E.D.Ky.: 16 hour seizure of FedEx package was unreasonable

Sixteen hour warrantless seizure of a FedEx package in transit for a dog sniff was unreasonable. The government directed FedEx to hold it, and that made FedEx its agent. (The government stipulated to one defendant’s standing, but it certainly appears to the court that she doesn’t have any. (n.1)) United States v. Poor, 2012 U.S. Dist. LEXIS 48292 (E.D. Ky. March 9, 2012):

Here, law enforcement directed FedEx to act by holding the parcels on March 2. The question then becomes whether FedEx’s intent in complying was “entirely independent of the government’s intent to collect evidence for use in a criminal prosecution.” Howard, 752 F.2d at 227-28, vacated on other grounds, 770 F.2d 57, 62 (6th Cir. 1985)); see United States v. Jones, 2011 WL 5967230, at *2 (W.D. Tenn.) (identifying factors as whether police “‘instigated, encouraged, or participated'” in search and whether “‘individual … engaged in the search with the intent of assisting the police'” (quoting United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985))). The Fourth Amendment does not apply if a private actor is “not acting as an agent of the Government or with the participation or knowledge of any government official.” United States v. Jacobsen, 104 S. Ct. at 1652, 1656 (1984) (citation and internal quotation marks omitted). The burden of proving agency generally falls on the defendant. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citation omitted). Here, Hart’s own testimony clearly establishes the agency relationship.