A federal court ruled this month that evidence of drugs obtained by police from a package at a FedEx sorting center was not seized unconstitutionally, rejecting the defendant's arguments that the seizure violated his Fourth Amendment rights.
At the center of the decision is a little-known agreement allowing law enforcement agencies to confiscate parcels at the shipping behemoth's sorting centers. Police are permitted to take packages only if a drug dog indicates there may be contraband inside. Individual cops, however, determine which packages merit attention, allowing them to zero in on people's property, dress up as FedEx delivery men, and proceed with arrests if they testify that a drug dog alerted them appropriately.
Such was the case with Herbert Green, who had his package singled out at a FedEx sorting center after Kansas City Police Department (KCPD) Detective Antonio Garcia noticed a return label from Brownsville, Texas. That's a "source city for illegal narcotics," the officer said, who was further interested by the parcel's glued seams and the fact that it was a "moving" box. Those get his attention "right away," he testified, because of their material, which he claims are well-suited to shipping drugs.
Upon removing Green's package from the conveyor belt, Garcia had Zina, his K9, inspect the box. She indicated that drugs were present. Garcia then took the package from the FedEx center and had another detective, dressed as a FedEx employee, bring it to Green's home, where officers monitored the premises. After Green returned to his apartment, he placed the box inside and was arrested by the officers in a nearby parking lot shortly thereafter, prior to any of them knowing what was in the package.
Police then entered Green's home and performed a warrantless search of the apartment—going through his trash, his cabinets, even a shoebox. Garcia opened the FedEx package and found marijuana.
Officers subsequently obtained a search warrant to retrieve the materials they saw during their sweep, including two firearms, magazines, a ledger and scale, a bag of marijuana buds, and the shoebox, which contained cannabis residue. Green was ultimately indicted for attempting to possess a controlled substance with intent to distribute, possessing a firearm in furtherance of a drug trafficking crime, and possessing a firearm as a felon. He was sentenced to 5 years in prison after conditionally pleading guilty to possessing firearms in furtherance of a drug trafficking offense.
In seeking to suppress the evidence, Green argued that Garcia violated his constitutional right to be free from unreasonable searches and seizures when he nabbed Green's package off the FedEx conveyor belt based on its size, glued seams, and return address. The U.S. Court of Appeals for the 8th Circuit disagreed: "We conclude that Detective Garcia did not deprive FedEx of custody because he was acting at FedEx's direction," wrote Circuit Judge Leonard Steven Grasz.
Green suggested that this would only have been proper had a FedEx employee been the one to identify the package as suspicious. The court disputed that.
"FedEx can control its own rights. It has Fourth Amendment rights, and it can invite the police in," says Orin Kerr, a law professor at Berkeley. Whether or not Green's constitutional rights were violated turns on the timing, he adds: "Normally it only implicates the sender and receiver of the package's rights if it delays the delivery."
In this case it did not. But the big story here isn't the technical query; it's FedEx's relationship with law enforcement. "It was new to me that there was this program that's so formalized," says Kerr.
"Security is a priority at FedEx," says a spokesperson for the company. "While we do not publicly disclose information about our security processes and procedures, we do work with law enforcement agencies around the U.S."
The agreement evokes Apple's recent announcement that it will scan people's photos for potential child pornography. If they receive a match, they'll send it to the National Center for Missing and Exploited Children, a nonprofit established by Congress. The announcement set off a chorus of privacy alarm bells.
But while the relationship between FedEx and police is far more obscure, is has quietly existed for some time, says John Wesley Hall, an expert in Fourth Amendment law and the former president of the National Association of Criminal Defense Lawyers.
"I don't agree with it. The difficulty is that FedEx lets them do that," he tells Reason. "They've always cooperated with law enforcement. Sometimes the cops are dressed like a FedEx driver delivering the package to the house. They've done that forever. And FedEx cooperates with them—even loans them the truck."
That is precisely what happened in Green's case, which, as Hall notes, doesn't raise specific Fourth Amendment objections no matter how unsavory it might be.
The 8th Circuit did rule that the officers violated Green's rights when they conducted their sweep of his home. Police "saw the only item they could seize pursuant to the…warrant, chose not to seize it and exit the premises, and proceeded to walk through the entire apartment for ten to fifteen minutes looking under a mattress, in the kitchen trash can, in kitchen cabinets, and at or in a shoe box," argued Green. The judges agreed. The lower court will now determine whether the officers' subsequent search warrant would have been obtained had the cops not been armed with information gained from illegally rifling through Green's possessions.
"I've sometimes equated what cops do with these things as premature ejaculation," says Hall. "They get so carried away that they decide to do things too soon, and then compromise the quality of their own case by doing that."
KCPD Officer Donna Drake said in an official statement that the department "appreciate[s] working closely with community partners in order to keep Kansas City safe." Yet therein lies the problem with the police-FedEx relationship: It lends itself to abuse, giving cops even more power to fight a drug war that in many ways they already lost. "The cops exploit it," notes Hall. "The problem for the rest of us is what are they doing with others, like UPS, DHL, the Postal Service? It's got to be throughout the system. It's not just FedEx."