U.S. v. Terriques, 02-3271.

• Decision Date: 24 February 2003
• Docket Number: No. 02-3271.,02-3271.
• Citation: 319 F.3d 1051
• Parties: UNITED STATES of America, Appellee, v. Rodolfo C. TERRIQUES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

319 F.3d 1051

UNITED STATES of America, Appellee, v. Rodolfo C. TERRIQUES, Appellant.

No. 02-3271.

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2003.

Filed: February 24, 2003.

Counsel who represented the appellant was Jennifer L. Gilg of Lincoln, Nebraska. Also appearing on the brief were David R. Stickman and John C. Vanderslice.

Counsel who represented the appellee was Janice M. Lipovsky, Special Assistant U.S. Attorney, of Lincoln, Nebraska. Also appearing on the brief was Michael G. Heavican.

Before WOLLMAN, and MURPHY, Circuit Judges, and GRITZNER,¹ District Judge.

GRITZNER, District Judge.

Rodolfo Terriques (Terriques) appeals the order of the district court² denying his motion to suppress. The court held the evidence obtained as the result of the seizure of a United States Postal Express Mail package was not obtained in violation of his Fourth Amendment rights. We affirm.

I. Background

On August 20, 2001, United States Postal Express Mail Clerk Robert Leon intercepted a package which is the subject of this appeal. Leon has worked at the Phoenix Air Mail Center (AMC) as an Express Mail clerk for six years. At AMC, Express Mail clerks manually sort and route the Express Mail which arrives from Arizona postal stations. In a typical day, Leon handles an average of two hundred Express Mail items. He takes each item from a hamper, observes its mailing label, determines its destination, and places it into the appropriate sack for travel to that destination.

During his six years at AMC, Leon has never received formal training in drug interdiction. However, through on-the-job training and interaction with interdiction officers, Leon has obtained a working knowledge of the characteristics associated with the shipment of illegal drugs and has personally identified over two hundred packages which were found to contain controlled substances. Leon considers several factors in identifying a package as suspicious including whether the package has an odor, whether an attempt has been made to mask odor, such as heavy taping or perfume, which postal station was used to mail the package, the return address, and the destination address.

At about 4:00 p.m. on August 20, 2001, while sorting incoming mail, Leon picked up a "solid"³ Express Mail package, approximately ten inches square, all seams sealed with clear shipping tape, and addressed to "Martin Sanchez" of Lincoln, Nebraska. Leon recognized the return address of 2822 W. Van Buren. It was located in the Phoenix neighborhood where he grew up and where his mother still lives. Leon had been in the neighborhood earlier that day dropping his son off at his mother's home. Leon knew 2822 W. Van Buren was located in a run down, low income, high crime section of the neighborhood. He also knew 2822 W. Van Buren was in a business area; however, Leon observed the return addressee was "Ramon Alvarado", the name of an individual rather than a business. In addition to the irregularities of the return address, Leon noticed the sender paid cash and mailed the package from the main post office in Phoenix, ten miles away from 2822 W. Van Buren. Leon knew there was a postal station located only about one-half mile from 2822 W. Van Buren. Leon believed these combined factors suggested possible drug trafficking.

Leon's practice when coming across a suspicious package is to bring the package to the postal inspectors if they are present; if they are not present, he calls law enforcement. On August 20, 2001, postal inspectors William Randall (Randall) and Gregory Popp (Popp) were present at AMC conducting an interdiction operation. Both inspectors are highly trained and experienced in the investigation and identification of narcotics packages. Leon promptly turned the package over to inspectors and told them his suspicions about the return address and the fact the package had been mailed from the main post office rather than a postal station nearer to 2822 W. Van Buren. Leon had no further involvement with the interdiction.

Upon receipt of the package, the inspectors noticed the heavily taped seams — a technique commonly used to mask drug odors. Given his own observations and the information Leon provided, Randall made arrangements with Maricopa County Sheriff Deputy Douglas Doyle to conduct a "dog sniff" with a narcotics detection dog. The dog is certified to detect certain controlled substances and has worked in narcotics detection since January of 1998. At 5:44 p.m., the dog gave a positive alert to the package, indicating the presence of illegal drugs. The package was scheduled to be placed on the 7:00 p.m. air transport to Omaha; however, based on the information Randall had obtained, including the irregularities in the return address, the fact the package was mailed from a high crime area, and the positive canine alert, Randall secured the package until a search warrant could be obtained.

On the evening of August 20, 2001, Randall continued his investigation by driving to 2822 W. Van Buren. He found commercial buildings but was unable to locate that specific address. The following day, with the help of Benjamin James, the United States postal clerk who worked that neighborhood, Randall discovered a seafood restaurant named Mariscos Bahia De Lobos was located at 2822 W. Van Buren. James stated "Ramon Alvarado" was not a name he recognized as receiving mail at that address.

On August 21, 2001, Randall shared the results of his investigation with Popp. Based on this information, Popp prepared an affidavit and an application for a search warrant. A search warrant was issued, and the inspectors carefully opened the bottom of the package. Inside the package, Randall and Popp discovered manila envelopes wrapped in duct tape which appeared to contain illegal drugs. After photographing the contents, the package was resealed with a metal tamper-proof seal and sent by plane to Omaha Postal Inspector Clay Reeves (Reeves) for a controlled delivery.

Reeves, who is also trained and experienced in drug enforcement, received the package on August 22, 2001. He performed a more extensive search and found the package contained clothes and three padded envelopes containing a total of 1,024.3 grams of cocaine and 213.62 grams of methamphetamine. One of the drug packages was placed back into the original white shipping box and resealed; the remaining drug packages were turned over to the Lincoln Police Department.

Later on August 22, 2001, Reeves, along with officers from the Lincoln Police Department Narcotics Task Force, arranged for a controlled delivery of the package to the listed destination address of 4221 Holdrege Street, Apt. # 18, Lincoln, Nebraska. When Reeves arrived at the apartment complex, Terriques was outside and approached Reeves. Terriques asked Reeves if the package was for Martin Sanchez; Reeves replied that it was. The two men went to apartment number 18 so Terriques could retrieve some identification. Terriques produced a resident alien card displaying his photograph with the name "Martin Sanchez". Terriques signed for the package, and Reeves left. After leaving the apartment complex, Reeves advised the Lincoln police officers that Terriques accepted the package. A search warrant for apartment number 18 was obtained and executed. The unopened package was found in the bedroom closet still containing the methamphetamine. Terriques was found outside the apartment complex and arrested.

On November 15, 2001, Terriques was indicted on one count of violating 21 U.S.C. § 841(a)(1) and (b)(1)(A). Terriques filed a motion to suppress the drug evidence discovered in the package, arguing Express Mail clerk Leon did not have reasonable and articulable suspicion when he removed the package from the stream of mail. He further argued all evidence obtained subsequent to that "seizure", including the evidence derived through search of the package pursuant to a search warrant and controlled delivery, should be deemed inadmissable as fruit of the poisonous tree.

II. Discussion

This court reviews "the district court's conclusions of law de novo and its findings of fact for clear error." United States v. Yousif, 308 F.3d 820, 827 (8th Cir.2002); United States v. Johnson, 171 F.3d 601, 603 (8th Cir.1999) ("We review the findings of fact for clear error and the ultimate question whether there was reasonable suspicion of criminal activity de novo.").

Terriques argues the district court erred in denying his motion to suppress because authorities improperly detained the package. To comport with Fourth Amendment protections, postal inspectors "`must possess a reasonable suspicion based on articulable facts that a package contains contraband before they may detain the package for inspection.'" United States v. Vasquez, 213 F.3d 425, 426 (8th Cir.2000) (quoting Johnson, 171 F.3d at 603).

To determine whether Terriques' Fourth Amendment rights have been violated, we must first determine when the package was seized. "Seizure" occurs when there has been meaningful interference with an individual's possessory interest in his property. United States v. Demoss, 279 F.3d 632, 635 (8th Cir.2002) (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Mere handling of a package does not constitute seizure. Id. (reasoning "there could be no expectation the package would not be handled or that its physical attributes would not or could not be observed" when placing a package in the stream of mail). By paying postage and placing a package into the care of the United States Postal Service, "the sender virtually guarantee[s] that any characteristic of the package that could be observed by the senses would be so observed.... And there is no legitimate expectation law enforcement would not be among the observers." Id. Furthermore, it takes a matter of seconds for an Express Mail clerk to evaluate a package; such brief interference does not...