When a drug dog sniffs, is it a search?

When you mail a package, do you have any expectation of privacy about what’s inside?

An Avon, Minn., man received a package mailed from a person in Phoenix. But while it was on a conveyor belt at the UPS sorting facility at the Minneapolis-St. Paul International Airport, a police officer found that fact suspicious and brought in a drug-sniffing dog who found the scent of drugs.

Armed with a search warrant, the officers opened the package and found cocaine and meth. They repackaged it, delivered it to the recipient, and arrested him on felony charges.

Is it constitutional?

Today, a three-judge panel of Minnesota Court of Appeals judges ruled it is, but the judges were sharply divided on the question surrounding the September 2011 arrest of Corey Eichers, who claimed there was no reason for the seizure of a package. At his trial, a district court judge ruled delaying delivery didn’t constitute a seizure, let alone an unreasonable one under the Constitution.

Today’s decision is the first time, apparently, that a Minnesota appellate court has addressed the issue of a seized mailed package and privacy guarantees under either the federal or Minnesota constitutions.

“A drug-interdiction officer’s lifting of a package from a FedEx conveyor belt is not a seizure in the constitutional sense because the officer is not removing the package from the stream of mail,” Judge Heidi Schellhas wrote in today’s decision. She also ruled the drug officer had “reasonable suspicion” that the package contained drugs because it was sent from a UPS Store in Phoenix, was sent by a person and not by a company, and was sent by expensive two-day air.

“But the mere fact that a package is addressed from Phoenix or any other border state is insufficient to constitute reasonable articulable suspicion, especially in this day and age when methamphetamine is easily manufactured in garages across America,” Judge Natalie Hudson said in disagreeing with Judge Schellhas.

“Such random seizures are an anathema to our citizens’ fundamental right under the United States Constitution and the Minnesota Constitution to be ‘secure in their persons, houses, papers, and effects against unreasonable searches and seizures,’” Hudson said.

“One way to know you’ve misapplied constitutional safeguards is to recognize that the only people who benefit are drug dealers and maybe terrorists; no one else would care or even know that a police officer briefly repositioned their air-transported packages and allowed a police dog to sniff them,” Judge Kevin Ross countered, breaking the tie and offering no sympathy to any privacy argument for mailed packages.

He suggested there should be none, and said the drug officer didn’t need any reasonable suspicion to let the dog sniff the package. A “sniff” is not a search, he said.

I assume that any package I send or receive by air will be handled by a dozen people or more. I suppose it will be lifted, tossed, slid, flipped, lowered, and dropped. I suppose that it will be placed in bins, on shelves, in carts, on floors, through chutes, in trucks, on conveyor belts, on dollies, and in cargo holds.

I suppose that its weight distribution, its balance, its markings, its density, its feel, its packaging, and its smell will be scrutinized by someone, some animal, or some instrument, possibly even an x-ray device like the one I surrender my carry-on baggage to before officials will allow me to take it onto an airplane.

I suppose that it will be closely examined in every conceivable way to discern whether it is safe to put it into an airplane operated by people whose lives depend on it not blowing up. Or into the hands of a delivery person whose safety depends on there being no anthrax or ricin or C-4 inside.

I suppose all of this because Ted Kaczynski, al-Qaeda, and others have demonstrated that some people will use airplanes to kill and because I know others are trying to stop them. And again, as the backdrop to my disagreement with my two fellow panel members, I suppose that these assumptions are universally held by reasonable people.

“This is not a close case. Eichers had no reasonable expectation of privacy in the odor immediately around a package shipped by air,” Judge Ross wrote in today’s decision, which is likely to be reviewed at some point by the Minnesota Supreme Court.

Here’s the full decision.