U.S. v. Demoss, 01-1665.

Decision Date07 February 2002
Docket NumberNo. 01-1665.,01-1665.
Citation279 F.3d 632
PartiesUNITED STATES of America, Appellant, v. Augustine DEMOSS, Jr., Appellee. Metropolitan Airports Commission, as owner and operator of the Minneapolis-St. Paul International Airport; City of St. Louis, Missouri, 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.
CourtU.S. Court of Appeals — Eighth Circuit

Nathan Petterson, Asst. U.S. Atty., Minneapolis, MN, argued (Anthony W. Brown, Asst. U.S. Atty., on the brief), for appellant.

Kevin G. Ross, Minneapolis, MN, argued (Clifford M. Greene, on the brief), for Amici Curiae in support of U.S.

Katherine M. Menendez, Minneapolis, MN, argued, for appellee.

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 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.

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, 113 S.Ct. 1011, 122 L.Ed.2d 160 (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 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, 104 S.Ct. 1652, 80 L.Ed.2d 85 (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, 104 S.Ct. 1652, 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, 99 S.Ct. 2577, 61 L.Ed.2d 220 (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, 104 S.Ct. 1652. 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.

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, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (analyzing seizure...

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