U.S. v. Quiroz, CR 99-55 (RHK/JMM).

Citation57 F.Supp.2d 805
Decision Date21 June 1999
Docket NumberNo. CR 99-55 (RHK/JMM).,CR 99-55 (RHK/JMM).
PartiesUNITED STATES of America, Plaintiff, v. Santiago QUIROZ (01), and Nicolas Vasquez (02), Defendants.
CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota

Rabea Jamal Zayed, Asst. U.S. Atty., Minneapolis, MN, for U.S.

Scott F. Tilsen, Asst. Fed. Public Defender, Minneapolis, MN, for Defendants.

ORDER

KYLE, District Judge.

Before the Court are the Objections of Defendants Quiroz and Vasquez to the two Reports and Recommendations of Magistrate Judge John M. Mason. The Objections have been briefed and are now ready for resolution.

This Court has made the required de novo review of the Objections and concluded that Judge Mason properly resolved each of the issues before him. His factual recitation is thorough and his legal analysis sound. Accordingly, the Court will adopt the recommendations of Judge Mason.

Upon all the files, records, and proceedings herein, IT IS ORDERED that:

1. The Objections (Doc. Nos.49, 50, 51) filed on behalf of each Defendant are OVERRULED;

2. Each Report and Recommendation (Doc. Nos. 45 and 47) is ADOPTED;

3. Defendant Quiroz's pretrial Motions to Suppress All Electronic Surveillance Evidence and Any Evidence Derived Therefrom (Doc. No. 19); to Suppress Physical Evidence (Doc. No. 20); to Suppress Statements Made by Defendant (Doc. No. 21); to Suppress Identifications of Defendant Obtained as a Result of Any Illegal Searches, Seizures, Interrogations, or Identification Procedures (Doc. No. 22); to Suppress Evidence Obtained as a Result of Illegal Search or Seizure (Doc. No. 23); and for Severance of Defendants (Doc. No. 24) are DENIED;

4. Defendant Vasquez's pretrial Motions for Severance of Defendants (Doc. No. 28); to Suppress Physical Evidence Obtained as a Result of Any Illegal Searches or Seizures (Doc. No. 30); and to Suppress Statements Made by Defendant (Doc. No. 31); and to Suppress Identifications of Defendant (Doc. No. 32) are DENIED.

REPORT AND RECOMMENDATION

Defendant Nicolas Vasquez ("Defendant") is charged with Conspiracy to Distribute and to Possess with Intent to Distribute Methamphetamine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A) (Count I); and Possession with Intent to Distribute Methamphetamine in violation of 21 U.S.C. § 841(a)(1); 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. § 2 (Count II).

The matter came before the Court on April 27, 1999 for hearing on Defendant's pretrial Motions for Severance of Defendants [Docket No. 28]; to Suppress Physical Evidence Obtained as a Result of any Illegal Searches and Seizures [Docket No. 30]; to Suppress Statements Made by Defendant [Docket No. 31]; and to Suppress Identifications of Defendant [Docket No. 32]. Rabea Jamal Zayed, Esq., Assistant United States Attorney, appeared on behalf of the United States of America; Scott F. Tilsen, Esq., Assistant Federal Public Defender, and Minnie Alexander, Esq. appeared on behalf of Defendant, who was personally present.

For the reasons stated herein, this Court recommends that:

1. Defendant's pretrial Motion to Suppress Identifications of Defendant [Docket No. 32] be denied as moot based on the representations of the Government.

2. Defendant's pretrial Motions for Severance of Defendants [Docket No. 28]; to Suppress Physical Evidence Obtained as a Result of any Illegal Searches or Seizures [Docket No. 30]; and to Suppress Statements Made by Defendant [Docket No. 31] be denied.

FINDINGS OF FACT/REPORT
Discussion

I. Motion to Suppress Physical Evidence

Defendant's Motion to Suppress Physical Evidence [Docket No. 30] seeks suppression of items obtained in connection with: (1) the interception, examination and search of a Federal Express package at the Minneapolis-Saint Paul International Airport; (2) the search of a residence located at 2930 18th Avenue South, Minneapolis, Minnesota; and (3) the search of a maroon Oldsmobile parked in the closed garage located at 2930 18th Avenue South, Minneapolis, Minnesota.

A. Search of Federal Express Package
1. Factual Background

Based upon the testimony and Exhibits received at the April 27, 1999 Evidentiary Hearing, the relevant facts upon which Defendant's challenge to the search of the Federal Express package are set forth as follows. On February 5, 1999, Officers Bruce Giller and Haans Vitek sought to interdict suspicious packages at the Federal Express parcel sorting station at the Minneapolis Saint Paul International Airport. To effectuate this objective, each police officer stood across from one another as a conveyor belt brought packages into the sorting area. The officers examined the exterior of the packages, as well as the air-bill attached to each. From time to time a package would be set aside while an on-site drug sniffing dog attempted to detect the presence or absence of odors consistent with narcotic substances.

At approximately 8:00 a.m., a Federal Express employee brought a non-deliverable package to Officer Giller's attention. This package was addressed to "Santiago Quiroz" at 435 Bloomington, # 112, Minneapolis, MN 55407. The package was placed among others and officer Mark Meyer subjected it to a "sniff test" by "Mindy," a drug sniffing dog. After sniffing various packages, Mindy detected the odor of a narcotic substance emanating from the parcel. It was held and detained while police obtained a warrant to search its contents. Upon execution of the search warrant at 11:00 a.m., police discovered approximately four pounds of a substance later identified as methamphetamine.

Defendant contends that evidence obtained from the search of the Federal Express package must be suppressed because police did not have a reasonable basis upon which to detain the package for investigation. Defendant argues that "[b]ecause the Fourth Amendment does not allow police officers to randomly stop and investigate packages sent through the U.S. Mails or private couriers, the evidence seized in this stop of a Federal Express package should be suppressed." Defendant's Memorandum in Support of Motion to Suppress, at 2. For the following reasons, we recommend that Defendants' Motions to suppress evidence obtained from the Federal Express package be denied.

2. Analysis

"The Fourth Amendment prohibits unreasonable searches and seizures." United States v. Miller, 152 F.3d 813, 815 (8th Cir.1998). This precept applies to items placed in the mail. United States v. Johnson, 171 F.3d 601, 603 (8th Cir.1999) (citing United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970)). The instant case involved the search of a Federal Express package as opposed to a United States Postal service package. This distinction, however, does not limit Fourth Amendment protection. See United States v. LaFrance, 879 F.2d 1, 4 (1st Cir.1989) ("A sealed package entrusted to a private parcel service is `unquestionably an "effect" within the meaning of the Fourth Amendment.' United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984).")

a. There Was No Search

The Supreme Court has enunciated the test for when a "search" occurs within the meaning of the Fourth Amendment:

"A `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed."

United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

The parties do not contend that a "search" occurred here. It is well established that a dog sniff does "not constitute a search and thus [does] not implicate the Fourth Amendment." United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir.1992), cert. denied, 506 U.S. 883, 113 S.Ct. 238, 121 L.Ed.2d 173 (1992).

b. There Was No Unlawful "Seizure"

The Supreme Court has also described the circumstances which constitute a "seizure" as follows:

"A `seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property."

Jacobsen, 466 U.S. at 113, 104 S.Ct. at 1656. Neither Defendant contends that the Federal Express package was unlawfully seized. The evidence of record contains no basis upon which to conclude that the package was seized until Mindy "alerted" to the presence of drugs inside it.

c. There Was No Unlawful "Detention"

Courts have determined that in some cases, persons or property may be detained for a period of time, without a warrant and with less than the probable cause required to justify a search or seizure. As to persons, the reasoning is explained in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As to property, see United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); and United States v. LaFrance, 879 F.2d 1 (1st Cir.1989). Courts have sometimes adopted the shorthand expression of a "stop" or a "detention" to describe the circumstance where the interference is not sufficiently meaningful to conclude that a "search" or "seizure" has occurred, but is sufficient to require justification.

Defendants contend: "To justify the brief detention of a package for purposes of subjecting it to a sniff search by a drug detection dog, there must be a reasonable suspicion that the package contains contraband." Defendant Vasquez's Memorandum In Support of Motion to Suppress, at 3-4 (citing United States v. Dennis, 115 F.3d 524, 531-32 (7th Cir.1997)). Defendant's view is phrased in similar fashion in other argument. See Defendants' [Supplemental] Memorandum in Support of Motion to Suppress, at 2: ("Before a law enforcement officer can detain a package, even if only for purposes of subjecting it to a sniff test, he must possess a reasonable suspicion of criminal activity...

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