State v. Eichers, Minn.Ct.App., 12/2/2013. Officer Meyer works in something called the Airport Police Narcotics Interdiction Unit out at the airport. A package coming through the UPS sorting station caught his eye, initially because it was coming from Phoenix, next day air. He pulled the package off the conveyor belt to get a better look at it. This only aroused his suspicions even more. He found that:
1. The package was shipped from Phoenix, AZ. This is a source city and state for narcotics. 2. Your affiant has found narcotics shipped through UPS from Phoenix many times in the past. 3. The package was sent via [A]ir [S]ervice. Drug couriers use the Air Service because the narcotics will be in the system a shorter time. Air service is very expensive and usually done only by companies. 4. The package appears to be sent from person to person, no company’s involved. All of these characteristics are consistent with previous packages that your affiant has found to contain illegal substances.
Officer Meyer then put the package in a room with twenty or so other packages and had his narcotics dog, Brio, sniff around. Brio alerted only to this particular package. With this information, the officer obtained a search warrant and then found a bunch of dope: cocaine and meth. When UPS delivered the package to Mr. Eichers, police arrested him.
Mr. Eicher moved to suppress evidence of the narcotics. He made several arguments. First, he said that the officer had seized the package by removing it from the airport conveyor belt for a brief visual inspection. The court of appeals rejects this argument, relying in part on an Eighth Circuit opinion, United States v. Terriques, 319 F.3d 1051 (8th Cir. 2003), which held that merely removing a package from an airport conveyor belt for a brief visual inspection was not a “seizure.” Mr. Eicher next argued that the officer did seize the package when he put the package in the room with all those other packages and had Brio sniff around. Mr. Eicher wins this argument; this was a seizure that had to be supported by a reasonable articulable suspicion.
Mr. Eicher argued that this dog sniff was a search that required reasonable articulable suspicion. Again, he wins this argument. Alas, though, he does not prevail on his claim that the officer lacked this reasonable articulable suspicion for the reasons recited up above.
Judge Ross concurred in the result, although he didn’t say that explicitly. He did not believe that the federal constitution required Officer Meyer to have a reasonable articulable suspicion that the package contained contraband in order to put the package in the room with all those other packages in order to perform the dog sniffing test. And, he didn’t believe that the officer needed a reasonable articulable suspicion to perform the dog sniffing test. In fact, he didn’t think that whatever the dog did was a search at all, state court opinions to the contrary. Covering the bases, he opined that even if whatever the dog did was, indeed, a search, then Mr. Eicher had no reasonable expectation of privacy in the package anyway, again, federal court opinions to the contrary. In a post 9/11 world, Judge Ross thought that as soon as anyone let go of anything that may find its way onto or into an airplane the government can have its way with it.
Judge Hudson dissented. The judge concluded that the officer did not have a reasonable articulable suspicion for the dog sniff of the package. Sending a package next day air, and sending it from Phoenix amounted to nothing more than a hunch.
Look for the Supreme Court to take this case if anyone asks.
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