United States v. Green

• Decision Date: 13 August 2021
• Docket Number: No. 20-2796,20-2796
• Citation: 9 F.4th 682
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herbert G. GREEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.4th 682

UNITED STATES of America, Plaintiff-Appellee,

v.Herbert G. GREEN, Defendant-Appellant.

No. 20-2796

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2021

Filed: August 13, 2021

Rebecca L. Kurz, Asst. Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, on the brief), for defendant-appellant.

J. Benton Hurst, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., on the brief), for plaintiff-appellee.

Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

Herbert G. Green twice moved to suppress evidence of guns, ammunition, and drug paraphernalia that the Kansas City police seized from his apartment. The district court denied both motions. Green conditionally pled guilty to possessing firearms in furtherance of a drug trafficking offense, see 18 U.S.C. § 924(c)(1)(A), (c)(1)(A)(i), and was sentenced to 60 months of imprisonment. He now appeals.

Because we conclude that the record does not contain adequate findings of fact for us to resolve Green's appeal, we remand the case to the district court for the limited purpose of making the supplemental findings of fact necessary to resolve Green's Fourth Amendment claims, while retaining jurisdiction.

I. Background

One morning in August 2017, Detective Antonio Garcia, who had twenty-two years of experience on the police force, was working interdiction (i.e., intercepting contraband) at a Federal Express sorting center. Something he had done several thousand times before.

Under an agreement, FedEx allows the police to perform interdiction duties only between when the packages arrive (around 6:00 a.m.) and when they leave for delivery (around 8:00 a.m.). The agreement also states that officers may only seize packages when a narcotics dog ("K9") alerts to them. The K9s are not allowed near the conveyor belt where the packages move through the facility. Officers must bring flagged packages to their K9s. If the K9 does not alert to a package, the package must be immediately returned to the conveyor belt. The interdiction team cannot delay the delivery of any non-seized package.

On the morning in question, Detective Garcia began his interdiction duties around 6:00 a.m. He soon noticed a large "moving" box with a return label from Brownsville, Texas—"a source city for illegal narcotics." The box's seams were glued, which in Detective Garcia's seventeen years of interdiction experience indicates illegal narcotics "100% of the time[.]" Detective Garcia also testified that he looks at moving boxes "right away" because they are sturdy and thick, making them well suited to contain large amounts of drugs.

Detective Garcia carried the box 200 feet to the back of the FedEx facility, where his K9, Zina, immediately alerted to it. Zina is a certified narcotics dog and is "very reliable," according to Detective Garcia. Detective Garcia told FedEx about the box and Zina's alert, filled out the necessary paperwork, and seized it. The entire process from when Detective Garcia took the box off the conveyor belt until Zina alerted took approximately three minutes. Had Zina not alerted, the box would have been returned to the conveyor belt and delivered.

Officers obtained a state search warrant for the box. They also obtained a state anticipatory warrant for the address where the box was to be delivered, which allowed the police to enter the address to retrieve the box if it was taken inside. The police then conducted a controlled delivery to the box's mailing address. A detective delivered the box to the door of the apartment, but no one was home. He left the box at the door. Approximately eight minutes later, Green arrived at the apartment while talking on the phone. Officers overheard him tell the person on the other end of the call that "the box had arrived." He then unlocked the apartment door, placed the box inside, and left the apartment building.

Officers promptly arrested Green in the parking lot a few feet from his vehicle. A tactical team then entered the apartment to ensure that they could safely execute the search warrant. The tactical team immediately saw the box just inside the doorway but proceeded to go through every room to look in any place that a person could hide. They also looked in the kitchen trashcan, kitchen cabinets, and in a shoebox located on top of Green's bedroom dresser. During the sweep, which took around ten minutes, the tactical team saw weapons and marijuana inside the apartment. Despite seeing these items in plain view, the team did not seize anything.

Detective Garcia then entered the residence, performed a walk-through, and opened the box. It contained a foam cooler, which in turn contained 24.4 pounds of marijuana. Detective Garcia took the box, its contents, and Green's cell phone back to headquarters.

The officers next obtained a federal search warrant for the apartment. When they executed the warrant, the officers recovered an AR-15 rifle from the bedroom closet, a pistol, a fully loaded magazine, three other magazines, ammunition, a bullet-proof vest, a roll of heat-sealed bags, a digital scale, a hand-written ledger, five baggies of powder substance, one vacuum sealed bag of marijuana buds, and a shoe box with marijuana residue.

A grand jury indicted Green for attempting to possess a controlled substance with intent to distribute, see 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 846 (Count One), possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A), (c)(1)(A)(i) (Count Two), and possessing a firearm as a felon, see 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Three).

Green first moved to suppress the evidence seized from his apartment on grounds that the officers exceeded the state warrant's scope. A magistrate judge recommended denying the motion and the district court agreed. The district court then granted Green leave to challenge whether reasonable suspicion supported the seizure of the box at the FedEx facility and whether probable cause supported Green's arrest. Green also moved again to suppress the box's initial seizure and his arrest. The district court adopted the magistrate judge's recommendation and denied that motion as well.

Green then conditionally pled guilty to Count Two, reserving his right to appeal the suppression motion denials. The district court sentenced him to 60 months of imprisonment. Green now appeals, challenging the constitutionality of the box's initial seizure, his arrest, and the protective sweep.

II. Analysis

"A mixed standard of review applies to [ ] denial[s] of [ ] motion[s] to suppress evidence." United States v. Williams , 777 F.3d 1013, 1015 (8th Cir. 2015). We review the district court's findings of fact for clear error and its denials of Green's suppression motions de novo. United States v. Smith , 820 F.3d 356, 359–60 (8th Cir. 2016).

A. The Package's Initial Seizure

Green first argues that a seizure occurred when Detective Garcia removed the box from the conveyor belt at a FedEx facility and took it to the back of the warehouse for Zina to sniff and that Detective Garcia lacked reasonable suspicion to support that seizure. We disagree.

The Fourth Amendment to the Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" See United States v. Ameling , 328 F.3d 443, 447 (8th Cir. 2003) (noting that the Fourth Amendment applies to the states through the Fourteenth Amendment). In United States v. Va Lerie , we held that a seizure occurs when law enforcement "meaningful[ly] interfere[s] with an individual's possessory interests in property[.]" 424 F.3d 694, 706 (8th Cir. 2005) (en banc). By implication, the meaningful-interference requirement means that "not every governmental interference with a person's property constitutes a seizure of that property under the Constitution." Id. at 702. Va Lerie involved checked luggage at a bus station but approvingly cited several cases applying the same principles to the drug-interdiction-of-mail context. Id. at 707–08 ; see United States v. Gomez , 312 F.3d 920, 923–24 (8th Cir. 2002) (holding no seizure occurred when a drug-interdiction officer moved a package to a command center twenty yards from a conveyor belt in a post office's sorting area); United States v. Vasquez , 213 F.3d 425, 426 (8th Cir. 2000) (holding no seizure occurred when drug-interdiction officers at a FedEx facility had a narcotics dog sniff a package).

In Va Lerie , we held that "the [meaningful-interference] seizure standard prohibits the government's conversion of an individual's private property, as opposed to the mere technical trespass to an individual's private property." 424 F.3d at 702. In fleshing out that standard, we supplied three factors courts should focus on when considering whether detaining a package constitutes a seizure: (1) whether it delayed a passenger's travel or significantly impacted the passenger's freedom of movement; (2) whether it delayed the package's timely delivery; and (3) whether it deprived the carrier of custody of the item. Id. at 707. "If none of these factors is satisfied, then no Fourth Amendment seizure has occurred. Conversely, if even a single factor is satisfied, then a Fourth Amendment seizure has occurred." Id.

"A law enforcement officer must have reasonable suspicion that a piece of mail, or a package shipped via a commercial carrier, contains contraband to lawfully seize it for investigative purposes." United States v. Smith , 383 F.3d 700, 704 (8th Cir. 2004). Reasonable suspicion "is a level of suspicion ‘considerably less than proof of wrongdoing by a preponderance of the evidence.’ In evaluating whether suspicion is reasonable, ‘we must consider the totality of the circumstances—the whole picture.’ The inquiry is not ‘readily ... reduced to a neat set of legal rules.’ " United States v. Huerta , 655 F.3d 806, 809 (8th Cir. 2011)...