On July 24, 2024, the Sixth Circuit Court of Appeals decided the United States v. Sherrell[i], in which the court discussed whether an officer violated the Fourth Amendment when, in response to tip from an informant, he briefly detained a package at a FedEx shipping facility to investigate the circumstances of the shipment and then conducted a canine sniff of the package in a line-up. The relevant facts of Sherrell are as follows:
On February 21, 2019, at around 6:44 am, a [known] confidential informant contacted Detective Todd Gillilan on his cell phone. The CI told Gillilan about a suspicious package at the Akron, Ohio, FedEx distribution hub. The CI provided Gillilan with the package’s specific 12-digit tracking number. Gillilan then called the FedEx hub to “ascertain the particulars” of the package. The hub employees confirmed its existence and said that they “would arrange [for Gillilan] to investigate the [package].”
Detective Gillilan went to inspect the package later that same day. It was a roughly 9-pound parcel shipped from a “Traynal Sherrell” in Los Gatos, California to a “Timaeus Foster” in Canton, Ohio. According to Gillilan, Sherrell was known to law enforcement in the area as being involved in drug trafficking. Gillilan also noted that the package was shipped overnight with no signature required on delivery—a total of $200 in shipping costs. Gillilan next had the sender’s and recipient’s information run through databases. The info on the package checked out as to Traynal Sherrell. But the recipient’s name, “Timaeus Foster,” did not match the name associated with the address, “Timothy Foster.”
These facts, coupled with the confirmation of his CI’s highly specific tip, led Gillilan to believe that the package contained illegal narcotics, proceeds from drug trafficking, or both—so he placed it in a lineup for a dog sniff. His certified drug dog, Canine Cash, made a positive alert on the package. Gillilan submitted an affidavit to that effect and applied for a search warrant, which an Ohio Common Pleas Court granted. Police searched the package and found two bricks of cocaine.[ii]
Sherrell was indicted under federal law for distribution of a controlled substance. He filed a motion to suppress the drugs and the district court denied the motion, holding (1) there was reasonable suspicion to detain the package and (2) the canine alert provided probable cause for the search warrant. Sherrell was convicted by a jury and subsequently filed an appeal regarding the denial of his motion to suppress.
On appeal, Sherrell argued that the detective did not have sufficient reasonable suspicion to detain his package, and as such, the canine sniff violated the Fourth Amendment, which required the evidence to be suppressed.
The court of appeals first examined the legal principles that apply to this issue and stated
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. But a “reasonable, temporary detention of a reasonably suspicious postal package prior to establishing probable cause . . . for the time necessary to obtain a drug detection canine or otherwise conduct an investigation does not violate the Fourth Amendment.” United States v. Robinson, 390 F.3d 853, 870 (6th Cir. 2004) (quoting United States v. Banks, 3 F.3d 399, 403 (11th Cir. 1993)). In other words, “only reasonable suspicion, and not probable cause, is necessary in order to briefly detain a package for further investigation, such as examination by a drug-sniffing dog.” Alexander, 540 F.3d at 500-01 (quoting Robinson, 390 F.3d at 870).[iii]
Thus, the detective needed to establish reasonable suspicion that the package may contain evidence of criminal activity.
The court also explained that reasonable suspicion is based on the totality of the circumstances. Specifically, the court stated
To determine whether reasonable suspicion existed, we look to the totality of the circumstances and do not “engage in a ‘divide-and-conquer analysis’ but consider factors as a whole.” United States v. Byrd, No. 23-5116, 2024 U.S. App. LEXIS 11973, 2024 WL 2210135, at *6 (6th Cir. May 16, 2024) (quoting United States. v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002)).[iv]
This means that in determining whether reasonable suspicion is present, the court will look at the inferences of all the facts, considered together, rather than looking at each individual fact in isolation. Individual facts may seem innocuous, but when all facts are viewed together, the innocuous individual facts may amount to reasonable suspicion of criminal activity.
The court of appeals next examined the facts that were known to the detective. The court observed that the detective received a phone call from a known, confidential informant, that provided specific information about a package, specifically, the tracking number on the package and information that it was suspicious. The court stated
When a CI provides specific information that is confirmed upon investigation, it is a strong indication of reliability and often justifies reasonable suspicion. See United States v. Hunter, 333 F. App’x 920, 924 (6th Cir. 2009) (holding that a CI’s tip alone provided reasonable suspicion when the CI’s information—a person driving in a specific car on a specific night—was later confirmed); Byrd, 2024 U.S. App. LEXIS 11973, 2024 WL 2210135, at *8 (holding that a CI’s “accurate predictions”—including matching suspects to license plates—provided reasonable suspicion); United States v. Doxey, 833 F.3d 692, 704 (6th Cir. 2016) (holding that a CI’s later-corroborated description of a suspect’s rusty white SUV supported reasonable suspicion). This is true even if the CI has not always been reliable or even if the CI provided only partially accurate information about the events at issue. See United States v. McMurry, 208 F.3d 216, 216 (6th Cir. 2000) (table). And if the corroborated information is highly specific and unavailable to the general public, it “enhances the probability that the information is true.” United States v. Padro, 52 F.3d 120, 123-24 (6th Cir. 1995).[v]
Sherrell argued that there was no evidence provided about the reliability of the informant. However, the informant knew the tracking number and location of the package, which was confirmed by the detective before the package was detained.
Thus, the tip from the confidential informant weighed heavily in favor of reasonable suspicion.
Additionally, the detective discovered additional facts in his investigation of the package that contributed to reasonable suspicion. First, the Sherrell was known to law enforcement to be involved in drug trafficking. Second, the package was being shipped overnight, with no signature required on delivery, and the shipping cost was $200. Third, the package was being shipped to an address in Canton, Ohio to a person listed as “Timaeus Foster.” This name did not match the name of the person associated with the address to which the package was being shipped. The name associated with the address was “Timothy Foster.” After considering these facts, in addition to the very specific tip from a confidential informant, court of appeals stated
This case is a textbook example of how known facts work together to create reasonable suspicion. A package shipped overnight with no signature required might not be inherently suspicious. A package shipped to a possibly incorrect or fictitious addressee is not necessarily suspicious. But a package, shipped overnight with no signature required to a possibly fictitious addressee, when a CI has just flagged that by its 12-digit tracking number as containing drugs—is quite suspicious.[vi]
Thus, the court of appeals found there was sufficient reasonable suspicion to detain the package for a canine sniff.
Sherrell also argued that the Fourth Amendment seizure of his package actually occurred when the detective “directed FedEx employees to remove the package from transit.”[vii] He argued that this caused the FedEx employee to act as an “agent” of law enforcement and occurred prior to developing reasonable suspicion.
The court of appeals examined the legal principles associated with this issue and stated
[A] seizure occurs only “when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Gant, 112 F.3d 239, 241 (6th Cir. 1997) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)).
We have held that there is no meaningful interference in possessory interests when property is briefly detained in this type of situation. So that detention does not even implicate the Fourth Amendment. See id. at 241-42; United States v. Caldwell, 229 F.3d 1154 (6th Cir. 2000) (table) (holding that there was no Fourth Amendment concerns in removing a package from a UPS conveyor belt because “[i]f the canine had not alerted to the presence of narcotics, the continued delivery of the package would not have been interrupted” and “[t]he temporary removal . . . for purposes of subjecting the box to a dog sniff, did not create a meaningful interference with the defendant’s possessory interest in the package”); see also United States v. Quoc Viet Hoang, 486 F.3d 1156, 1162 (9th Cir. 2007) (holding that a short detention of a package containing cocaine at a FedEx facility did not implicate appellant’s Fourth Amendment rights).[viii]
In this case, the detective went to the FedEx facility to investigate the package on the same day that he received the tip. There was no evidence that the package was detained by FedEx to the extent that it would have interfered with the overnight delivery of the package. Thus, the court of appeals held that the FedEx employees did not “seize” the package under the Fourth Amendment. The court also noted that they did not need to determine whether the FedEx employee was acting as an agent of law enforcement since they determined that no seizure had occurred.
Thus, the court held that there was no initial seizure under the Fourth Amendment when the FedEx employees initially arranged for the detective to investigate the package. The court also held that after investigation, the facts were sufficient to establish reasonable suspicion to detain the package briefly for the canine sniff. Further, the court held that the alert from a “properly trained dog is sufficient to establish probable cause for the presence of a controlled substance.”[ix]
Thus, the search warrant was properly based on probable cause, and the motion to suppress was properly denied.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 23-3562 (6th Cir. July 24, 2024 Unpublished)
[ii] Id. at 1-3
[iii] Id. at 4 (emphasis added)
[iv] Id. at 5 (emphasis added)
[v] Id. at 5-6 (emphasis added)
[vi] Id. at 7-8
[vii] Id. at 8
[viii] Id. at 8-9 (emphasis added)
[ix] Id. at 10
