United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1868

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska

Sheffaye Johnson, *

also known as Faye, *

*

Appellant. *

___________

Submitted: October 22, 1998

Filed: March 19, 1999

___________

Before McMILLIAN, JOHN R. GIBSON and HANSEN, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

Sheffaye Johnson appeals from a final judgment entered in the United States

District Court for the District of Nebraska finding her guilty, following a conditional

plea of guilty, of conspiracy to distribute and possess with intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846. The district court

sentenced appellant to 70 months imprisonment, 5 years supervised release, and a

special assessment of $100.00. For reversal, appellant argues the district court erred

in denying her motion to suppress certain evidence seized pursuant to a search

warrant from an Express Mail package. For the reasons discussed below, we reverse
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the district court’s denial of the motion to suppress, which, in turn, requires that we

reverse the conviction, and we remand the case to the district court for further

proceedings, if so advised. 

The district court had jurisdiction under 18 U.S.C. § 3231; we have appellate

jurisdiction under 28 U.S.C. § 1291. 

The background facts are not disputed. On May 31, 1996, United States Postal

Inspection Officer G.G. Vajgert intercepted and detained an Express Mail package

sent by appellant from the Los Angeles, California, International Airport on May 30,

1996. The package fit the characteristics of an Express Mail/ Narcotics Profile

developed to detect the use of Express Mail service for drug trafficking: the return

and destination labels were hand-written, the package was mailed from one individual

(appellant) to another individual at the same address, the package was mailed from

a narcotics “source” state (California), and the return address zip code was different

from the accepting zip code. The package was presented to a drug dog. The drug dog

“alerted” to the package, indicating that the package contained a controlled substance.

Vajgert applied for a search warrant to search the package on the basis of this

information. A federal magistrate judge issued the search warrant. Vajgert opened

the package and discovered and seized 3.8 ounces of methamphetamine. After further

investigation, the officers arrested appellant. The indictment charged her with

conspiracy and distribution of methamphetamine. Appellant moved to suppress the

methamphetamine on the grounds that there was no reasonable suspicion of criminal

activity to intercept and detain the Express Mail package and there was no probable

cause to support the issuance of the search warrant. 

The magistrate judge found that there was reasonable suspicion of criminal

activity to support the interception and detention of the package. United States v.

Johnson, No. 8:96CR147, slip op. at 7-8 (D. Neb. Oct. 9, 1997) (report and

recommendation). The magistrate judge also found that there was probable cause to
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support the issuance of the search warrant. Id. at 8. In addition, assuming for

purposes of analysis that there was no probable cause, the magistrate judge found that

the search warrant application and affidavit were not so deficient as to cause a

reasonable officer to believe the search warrant was invalid. Id., citing United States

v. Leon, 468 U.S. 897 (1984). The magistrate judge recommended denial of the

motion to suppress. The district court conducted a de novo review and adopted the

report and recommendation. Id. (Nov. 3, 1997) (order). Appellant entered a

conditional guilty plea to the conspiracy count, reserving the right to appeal the denial

of the suppression motion. This timely appeal followed. 

Appellant argues the district court erred in denying the motion to suppress

because there was no reasonable suspicion of criminal activity to support the

interception and detention of the package. She argues the characteristics relied upon

by the government as part of the Express Mail/ Narcotics Profile are typical of a

broad category of “innocent” mail. She also argues there was no probable cause to

support the issuance of the search warrant because the affidavit did not contain

sufficient information about the skill and reliability of the drug dog. Appellant argues

that the available information in fact showed that the drug dog had a relatively poor

performance record. Appellant further argues that under these circumstances no

reasonable officer would have relied on the validity of the search warrant. 

We review the findings of fact for clear error and the ultimate question whether

there was reasonable suspicion of criminal activity de novo. See, e.g., Ornelas v.

United States, 517 U.S. 690, 699 (1996). Individuals have a right to be free from

unreasonable searches and seizures of items they place in the mail. See, e.g., United

States v. Van Leeuwen, 397 U.S. 249, 251 (1970). Law enforcement authorities must

possess a reasonable suspicion based on articulable facts that a package contains

contraband before they may detain the package for investigation. Id. at 252-53.
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Reasonable suspicion exists when, based on the totality of the circumstances, an

officer possesses a “particularized and objective basis” for suspecting that the

package contains contraband, that is, more than an “inchoate and unparticularized

suspicion or ‘hunch.’” Terry v. Ohio, 392 U.S. 1, 27 (1968). Moreover, “[c]onduct

typical of a broad category of innocent people provides a weak basis for suspicion.”

United States v. Weaver, 966 F.2d 391, 394 (8th Cir.) (citation omitted), cert. denied,

506 U.S. 1040 (1992). 

While we are mindful that “conduct which would be wholly innocent to

the untrained observer . . . might acquire significance when viewed by

an agent who is familiar with the practices of drug [traffickers] and the

methods used to avoid detection,” . . . “it is impossible for a combination

of wholly innocent factors to combine into a suspicious conglomeration

unless there are concrete reasons for such an interpretation.” 

United States v. Beck, 140 F.3d 1129, 1137 (8th Cir. 1998) (citations omitted). 

The government relied upon the following facts to support the officer’s

reasonable suspicion of criminal activity: the labels were hand-written, the package

was mailed from one individual to another individual at the same address, the

package was mailed from a narcotics source state, and the return address zip code was

different from the accepting zip code. We hold that these particularized facts, when

considered individually and in combination, do not support a finding of reasonable

suspicion of criminal activity to warrant the interception and detention of the package

sent by appellant. 

The record before us wholly lacks a description of Inspector Vajgert’s

inferences, or deductions from his experience, that the factors in the Express

Mail/Narcotics profile are consistent with characteristics of packages found to contain

contraband, and that the package in question might contain contraband. The

inspector did not testify at the suppression hearing, and his affidavit did no more than
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state that he had eight years of experience as a postal inspector along with some

training courses, and that the package in question met the Express Mail/Narcotics

Profile. The Supreme Court has made it particularly clear that “based on the whole

picture, the detaining officers must have a particularized and objective basis for

suspecting a particular [package detained] of criminal activity.” United States v.

Cortez, 449 U.S. 411, 417-18 (1981). In this case, there was no articulation of how

the officer’s experience bore upon his appraisal of the package in light of the profile.

Law enforcement officers are permitted to draw “inferences and deductions that

might well elude an untrained person.” Id. at 418. Nevertheless, those inferences and

deductions must be explained. Specifically, the Fourth Amendment requires an

officer to explain why the officer's knowledge of particular criminal practices gives

special significance to the apparently innocent facts observed. See id. at 418-22

(particular inferences drawn by experienced Border Patrol officers justified the stop

at issue); Ornelas v. United States, 517 U.S. at 700 (1996) (in determining existence

of probable cause, officer may draw inferences based on experience; based on

officer’s experience, loose panel below back seat armrest suggested storage of drugs

rather than wear and tear); 4 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 9.4(a), at 143 (3d ed. 1996) (because the officer’s inferences

and deductions were fully explained at the suppression hearing, Cortez correctly held

that “a particularized and objective basis” existed for the stop). Such evidence is

lacking in this case. For example, we know nothing of Inspector Vajgert’s experience

with handling packages that match the profile, his assessment of which combinations

of profile characteristics are indicative of criminal activity, or whether that

assessment is well-founded in light of the inspector’s experience. The government

has not provided a basis for Inspector Vajgert’s suspicion, that is, the use of his

experience in articulating a particularized and objective basis for the search. Nor has

the government proven that the inspector’s suspicion was objectively reasonable. All

we have is the unadorned, unexplained Express Mail/Narcotics Profile.
1The dissent recites a number of facts about Express Mail that were before the

court in Dennis, but which are absent from the record before us.

2A second fact distinguishes the instant case from Dennis: the package in

Dennis was heavily taped--a circumstance perhaps more suspicious than the others

in the profile. Id. at 532. Indeed, because the present case lacks this additional

factor, it closely resembles Reid v. Georgia, 448 U.S. 438, 441 (1980), a case in

which the characteristics of a “drug courier profile” were held insufficient to create

a reasonable suspicion of criminal activity (petitioner arrived from city identified as

“principal place” for cocaine importation, arrived at airport early in morning,

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The case before us stands in stark contrast to United States v. Dennis, 115 F.3d

524 (7th Cir. 1997), because the court in Dennis did not rely upon the profile alone.

The officer in Dennis explained that based upon his particular experience as an

investigator, the profile factors were consistent with the characteristics of packages

found to contain contraband. Id. at 532. Because of the high cost of Express Mail,

explained the officer, only about five percent of such mail is personal

correspondence. Id. Moreover, because of the speed and reliability of Express Mail,

as well as a free telephone tracking service, drug traffickers frequently use the service

to send personal correspondence containing contraband.1 Id. The officer therefore

concluded that personal correspondence sent via Express Mail is likely to contain

illegal drugs. Id. Under these circumstances (including the other factors in the

profile), the court held that the postal inspector’s suspicion “was reasonable and

justified detaining the Express Mail package.” Id. at 532-33. Judge Ripple’s dissent

correctly stressed that the use of the profile in a decision to detain the mail “must be

an exercise of defensible professional law enforcement judgment before it can justify

detention of a package.” Id. at 536. The presence of several profile characteristics

“without any particularized assessment of their meaning” gives no legitimate basis

for detention. Id. The record before us presents no such assessment, leaving us with

a profile whose characteristics appear as consistent with innocence as with criminal

activity.2
petitioner and companion appeared to conceal fact of traveling together, and the two

had no luggage other than shoulder bags).

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None of the particularized facts relied upon by the government was inherently

suspicious, and each can be readily characterized as “conduct typical of a broad

category of innocent people.” United States v. Weaver, 966 F.2d at 394; see United

States v. Dennis, 115 F.3d at 535-40 (Ripple, J., concurring in part and dissenting in

part) (arguing that authorities lacked reasonable suspicion to detain package mailed

(1) from Los Angeles, (2) by Express Mail from one individual to another individual,

(3) heavily taped, and (4) from a zip code different from that of return address); cf.

United States v. Green, 52 F.3d 194, 198 (8th Cir. 1995) (rejecting travelling alone,

carrying a small bag, wearing new and baggy clothes, and failing to make eye contact

with officer as indicative of criminal activity). For example, a business or vacation

traveler may address labels by hand, using his or her address or the destination

address as the return address, and mail packages from airport postal stations.

California is a “source” state for narcotics. However, it is also the most populous

state in the country, as well as one of the most frequently visited states, for business

and pleasure, facts which undermine the significance of its role as a “source” state as

an articulable basis for reasonable suspicion of criminal activity. See United States

v. Beck, 140 F.3d at 1137-38 & nn.2-3 (citing cases). 

Characteristics consistent with innocent use of the mail can, when taken

together, give rise to reasonable suspicion. See United States v. Sokolow, 490 U.S.

1, 10 (1989) (combination of innocent travel factors). However, we hold that, these

particularized facts, none of which is inherently suspicious, do not constitute

reasonable suspicion of criminal activity, even considered together, for intercepting

and detaining the package sent by appellant. As noted above, the record does not

contain any particularized assessment of their significance for purposes of

determining reasonable suspicion. 
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Accordingly, we reverse the district court’s denial of the motion to suppress,

which, in turn, requires that we reverse the conviction, and we remand the case to the

district court for further proceedings, if so advised. 

HANSEN, Circuit Judge, dissenting.

I believe the facts, when viewed as a whole, support the existence of a

reasonable, articulable suspicion. Therefore, I respectfully dissent. 

As a threshold matter, it may be prudent to identify the issues on which I

believe the court and I agree. The mere act of subjecting the postal package to a drug

sniffing dog did not constitute an illegal search or seizure in this case. See United

States v. Place, 462 U.S. 696, 707 (1983); United States v. Riley, 927 F.2d 1045,

1048 n.4 (8th Cir. 1991) (noting that "exposing [a defendant's] checked baggage to

a trained sniffing dog may be no seizure at all"). But for the alleged lack of

reasonable suspicion to detain the package, the dog sniff, the warrant application, and

the warrant execution were all otherwise righteous and legal. Thus, the sole

difference between my conclusion and that of the court is whether Inspector Vajgert

possessed a reasonable, articulable suspicion for removing the package from the

stream of mail. As I apply the relevant law to the facts, I believe that he did.

This court has long recognized "that a package in the mail may be detained on

the basis of reasonable suspicion to believe it contains contraband pending further

investigation directed toward establishing probable cause which will support issuance

of a search warrant." Garmon v. Foust, 741 F.2d 1069, 1072 (8th Cir. 1984) (citation

omitted). Although we decide the ultimate issue of reasonable suspicion de novo, in

making this decision, "'[w]e look to the totality of the circumstances, in light of the

officer's experience.'" United States v. Carrate, 122 F.3d 666, 668 (8th Cir. 1997)
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(emphasis added) (quoting United States v. Dodson, 109 F.3d 486, 488 (8th Cir.

1997)).

The court concludes that the factors relied on by Inspector Vajgert do not add

up to reasonable suspicion. Conspicuously missing from the court's calculus,

however, is any credit for Inspector Vajgert's experience. In my view, the court takes

the factors out of context when it fails to credit that experience. We should assess the

existence of a reasonable suspicion in light of the inspector's experience, not ours.

Inspector Vajgert has eight years of experience in enforcing federal mail and drug

laws. He has special training in investigating the use of the Express Mail service for

narcotics trafficking. This experience and training should count for something.

"[C]ircumstances which appear innocent to the outside observer may suggest criminal

activity to experienced law enforcement personnel, and in determining whether

reasonable suspicion exists, law enforcement authorities may assess these

circumstances in light of their experience." United States v. Dennis, 115 F.3d 524,

533 (7th Cir. 1997). See also United States v. Brignoni-Ponce, 422 U.S. 873, 885

(1975) (stating that a law enforcement officer "is entitled to assess the facts in light

of his experience").

I believe the instant case is, at its essence, indistinguishable from Dennis. In

Dennis, a postal inspector detained a package and subjected it to a drug sniff "because

it possessed several characteristics which met the U.S. Postal Service's narcotics

package profile," and based on the inspector's experience "were consistent with a

package containing narcotics." Dennis, 115 F.3d at 531. In a thorough and wellreasoned opinion, Judge Harlington Wood, Jr., held that "the confluence of . . . factors

in a single package when appraised by the postal inspector, an experienced narcotics

investigator, amounted to reasonable suspicion that the Express Mail package may

have contained contraband and justified the investigatory detention." Id. at 533.
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I also wish to address briefly the factors Inspector Vajgert relied upon in

deciding to detain the package. The package labels were handwritten, and the

package was addressed from one individual to another individual, both at the same

address. I concede this could reflect purely innocent conduct. But a trained postal

inspector could reasonably conclude otherwise. This was not an ordinary mail

package, but rather an Express Mail package. The Express Mail service is a costlier

method of shipping, and a method seldom used for personal correspondence. See

Dennis, 115 F.3d at 532 (discussing postal inspector's testimony that "only about five

percent of all Express Mail is personal correspondence"). Finally, as the court

concedes, the package originated from a narcotics source city and state. We have, on

many occasions, credited this factor on the reasonable suspicion side of the ledger

when viewed in the presence of other factors, including a law enforcement officer's

experience and training in such matters. See, e.g., United States v. Johnson, 64 F.3d

1120, 1125 (8th Cir. 1995) (noting that the officers involved "were aware through

their experience that Chicago is a source city for drugs"), cert. denied, 516 U.S. 1139

(1996).

To be sure, the record in this case would probably have been stronger if the

underlying data supporting the creation of the Postal Service's Express Mail narcotics

package profile had been introduced and the Inspector's testimony about his

suspicions, training, and experience heard live. Nonetheless, under the totality of the

circumstances, I would hold that the removal of the package from the stream of mail

for a drug dog sniff did not violate the Fourth Amendment. Consequently, I would

affirm the district court's judgment in this case.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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