U.S. v. Morones, 03-2087.

• Decision Date: 21 January 2004
• Docket Number: No. 03-2087.,03-2087.
• Parties: UNITED STATES of America, Appellee, v. Jose Manuel MORONES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

355 F.3d 1108

UNITED STATES of America, Appellee, v. Jose Manuel MORONES, Appellant.

No. 03-2087.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2003.

Filed: January 21, 2004.

Counsel who presented argument on behalf of the appellant was John P. Messina, Des Moines, IA.

Counsel who presented argument on behalf of the appellee was Jamie Bowers, Sioux City, IA. Additional attorney appearing on the brief was Daniel C. Tvedt.

Before MORRIS SHEPPARD ARNOLD, BOWMAN and MURPHY, Circuit Judges.

BOWMAN, Circuit Judge.

Jose Manuel Morones appeals from a final judgment entered in the District Court¹ upon his conditional guilty plea to one count of possession of methamphetamine with intent to distribute. The District Court sentenced Morones to forty-six months in prison and three years of supervised release. For reversal, Morones argues that the District Court erred in denying his motion to suppress. We affirm.

On January 3, 2002, Deputy Rick Swigart of the San Bernardino County, California, Sheriff's Department obtained a warrant to search a package that he had detained at the Federal Express (FedEx) facility in Rialto, California. Upon executing the search warrant, Swigart found methamphetamine hidden inside a VHS tape. After obtaining court authorization Swigart reassembled the package with its original contents plus a transmitter. The next day, the package was delivered as addressed, to Morones's apartment in Dubuque, Iowa, where Morones's wife signed for it.

When the transmitter alerted law enforcement officers that the package had been opened, they entered the apartment. The officers found Morones and his wife and child in a bedroom and most of the contents of the package, including the broken transmitter, on the bed. The VHS tape, still containing the methamphetamine, was retrieved from under a bathroom sink. Morones thereafter made incriminating statements to the officers regarding his involvement with methamphetamine.

Morones was indicted on June 7, 2002, on one count of possession of methamphetamine with intent to distribute. On August 8, 2002, he filed a motion to suppress the evidence obtained as a result of the search of the FedEx package, asserting that the package was seized without reasonable, articulable suspicion, in violation of his Fourth Amendment rights. The motion was referred to a Magistrate Judge.² A stipulated record established the material facts.

On January 2, 2002, Swigart was conducting a random parcel inspection at the FedEx facility in Rialto when he removed a white package from the outbound conveyor belt. The package bore a handwritten label revealing the following: the sender had paid cash; the package was being shipped "priority overnight"; the sender was identified as "Juan Sanchez" in Rialto, California; the recipient was identified as "Avraham Sanchez" in Dubuque, Iowa; and neither the sender's nor the recipient's telephone number was provided. After visually inspecting the package, Swigart set it aside with several "control" packages. He then went to his vehicle to retrieve his narcotics-trained canine. When allowed to sniff the packages, the dog alerted to the Sanchez package.

Swigart obtained a warrant to search the package the next day, January 3, 2002. In his affidavit supporting the warrant application, Swigart indicated, among other things, that he had been employed at the San Bernardino County Sheriff's Department since 1985, that he was currently assigned to the Narcotics Division, and that he had completed narcotics investigation courses presented by the Department of Justice and the Drug Enforcement Administration. Swigart also attested that he had been a narcotics canine handler since May 1999, that his drug dog was certified in the detection of various narcotics, and that the dog had successfully detected narcotics nearly 1400 times within the preceding five years. His drug dog had alerted to approximately ninety-five percent of the packages that Swigart had determined to be suspicious while working drug interdiction. Swigart said he pulled the Sanchez package from the conveyor belt for the dog sniff because of these observations: the package was shipped "priority overnight," the shipper paid cash, no phone numbers were listed, and the sender and receiver had the same last name. Swigart explained that, in his experience, these last two practices were employed by those shipping illegal substances to prevent identification of the sender or recipient. In a separate affidavit that Swigart prepared after Morones had filed his motion to suppress, Swigart further stated:

"Priority overnight" deliveries, which typically cost $30-$50 for a small package, are significantly more expensive than the more often used "2-day" delivery process. As such, priority overnight mailings are most commonly used by businesses, with pre-printed air bill labels and visible account information reflected on the air bill. In my experience, a very small percentage of legitimate "priority overnight" customers use cash to send their packages. In my experience, where cash is paid, the legitimate overnight customers nearly universally list appropriate contact information, such as telephone numbers, so that they may be reached in the event the package is lost.

Affidavit of Rick W. Swigart ¶ 5.

Upon review of the stipulated record, the Magistrate Judge concluded that the package was not seized for Fourth Amendment purposes when Swigart lifted it from the belt because he had not, at that time, interfered with the delivery of the package. The Magistrate Judge determined that the package was seized when Swigart put it with the control packages and further concluded that Swigart had reasonable, articulable suspicion to do so. The seizure was therefore constitutionally permissible. The Magistrate Judge recommended that Morones's motion to suppress be denied. Upon review, the District Court adopted the Magistrate Judge's reasoning and denied Morones's ...