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.
Hi this is Masheka. I am truly sorry this has happened to your package. Please contact you shipper at this time for further assistance. I apologize for your frustrations and the inconvenience this situation has caused you.
— FedEx Help (@FedExHelp) August 16, 2021
You can’t make this stuff up.