Thursday, November 10, 2016

Don't accept suspicious packages from the post office

This case hits home because it took place in my hometown, a few blocks from where I was living at the time. A businessman accepted a package on behalf of someone else and was then detained by the police because the package was suspicious. The package had marijuana in it, and the intended recipient of the package was a fake name. The Grand Jury declined to indict the businessman, who sues for false arrest.

The case is Kerr v. Morrison, a summary order decided on November 4. The police detained Kerr because other suspicious packages from California to New Paltz had already led to someone's drug-related arrest. The address on the package that Kerr had accepted (two offices and an apartment) had previously received two questionable packages for someone who did not exist. The return address was also fictitious and the package was excessively taped, a tell-tale sign of a drug parcel. Also, the mailing label on the package bore a number sequential to that on a prior suspicious package even though they were sent from different post offices under different names and on different dates. So something funny was going on.

Under the circumstances, the police had the legal right to detain Kerr when he agreed to accept the package. We call this a Terry stop, named after a 1968 Supreme Court decision that tells us when the police may detain you for questioning upon reasonable suspicion that criminal activity is afoot. While Kerr said nothing connected him to the package, the Second Circuit (Leval, Raggi and Sack) says the evidence suggests otherwise, and "his contention that he was accepting the package for an upstairs tenant rather than himself does not vitiate the reasonable suspicion for officers to stop him while they investigated further." Since a police doggy later found drugs in the package, moreover, the police had probable cause to arrest plaintiff for his alleged role in a drug transaction.

A side issue here: the police handcuffed Kerr after they stopped him. Kerr says this cuffing violated the Fourth Amendment because there was no probable cause to arrest him for drugs. The Court does not have to resolve this issue because the law was not clearly established at the time that "the law was not sufficiently clear to alert every reasonable official that Kerr's handcuffing incident to a Terry stop was unconstitutional in this case" and "the use of handcuffs during an investigative stop was not then -- and is not now -- per se unconstitutional." Since the law was not clearly established, the officers are entitled to qualified immunity.


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