Mark Alfred Garmon v. Robert Foust, (Two Cases)

HEANEY, Circuit Judge,

dissenting.

I respectfully dissent. In finding that the seizure of Garmon’s package was reasonable, the majority primarily relies on the assumption that University employees had already removed the package from the mail at the time Foust took possession of it. *1076 This assumption is contrary to the findings of both the state court which presided over Garmon’s criminal trial and the district court below. Because the district court’s finding was not clearly erroneous, I would affirm its conclusion that the search violated firmly established fourth amendment principles.

According to the state court, “the initial seizure without a warrant of the package in question was from the U.S. mails without a showing of exigent circumstances * * State v. Garmon, No. 7580 (5th dist. Iowa April 21, 1976) (unpublished order). In its ruling on summary judgment motions, the district court specifically held:

it was clearly established in the law that first class mail that had not yet reached the addressee could be lawfully subjected to search and seizure only by execution of a lawfully issued search warrant and there was nothing in the law to suggest that the warrant requirement would be abrogated if a private individual involved in the process of distributing mail into the hands of the addressees delivered possession of a first class mail item to a policeman.

Garmon v. Foust, Civil No. 77-367-2, at 5-6 (S.D.Iowa Feb. 11, 1983) (unpublished rulings).

In addition, in rulings from the bench, the court reiterated its conclusion that the package was still in the mail at the time it was seized:

[Tjhere has been some talk about the package being out of the mail. That term has been used. I would note again that the facts are that the postal service had relinquished its custody of the package by delivery, along with the other Drake mail, to Drake or to the dormitory, but that it had not yet gotten to the addressee, and the Drake University people were the people who had the physical custody of it in order to pass it on to the addressee.

I don’t really attach any particular significance to the fact that the package was physically moved from one room in the dormitory over to another room where it was retained.

(Tr. 110-111)

In holding that the package was not in the mail at the time it was seized, the majority relies on a joint stipulation of the parties which states that the University employees “on their own initiative took the package out of the mail.” This point was specifically considered and rejected by the district court. Moreover, the district court’s conclusion was both legally and factually correct. In Maxwell v. United States, 235 F.2d 930, 932 (8th Cir.1956), we held for the purposes of the statute proscribing mail tampering, that a package is “in the mail” from the time it is placed in the mailbox to the time when it reaches the addressee. Accord United States v. Askford, 530 F.2d 792, 795 (8th Cir.1976); Ross v. United States, 374 F.2d 97, 103 (8th Cir.1967). The same reasoning applies when fourth amendment interests are at stake. A person’s expectation of privacy in his or her mail should receive the same level of protection whether or not it passes through the hands of private parties en route to the addressee.

Once we accept the district court's determination that the package was in the mail, then the issue becomes whether the war-rantless seizure was nonetheless reasonable. In United States v. Van Leeuwen, 397 U.S. 249, 251 , 90 S.Ct. 1029, 1031 , 25 L.Ed.2d 282 (1970), the Supreme Court clearly stated that the fourth amendment right of the people to be secure in their papers against unreasonable searches and seizures applied with equal force whether those papers were in transit in the mail or locked at home. While in the mail, papers and packages “can only be opened and examined under like warrant, issued upon a similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household.” Id. (quoting Ex parte Jackson, 6 Otto 727 , 96 U.S. 727 , 24 L.Ed. 877 (1878)). The majority seeks to avoid the warrant requirement by characterizing the seizure as a temporary detainment pending issuance of a warrant citing Van Leeuwen . The crucial difference between Van Leeuwen and this case, how *1077 ever, is that the package was not merely-held at the post office, but Foust took it back to police headquarters. This is not the type of limited detention based on a reasonable suspicion authorized by Van Leeuwen .

In the alternative, the majority holds that exigent circumstances justified the seizure of the package without a search warrant because “there was a risk that the package would be lost, either through mistaken delivery to Garmon, or in some other way.” Supra at 1074. Not only is that factual conclusion inconsistent with the district court’s finding of a fourth amendment violation, but it encourages a definition of exigency that is so broad that it nearly abrogates the warrant requirement. The package was in the hands of the University officials who had already put it aside for police inspection. Only the remotest possibility exists that the package would have been lost or accidentally given to Garmon.

Thus, primarily because I think the district court’s finding that the package was in the mail at the time Foust seized it is not clearly erroneous, I would affirm the district court’s judgment, including the amount of attorney’s fees awarded.