United States v. Gonzalez

• Decision Date: 23 March 2015
• Docket Number: No. 14–1422.,14–1422.
• Citation: 781 F.3d 422
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Cesar Alexis GONZALEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

781 F.3d 422

UNITED STATES of America, Plaintiff–Appellee

v.Cesar Alexis GONZALEZ, Defendant–Appellant.

No. 14–1422.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 12, 2014.

Filed: March 23, 2015.

Roger L. Sutton, Sr., argued, Charles City, IA, for Defendant–Appellant.

Adam Kerndt, AUSA, argued, Davenport, IA, for Plaintiff–Appellee.

Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.

Opinion

GRUENDER, Circuit Judge.

Cesar Alexis Gonzalez entered a conditional guilty plea to conspiracy to distribute methamphetamine. The district court¹ sentenced him to 168 months' imprisonment. Gonzalez appeals both the denial of his motion to suppress and his sentence. We affirm.

I.

On March 19, 2012, Tony Young approached a United Parcel Service (“UPS”) truck in Wellman, Iowa and attempted to give the driver a package. When the driver said he could not take the package because it lacked a proper label, Young anxiously offered to pay the driver with cash. The driver directed Young to a nearby UPS drop-off location. When the driver later arrived at that drop-off location, he saw a package from Young's address. Because of Young's earlier behavior and the package's bulky shape and because the package's expedited delivery schedule required it to be transported by plane, the driver contacted a supervisor at the Coralville, Iowa UPS facility. After discussing the driver's concern, the supervisor opened the package. Inside, she found a large stack of cash wrapped in foil, which she brought to the attention of another supervisor, Shawn Reinhart.

Reinhart and UPS security consulted local police officer Eric Weber, and UPS decided to send the package to its intended recipient, Cesar Gonzalez, in Yuma, Arizona. Officer Weber then contacted Yuma police, who photographed the package when it arrived in Arizona. Citing concern for employee safety, UPS declined the police request to deliver the package normally. Instead, UPS allowed police to leave a note at Gonzalez's residence stating that the package was available for pick up at a local store. Police observed Gonzalez retrieve the package and return home.

On March 22, at the Coralville UPS facility, Reinhart noticed a new package from Gonzalez addressed to Young. Reinhart retrieved this package around 7:00 a.m. and called Officer Weber at about 8:15 a.m. Officer Weber told Reinhart to hold the package, and he arranged for a drug-detection dog unit to conduct a sniff. The dog unit met Officer Weber at the Coralville facility at approximately 9:30 a.m.

The dog handler told Reinhart to place Gonzalez's package in a line with three similar packages without telling him or Officer Weber which one came from Gonzalez. The handler then commanded the dog to find drugs. The dog walked by the first two packages without showing any interest, but he nudged and played with the third package and scratched at the fourth. After a short time, the handler took the dog back to the third and fourth packages. On the second pass, the dog showed no interest in the third package but again scratched at the fourth, this time also biting it. The handler did a third pass to confirm, and the dog once again scratched at only the fourth package. By 10:30 a.m., the dog sniff concluded, and the handler informed Officer Weber that the dog had signaled an alert to the fourth package. When Officer Weber learned that this package came from Gonzalez, he took possession of it and obtained a search warrant later the same day. Upon opening the package, Officer Weber discovered 7.2 ounces of methamphetamine. Officer Weber informed Yuma police about the drugs, and they obtained warrants to arrest Gonzalez and to search his home and vehicle. The search revealed marijuana, a scale, a rifle, and ammunition. After his arrest, Gonzalez admitted to police that Young was his uncle and that he had mailed Young packages in the past.

After being indicted for conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, Gonzalez filed a motion to suppress, raising several Fourth Amendment challenges. The district court denied the motion. Gonzalez subsequently pleaded guilty, reserving his right to withdraw his plea if he were to prevail on appeal from the order denying his motion to suppress. He later filed a motion to withdraw his guilty plea, which the district court denied. After denying Gonzalez's requests for a downward variance and a two-level sentence reduction for acceptance of responsibility, the court sentenced Gonzalez to 168 months' imprisonment, a sentence at the bottom of his advisory guidelines range of 168 to 210 months. He now appeals.

II.

Gonzalez argues that the district court erred in denying his motion to suppress on several grounds. He contends that the March 19 package search and the March 22 package seizure violated his Fourth Amendment rights, that the dog sniff did not establish probable cause for a warrant to search the second package, and that evidence obtained as a result of each warrant issued in reliance on these actions was tainted. In addition, Gonzalez argues that the court erred in imposing his 168–month sentence.

A.

We begin with the district court's denial of the motion to suppress the evidence gathered from the first package search on March 19. “When reviewing a district court's decision to deny a motion to suppress, we review factual findings for clear error and conclusions of law de novo. ” United States v. Jimenez, 478 F.3d 929, 931 (8th Cir.2007). The district court held, and we agree, that this search did not implicate the Fourth Amendment. The Fourth Amendment protects only against government action. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). “[A] search by a private party with no government knowledge or participation” does not implicate this constitutional right to be free from unreasonable search and seizure. United States v. Livesay, 983 F.2d 135, 136 (8th Cir.1993). Although Gonzalez acknowledges that UPS employees, rather than government officials, conducted the search that revealed the cash on March 19, he argues that UPS employees were not private actors. Instead, he alleges that they operated as “de facto” government agents because UPS had a close and ongoing relationship with law enforcement and because the employees opened the package not based on UPS policy but based on a desire to aid police in uncovering illegal activity. See United States v. Smith, 383 F.3d 700, 705 (8th Cir.2004) (discussing the factors a court must address when determining whether a private citizen was acting as an agent of the government). We are not persuaded.

Gonzalez points to no evidence of a close and ongoing relationship between UPS and law enforcement leading up to March 19. The evidence in the record shows that police did not direct UPS to open Young's package and inspect its contents. UPS employees contacted police only after they made the independent decision to search. See United States v. Malbrough, 922 F.2d 458, 461–62 (8th Cir.1990) (finding Fourth Amendment rights were not implicated when police did not know of or acquiesce in a search). Further, the UPS driver testified that he alerted his supervisor to the package based on safety concerns. Cf. Smith, 383 F.3d at 705 (finding a search conducted by a FedEx employee was private even though police knew of and acquiesced in the search because the employee was motivated in part by her obligation to ensure that her employer was not being used as a means of carrying contraband). The district court thus properly found that the search was private and did not implicate Gonzalez's Fourth Amendment rights. Id. at 705.

Gonzalez next argues that the district court erred in finding no Fourth Amendment violation in the seizure of the second package. As an initial matter, we find no support for Gonzalez's contention that the government seizure began when he gave the package to UPS in Yuma on March 21. A Fourth Amendment seizure requires meaningful interference with an individual's possessory interest. Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652. Because UPS forwarded Gonzalez's package to Iowa in the normal course of delivery on March 21, no meaningful interference by a government agent occurred. UPS's conduct on March 21 thus did not implicate Gonzalez's Fourth Amendment rights. See Smith, 383 F.3d at 704.

A government seizure of the second package did occur, however, on March 22 when Reinhart removed the package “from its ordinary progress in the mail and ... diverted [it] for further investigation” pursuant to Officer Weber's request. See id. This temporary seizure required reasonable suspicion of criminal activity. Id.

Gonzalez contends that no reasonable suspicion justified detention of the second package. When determining whether valid grounds for reasonable suspicion exists, our de novo review requires us to “examine the totality of the circumstances ... evaluating those circumstances as they would be understood by those versed in the field of law enforcement.” United States v. Morones, 355 F.3d 1108, 1112 (8th Cir.2004) (quoting United States v. Demoss, 279 F.3d 632, 636 (8th Cir.2002) ). Gonzalez argues that reasonable suspicion did not exist because each of the events leading up to the package's temporary detention—that is, his flagging down a driver and sending cash via UPS—were innocent. However, even “a series of acts that appear innocent, when viewed separately, may warrant further investigation when viewed together.” United States v. Weaver, 966 F.2d 391, 394 (8th Cir.1992). Officer Weber asked Reinhart to hold the second package because it came from Arizona and was addressed to the same person who anxiously attempted to pay a UPS employee with cash to take a package containing a large stack of money just days before. We agree with the district court's conclusion that these facts, when viewed in the aggregate by a trained law-enforcement officer, gave rise to an objectively...