that setting it aside for a brief Ward, court 144 F.3d at 1031. The Ward would not have otherwise interfered with the mere movement of concluded (but timely delivery positive for the alert possession in the of the owner bag not dog) impinged upon no from the narcotics se, handling per but that the cognizable Fourth Amendment interest. if ripen into a seizure bag could Place, See United States bag interfered with the handling of the 2637, 77 L.Ed.2d 110 717 n. 103 S.Ct. timely delivery. recipient’s expectation of (1983) (“ of mail not mere detention ‘[T]he court reasoned that when The Ward to at custody or control amounts [one’s] a common car- person parcel delivers a interference most a minimal or technical delivery, posses- then “the owner’s rier for effects, resulting in person or [one’s] with ” by the common sory interest is defined deprivation (empha at all.’ personal obligation to deliver carrier’s contractual added)) (Brennan, J., concurring) (quot sis time_[A] bag specified at a deten- Place, 660 F.2d ing States v. interfere begin tion does not with (2d Cir.1981), aff'd, 462 delays interest until it owner’s (1983)); Ward, 77 L.Ed.2d package beyond the con- (“[Officer] not ‘seize’ at 1033 did upon hour.” Id. at 1031. tractually agreed touching then bag merely by Ward’s deposits an item “person Because a who compart removing luggage it from the far less of an interest the ... mail retains bag to that limited Handling the ment. person than does a who in the mailed item any rights of the impinge extent did not luggage transport with a checks his protects.”); the Fourth Amendment that carrier,” Eng- common that (concluding England, 971 F.2d at land, 419, Cir.1992), the does parcel dog sniff setting aside mail Harvey ap- and underlying rationale Ward is the “[i]t to because not amount case. greater force to this plies with even the defen the interference with extent of property, in his possessory interest dant’s had no Demoss could have reasonable property, movement of the physical not the not have parcel that his expectation has oc whether a seizure that determines by persons other and that its been handled curred”). exposed have to would not been exterior

Thus, party I the court when it sion agree with of third common carrier and the procedure significant delay caused no that this was not seized concludes travel”); suspect’s United States v. purposes when Of- for Fourth (5th Cir.1988) Lovell, 849 F.2d conveyor lifted it from the ficer (“The momentary delay by occasioned respectfully disagree but I it bags’ conveyor removal from the belt was seized when he then moved it became meaningful insufficient to constitute a in- away dog belt for a ... passenger’s] posses- terference with [a circumstance, sniff. In this there is no sory result, bags. interest As a legally lifting relevant distinction between agents’ action did not constitute a sei- holding and this for an instant zure.”). holding and Accordingly, I would that no hold sei- minutes, twenty long so as its ultimate zure occurred in this until case Officer timely delivery contracted for not the package detained to the extent In neither frustrated. case is Demoss’s timely delivery he interfered with a of possessory parcel infringed. interest in the package. course, point, Of Thus, purposes, for Fourth Amendment justified a seizure such the ante- any attempt draw a distinc- probable cedent cause the officer had tion these two between circumstances engendered by which was the narcotics impracticable impossible. would be if not dog’s positive alert to the See I my choose to cast lot with those cases Vasquez, (stating 213 F.3d at 427 indicating both from this and other circuits cause). positive probable alert establishes piece that a luggage or mail delivered to I concur in our court’s reversal of the a common carrier is not “seized” within district court’s judgment. the meaning of the Fourth Amendment until the authorities have interfered with a luggage interest or mail expectation timely

such that deliv-

ery luggage or has been W.F.M., INC.; Plaintiff/Appellant, Johnson, frustrated. See United States v. (9th Cir.1993) (con- 990 F.2d Does; Does, Plaintiffs, John Jane cluding that there is no seizure where the luggage “in way detention of interfered COUNTY, Nebraska; CHERRY James travel, with his or expecta- frustrated his Winkle; Quible; Van Zale William respect tions with to his luggage”); Eng- Ward; Churchill; Lila Lawrence Tur land, 971 F.2d at 421 (concluding that ner, Defendants/Appellees. detaining subjecting mail and No. 01-1752. sniff pack- does amount to seizure until ages “delayed by detention”); are Appeals, States Court of Riley, United States v. Eighth Circuit. (8th Cir.1991) (dictum) (stating that han- Submitted: Nov. 2001. dling luggage exposing it to a narcot- Filed: Feb. ics-detecting dog luggage while the Rehearing Rehearing En Banc still in possession party third common April Denied: 2002.* intrusive,” carrier minimally may “was all”); not be a “seizure at Id. at 1048 n. 4

(stating that there is “no ‘seizure’ when

police dog sniffed luggage posses- still in

* Judge part RILEY took no in the decision of this case.

Case Details

Case Name: United States v. Augustine DeMoss

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 7, 2002

Citation: 279 F.3d 632

Docket Number: 01-1665

Court Abbreviation: 8th Cir.