Opinion
No. C5-00-161.
Filed October 3, 2000.
Appeal from the District Court, Ramsey County, File No. K799487.
Kyle David White, (for appellant)
Mike Hatch, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, (for respondent).
Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Jaime Torrez Lopez appeals his fifth-degree controlled substance crime conviction, arguing that the trial court erred in denying his motion to suppress evidence of a package containing marijuana that was mailed to appellant. Because the trial court did not err in denying appellant's motion to suppress, we affirm.
FACTS
A police officer monitoring incoming packages at the Federal Express office noticed a package from Texas addressed to appellant. The officer testified that he picked out the package and set it aside for a canine sniff to determine whether it contained drugs. The officer testified that he singled out appellant's package because it was heavily taped, was classified priority overnight, had been paid for in cash, had a handwritten air bill, and originated in Texas, a state identified as a source of illegal drugs.
A police dog certified as a narcotics dog gave a positive signal upon sniffing appellant's package. The package was secured by a Federal Express manager and police obtained a search warrant. The police officer estimated that the entire process, from the initial isolation of the package to the obtaining of a search warrant lasted from two to three hours. The search disclosed that the package contained marijuana. After the trial court denied appellant's motion to suppress the marijuana, and trial on stipulated facts, appellant was found guilty of fifth-degree controlled substance crime. This appeal followed.
DECISION
When reviewing pretrial orders concerning the suppression of evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in its decision whether to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). This court accepts the district court's findings of fact unless clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
Appellant contends that: (1) a "seizure" occurred when the police officer pulled the package off the sort line at Federal Express to be sniffed by the narcotics dog; and (2) there was no articulable suspicion justifying the seizure. See generally State v. Martinson, 581 N.W.2d 846, 850 (Minn. 1998) (discussing reasonable, articulable suspicion standard applied to a temporary seizure or detention).
It is a Terry-type temporary seizure, requiring articulable suspicion, to seize luggage in the possession of a passenger and subject it to further investigation, including a canine sniff. United States v. Place, 462 U.S. 696, 708-09, 103 S.Ct. 2637, 2645 (1983). Here the police officer did not seize the package from appellant's possession. But most of the federal caselaw at least assumes that intercepting mail or packages involves a "seizure," requiring articulable suspicion. See, e.g., United States v. Dennis, 115 F.3d 524, 531-32 (7th Cir. 1997) (holding mail interception valid if based on reasonable suspicion, lasting a reasonable duration); United States v. Daniel, 982 F.2d 146, 149 (5th Cir. 1993) (holding DEA agent's handling of air-freight package, exercising control for 45 minutes constituted seizure); cf. United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir. 1992) (holding that removal of bags from overhead baggage area on bus to allow canine sniff was not a seizure, although finding articulable suspicion existed). The Supreme Court has held a brief detention of packages based on "suspicion" was not unreasonable. United States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 1032-33 (1970). Therefore, we will assume there was a "seizure" of appellant's package and examine whether it was supported by a reasonable, articulable suspicion.
Appellant argues that the police officer's brief inspection of the package, disclosing its heavy taping, handwritten air bill, payment in cash, priority overnight status, and origination in Texas, did not provide an articulable suspicion justifying the temporary detention. He argues that Johnson was merely applying a "profile," which cannot provide articulable suspicion. Cf. State v. Williams, 525 N.W.2d 538, 545-47 (Minn. 1994) (criticizing mechanical reliance on "drug courier profile," as unscientific and often a mere proxy for racial profiling, and holding profile inadmissible into evidence at trial). We disagree.
The Seventh Circuit has held that police had articulable suspicion to temporarily seize a package that was mailed from a known "source city," was sent from a private person to another private person, was heavily taped, and was mailed from a zip code different from that in the return address. Dennis, 115 F.3d at 532. The Tenth Circuit has held that police had articulable suspicion allowing a temporary seizure of a package meeting three of the seven factors in the Postal Service's "drug package profile," which included heavy taping and handwritten mailing labels. United States v. Lux, 905 F.2d 1379, 1380 n. 1, 1382 (10th Cir. 1990). Although the Lux court did not detail which factors were met, the package here met at least three factors; heavy taping; origination from a source state; and handwritten labeling (as well as, arguably, having been paid for in cash). Finally, the Fifth Circuit has held that the three factors met here, along with two other factors, provided articulable suspicion. United States v. Daniel, 982 F.2d 146, 150 (5th Cir. 1993).
Here, the combination of factors, particularly the heavy taping, payment in cash, and origination in a "source" state, provided reasonable, articulable suspicion. Moreover, the police officer had fresh information that drug shipments could be anticipated from Texas, which is where appellant's package originated.
The supreme court's rejection in Williams of the use of "drug courier profile" evidence at trial is irrelevant to use of a "drug package profile" to temporarily seize appellant's package. A determination of reasonable, articulable suspicion requires a consideration of the totality of the circumstances. Martinson, 581 N.W.2d at 852. The fact that these circumstances are expressed in terms of a "profile" does not diminish their significance as viewed by experienced police officers. Id. at 851 (citing United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587 (1989)). There is no evidence that police relied on appellant's Hispanic surname, and the "drug package profile" itself is directed at the characteristics not of persons, but of packages.