United States v. Evans, Sidney A. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2891
United States of America,
Plaintiff-Appellee,
v.
Sidney A. Evans,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00 CR 99--David F. Hamilton, Judge.
Argued November 28, 2001--Decided February 21, 2002
Before Harlington Wood, Jr., Kanne, and
Rovner, Circuit Judges.
Kanne, Circuit Judge. Sidney A. Evans
was indicted on one count of conspiring
to possess cocaine base with the intent
to distribute in violation of 21 U.S.C.
sec.sec. 841(a)(1) and 846. Evans moved
to suppress certain evidence obtained by
the government. After an evidentiary
hearing, the district court denied Evans’
motion. Subsequently, Evans entered into
a plea agreement, whereby Evans reserved
the right to appeal the district court’s
adverse determination on his motion to
suppress. Evans now appeals that
determination. We affirm.
I. History
Prior to July 20, 2000, a "parcel watch"
was placed with the Richmond, Indiana
Post Office for deliveries addressed to
"Kristy Kircher, 953 South 23rd Street,
Apt. 229, Richmond, Indiana 47374."
Pursuant to this parcel watch, the
Richmond Post Office was to notify Postal
Inspector Steve Sadowitz if any parcel
arrived for delivery to that particular
address. Sadowitz’s office is located in
Indianapolis, Indiana. Sadowitz has been
a Postal Inspector for 11 years. He is
trained in interdiction of mail that
contains illegal drugs, has conducted
"thousands" of inspections of parcels
that contain illegal drugs, and has
interviewed subjects who send illegal
drugs through the mail. Sadowitz placed
this particular parcel watch because he
had noticed that previous mailings to the
address from Sacramento, California,
contained handwritten labels with
fictitious return addresses.
At about 8:00 a.m. on July 20, the
Richmond Post Office notified Sadowitz
that a parcel had arrived addressed to
"Nicole Kircher, 953 South 23rd, Apt.
229, Richmond, Indiana 47374." Kristy
Kircher’s full name is Kristy Nicole
Kircher. The parcel was a "two-day"
Express Mail parcel to be delivered to
Kircher on July 20 by 3:00 p.m. Sadowitz
instructed the Richmond Post Office to
place a "notice left" notation in the
Express Mail tracking system for the
parcel. A "notice left" notation is
normally used after an unsuccessful
delivery attempt. The notation alerts the
intended recipient that a parcel delivery
was attempted, and that the individual
can pick up the parcel at the Post
Office.
Sadowitz, who was at his Indianapolis
office, and a supervisor from the
Richmond Post Office each drove to a
point halfway between Richmond and
Indianapolis. Upon obtaining the parcel,
Sadowitz observed several characteristics
that caused him to believe that the
parcel contained illegal drugs. The
parcel had a handwritten label, which is
rare on Express Mail packages, and the
return address bore a northern California
address. From past experience, Sadowitz
knew that 75% of controlled substances
seized from the mail were from that area.
Around noon, Sadowitz met with Detective
Thomas Stitt, an Investigator/Narcotics
Canine handler for the Indianapolis
Police Department, and Stitt’s Narcotic
Detection Canine Wendy at the
Indianapolis International Airport. The
suspect parcel was placed on the floor
with four similarly-sized parcels that
did not contain drugs. Wendy examined all
five parcels and alerted to the parcel
addressed to Kircher. Based on this
information, Sadowitz obtained a federal
search warrant for the parcel on July 20,
at 1:34 p.m. Inside the parcel, Sadowitz
found a CD player that contained
approximately 4.28 ounces of cocaine base
("crack").
A controlled delivery of the parcel was
made on July 21, 2000. Kircher signed for
the parcel. Several hours later, officers
on surveillance observed Kircher leave
her apartment carrying the parcel.
Kircher drove to 107 North 18th Street in
Richmond. As she approached the front
door to that residence with the parcel in
her hand, she was arrested. Evans and
another man, Robert Harlan, were inside
the residence. They were both
subsequently arrested.
Evans was indicted for conspiring to
possess crack with the intent to
distribute. Evans moved to suppress the
evidence obtained as a result of the
seizure of the Express Mail parcel. At
the suppression hearing, Evans testified
that he had made arrangements to have
Kircher receive the parcel and then to
have her deliver the parcel to him. The
district denied Evans’ motion, finding
that while Evans had a protectable
privacy interest in the parcel, the
length and scope of the brief detention
was reasonable and did not violate Evans’
Fourth Amendment rights. Subsequently,
Evans entered into a plea agreement with
the government. In the agreement, Evans
pled guilty as charged, but reserved his
right to appeal the district court’s
denial of his motion to suppress. Evans
was sentenced to 120-months imprisonment,
five years supervised release, and a fine
of $1,000. Evans now appeals the district
court’s denial of his motion to suppress.
On appeal, Evans claims that his Fourth
Amendment rights were violated when the
Express Mail parcel was diverted from the
ordinary flow of packages so that it
could be subjected to a narcotics canine
inspection. First, Evans argues that the
government "seized" the parcel at 8:00
a.m. on July 20. Because this "seizure"
was more than a brief investigatory
detention, Evans contends that probable
cause for seizing the parcel was
required. Additionally, Evans argues that
because he had a contractually based
expectation that the parcel would be
delivered by 3:00 p.m. on July 20, the
fact that the parcel was not delivered
until the morning on July 21 interfered
with Evans’ possessory interest in the
parcel. Evans claims that such an
interference can only be justified upon a
showing of probable cause. Moreover,
Evans avers that at the time of the
seizure, the facts known by the
government were insufficient to establish
a reasonable suspicion justifying any
length detention.
II. Analysis
On appeal, the parties assume that Evans
possesses a Fourth Amendment privacy
interest in a parcel that he arranged to
have sent via Express Mail to his
girlfriend, who understood that she was
supposed to turn the sealed parcel over
to Evans. That such an interest is
protected by the Fourth Amendment has not
been directly established by this
circuit. See United States v. Koenig, 856
F.2d 843, 846 (7th Cir. 1988). In this
case, after a lengthy analysis, the
district court found that Evans made
arrangements that subjectively and
objectively gave him a reasonable
expectation of privacy against having the
parcel addressed to Kircher opened and
inspected by anyone else. Although we
recognize that this is a threshold
question to any Fourth Amendment
analysis, because the parties did not
brief or argue this issue and because we
find that reasonable suspicion justified
the detention of the parcel, we save this
question for another day.
In United States v. Van Leeuwen, the
Supreme Court recognized an individual’s
Fourth Amendment right to be free from
unreasonable searches and seizures of
items they place in the mail. 397 U.S.
249, 251, 90 S. Ct. 1029, 25 L. Ed. 2d
282 (1970). However, upon reasonable
suspicion that the package contains
contraband, law enforcement authorities
may detain the package for a reasonable
length of time while investigating the
package. See id. at 252-53 (finding a 29-
hour delay to be reasonable); United
States v. Dennis, 115 F.3d 524, 531-32
(7th Cir. 1997). Thus, the detention here
will be upheld if Sadowitz
reasonablysuspected that the parcel
contained contraband and if the duration
of the detention was reasonable. See
Dennis, 115 F.3d at 531-32.
We review a determination of reasonable
suspicion de novo. See Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct.
1657, 134 L. Ed. 2d 911 (1996); Dennis,
115 F.3d at 532. A reasonable suspicion
determination requires "law enforcement
authorities to articulate the specific
characteristics exhibited by the . . .
object to be detained which aroused the
authorities’ suspicion in the particular
case before us, and we determine whether
those characteristics would reasonably
arouse suspicion under the circumstances
presented in the case." Dennis, 115 F.3d
at 532. "[I]n certain circumstances
wholly lawful conduct may justify an
officer’s suspicion that criminal
activity is afoot. . . . Moreover,
circumstances which appear innocent to
the outside observer may suggest criminal
activity to experienced law enforcement
personnel, and in determining
whetherreasonable suspicion exists, law
enforcement authorities may assess these
circumstances in light of their
experience." Id. at 533 (citations
omitted).
In Dennis, the postal inspector
explained that, based on his experience
as a postal inspector, a certain parcel
aroused his suspicion because the parcel
was "heavily taped, had been sent from a
private person to another private person,
had been mailed from Los Angeles, a city
known to be a source city for narcotics
distribution, and had been mailed from a
zip code different than the zip code
listed in the return address." Id. at
532. Similarly, the parcel in this case
was from California, which Sadowitz
recognized as a known source area for
illegal drugs. Moreover, the label on the
parcel was handwritten and as Sadowitz
explained, handwritten labels are unusual
on Express Mail parcels. Here, we find
that Sadowitz assessed the circumstances
in light of his experience. While a
handwritten label and a California return
address may appear innocent enough,
Sadowitz knew from experience that these
characteristics were consistent with
parcels which contain contraband.
Furthermore, Sadowitz articulated that he
had knowledge that this particular
address had on previous occasions
received parcels with fictitious return
addresses. We find that these factors
considered in light of Sadowitz’s 11
years experience as a postal inspector
and as articulated by Sadowitz were
sufficient to arouse reasonable
suspicion.
This court recognizes, however, that at
some point in time, a detention of mail
extends from a stop to a seizure
requiring probable cause. See United
States v. Sharpe, 470 U.S. 675, 685, 105
S. Ct. 1568, 84 L. Ed. 2d 605 (1985);
Dennis, 115 F.3d at 533. Therefore, the
next step in our inquiry is to determine
whether Sadowitz detained the parcel for
an unreasonably long period of time
before obtaining a search warrant. See
Dennis, 115 F.3d at 533; United States v.
Mayomi, 873 F.2d 1049, 1053-54 (7th Cir.
1989). "Brevity of a detention is an
important factor in determining whether
it may be justified by reasonable
suspicion only. . . . [W]e also consider
whether the police diligently pursued
their investigation." Dennis, 115 F.3d at
533 (citation omitted).
In Mayomi, we stated that detaining two
letters for forty-eight hours to allow
the inspector to subject the letters to a
canine inspection was brief enough to be
sustained by reasonable suspicion. 873
F.2d at 1054. Additionally, we have held
that law enforcement authorities are not
required to have a canine unit present at
every location where a canine inspection
is probable or possible. See United
States v. Borys, 766 F.2d 304, 314 (7th
Cir. 1985). "Diligence . . . is fairly
characterized by steady, earnest,
energetic, and attentive application and
effort toward a predetermined end."
United States v. LaFrance, 879 F.2d 1, 8
(1st Cir. 1989). Here, we find that
Sadowitz acted diligently and that the
detention was brief enough to be
sustained by reasonable suspicion. In
order to be efficient, Sadowitz met the
supervisor from the Richmond Post Office
halfway between Richmond and
Indianapolis. Immediately thereafter,
Sadowitz transported the parcel to
Indianapolis International Airport for a
narcotics canine inspection. Evans argues
that a Narcotics Canine Unit was
available in Dayton, Ohio. While the
distance to Dayton, Ohio may in fact be
shorter than the drive to Indianapolis
International Airport, we do not find
that this information means that Sadowitz
failed to act diligently. Rather, we find
that Sadowitz diligently pursued his
investigation and that the detention of
the Express Mail parcel was reasonable.
III. Conclusion
For the foregoing reasons, we AFFIRM the
district court’s denial of Evans’ motion
to suppress.