United States v. Otha Dennis and James Brown, A/K/A Donald Ray Washington

RIPPLE, Circuit Judge,

concurring in part and dissenting in part.

I join in the affirmance of the conviction of defendant James Brown, a/k/a Donald Ray Washington. The court correctly concludes that his contentions have no merit. I respectfully dissent, however, from the majority’s affirmance of defendant Otha Dennis’ conviction because, on this record, the authorities lacked reasonable suspicion to detain the mailed package that led to his conviction.

*536An intrusion into the normal passage of the United States mail traditionally has been treated as a matter of the utmost seriousness. The use of the mails to convey contraband and dangerous materials obviously requires that the traditional privacy that we associate with the carriage of the mails be tempered with a practical, realistic assessment of the needs of contemporary law enforcement. The United States Postal Service’s drug package profile is no doubt an important and useful tool in establishing the probability that a particular package contains contraband. Nevertheless, the use of that profile in any particular decision to detain the mail must be an exercise of defensible professional law enforcement judgment before it can justify the detention of a package. In brief, a qualitative assessment of the significance of the particular factors determined to be present must justify the detention. The simple presence of several factors— without any particularized assessment of their meaning — offers no legitimate basis for the detention. “Mere mechanical matching of characteristics thought to be common to all drug couriers can never meet the rigorous requirements of the fourth amendment.” United States v. Hanson, 801 F.2d 757, 762 (5th Cir.1986); see also Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2753-54, 65 L.Ed.2d 890 (1980) (per curiam); United States v. Sterling, 909 F.2d 1078, 1083-84 (7th Cir.1990). Instead, “the detaining officers must have a particularized and objective basis for suspecting the particular person [or, in this case, the particular package] stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); see also United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989); Hanson, 801 F.2d at 762 (“To be reasonable, an officer’s suspicion must be specific and, to some extent, individualized to the particular characteristics exhibited....”). We must use our common sense in determining whether the articulated facts ought to raise the requisite suspicion. See Cortez, 449 U.S. at 418, 101 S.Ct. at 695.

In this case, Postal Inspector Moreno said that the package met four of the drug package profile’s characteristics: The package was mailed (1) from Los Angeles, California, (2) by express mail, individual to individual, (3) heavily taped, and (4) from a zip code different from that of the return address. Although other permutations of the profile’s factors might well render a package suspicious, the combination of these four factors produces a completely unremarkable situation, one that would surely include “a very large category of presumably innocent” packages. Reid, 448 U.S. at 441, 100 S.Ct. at 2754.

To begin with, the City of Los Angeles had just under 3.5 million inhabitants in 1994 (one year before the seizure of Mr. Dennis’ package). U.S. Bureau of the Census, Statistical Abstract of the United States: 1996, at 45. The population figure balloons to over 15 million if one includes the inhabitants residing in the surrounding metropolitan area. Id. at 41. Although Inspector Moreno could not provide precise numbers, he guessed that probably hundreds of thousands of parcels are sent through the express mail system daily. In fact, in 1995, 56.7 million pieces of express mail went through the postal system. U.S. Postal Service, Annual Report of the Postmaster General: 1995, at 39. If we assume that 5.5% of express mail packages are sent individual to individual,1 over 3 million express mail items were sent person to person in 1995 alone. Such a mailing from the country’s second most populous city is resoundingly unexceptional.

The zip code factor adds nothing of value to the mix. Los Angeles was assigned 101 zip codes for possible use in 1994, see 2 U.S. Postal Service, National Five-Digit ZIP Code and Post Office Directory: 1995, at 6-43, a number which does not include the numbers assigned to such nearby areas as, for example, Pasadena and Van Nuys. The package in this case was mailed from Inglewood, California-assigned 13 zip code numbers itself — and contained a Los Ange-les return address. It should not raise an eyebrow that a citizen living in Los Angeles *537would mail a package from Inglewood. Even a Los Angeles resident mailing a package from Los Angeles could easily have the misfortune of satisfying this profile characteristic. Many of us not in the drug culture, and who reside in smaller cities, satisfy this factor every time we mail an item on the way to work.

Also disturbing is the high correlation between the zip code factor and the “source” city factor. It turns out that the Nation’s “source” cities, like Los Angeles, are also the Nation’s largest cities; they are by necessity covered by many zip codes, and their residents are therefore more likely to mail from a zip code different from that of their respective homes. Indeed, in some very large cities, it may be downright unlikely that the originating and return address zip codes would match. See United States v. Ornelas-Ledesma, 16 F.3d 714, 716-17 (7th Cir.1994) (noting that, not only were circumstances on which officers relied innocent by themselves, but “the confluence of the[] circumstances [was] pretty innocuous as well, especially since many of the circumstances [were] correlated rather than independent”), vacated on other grounds, Ornelas v. United States, — Ü.S.-, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

I turn, then, to whether the “heavy” taping of the package adds enough to sustain this seizure as one based on “particularized” suspicion. Common sense says not. Taping is simply indicative that the sender wants to secure the package’s contents, whether they be dishes or drugs. Indeed, a mother is likely to tape the seams of a “care package” to ensure that her child’s cookies arrive fresh to the college dormitory. There is no indication that the taping was so excessive as to violate the postal regulations; indeed, the package was accepted for mailing.

In sum, these four particular profile characteristics are innocent when considered independently and innocent when combined. Reasonable suspicion is not a numbers game; the inquiry must turn on whether the sum of the articulated facts is qualitatively significant.2

The government tries to shore up its case with the affidavit of the postal inspector purporting to explain the significance of the profile’s factors. The government also reminds us that we must “give due weight to inferences drawn from [historical] facts by ... local law enforcement officers.” Ornelas, — U.S. at -, 116 S.Ct. at 1663.3 We *538must remember that the overall import of Ornelas was to announce that probable cause and reasonable suspicion determinations are to be reviewed de novo — not deferentially— by the courts of appeals. In making that independent assessment, it is true that we are to give “due weight” to officers’ inferences because of their law enforcement experience, but giving “due weight” does not mean abdicating our judicial responsibility to examine critically the reasons given by law enforcement agents for invasions of individual privacy.

Given the state of the record in this case, the inferences drawn by Inspector Moreno ought to be assessed with caution. The main support for his inferences is contained in two pages of an affidavit. This affidavit is con-clusory in nature and reads more like an advertisement for the Postal Service than a statement of empirical fact. It tells us, for example, that express mail is favored by drug dealers because of the “speed, reliability, and low cost of this service.” We are also told, in some contrast, that individuals (as opposed to corporations) rarely use express mail because it is too expensive. Neither of these propositions is supported by data or any other citation to authority. This lack of support is especially important because the affidavit is couched in terms of the collective experience of the Postal Service, not in terms of Inspector Moreno’s particularized experience with packages that have the four characteristics of Mr. Dennis’. Indeed, Inspector Moreno focuses on the profile and on characteristics that are not involved in this case. For example, he notes that express mail is rarely used on a “consistent basis” for personal correspondence. Notably, although it has been considered suspicious in some eases, see swpm note 2, for a defendant to receive several express mail packages over a short time, when Mr. Dennis’ package was detained, the inspector did not know, as far as the record reveals, of any other packages being involved in the case. His statement therefore is without relevance to the case before us. Inspector Moreno also says that drug dealers prefer express mail because they can utilize an 800 number to confirm the whereabouts of their packages. No data support this assertion and Inspector Moreno offers no basis for his having a view of the nationwide experience of the Postal Service. Moreover, there is no particularized indication that Mr. Dennis’ modus operandi included use of the 800 number. On the key point of the nature of the package’s taping, Inspector Moreno merely states that Mr. Dennis’ package was heavily taped. He carefully asserts that this situation is “consistent” with — not characteristic of — narcotics packages.4

In short, the affidavit gives the judicial officer no real sense of the frequency with which express mail is used by drug dealers. Five to six percent of express mail packages^ — about 3 million packages in 1995 — are mailed from an individual to an individual. But what percentage of those contain drugs? How many personal express mail packages are mailed from California? What percentage of the packages are heavily taped? What does the eonclusory characterization “heavy taping” mean? What is Inspector Moreno’s experience with these four seemingly innocuous factors? How many innocent packages have these four characteristics? How many guilty packages have them? What is the error rate?5 We are not told *539and no judicial officer has asked. Unfortunately, we do not have the opportunity to see the cases in which the Postal Service has pulled a suspected package only to find out that the package did not contain narcotics. Those cases result in no conviction and accordingly produce no appellant to complain. In sum, we have not been given the sort of information we need to do the job assigned to us by the Constitution.

There are, no doubt, particular permutations of the profile’s factors that amount to “a particularized and objective basis for suspecting the particular [package] stopped.” Cortez, 449 U.S. at 417, 101 S.Ct. at 694. Moreover, if the government, as it did for the Supreme Court in Cortez, were to fully explain its inferences and deductions, and their bases, other combinations of even the more innocent factors might sustain the government’s burden.6 In such circumstances, however, the Fourth Amendment requires that an officer explain “why his knowledge of the crime problem and ... of the practices of those planning or engaging in certain forms of criminal conduct gives special significance to what he observed.” 4 LaFave § 9.4(a), at 142; accord United States v. Buenaventura-Ariza, 615 F.2d 29, 86 (2d Cir.1980) (“[T]he fact that an officer is experienced does not require a court to accept all of his suspicions as reasonable, nor does mere experience mean that an agent’s perceptions are justified by the objective facts.”) (emphasis in original). In these specialized law enforcement areas, where the federal judiciary lacks the agents’ knowledge and where the confluence of factors is not readily suspicious to the untrained eye, the reviewing judicial officer must require more than “a wink and a nod” from the government before accepting its assertion that the suspicion was reasonable. It is the judiciary’s responsibility to ensure that law enforcement authorities, in their admirable and at times courageous efforts to enforce the country’s laws, continue to respect its most fundamental law, the Constitution. We cannot perform meaningful review without having been adequately informed of the nature and basis of the agents’ inferences, knowledge and experience. Judge McAuliffe, who sits on the highest court of the State of Maryland, made the point well in a similar context:

We cannot accept this assertion on faith alone. If the State is to argue that this combination of attributes is of special significance when viewed through the collective wisdom of the State police, it must provide an objective basis for its determination. In this ease, however, the State has not disclosed any underlying statistics or data to explain why the combination of circumstances at issue here produces reasonable suspicion. No attempt was made to explain how this profile was formulated, or even whether empirical evidence which might lead to its development exists.
Here, ... the officer did not attempt to offer his own experience or training as support for the conclusion that the characteristics of the local profile were related to the activities of a drug courier. A “profile” suggests that others, based upon their experience or collected empirical data, have made those conclusions. Where the characteristics of the profile suggest the conclusion for which the profile is offered as a matter of common knowledge and experience, the Court is able to test the validity of the inference. Where, as here, the aggregate of facts does not as a matter of common knowledge permit a reasonable suspicion that criminal activity is afoot, but requires explanation by reason of experience or empirical data that the witness advancing the conclusion does not have, something more will be required. Otherwise, the courts would be required to place blind faith in conclusions of absent law enforcement officials whose hypotheses or *540statistical foundations cannot be tested for accuracy.

Derricott v. State, 327 Md. 582, 611 A.2d 592, 597 (1992), quoted in 4 LaFave § 9.4(e), at 174^75.

The government in this case offered no testimony from which to assess the effectiveness of this profile, especially in a situation in which only these four factors are present. Accordingly, in my view, it did not meet its burden of proving that a reasonable postal inspector would have suspected Mr. Dennis’ package of containing contraband.7

Recently, the Supreme Court cautioned against making exceptions to the Fourth Amendment that are tailored to the drug culture. See Richards v. Wisconsin, — U.S. -,-& n. 4, 117 S.Ct. 1416, 1420-21 & n. 4, 137 L.Ed.2d 615 (1997) (stating that an exception based on the “ ‘culture’ surrounding a general category of criminal behavior” is inappropriate and that “[i]t is always somewhat dangerous to ground exceptions to constitutional protections in the social norms of a given historical moment”). Today the court dilutes the requirements of reasonable suspicion. By accepting the government’s justification on faith, the court waters down the traditional duty of Article III judges to evaluate critically a government officer’s request to invade by seizure a citizen’s privacy and thus enfeebles the protections of the Fourth Amendment.

Today, despite the Supreme Court’s admonition, the court interprets the requirements of the Fourth Amendment to meet the exigencies of the current drug problem that plagues the Nation. Yet the rules that we now formulate to expedite the eradication of that scourge also will set the vectors of our jurisprudence for other situations and, indeed, for other times. The “hydraulic pressure” of which Justice Holmes spoke in Northern Securities Co. v. United States, 193 U.S. 197, 400-01, 24 S.Ct. 436, 486, 48 L.Ed. 679 (1904) (dissenting opinion), is transforming the shape of the Fourth Amendment into a form quite different than that intended by the Founding Fathers. We want to give our children a drug-free society. But we also want to give them the constitutional polity forged at Lexington, Concord and Philadelphia. Today’s case might promote the first goal, but it retards the second. With respect, I cannot join that portion of the court’s judgment that ratifies such an approach.

. In his affidavit, Inspector Moreno wrote that postal records indicate that about 5% of express mail correspondence is personal. At trial he estimated the correct percentage was 6%.

. The majority favors a quantitative approach. It cites United States v. Lux, 905 F.2d 1379 (10th Cir.1990), which says that the presence of three of the profile's factors is enough to sustain a seizure, regardless of what the factors are. See id. at 1382 ("Here, the package met three factors of the Service's 'drug package profile’, giving authorities sufficient reasonable suspicion_"). It is worth noting that, despite Lux's broad language and the majority’s liberal reading of it, the package in Lux bore a false return address. See United States v. Hill, 701 F.Supp. 1522, 1528 (D.Kan.1988) (case affirmed by Lux; noting that the return addressee and return address did not match).

The vast majority of cases deals with permutations of the profile's attributes that are more convincing than the permutation we have in our case. See, e.g., United States v. Van Leeuwen, 397 U.S. 249, 252, 90 S.Ct. 1029, 1032, 25 L.Ed.2d 282 (1970) (among other suspicious circumstances, package had fictitious return address); United States v. Glover, 104 F.3d 1570, 1576 (10th Cir.1997) (package detained because of a pattern of suspicious packages, knowledge that defendant's daughter was possibly involved in drug trafficking, and research that had revealed the names or addresses on the prior packages were fictitious); United States v. Allen, 990 F.2d 667, 671 (1st Cir. 1993) (individual had received three express mail packages in five months, inspector knew that individual had received suspicious mailings from West Coast in past, the return addresses were different but in the same handwriting, and one of the senders had the same name as another who had previously mailed drugs); United States v. Daniel, 982 F.2d 146, 150 (5th Cir.1993) (package exhibited six of the profile’s characteristics, including that, the package’s size and shape belied a shipment of “parts," the alleged contents declared by the sender); United States v. Martinez, 869 F.Supp. 202, 205-06 (S.D.N.Y.1994) (facts included a tip from a confidential informant and different return addresses in the same handwriting); United States v. Contrall, 762 F.Supp. 875, 879 (D.Kan.1991) (several factors, including that the return address and return addressee did not match); United States v. Holden, No. 88-20105-01, 1989 WL 7914 (D.Kan. Jan.9, 1989) (including return address was fictitious; six packages had been sent in less than a year).

. This passage from Ornelas, read expansively, is fast becoming a major threat to Ornelas’ basic holding. Unless this development is scrutinized consistently by the Supreme Court, it may so *538enfeeble Ornelas’ holding as to keep in place, as a practical matter, the former deferential standard of this circuit.

. Inspector Moreno informs us that California has acquired the devilish distinction of being labeled a "source” state. The criteria employed to bestow that title — or that of "destination” city or region — on a municipality or a region are vague. Indeed, at trial, Inspector Moreno testified that the entire West Coast qualifies, as well as many of the country's largest and most populous states: He volunteered as examples Texas, Florida, Arizona, and parts of the State of Washington. When specifically questioned about New York, the inspector admitted that state's inclusion into the club as well. We, see Ornelas-Ledesma, 16 F.3d at 716 (noting that about one in eight Americans are from California), and the Supreme Court, see Reid, 448 U.S. at 441, 100 S.Ct. at 2754, have discounted the probative value of a defendant's connection to a "source” state. We ought not be impressed by the fact that a package was mailed from the Nation’s most populous state.

. There is some evidence, albeit anecdotal, that the profile's error rate is quite high. In United States v. Hill, 701 F.Supp. 1522 (D.Kan.1988), eighteen packages that matched various criteria *539of the profile were detained at Los Angeles Airport. Only three of those eighteen were eventually found to contain cocaine. Id. at 1526-27.

. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a), at 143 (3d ed.1996) (opining that the Cortez Court properly relied on the inferences of trained law enforcement personnel to find a particularized basis for a stop because “the inferences and deductions had been fully explained at the suppression hearing”).

. Cf. United States v. Ho, 94 F.3d 932, 937-38 (5th Cir.1996) (holding that government did not satisfy burden of proving reasonable officer would have had probable cause to arrest defendant because suspicious nature was not readily apparent and the government elicited no testimony from which to gauge the extent of officer’s knowledge and experience in the area of credit card fraud). See generally United States v. Pavelski, 789 F.2d 485, 490 (7th Cir.) (“The Government has the burden of establishing the reasonableness of an investigatory stop and accompanying search."), cert. denied, 479 U.S. 917, 107 S.Ct. 322, 93 L.Ed.2d 295 (1986); United States v. Longmire, 761 F.2d 411, 417-18 (7th Cir.1985) (holding that government bears the burden of establishing that officer had reasonable suspicion justifying seizure).