United States v. Jose Arcadio Guillen Tapia

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, C. ARLEN BEAM and JAMES B. LOKEN (UNPUBLISHED) [3934372] [11-3823]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-3823
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United States of America,
Appellee,
v.
Jose Arcadio Guillen Tapia,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Minnesota.
*
* [UNPUBLISHED]
*
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Submitted: May 15, 2012
Filed: July 23, 2012
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Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.
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PER CURIAM.
Jose Arcadio Guillen Tapia entered a conditional guilty plea to possession with
intent to distribute 500 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). On appeal,
he challenges the district court’s1 denial of a motion to suppress evidence. We affirm.

1

The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Jeanne J.
Graham, United States Magistrate Judge for the District of Minnesota.

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I.
On Saturday, November 20, 2010, United Parcel Service (UPS) agents at the
Minneapolis airport called police after they were unable to deliver a package that was
covered with stickers and that had been sent next-day air from a private address in
California. Detective Mark Meyer, a Metropolitan Airport Commission police officer,
responded to the call. Meyer entered the UPS office with a canine trained and
certified in drug detection. The dog alerted to the presence of narcotics in the package
upon entering the office. Meyer then examined the air bill associated with the
package and determined that the package looked suspicious because it was addressed
from one person to another rather than from a business, originated from a source state,
displayed “handle with care” stickers, and was sent next-day air from a mail store.
Meyer testified that excessive markings or packaging is a hallmark of a package
containing drugs. He also testified that drug dealers prefer next-day air shipping to
reduce the amount of time the package is in a shipping system, but that this practice
draws suspicion because the cost of next-day air shipping usually limits the practice
to businesses, rather than individuals. The characteristics of the package and the dog’s
alert led Meyer to believe the package contained illegal drugs.
After completing a property inventory sheet for UPS, Meyer took the package
with him to his office and locked it in a conference room for the remainder of the
weekend. On Monday, November 22, 2010, Meyer obtained a search warrant for the
package, and Meyer’s supervisor opened the package. Field testing determined that
the package contained one pound of methamphetamine.
Officers made a controlled delivery to the address indicated on the package.
Tapia signed for the package and accepted its delivery. Tapia was then arrested and
later charged with possession with intent to distribute 500 grams or more of a mixture
or substance containing methamphetamine. He filed a motion to suppress evidence,
and the matter was referred to a magistrate judge. Following a hearing, the magistrate
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judge recommended that the district court deny Tapia’s motion. After the district
court adopted the recommendation, Tapia pled guilty pursuant to a conditional plea
agreement, which reserved his right to appeal the issue of whether the “government
had reasonable, articulable suspicion to seize the package that contained the drugs.”
Plea Agreement ¶ 8.
II.
Tapia contends that law enforcement did not have reasonable, articulable
suspicion to seize the package because the package was seized prior to the dog
alerting to it. The government maintains that the dog alerted to the package before it
was seized, so the alert provided the reasonable suspicion, if not probable cause, to
seize the package. The district court found that UPS initially detained the package,
and then notified Meyer of its suspicion.
When reviewing a denial of a motion to suppress evidence, “[w]e review the
district court’s legal conclusions about reasonable suspicion de novo, and we review
the court’s underlying findings of historical fact for clear error.” United States v.
Huerta, 655 F.3d 806, 809 (8th Cir. 2011) (citations omitted). The Fourth
Amendment “is wholly inapplicable to a search or seizure, even an unreasonable one,
effected by a private individual not acting as an agent of the Government or with the
participation or knowledge of any governmental official.” United States v. Jacobsen,
466 U.S. 109, 114-15 (1989) (internal quotation omitted). Meyer testified that he did
not instruct UPS agents on how to deal with the package prior to his arrival at the UPS
office. The UPS agent’s decision to hold the package in the office and invite Meyer
to inspect it did not fall within the protection of the Fourth Amendment because the
agent was a private actor and was not acting at the behest of a governmental official.

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As a law enforcement officer, Meyer needed “reasonable suspicion that a piece
of mail, or a package shipped via a commercial carrier, contains contraband to
lawfully seize it for investigative purposes.” United States v. Lakoskey, 462 F.3d 965,
975 (8th Cir. 2006) (quoting United States v. Smith, 383 F.3d 700, 704 (8th Cir.
2004)). A seizure occurs “when there is some meaningful interference with an
individual’s possessory interests in that property.” Jacobsen, 466 U.S. at 113.
Tapia argues that Meyer seized the package upon observing it in the UPS office.
This argument fails, however, because Meyer’s testimony, accepted as truthful by the
district court, established that he did not examine or exercise control over the package
until after the dog alerted to it, which justified Meyer’s decision to seize it. See
United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999) (a reliable, trained dog’s
positive alert establishes probable cause for the presence of a controlled substance).
Tapia also challenges the search warrant obtained to open the package. Tapia
waived this argument in his plea agreement, however, reserving the right to appeal
only “the issue of whether the government had reasonable, articulable suspicion to
seize the package that contained the drugs.” Plea Agreement ¶ 8. We thus do not
consider this argument on appeal.
III.
The order denying the motion to suppress is affirmed.
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