United States v. Augustine DeMoss

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 01-1665
___________

United States of America, *
*
Appellant, *
*
v. *
*
Augustine Demoss, Jr., *
*
Appellee. *
---------------------------------- *
Metropolitan Airports Commission, *
as owner and operator of the * Appeal from the United States
Minneapolis-St. Paul International * District Court for the
Airport; City of St. Louis, Missouri, * District of Minnesota.
as owner and operator of the Lambert- *
St. Louis International Airport; Airports *
Council International, North America, *
an association representing government *
bodies that own and operate the *
principal airports served by scheduled *
air carriers in the United States; City of *
Kansas City, as owner and operator of *
the Kansas City International Airport, *
*
Amici on behalf of Appellant. *

___________

Submitted: October 17, 2001
Filed: February 7, 2002
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Before HANSEN,1 Chief Judge, RICHARD S. ARNOLD and BOWMAN, Circuit
Judges.
___________

BOWMAN, Circuit Judge.

The United States appeals from the order of the District Court adopting the
recommendation of the Magistrate Judge (and denying, in a written order, the
government's objections to the Report and Recommendation) that the court grant
Augustine Demoss's suppression motion. The court held that evidence obtained as
the result of a search of a Federal Express (FedEx) package, to be used in the
prosecution of Demoss on federal drug charges, was obtained in violation of
Demoss's Fourth Amendment rights. We vacate the order and remand.

The facts were developed during the course of two hearings, the first of which
was held before the Magistrate Judge who recommended granting Demoss's motion
to suppress. The second hearing was held in the District Court, where the law-
enforcement officer who initially identified the package at issue testified again at the
request of the court to fill in the gaps on some "critical matters." Transcript of
Clarification Hearing at 3 (Jan. 19, 2001). The relevant facts are undisputed.

Around five o'clock on the morning of August 18, 2000, Officer Mark Meyer,
a ten-year law-enforcement veteran of the (Minneapolis) Metropolitan Airport
Commission, including three years with the narcotics unit as a canine handler, was
working drug interdiction during the "morning sort" at the FedEx facility in
Minneapolis. Meyer's mission was to visually inspect packages as they moved at a
walking pace along an ankle-high conveyor belt, looking for anything suspicious. At
the end of the belt, FedEx employees sorted the packages into containers by location

1
The Honorable David R. Hansen became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on February 1, 2002.

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of the intended recipients and then put the packages onto trucks for delivery. At
around 6:30 a.m., two things immediately caught Meyer's attention about a package
on the belt that was addressed to "Joshua Smith." First, the air bill on the package
was handwritten rather than typed or computer-generated. Second, the package was
sent from California, known by Meyer to be a "source" state, a significant state of
origin for illegal drugs coming into Minnesota.

Meyer lifted the package off the conveyor belt, and as soon as he did, he
noticed that it smelled strongly of perfume, perhaps to mask the smell of narcotics.
Looking at the package and the air bill, he also noticed additional characteristics: the
package was heavily taped, with the seams all sealed, again possibly to limit the smell
of illegal drugs emanating from the package; no phone numbers were listed for either
the sender or the recipient; the FedEx charge was paid in cash; and the package was
sent priority overnight. With Meyer's experience as a narcotics officer, these factors
in combination raised his suspicions that the package contained an illegal substance.

At this point, Meyer took the package to another room at the FedEx facility.
He collected his drug-detecting dog from his car and subjected the package to a
canine sniff, together with several packages that were not suspicious and a few others
that Meyer had taken from the belt that morning about which he was somewhat
suspicious. The dog alerted to the package addressed to "Joshua Smith." Meyer
obtained a search warrant, and the package was opened. Inside was 500 mg of a
substance that field tested as methamphetamine. The necessary steps were then taken
to effect a controlled delivery to the recipient address on the air bill. An individual
later determined to be Demoss identified himself to the officer posing as a FedEx
delivery person as "Joshua Smith" and then signed for and accepted delivery of the
package. Demoss was arrested and made some incriminating statements to officers.
He was charged with federal drug crimes.

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 We review de novo the District Court's "ultimate legal conclusion[]" that the
officer in question violated Demoss's Fourth Amendment rights by conducting a
seizure unsupported by reasonable suspicion. United States v. Rodriguez-Arreola,
270 F.3d 611, 615 (8th Cir. 2001). In granting Demoss's motion to suppress both the
methamphetamine retrieved from the package and the statements Demoss made upon
his arrest, the District Court concluded that the package was "seized" for Fourth
Amendment purposes when Meyer lifted it from the conveyor belt. According to the
court, because Meyer lacked reasonable suspicion based on the information available
to him at that time, the seizure violated Demoss's constitutional rights and the
evidence obtained as a result was required to be suppressed. Because we conclude
that the court's decision "reflects an erroneous view of the applicable law," we vacate
the suppression order. Id. (quoting United States v. Layne, 973 F.2d 1417, 1420 (8th
Cir. 1992), cert. denied, 506 U.S. 1066 (1993)).

When Meyer took the package from the belt, he knew little about the
suspicious nature of the package, only that the air bill was handwritten (diminishing
the likelihood that the package was sent by a business) and that it arrived in
Minnesota from a source state for illegal drugs. These facts do not amount to
reasonable suspicion sufficient under the Fourth Amendment to detain the package,
that is, to seize it. See United States v. Vasquez, 213 F.3d 425, 426 (8th Cir. 2000)
(noting there was inadequate evidence of reasonable suspicion to seize a package
where the package "was incorrectly addressed even though the sender and recipient
had the same last name; the air bill was handwritten, marked 'priority overnight,' and
contained no account number; and the package was sent from California"); United
States v. Johnson, 171 F.3d 601, 604 (8th Cir. 1999) (holding there was inadequate
evidence of reasonable suspicion to seize a package where "the labels were hand-
written, the package was mailed from one individual to another individual at the same
address, the package was mailed from a narcotics source state, and the return address
zip code was different from the accepting zip code"). But we hold that the package

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was not seized at the moment Meyer lifted it from the belt, so reasonable suspicion
was not required for him to do so.

"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). At the time Meyer lifted the "Joshua Smith" package,
Demoss's "possessory interests" were limited. The sender, of his own accord, had
turned the package over to a third party for delivery to Demoss. While Demoss's
expectation that the package would not be opened and searched en route was
legitimate, see id. at 114, there could be no expectation that the package would not
be handled or that its physical attributes would not or could not be observed, cf.
Smith v. Maryland, 442 U.S. 735, 743-44 (1979) ("This Court consistently has held
that a person has no legitimate expectation of privacy in information he voluntarily
turns over to third parties."). By entrusting the package to FedEx for delivery to
"Joshua Smith," a/k/a Demoss, the sender virtually guaranteed that any characteristic
of the package that could be observed by the senses would be so observed. And there
was no legitimate expectation that law-enforcement officers would not be among the
observers. "The concept of an interest in privacy that society is prepared to recognize
as reasonable is, by its very nature, critically different from the mere expectation,
however well justified, that certain facts will not come to the attention of the
authorities." Jacobsen, 466 U.S. at 122. Further, any "interference" with the package
when Meyer lifted it off the belt was insignificant. See Vasquez, 213 F.3d at 426
(holding that "officers' actions in examining the outside of the package . . . do not
constitute a detention requiring a reasonable, articulable suspicion because, at that
point, the officers had not delayed or otherwise interfered with the normal processing
of the package"). Meyer held the package only briefly before he observed additional
suspicious characteristics. The package was not "seized" for Fourth Amendment
purposes by Meyer's lifting it from the conveyor belt.

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 The conclusion that the lifting of the package was not a Fourth Amendment
seizure brings us to the next step in our analysis: by the time there was a seizure, was
there reasonable, articulable suspicion to support it? The determination of whether
a government agent's suspicion is constitutionally reasonable is exceedingly fact-
specific. We examine the totality of the circumstances arguably supporting a
determination of reasonable suspicion, evaluating those circumstances as they would
be " understood by those versed in the field of law enforcement." United States v.
Cortez, 449 U.S. 411, 418 (1981) (analyzing seizure of the person). In this case, as
soon as Meyer lifted the package, he noticed the heavy perfume smell and the
excessive tape on the package, features that, in his experience, were intended to mask
the smell of illegal drugs. See Johnson, 171 F.3d at 605 n.2 (noting that heavy taping
of an Express Mail package is "a circumstance perhaps more suspicious than the
others in the" Express Mail/Narcotics profile). In the time it took him to read the air
bill, Meyer further noted the lack of telephone numbers for sender and recipient, the
cash payment, and that the package was sent priority overnight. Considered alone,
each of the features Meyer noted is innocuous. But "[c]haracteristics consistent with
innocent use of the mail can, when taken together, give rise to reasonable suspicion."
Id. at 605. Taking into account Meyer's experience in the interdiction of packages
containing illegal drugs, his collective observations of the "Joshua Smith" package
amounted to a sufficient basis for the objectively reasonable, articulable suspicion
necessary to seize the package and conduct a canine sniff. As Meyer moved the
package away from the conveyor belt and detained the package for a canine sniff, he
"exert[ed] dominion and control over the package," that is, the package was seized
for Fourth Amendment purposes. Jacobsen, 466 U.S. at 121 n.18. But that seizure
needed only to be supported by an objectively reasonable, articulable suspicion that
the package contained contraband, and we hold that it was.

The question remains whether the subsequent detention of the "Joshua Smith"
package for the canine sniff was, by its "nature and extent," an unreasonable intrusion
upon Demoss's legitimate privacy expectations. United States v. Place, 462 U.S. 696,

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705 (1983). If so, then the seizure becomes unreasonable "in the absence of probable
cause"—reasonable suspicion is no longer enough. Id. at 709. We hold that the
detention of the "Joshua Smith" package never became unreasonable. First, as we
have noted before, the seizure was not from Demoss's person, but from a third party
with whom the sender had contracted for delivery (and with the permission of the
third party). See id. at 705. The detention of the package for the canine sniff was
brief, lasting only twenty minutes. See id. at 709 ("[T]he brevity of the invasion of
the individual's Fourth Amendment interests is an important factor in determining
whether the seizure is so minimally intrusive as to be justifiable on reasonable
suspicion."). Moreover, Meyer "diligently pursue[d]" his investigation into the
package. Id. There was little risk that the package would not have made it onto the
appropriate delivery truck, had the dog not alerted to it. In fact, the other suspicious
packages Meyer had pulled from the belt that morning were put back on the belt to
continue on their way. Up to the time of the dog's alert, which provided the necessary
probable cause to detain the package while a search warrant was sought, the detention
was wholly reasonable.

In sum, we hold that Meyer's lifting of the package from the conveyor belt, for
the brief time it would take an officer with his experience to develop a reasonable,
articulable suspicion that the package contained contraband, was not a seizure. By
the time Meyer's actions did become a seizure, he had the necessary reasonable
suspicion to detain the package, and he did so reasonably.

The District Court's suppression order is vacated and the case is remanded for
further proceedings, including the denial of Demoss's motion to suppress.

HANSEN, Circuit Judge, concurring.

Although I wholeheartedly agree with today's result, I write separately because
I conclude that no seizure occurred in this case until Officer Meyer infringed upon

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Demoss's interest in the timely delivery of the package. I also conclude that the drug
dog's positive alert to the package generated probable cause to justify the seizure.

The Fourth Amendment provides that the "right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated." U.S. Const. amend. IV. A parcel delivered to a private mail
carrier is an "effect" within the meaning of the Fourth Amendment. United States v.
Jacobsen, 466 U.S. 109, 114 (1984). "[I]ndividuals have a Fourth Amendment right
to be free from unreasonable searches and seizures of items placed in the . . . mail . .
. ." United States v. Sundby, 186 F.3d 873, 875 (8th Cir. 1999). Whether Demoss is
entitled to Fourth Amendment protection in this case, however, first turns upon a
threshold question: whether, within the meaning of the Fourth Amendment, Officer
Meyer "seized" this parcel. See Minnesota v. Carter, 525 U.S. 83, 92 (1998) (Scalia,
J., concurring) (stating that determination of whether "seizure" has occurred is
threshold question to Fourth Amendment analysis). A "seizure" of property or effects
"occurs when there is some meaningful interference with an individual's possessory
interests in that property." Jacobsen, 466 U.S. at 113.

In concluding that Meyer "seized" this package in a constitutional sense the
moment he lifted it off the conveyor belt, the district court relied upon language in
United States v. Reeves, 233 F.3d 555 (8th Cir. 2000), Sundby, and United States v.
Johnson, 171 F.3d 601 (8th Cir. 1999), stating that "law enforcement authorities must
have a reasonable suspicion based on articulable, objective facts that a package
contains contraband before detaining it from the mail without a warrant." Sundby, 186
F.3d at 875. The district court's and Demoss's reliance on these cases is unfounded,
however, because these cases simply do not address the threshold seizure issue.
Rather, in Reeves, Sundby, and Johnson the parties conceded or we assumed that a
seizure had occurred, and we then resolved the issue of whether the seizure was
supported by antecedent reasonable suspicion. In Johnson, we held that an inspection
officer did not have a reasonable suspicion to "intercept and detain" an express mail

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package. Johnson, 171 F.3d at 605. We did not, however, recite the facts supporting
this assumption. Instead, we merely stated that it was undisputed that the package was
"intercepted and detained." Id., 171 F.3d at 602. Similarly, in Sundby, we simply
assumed the package was "seized," and thus we failed to recite any facts detailing the
manner in which the authorities detained it. Sundby, 186 F.3d at 872. In Reeves, we
affirmed the district court, concluding that the seizure of a package was supported by
reasonable suspicion. The majority opinion did not recite the facts of the case, nor did
it address the seizure issue. Judge Bye, in dissent, did recite the facts of the case,
which are markedly different from the facts presented here. In Reeves, the Sidney,
Nebraska, postmaster rerouted a package destined for Sidney to Omaha for further
inspection. The Omaha postmaster detained the package for two days before he
conducted, with the assistance of law enforcement officials, a controlled delivery of
the package. The assumed seizure in Reeves was a "two-day detention." Reeves, 233
F.3d at 560 (Bye, J., dissenting). Thus, Reeves indicates, if anything in regard to this
issue, that a "seizure" of mail involves a more substantial interference with the
processing and delivery of mail than what occurred in this case.

We did have the opportunity to address the threshold seizure issue in United
States v. Vasquez, 213 F.3d 425 (8th Cir. 2000). In Vasquez, we held that officers'
"actions in examining the outside of [a] package and then subjecting the package to
a dog sniff as it sat at the rear of [a] delivery truck do not constitute a detention
requiring a reasonable, articulable suspicion." Id. at 426. We reasoned that there was
no "seizure" because "the officers had not delayed or otherwise interfered with the
normal processing of the package." Id. (emphasis added). In support of this
proposition, we cited United States v. Harvey, 961 F.2d 1361, 1363-64 (8th Cir.) (per
curiam), cert. denied, 506 U.S. 883 (1992), for the following proposition: there is "no
seizure when officers moved bags from public overhead baggage area to aisle to
facilitate dog sniff because owners were not aware the sniff was taking place and
travel would not have been interrupted if dog had not detected contraband." Vasquez,
213 F.3d at 426 (emphasis added). We also relied upon United States v. Ward, 144

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F.3d 1024, 1032 (7th Cir. 1998), for this proposition: "detention occurred only when
officer held bag for later dog sniff, interrupting bag's transport and requiring
placement on later bus if dog did not alert." Vasquez, 213 F.3d at 427 (emphasis
added). Vasquez, Harvey, and Ward reveal that a "meaningful interference" with an
individual's possessory interest in luggage or mail deposited with a common carrier
must involve something more than the mere lifting of a package off a conveyor belt
in a mail sorting facility.

In Harvey, police officers boarded an empty Greyhound bus with a drug-sniffing
dog after the passengers had exited the vehicle during refueling. The dog alerted,
indicating that narcotics were contained in the overhead bins. The officers moved the
luggage from the overhead bins to the aisle to facilitate a dog sniff. The dog alerted
to two of the bags, and the officers then located and arrested the owners of the bags.
We held that "because there was no meaningful interference with appellants'
possessory interests in their baggage, . . . no seizure occurred." Harvey, 961 F.2d at
1364.

In Ward, the defendant purchased a Greyhound bus ticket from Los Angeles to
Indianapolis. The defendant did not board the bus; instead, he checked a bag
containing cocaine at the Greyhound terminal in Los Angeles and took a flight to
Indianapolis to retrieve the bag at its destination point. En route to Indianapolis, the
bus made a scheduled stop in Springfield, Missouri. The Drug Enforcement Agency
(DEA) routinely inspected eastward bound buses passing through Springfield, and
DEA agents did inspect the bus transporting Ward's bag. The DEA agents removed
the bag from the luggage compartment of the bus and presented the bag to a narcotics-
detection dog. The dog alerted to it, but before the agents could place the bag back
on the bus, the bus departed for Indianapolis. The DEA agents in Springfield called
ahead and had agents prepare a look alike bag for delivery in Indianapolis. The agents
arrested Ward when he attempted to retrieve the bag at the Indianapolis Greyhound
terminal. The Ward court stated that "[i]t was as if he had shipped a package with

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Greyhound." Ward, 144 F.3d at 1031. The Ward court concluded that the mere
movement of a bag not in the possession of the owner is not a seizure per se, but that
the handling of the bag could ripen into a seizure if the handling of the bag interfered
with the recipient's expectation of timely delivery. The Ward court reasoned that
when a person delivers a parcel to a common carrier for delivery, then "the owner's
possessory interest is defined by the common carrier's contractual obligation to deliver
the bag at a specified time. . . . [A] detention does not begin to interfere with the
owner's possessory interest until it delays delivery of the package beyond the
contractually agreed upon hour." Id. at 1031. Because a "person who deposits an item
in the . . . mail retains far less of an interest in the mailed item than does a person who
checks his luggage for transport with a common carrier," United States v. England,
971 F.2d 419, 420 (9th Cir. 1992), the rationale underlying Harvey and Ward applies
with even greater force to this case.

Demoss could have had no reasonable expectation that his parcel would not
have been handled by other persons and that its exterior would not have been exposed
to others for viewing. Cf. Ward, 144 F.3d at 1032 ("He could reasonably have
foreseen that the bag would be handled, moved around, and even taken off the bus .
. . . He could have no reasonable expectation . . . that the bag would not be touched,
handled, or even removed from the bus prior to the bag's arrival in Indianapolis.").
Demoss had no possessory interest in having his package routed on a particular
conveyor belt, sorted in a particular area, or stored in any particular sorting bin for a
particular amount of time. His only possessory interest in the package was timely
delivery, and until Officer Meyer's actions impinged upon that interest, there was no
seizure. Officer Meyer's action in merely lifting this parcel off a conveyor belt and
setting it aside for a brief inspection that would not have otherwise interfered with
timely delivery (but for the positive alert from the narcotics dog) impinged upon no
cognizable Fourth Amendment interest. See United States v. Place, 462 U.S. 696, 717
n.5 (1983) ("'[T]he mere detention of mail not in [one's] custody or control amounts
to at most a minimal or technical interference with [one's] person or effects, resulting

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in no personal deprivation at all.'" (emphasis added)) (Brennan, J., concurring)
(quoting United States v. Place, 660 F.2d 44, 53 (2d Cir. 1981), aff'd, 462 U.S. 696
(1983)); Ward, 144 F.3d at 1033 ("[Officer] did not 'seize' Ward's bag merely by
touching and then removing it from the luggage compartment. Handling the bag to
that limited extent did not impinge on any of the rights that the Fourth Amendment
protects." ); England, 971 F.2d at 420 (concluding that setting aside mail parcel for
dog sniff does not amount to seizure because "[i]t is the extent of the interference with
the defendant's possessory interest in his property, not the physical movement of the
property, that determines whether a seizure has occurred").

Thus, I agree with the court when it concludes that this package was not seized
for Fourth Amendment purposes when Officer Meyer lifted it from the conveyor belt,
but I respectfully disagree that it became seized when he then moved it away from the
conveyor belt for a dog sniff. In this circumstance, there is no legally relevant
distinction between lifting and holding this package for an instant and lifting and
holding this package for twenty minutes, so long as its ultimate contracted for timely
delivery was not frustrated. In neither case is Demoss's possessory interest in the
parcel infringed. Thus, for Fourth Amendment purposes, any attempt to draw a
meaningful distinction between these two circumstances would be impracticable if not
impossible. I choose to cast my lot with those cases both from this and other circuits
indicating that a piece of luggage or mail delivered to a common carrier is not "seized"
within the meaning of the Fourth Amendment until the authorities have interfered with
a possessory interest in the luggage or mail such that the expectation of timely delivery
of the package or luggage has been frustrated. See United States v. Johnson, 990 F.2d
1129, 1132 (9th Cir. 1993) (concluding that there is no seizure where the detention of
luggage "in no way interfered with his travel, or frustrated his expectations with
respect to his luggage"); England, 971 F.2d at 421 (concluding that detaining mail and
subjecting it to dog sniff does not amount to seizure until packages are "delayed by
their detention"); United States v. Riley, 927 F.2d 1045, 1048 (8th Cir. 1991) (dictum)
(stating that handling luggage and exposing it to a narcotics-detecting dog while the

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luggage was still in possession of a third party common carrier "was minimally
intrusive," and may not be a "seizure at all"); Id. at 1048 n.4 (stating that there is "no
'seizure' when police dog sniffed luggage still in possession of third party common
carrier and the procedure caused no significant delay to the suspect's travel"); United
States v. Lovell, 849 F.2d 910, 916 (5th Cir. 1988) ("The momentary delay occasioned
by the bags' removal from the conveyor belt was insufficient to constitute a
meaningful interference with . . . [a passenger's] possessory interest in his bags. As
a result, the agents' action did not constitute a seizure.").

Accordingly, I would hold that no seizure occurred in this case until Officer
Meyer detained the package to the extent that he interfered with a timely delivery of
the package. Of course, at that point, such a seizure was justified by the antecedent
probable cause the officer had which was engendered by the narcotics dog's positive
alert to the package. See Vasquez, 213 F.3d at 427 (stating that positive alert
establishes probable cause). I concur in our court's reversal of the district court's
judgment.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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