683 F.2d 296 (8th Cir. 1982), 81-2158, United States v. Jacobsen

Docket Nº:81-2158.
Citation:683 F.2d 296
Party Name:UNITED STATES of America, Appellee, v. Bradley Thomas JACOBSEN and Donna Marie Jacobsen, Appellants.
Case Date:July 27, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 296

683 F.2d 296 (8th Cir. 1982)

UNITED STATES of America, Appellee,


Bradley Thomas JACOBSEN and Donna Marie Jacobsen, Appellants.

No. 81-2158.

United States Court of Appeals, Eighth Circuit

July 27, 1982

Submitted May 20, 1982.

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James M. Rosenbaum, U. S. Atty., Janice M. Symchych, Asst. U. S. Atty., D. Minn., Minneapolis, Minn., for appellee.

Friedberg & Peterson, Mark W. Peterson, Minneapolis, Minn., for appellants.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and BECKER, [*] Senior District Judge.

LAY, Chief Judge.

The fundamental issue in this appeal is whether federal drug agents' warrantless search of a package damaged in transit and inspected by employees of a private carrier was a violation of the warrant clause of the fourth amendment. We find the search unconstitutional.

The facts may be briefly stated. A supervisor for Federal Express, a private freight carrier, discovered a damaged package. Pursuant to company policy, a manager examined the contents of the package. The package consisted of a cardboard box wrapped in brown paper. Inside the box was a tube of duct tape. Inside the tube were four clear plastic bags, one inside the next, the innermost containing white powder. Federal Express employees, thinking the powder might be a controlled substance, notified the Drug Enforcement Agency. The manager then placed the bags back in the tube, leaving them visible from the tube's end, and placed the tube back in the box.

When DEA Agent Jerry Kramer arrived, the manager gave him the box. Kramer removed the tube from the open box, took the bags out of the tube, and extracted a sample of the powder. He thereafter conducted a field test on the powder which indicated the powder was cocaine. A short time later another sample was removed for further testing. The package was then rewrapped and Federal Express was directed to deliver the package to the addressee shown on the label. The package was addressed to Mr. D. Jacobs, 7300 West 130th Street, Apple Valley, Minnesota.

Drug enforcement agents determined Bradley Jacobsen lived at this address. He was mentioned in at least two previous

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DEA investigative files relating to cocaine distribution. On the basis of this information and the field test, the drug enforcement agents obtained a warrant from a magistrate to search the defendants' home.

During the afternoon of May 1, 1981, DEA Agent James Lewis went to the Jacobsen home with the package. Dressed in ordinary street clothes, Lewis delivered the package to Donna Jacobsen, Bradley's wife. Lewis returned to the home approximately one hour later with eight to ten other officers. When Lewis identified himself, Bradley Jacobsen slammed the door, knocking Lewis down, and yelled, "It's the police-flush it." The officers forced the door open and searched the house. Cocaine traces, cocaine paraphernalia, and burned remnants of the package were found. The Jacobsens were arrested.

Defendants moved to suppress the evidence seized in their home as fruit of an illegal search of the package. Magistrate Floyd E. Boline recommended the motion be denied because the government's search did not exceed the scope of the private search. Over defendants' objection, the district court, Judge Harry H. MacLaughlin presiding, refused to suppress the evidence.

Bradley and Donna Jacobsen were tried before a jury and convicted on one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Bradley Jacobsen was also convicted of assault on a federal officer in violation of 18 U.S.C. § 111. This appeal followed entry of judgment.

We find that the evidence should have been suppressed and thus reverse the defendants' convictions for possession with intent to distribute cocaine and for conspiracy. We find the evidence sufficient to sustain a finding that Bradley Jacobsen assaulted a federal officer and thus sustain his conviction on that count. 1

Since Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877), it has been the law that letters and sealed packages are protected from government inspection. The Jacobsens had a reasonable expectation that the contents of the package would remain private. See Walter v...

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