United States v. Nicholas Vasquez ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3982
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Minnesota.
*
Nicholas Vasquez, *
*
Appellant. *
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Submitted: May 9, 2000
Filed: May 23, 2000
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Before WOLLMAN, Chief Judge, FAGG and MURPHY, Circuit Judges.
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FAGG, Circuit Judge.
Drug interdiction officers were examining the exterior of packages moving along
a conveyor belt at the Federal Express parcel sorting station at the Minneapolis/St. Paul
International Airport when a Federal Express employee brought a nondeliverable
package to their attention. The package roused the officers' suspicions because it was
incorrectly addressed even though the sender and recipient had the same last name; the
air bill was handwritten, marked "priority overnight," and contained no account
number; and the package was sent from California. Following the procedure for
handling nondeliverable packages, the Federal Express employee obtained the
package's correct address and the package was then promptly placed at the rear of its
designated delivery truck with other packages waiting to be recorded and loaded by the
driver. Despite their suspicions, the officers did not give the driver any instructions
about the package and did not otherwise attempt to interfere with the routine processing
of the package or delay the driver's departure. As the driver continued to load the
accumulated parcels unimpeded, however, the officers brought an on-site narcotics dog
to sniff the packages. After the dog alerted to the suspicious package, the officers set
the package aside, obtained a search warrant, and opened the package, finding
approximately four pounds of methamphetamine. Following a controlled delivery of
the package, Nicholas Vasquez was arrested and charged with several drug-related
crimes. The district court denied Vasquez's motion to suppress the methamphetamine
found in the package, and a jury convicted Vasquez, who now appeals.
Vasquez first claims the district court committed error in denying his motion to
suppress because the officers improperly detained the package. We agree with
Vasquez that "[l]aw enforcement authorities must possess a reasonable suspicion based
on articulable facts that a package contains contraband before they may detain the
package for investigation," United States v. Johnson, 171 F.3d 601, 603 (8th Cir.
1999), and we also agree with Vasquez that the factors initially identified by the
officers as suspicious do not meet that standard, see id. at 604. Contrary to Vasquez's
view, however, the officers' actions in examining the outside of the package and then
subjecting the package to a dog sniff as it sat at the rear of the delivery truck do not
constitute a detention requiring a reasonable, articulable suspicion because, at that
point, the officers had not delayed or otherwise interfered with the normal processing
of the package. See United States v. Harvey, 961 F.2d 1361, 1363-64 (8th Cir. 1992)
(per curiam) (no seizure when officers moved bags from public overhead baggage area
to aisle to facilitate dog sniff because owners were not aware the sniff was taking place
and travel would not have been interrupted if dog had not detected contraband); United
States v. Ward, 144 F.3d 1024, 1032-33 (7th Cir. 1998) (bag not detained when officer
removed from luggage compartment of bus; detention occurred only when officer held
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bag for later dog sniff, interrupting bag's transport and requiring placement on later bus
if dog did not alert). On these facts, the detention occurred when the officers removed
the package from the stream of mail in response to the dog's alert. Because the dog's
positive alert provided a sufficient basis to hold the package, see United States v.
Sundby, 186 F.3d 873, 876 (8th Cir. 1999) (dog's positive alert establishes probable
cause), the district court properly denied Vasquez's motion to suppress.
Vasquez also contends the district court abused its discretion by allowing the
Government's expert witness to testify at trial that drug traffickers do not typically use
couriers who are unaware they are transporting drugs. Because one of Vasquez's
defense theories was that he did not know the package contained drugs, Vasquez
argues this testimony violated Federal Rule of Evidence 704(b), which prohibits experts
from stating "an opinion . . . as to whether the defendant [had] the [requisite] mental
state . . . of the crime charged." We disagree. The expert offered no improper opinion
concerning Vasquez's personal knowledge of the contents of the package, see United
States v. Willis, 61 F.3d 526, 532-33 (7th Cir. 1995), and the district court properly
permitted the expert's general testimony about "'the modus operandi of drug dealers in
areas concerning activities which are not something with which most jurors are
familiar,'" United States v. Brown, 110 F.3d 605, 610 (8th Cir. 1997). Likewise, we
reject Vasquez's related contention that the expert's testimony was prejudicial drug
courier profile testimony, because the testimony was not admitted to establish
Vasquez's guilt by showing he fit the characteristics of a courier profile. See United
States v. Cordoba, 104 F.3d 225, 229-30 (9th Cir. 1997); United States v. Buchanan,
70 F.3d 818, 833 n.19 (5th Cir. 1995).
We affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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