U.S. v. Lakoskey
| Decision Date | 14 September 2006 |
| Docket Number | No. 05-3390.,No. 05-3389.,05-3389.,05-3390. |
| Citation | 462 F.3d 965 |
| Parties | UNITED STATES of America, Appellee, v. Todd John LAKOSKEY, Appellant. United States of America, Appellee, v. Thomas James Lakoskey, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Assistant Federal Public Defender, Katherine Menendez, argued, Minneapolis, MN, for appellant, Todd John Lakoskey.
Kurt B. Glaser, argued, Minneapolis, MN, for appellant, Thomas James Lakoskey.
Timothy C. Rank, argued, Asst. U.S. Atty., Minneapolis, MN, for appellee.
Before BYE, HANSEN, and SMITH, Circuit Judges.
Brothers Thomas and Todd Lakoskey were each convicted of conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. Thomas was sentenced to 240 months' imprisonment; Todd was sentenced to 151 months' imprisonment. On appeal, both challenge the denial of their motions to suppress and the admission of evidence under Federal Rule of Evidence 404(b) during trial. Todd also challenges his sentence. For the reasons stated below, we affirm in part and reverse in part.
On January 7, 2004, Postal Inspector Larry Hirose of the United States Postal Service (USPS) went to the doorstep of Thomas's residence at 7454 East Natal Drive, Mesa, Arizona, to deliver an Express Mail package. Hirose decided to deliver this package personally because he noticed something at the local mail sorting facility that made him believe the package was "suspicious." (Tr. 32) Hirose claimed he was suspicious of the package because "some things on the address label looked strange . . . In this case sloppy handwriting, that appeared to be a misspelled name on the return address, a different signature on the signature waiver line . . . different than the sender's name." Id. at 33. Hirose was accompanied by three plain-clothes deputies from the Maricopa County Sheriff's Department.
The front entrance to the house is a combination of two doors: a security door, which is a lattice of metal bars, in front of a solid door. When the officers approached, the exterior security door was closed, but the interior solid door was open. Hirose yelled through the security door into the house to announce himself. When Thomas appeared, Hirose asked him to sign for the parcel. Hirose suspected drug use based on Thomas's appearance. Thomas signed the delivery receipt for the parcel. After Thomas signed for the package, Hirose showed Thomas his badge, stating, "I'm with the Postal Inspector Service, we have some concerns about this package today." Id. at 43. He asked Thomas " . . . if we could maybe look in the package to see what's inside of it." Id. at 44. According to Hirose, Thomas's demeanor abruptly changed; he took the package from Hirose and walked into the house. As he did, he said, "I'm not going to tell you what's inside, get out of here ...." Id. at 45. Thomas slammed the security door behind him and went into his house. Hirose followed Thomas but stopped on the landing just outside the security door. Hirose could still see Thomas through the security door. Hirose acknowledged that Thomas had a right to take the package after signing for it.
Hirose continued to talk to Thomas through the closed door, despite being asked to leave. He explained that "we just want to make sure there was nothing hazardous in there or illegal, anything dangerous that he was receiving." Id. at 46. Hirose stayed outside and continued repeating his request to open the envelope. Thomas began yelling at Hirose in an agitated manner, telling him to "get the hell out of here" and "it's my money." Id. Hirose did not leave. At some point, Thomas said, "I'll open it." Id. at 49. When he began opening the envelope, he turned and walked outside of Hirose's view. Hirose opened the front door and entered the house to stop him. Hirose told Thomas, "[I]f you're going to open that, I'd like you to open it in front of me ...." Id. at 50. Thomas became visibly upset with Hirose in his kitchen and began mumbling or muttering to himself. He then opened the envelope in front of Hirose.
Hirose admitted that Thomas never explicitly invited him into his house. Nonetheless, Thomas opened the package in front of Hirose and showed him the contents. It contained a People magazine with the pages taped shut with white tape. Hirose told Thomas, "It's a magazine, Tom, but we need to know what's inside." Id. at 55. Thomas removed $4,000 from between the pages of the magazine and $3,000 from a white, letter-sized envelope. Thomas asked if it was illegal to send cash through the mail. Hirose told him that it was not illegal but told him ". . . it's typical for narcotics proceeds to be packaged that way ...." Id. at 57. Hirose explained to him two or three times that it just raised a lot of suspicion and a lot of questions because of the way it was packaged. Hirose then confiscated the money. The remaining two deputies entered the house and walked through the kitchen and into the living room. Hirose told Thomas that he was not under arrest but took the money and the envelope outside of the house and gave it to Deputy Borland. Deputy Borland secured the money in his squad car and entered the house. During this time, the officers told Thomas that they suspected that his house was used as a laboratory to make methamphetamine. None of the police officers asked for or were given permission to enter the house.
At this point, Thomas consented to let officers search his house. During the search of the house, officers found a small amount of methamphetamine and drug paraphernalia in the bedroom belonging to Thomas's house guest, Joseph Zyanjar. Zyanjar was taken into custody and questioned about Thomas. Hirose testified that Zyanjar did not answer their questions. After the search, Deputy Borland testified that the officers found no evidence that Thomas's home was used as a lab to manufacture methamphetamine.
On January 8, 2004, Hirose asked Deputy Borland to conduct a dog sniff of the money seized from Lakoskey's home. A dog trained to alert in the presence of controlled substances gave a positive alert. However, different samples of currency from the mail parcel had been cross-contaminated prior to the sniff test.
The day after the money seizure at Thomas's residence, Hirose sent an email to Postal Inspector Kathryn Nichols, stationed in St. Paul, Minnesota, regarding his investigation.1 According to Nichols, the contents of the email provided the basis for the initiation of a "mail watch" on all packages sent to Post Office Box 402 in Biwabik, Minnesota—the post office box of Todd Lakoskey. Nichols discovered that between June 2003 and January 2004, seven Express Mail packages had been delivered to this post office box. The packages were addressed to either Todd Lakoskey or Todd Buchanan, and all seven packages originated in Arizona.
On January 23, 2004, Nichols received a call from the Biwabik Post Office, indicating that a package had arrived for Todd's post office box. The package was addressed to Olga Sampson, and it was sent from a "Buchanan" at a particular return address in Arizona. Nichols told the local postmaster that she was interested in pursuing further investigation of the package and asked if there was an available trained or certified narcotics detecting dog in the area that could sniff the package. While waiting on a narcotics dog to become available, Nichols learned that Olga Sampson was Todd Lakoskey's grandmother. However, she also learned that no one by the name of Buchanan was associated with the sending address. Later that afternoon, an officer with a trained canine unit from a local police department conducted a sniff on the package in Biwabik. The dog did not alert. Despite the negative canine sniff, Nichols testified that she wanted to further detain the package and requested that the local post office send the package to St. Paul. The package was received by Nichols in St. Paul the following day.
Nichols discounted the initial negative sniff and desired to obtain a second dog sniff. She stated that she would have repeated it in any case because she had not been present at the original sniff, and she was acting in accordance with the USPS policy. Following her receipt of the package, she arranged for a second canine sniff. She contacted Detective Mark Meyer of the Minneapolis/St. Paul Airport Police Department. She went to Meyer's home and set up for the sniff in his living room. Meyer arranged the suspect package and various other parcels in the living room. The dog, "Mindy," conducted the sniff but did not alert to the presence of any controlled substance.
Following the second negative dog sniff, Meyer and Nichols placed the suspect package in a compartment in Meyer's television room and closed the door. The compartment contained children's toys, books, and games. After leaving the package in the closed compartment for five to ten minutes, Mindy conducted a third sniff and alerted to the presence of controlled substances in the compartment. Meyer believed the positive sniff resulted because the closed environment concentrated the odor of the narcotics.
As a result of the positive dog sniff, Nichols prepared a search-warrant affidavit and received a search warrant for the package. In the affidavit, Nichols stated that Inspector Hirose's investigation in Arizona revealed that Thomas had manufactured methamphetamine at his home in Mesa, Arizona, and sent it to Todd in Minnesota. She further set forth the characteristics of the package that made it suspicious, including the handwritten address labels, the use of Express Mail, its origin in a drug source state, the lack of association of the sender's name with the sending address, and Hirose's email indicating possible "drug mailings" to Todd...
To continue reading
Request your trial
-
Melton v. Phillips
...challenge simply because it was relayed through two officers who were both unaware of the truth." Id. at 947 n.6.In United States v. Lakoskey , 462 F.3d 965 (8th Cir. 2006), the court considered alleged misrepresentations by an Arizona-based postal inspector, Hirose, in an email to a Minnes......
-
United States v. Hatcher
...United States v. Johnson , 619 F.3d 910, 918 (8th Cir. 2010). "Voluntary consent may be express or implied." United States v. Lakoskey , 462 F.3d 965, 973 (8th Cir. 2006). Implied consent may be inferred from a person's "words, gestures, or other conduct." United States v. Pena-Ponce , 588 ......
-
United States v. Steffens
...in determining the appropriate scope of an investigatory stop or whether reasonable suspicion continues. Cf. United States v. Lakoskey , 462 F.3d 965, 976–77 (8th Cir. 2006), as amended on reh'g (Oct. 31, 2006) (noting that a negative dog sniff, on its own, does not dissipate reasonable sus......
-
United States v. Yorgensen
...of the official misconduct. See United States v. Riesselman , 646 F.3d 1072, 1080 (8th Cir.2011) ; see also United States v. Lakoskey , 462 F.3d 965, 975 (8th Cir.2006) ; United States v. Hernandez – Hernandez , 384 F.3d 562, 565 (8th Cir.2004) ; United States v. Moreno , 280 F.3d 898, 900 ......