USA v. Blodgett

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICKY ALAN BLODGETT,
Defendant. Case No. 3:17-cr-00052-SLG
ORDER ON MOTION TO SUPPRESS
Before the Court is a Motion to Suppress filed by Defendant at Docket 42. The
motion seeks to suppress evidence seized from a package that was on route to Defendant
Ricky Alan Blodgett via FedEx. The Government opposed at Docket 48. An evidentiary
hearing on the motion was held on March 9 and March 14, 2018. 	Three witnesses
testified: Christian Turcic and Brian Mustacci, both FedEx employees, and Alaska State
Trooper Shayne Calt.
DISCUSSION
Based on the evidence presented at the hearing, the Court finds as follows:
1. 	FedEx cooperates with law enforcement to do package watches. A package watch
occurs when law enforcement asks FedEx to look out for a particular type of
package, such as one addressed to a particular address or person. 	If FedEx
comes across such a package at its facility, FedEx removes that package from the
delivery line and brings it to the security office at FedEx. FedEx then contacts the
law enforcement officer who had asked for the package watch and informs the
officer of its action.
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2. 	FedEx employee Christian Turcic testified FedEx performs package watches as a
courtesy to law enforcement.
3. 	FedEx’s airway bill contains a notice that informs the shipper that the package is
subject to being inspected or searched.
4. 	One reason that FedEx x-rays a package that law enforcement has requested to
set aside is to make sure that there is nothing dangerous in such a package that
could harm FedEx’s employees.
5. 	FedEx prioritizes running its own business operation over responding to requests
of law enforcement, but it tries to respond to every request from law enforcement
to pull packages.
6. 	Brian 	Mustacci 	works 	as 	an 	international 	security 	manager 	for 	FedEx 	in
Anchorage. Part of his job is to prevent FedEx from shipping narcotics around the
country and the world. 	He testified that when law enforcement requests that a
package in FedEx’s custody be detained, he does so—he estimated on average
once ever one to two weeks.
7. 	Trooper Calt testified that he received a tip on February 24, 2015 that on the
previous day, February 23, 2015, Mr. Blodgett had received a package of heroin
via FedEx. 	Based on that information, he asked FedEx to keep a watch out for
any additional 	packages 	going to 	Mr. 	Blodgett, 	detain any such 	additional
packages, and notify the trooper. Trooper Calt was very clear that he did not direct
FedEx to set aside any such package: “They are a private company and they do
what is in their best interest, not in mine.”
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8. 	A package was sent via FedEx to Mr. Blodgett on February 27, 2015. 	It was
scheduled to be delivered to Mr. Blodgett on March 3, 2015 by 12:00 p.m.
9. 	Mr. Mustacci identified the package on Saturday, February 28 and pulled it off the
line. He then x-rayed it, although Trooper Calt had not specifically requested that
he do so. Mr. Mustacci used his cell phone to take a photograph of the x-ray and
sent the photo to Trooper Calt. He then placed the package in his locked office at
FedEx.
10. Trooper Calt looked at the photograph on his phone and determined that the inside
of the package contained a substance that looked consistent with heroin. He did
not save a copy of the photo on his phone, and by the time anyone asked him for
the photo a year later, he no longer possessed that cell phone.
11. Trooper Calt next applied for a search warrant for the package. He obtained the
warrant, and then he went to FedEx and searched the package.1 He removed the
majority of the heroin and methamphetamine from the package, then returned the
package to FedEx for delivery.
12. The 	package 	was 	then 	delivered 	to 	Mr. 	Blodgett 	on 	March 	3, 	2015, 	at
approximately 11:22 a.m., prior to the scheduled delivery deadline.
13. Mr. Blodgett argues that when the FedEx employee removed the parcel from the
delivery line, placed it in his office, x-rayed it and sent the x-ray to the trooper, he
1 There was some confusion in the evidence regarding the dates of the warrant and the package
search, but the Court finds Trooper Calt’s testimony persuasive that he did not open the package
until after he had obtained the search warrant. See Docket 44-1 at 2 (Affidavit).
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was unconstitutionally seizing the parcel without a warrant because he was acting
as an agent for the Government.
14. The Government responds that there was no interference with Mr. Blodgett’s
possessory interest in the package when it was pulled off the line, since the
package was delivered to him on time. 	The Government also asserts that there
was no governmental action when the FedEx employee acted, and in any event,
there was reasonable suspicion, if not probable cause, to set aside the parcel and
x-ray it. 	The Government also argues that it is an unreasonable expectation of
privacy for a person to believe that a package that they provided to FedEx for
shipment would not be x-rayed while in transit.
15. The Fourth Amendment’s protection does not apply to a search or seizure, even
an unreasonable one, “effected by a private individual not acting as an agent of
the Government or with the participation or knowledge of any governmental
official.”2 	“A defendant challenging a search conducted by a private party bears
the burden of showing the search was government action. 	Whether a search is
governmental or private depends on: (1) whether the government knew of and
acquiesced in the intrusive conduct; and (2) whether the party performing the
search intended to assist law enforcement efforts or further the party’s own ends.”3
16. Here, the Government did not know that a FedEx employee had pulled the
package from the delivery line and x-rayed it until after those events had already
2 United States v. Jacobsen, 466 U.S. 109, 113–14 (1984); see also United States v. Attson, 900
F.2d 1427, 1429 (9th Cir. 1997).
3 United States v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998) (citations omitted).
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occurred. 	Therefore, there is no evidence that the Government knew of or
acquiesced in that specific conduct, although Trooper Calt had requested FedEx
to pull such a package if possible. The Court also finds that the FedEx employee
intended to assist law enforcement efforts when he pulled and x-rayed the
package, but finds that the employee also intended to further one of FedEx’s own
purposes—to not ship illegal narcotics through its delivery system. 	Based on the
foregoing, the Court finds that the conduct of the FedEx employee was not a
government action subject to Fourth Amendment protections.
17. The Government also asserts an alternative basis for dismissal of the motion: A
seizure of property only occurs “when there is some meaningful interference with
an individual’s possessory interest in that property.”4 	The Court finds that the
length of time that Mr. Blodgett’s package was removed from the delivery chain
was relatively brief so as not to constitute a seizure.5 And Mr. Blodgett had only a
limited, if any, possessory interest in the property after it was delivered to FedEx
for shipment in California until noon on March 3, 2015, when the package was
scheduled to be delivered to him.6 	Moreover, the package was delivered to him
before he was scheduled to obtain a full possessory interest in it. Therefore, no
4 Jacobsen, 466 U.S. at 113.
5 See United States v. England, 971 F.2d 419 (9th Cir. 1992) (holding warrantless taking of
package from post office to nearby police station for dog-sniff test not a seizure).
6 Cf. United States v. Place, 462 U.S. 696, 717 n.5 (1983) (Brennan, J., concurring) (“[T]he mere
detention of mail not in [the defendant’s] custody or control amounts to at most a minimal or
technical interference with her person or effects, resulting in no personal deprivation at all.”
(quotation omitted)).
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Fourth Amendment seizure occurred when FedEx set aside the package, even if
the FedEx employee had been considered an agent of the government.
18. Even if the package had been seized and the FedEx employee was acting as an
agent of the Government, there was reasonable suspicion to hold the package and
x-ray it and thus no Fourth Amendment violation. Prior to the receipt of the warrant,
the nature and extent of the detention of the package was only minimally intrusive,
and therefore could be constitutionally permissible even if based on less than
probable cause.7 Given the content of the tip that prompted Trooper Calt to reach
out to FedEx and the other information detailed in Trooper Calt’s Criminal
Complaint affidavit to the state court,8 there was at least a reasonable suspicion
that another such package may contain illegal drugs.
For the foregoing reasons, the Motion to Suppress at Docket 42 is DENIED.
Dated this 20th day of April, 2018 in Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
7 Place, 462 U.S. at 703.
8 Docket 44-1 at 2.
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