Tuesday Talk*: Who Put The “Fed” In FedEx?

It was 2014, and FedEx, or Federal Express as they were formerly officially named, refused to cooperate. They were indicted for it. The putative argument was that FedEx, whose role was to take boxes from point A and deliver them to point B, was responsible for knowing the contents of the boxes. The argument had some holes, and to its credit, FexEx wasn’t about to roll over on its customers.

But as reflected in the decision of the Eighth Circuit in US v. Green, times change and FedEx changed with them.**

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.

The issue was whether Garcia’s removal of a box from the FedEx conveyor belt to a spot about 200 feet away where a doggy named Zina could sniff it was a seizure under the Fourth Amendment. The court held it was not.

In Va Lerie, we also applied the sender’s-reasonable-expectation test to the custody question. We observed that “a commercial bus passenger who checks his luggage should reasonably expect his luggage to endure a fair amount of handling—if his luggage were not handled, it would not reach its destination.” 424 F.3d at 706. In applying the test, we wrote that the officers there “removed [the passenger]’s checked luggage from the lower luggage compartment to a room inside the terminal at [the bus company]’s request.” Id. at 708 (emphasis added). As a result, we concluded that “no Fourth Amendment seizure occurred.” Id. at 708–09. The conclusion we draw from Va Lerie is that when officers are acting at the carrier’s direction and complying with its guidance, a seizure is not likely to have occurred.

It’s one thing to assert that a bus traveler who checks his luggage would reasonably expect it to be handled by a bus company employee for the purpose of putting it on the bus, but would he reasonably expect that employee to “handle” it over to the cops? But then, that wasn’t quite the scenario, as the court emphasized. According to the court, it was “at [the bus company]’s request.” Is that what actually happened?

Reading these three cases together, it is clear that the third Va Lerie factor (whether the carrier was deprived of custody) turns more on whose direction law enforcement followed, rather than where the package was briefly taken.

Green disputes this conclusion, arguing that acting under the direction of the carrier means that the carrier’s employee must specifically identify the parcel as suspicious. We disagree. Green’s reading of Alvarez-Manzo does not account for Va Lerie’s facts. There, the carrier did not direct law enforcement to the suspicious luggage. 424 F.3d at 696. Instead, the opposite happened. Id. The carrier’s “direction” in Va Lerie was limited to general designations about where to bring the luggage after the officer had identified it as suspicious. Id. at 708. Va Lerie is like our case because Detective Garcia identified the box as suspicious and acted at the direction of FedEx by taking the package to the location FedEx designated for K9 sniffs.

When the court says it was at FedEx’s request, it doesn’t mean that FedEx, like the bus company, said to Garcia, “Hey, Tony, we got this suspicious-looking box here. Would you do us a solid and have Zina give it a sniff?” Rather, the “request” was that if a cop is going to pull a box off the belt for a dog hit because that’s what the cop decides is a good idea, he should do it “over there.”

Is this what a reasonable person would expect when handing their box over to the FedEx guy? Is providing a place in the FedEx warehouse for Zina to do her business FedEx’s “request”? And at its core, does the fact that a package it put into the hands of a delivery service mean that the “handling” you’re paying for is handing it over to the cops?

*Tuesday Talk rules apply.

**In perhaps the most classic example of FedEx’s devotion to customer service, Orin Kerr twitted about this case and got this in response.

You can’t make this stuff up.

22 thoughts on “Tuesday Talk*: Who Put The “Fed” In FedEx?

  1. PseudonymousKid

    Does this mean FedEx will eventually charge me more to agree ahead of time not to handle my stuff around the cops and to make the cops seize my stuff from them instead of placidly “handing it over”? Everyone will grumble at the extra $3.50 to send anything anywhere I bet, but I really want to know that my special shipment from CO is safe, you dig?

    No, no, no. That’s my real answer. As punishment I sentence the Court to two weeks hard labor in an Amazon warehouse. Sentence to begin immediately. Get ready to appoint some new justices. Dirt under their fingernails is like water to witches.

  2. B. McLeod

    Over there, over there
    Take the box, take the box over there,
    Because Zina’s coming,
    That drug dog’s coming,
    Whiffing and sniffing everywhere.

    So declare, if you dare,
    What your package contains, or beware,
    Now it’s over, your ruse is over,
    ‘Cause your package won’t be getting past Rover over there.

    1. JMK

      In the spirit of subverting patriotic music, I see your “Over There” and raise “The Marines Hymn:”

      From the high speed sorting conveyor
      To the dog’s locality
      We will swiftly move your package
      To be searched efficiently
      First to compromise your privacy
      And to please the Agencies
      We ain’t too proud to trade civil rights
      For government subsidy!

  3. Bryan Burroughs

    There may be legitimate arguments for allowing random K9 searches at a package carrier’s facility, but these ain’t it. These are glossing over or outright ignoring the role govt is playing in making the “special conditions” happen. It can’t seriously be argued that a carrier is doing actions of its own volition when a govt agent is directing those actions to occur.

      1. John Barleycorn

        Oh shit you mean its not just a “game”?

        I knew I should have bought me a program and kept box score!

  4. Charles

    “…FedEx, or Federal Express as they’re officially named…”

    Formerly named. Federal Express officially became FedEx in 1994, as shown by the 2014 indictment naming FedEx Corp., FedEx Express, Inc., and FedEx Corporate Services.

    If they end this deal with the government, would that make them…

    …ex-fed FedEx?

  5. Anthony Kehoe

    I think this case illustrates the Fourth Amendment exception for third party “records” perfectly. It’s essentially the gubmint saying “that’s a nice package delivery business you’ve got there.. It would be a shame if something happened to it..” while pointing to the spot in the corner where the cop and the K9 are stationed. And it’s not just Fedex (UPS assumed) that does this, but the wonderful “Informed Delivery” service from USPS does too where they send you images of the front of your mailpieces. The fact those images already exist that they can offer the service is glossed over.

    The door was opened in the Fourth by courts saying that customers willingly handed over items/data to a third party so there’s no expectation of privacy in the items handed over (not saying the contents). It’s only at times like this where ordinary people can see the problem inherent in the third party records issue.

    1. SHG Post author

      Had the court used the third party doctrine as its rationale, that would have made more sense than here. It still would have been wrong, as FedEx may have physical custody of the box, but no there was no reasonable expectation that they would invade privacy as to its contents which has nothing to with its responsibility to deliver the box and whatever happens to be inside, but it would have been a less absurd justification.

      1. JMK

        > It still would have been wrong, as FedEx may have physical custody of the box, but no there was no reasonable expectation that they would invade privacy as to its contents which has nothing to with its responsibility to deliver the box and whatever happens to be inside,

        I will not link in deference to your rules, but they do state:

        “ 11.1. FedEx may, at its option, or upon the request of the competent authorities, open and inspect any Shipment at any time, and shall incur no liability of any kind therefore.”

        Is it a “reasonable expectation” that they will not troll through your goods (or allow a drug dog to do so) when they tell you in your agreement with them that they may do just that?

        1. SHG Post author

          That’s a typical liability disclaimer, which is an entirely different matter. That said, it could be used to counter a claim under Katz, though I don’t know if it has happened.

  6. LY

    Time to randomly start shipping ground coffee and italian spices randomly via Fed-Ex. Just sprinkle a little bit into every package.

  7. C. Dove

    Since it’s Tuesday, a somewhat personal story (and video) are in order. While teaching Palsgraff, my torts teacher frequently and repeatedly shouted (or enunciated in a projecting voice) “DON’T JOSTLE MY PACKAGE!” in an attempt to jostle us law students into thinking about why a railroad would be liable when its workers decide to otherwise innocently manhandle some dude’s package in an effort to get the dude on the train. (As an aside, I think that, objectively, most people would agree jumping on a moving train (or plane, depending on where you are in the world) is not exactly a great idea, but there is a reason the law calls for objective, not subjective, standards in certain realms.) We all know how Palsgraff turned out.

    I mention Palsgraff for this reason: My torts teacher talked about packages to get us to think about whether the railroad had a duty to appreciate the possible risks posed by packages its employees jostled. But what if the contents of the package was, for example, instructions on how to detonate a bomb instead of whatever passed for “fireworks” at that time?

    Since FedEx is the bailee, my expectation as a shipper is that I give a package to FedEx, and, in return for my money, I expect they will take it from point A to B, deliver it as instructed, and that’s it. Obviously, if a copper has a warrant, fine. And sure, there are expectations that I will tell FedEx if my package will explode when jostled or otherwise burn someone. But that is, more or less, it.

    Setting those aside, I can think of numerous instances, as an attorney, where I did NOT want someone to see the contents of an envelope or package. In that vein, I did not want (or expect) that FedEx will kowtow to someone with a badge who decided, for whatever reason, their dog needed to sniff my package. I have no idea whether the person mentioned in your post was using a preprinted FedEx box or some bespoke wrapping upon which they pasted an AirBill, but that strikes me as a difference without a distinction.

    Which leaves me with Brad Pitt:

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