                              STATE OF MINNESOTA

                               IN SUPREME COURT

                                      A13-0121

Court of Appeals                                                         Anderson, J.
                                                                 Took no part, Page, J.


State of Minnesota,

                              Respondent,

vs.                                                          Filed: September 10, 2014
                                                             Office of Appellate Courts
Corey Joel Eichers,

                                Appellant.


                           __________________________


Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Carl Ole Tvedten, Assistant County
Attorney, Saint Cloud, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget K. Sabo, Assistant State
Public Defender, Saint Paul, Minnesota; and

Ryan M. Schultz, Benjamin C. Linden, Special Assistant State Public Defenders, Robins,
Kaplan, Miller & Ciresi L.L.P., Minneapolis, Minnesota, for appellant.

Cort C. Holten, Jeffrey D. Bores, Chestnut Cambronne P.A., Minneapolis, Minnesota, for
amicus curiae Minnesota Police and Peace Officers Association Legal Defense Fund.

                            _________________________




                                             1
                                     SYLLABUS

       1.     Removing a package from an airport mailroom conveyor belt and placing it

on the floor to be sniffed by a narcotics-detection dog is not a seizure under either the

Fourth Amendment to the U.S. Constitution or Article I, Section 10, of the Minnesota

Constitution because the movement of the package does not constitute meaningful

interference with the addressee’s possessory interests in the package.

       2.     No reasonable expectation of privacy is violated when an officer conducts a

minimally intrusive dog sniff of a package in an airport mailroom, and thus the dog sniff

in this case was not a search for purposes of either the Fourth Amendment to the U.S.

Constitution or Article I, Section 10, of the Minnesota Constitution.

       3.     Because neither a search nor a seizure occurred, there was no violation of

either the Fourth Amendment to the U.S. Constitution or Article I, Section 10, of the

Minnesota Constitution, regardless of whether the officer’s actions were reasonably

justified, and the district court did not err by denying the motion to suppress evidence.

       Affirmed.

                                       OPINION

ANDERSON, Justice.

       This case presents the questions of whether, for purposes of the Fourth

Amendment to the United States Constitution and Article I, Section 10, of the Minnesota

Constitution, the movement of a package from a conveyor belt to the floor at an airport

mail facility for purposes of a dog sniff constitutes a seizure; whether a dog sniff of such




                                             2
a package constitutes a search; and whether, if these actions constituted a seizure or a

search, the seizure or search was reasonable.

       Appellant Corey Joel Eichers, charged with two counts of a first-degree controlled

substance crime, moved to suppress evidence of a package containing cocaine and

methamphetamine that was opened by investigators in a UPS mail area following a

positive drug alert by a trained narcotics-detection dog. Eichers argued that the detention

of the package in the mail area, prior to the positive dog sniff, was an unreasonable

seizure, and that the dog sniff was an unreasonable search of the package. The Stearns

County District Court denied Eichers’s motion, concluding that the initial detention and

dog sniff of the package did not constitute a search or seizure.

       The court of appeals affirmed the denial of Eichers’s suppression motion, but on

other grounds. State v. Eichers, 840 N.W.2d 210, 223 (Minn. App. 2013). In a divided

decision, the court of appeals concluded that there was both a search and a seizure, but

that the investigators had reasonable, articulable suspicion for both.      Id. at 218-23.

Eichers now appeals, arguing that the package was both seized and searched without a

reasonable, articulable suspicion of criminal activity.

       On September 23, 2011, at 6:10 a.m., Airport Police Narcotics Investigator Mark

Meyer observed a package on a conveyor belt at the UPS Parcel Sorting Station at the

Minneapolis-Saint Paul International Airport. Investigator Meyer removed the package

from the conveyor belt to examine the air bill. The package was sent by Alec Bublitz

from a UPS store in Phoenix, Arizona, and it was addressed to “Cory” Eichers in Avon,

Minnesota. Investigator Meyer was suspicious of the package because 1) Phoenix was


                                              3
known to be a source city for narcotics, and Investigator Meyer had found narcotics

shipped by UPS from Phoenix many times in the past; 2) the package was sent by air

service, which Investigator Meyer indicated was a preferred shipment method for

narcotics because of the fast delivery time; and 3) the package appeared to be shipped

from one individual to another, as opposed to shipment to or from a business, which was

unusual for air service because of the higher cost. Investigator Meyer reported that “[a]ll

of these characteristics are consistent with previous packages that [he] ha[d] found to

contain illegal substances.”

       Because Investigator Meyer found these characteristics to be suspicious, he placed

the package on the floor along with 20-25 other packages. He then brought a trained

narcotics-detection dog into the area and commanded the dog to “seek dope.” The dog

alerted to the package addressed to Eichers, indicating an odor of narcotics emanating

from that package. Based in large part on the dog’s alert, Investigator Meyer obtained a

warrant authorizing him to open and search the package. Upon opening the package,

Investigator Meyer found 225.1 grams of cocaine and 29.6 grams of methamphetamine

concealed in a blue plastic coffee container full of coffee grounds.

       Later that day, Investigator Meyer arranged for law enforcement officers in

Stearns County to make a controlled delivery of the package to Eichers.             When

investigators attempted to deliver the package at Eichers’s residence that afternoon, they

found no one there. Following a second failed delivery attempt three days later, a Stearns

County Sheriff’s Deputy called the phone number listed on the package to arrange

delivery. Eichers returned the call and said that he had been expecting a package. A


                                             4
member of the Central Minnesota Drug and Gang Task Force delivered the package to

Eichers while two investigators watched. The investigators saw Eichers walk out of his

residence with the package and put the package in his vehicle, at which point they placed

him under arrest. After waiving his Miranda rights, Eichers stated that he was buying

and reselling drugs to make money and had previously received approximately five drug

packages through the mail.

      Eichers was charged with two counts of a first-degree controlled substance crime.

Prior to his trial, Eichers moved to suppress evidence of the contents of the package. He

contended that the initial detention of the package was a “seizure” and the dog sniff was a

“search,” and that because both the seizure and the search were unsupported by

reasonable, articulable suspicion, they violated the Fourth Amendment to the U.S.

Constitution and Article I, Section 10, of the Minnesota Constitution.           The State

conceded that the package likely was seized when it was removed from the conveyor belt

and held for a dog sniff. But the State argued that Investigator Meyer had a reasonable,

articulable suspicion of criminal activity because of the source city of the package and

type of mailing, and because the package was sent person to person. Investigator Meyer

indicated that he had learned through his experience and training that these were all

common characteristics of a package containing contraband.

      The district court concluded that the initial detention of the package for a dog sniff

was not supported by a reasonable, articulable suspicion of criminal activity, as

Investigator Meyer’s test for subjecting the package to a dog sniff “would presumably be

met by any package shipped person to person from a border state, coastal state or urban


                                            5
location by air service or some other expedited delivery method.” But the district court

concluded that the package was not seized during its initial detention because, following

the Eighth Circuit’s decision in United States v. Va Lerie, 424 F.3d 694, 707 (8th Cir.

2005), “a Fourth Amendment seizure occurs only when it is shown that the detention of

the entrusted property:     1) delays a passenger’s travel or significantly impacts a

passenger’s freedom of movement, or 2) delays timely delivery of the property, or 3)

deprives the carrier of custody of its property.” Concluding that none of these situations

applied, and noting the absence of clear Minnesota precedent on this issue, the district

court concluded that the detention was not a seizure and did not require justification by

reasonable suspicion. The district court also held, citing United States v. Place, 462 U.S.

696 (1983), that a dog sniff of a package entrusted to a common carrier for air transport

was a minimal intrusion on privacy interests, as the privacy of the contents would be

preserved unless the package contained contraband. Thus, the district court concluded

that the dog sniff was not a search and no reasonable suspicion was required.

       The court of appeals affirmed the district court, although on other grounds, in a

sharply divided decision. Eichers, 840 N.W.2d at 223. Two judges concluded that a

seizure had occurred because Investigator Meyer asserted dominion and control over the

package by removing it from the conveyor belt and placing it on the floor, and that a dog

sniff of a package is a search that requires a reasonable, articulable suspicion of criminal

activity under the Minnesota Constitution. Id. at 218-20. But the court of appeals also

concluded that these actions, even if they constituted a search and seizure, violated

neither the United States nor Minnesota Constitution because the factors observed by


                                             6
Investigator Meyer supported a reasonable, articulable suspicion that the package might

contain contraband.    Id. at 220-22.    A special concurrence concluded that although

reasonable suspicion was present, Investigator Meyer did not need reasonable suspicion

because the initial detention and dog sniff were neither a seizure nor a search. Id. at 223-

30 (Ross, J., concurring specially). The dissent concluded that there was both a search

and a seizure and that Investigator Meyer did not have a reasonable suspicion for either

of these actions. Id. at 230-32 (Hudson, J., dissenting).

       Eichers appealed, asking us to review whether the initial detention and diversion

of the package, and the subsequent dog sniff, violated the prohibitions on unreasonable

searches and seizures found in the Fourth Amendment to the U.S. Constitution and

Article I, Section 10, of the Minnesota Constitution.

                                             I.

       The first issue raised by Eichers is whether there was an unreasonable seizure of

the package, in violation of either the Fourth Amendment to the U.S. Constitution or

Article I, Section 10, of the Minnesota Constitution. When reviewing a district court’s

pretrial order on a motion to suppress evidence, the district court’s factual findings are

reviewed under a clearly erroneous standard. State v. Diede, 795 N.W.2d 836, 849

(Minn. 2011). But legal determinations, such as whether there was a seizure and, if so,

whether that seizure was unreasonable, are reviewed de novo. State v. Milton, 821

N.W.2d 789, 798 (Minn. 2012).




                                             7
       Because the relevant language of the Fourth Amendment to the U.S. Constitution

and Article I, Section 10, of the Minnesota Constitution is identical 1 and Eichers does not

argue that the Minnesota Constitution requires any higher level of protection for seizures

of property than that which is provided by the U.S. Constitution, these provisions will be

analyzed together. Kahn v. Griffin, 701 N.W.2d 815, 825 (Minn. 2005) (“Generally, we

do not independently apply our state constitution absent language, concerns, and

traditions unique to Minnesota.”).

                                            A.

       The Fourth Amendment to the U.S. Constitution and Article I, Section 10, of the

Minnesota Constitution protect the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.

amend. IV; Minn. Const. art. I, § 10. Thus, to determine if there was an unreasonable

seizure, we must first determine whether the package was seized by Investigator Meyer

when he removed it from the airport conveyor belt and detained it for a dog sniff. If the

package was not seized, further analysis of whether the detention was unreasonable is not

required.

       In the same way that not all contact between citizens and police constitutes a

seizure, State v. Cripps, 533 N.W.2d 388, 390 (Minn. 1995), “[n]ot all police dealings

with containers and other items are sufficiently intrusive to require that they be


1
       Both provisions provide that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures shall not
be violated.” Compare U.S. Const. amend. IV, with Minn. Const. art. I, § 10.


                                             8
characterized as seizures,” 4 Wayne R. LaFave, Search and Seizure, § 9.8(e), at 1006

(5th ed. 2012); see also Va Lerie, 424 F.3d at 701-02 (“[N]ot every governmental

interference with an individual’s freedom of movement raises such constitutional

concerns that there is a seizure of the person. It necessarily follows that not every

governmental interference with a person’s property constitutes a seizure of that property

under the Constitution.” (citations omitted) (internal quotation marks omitted)).

       The Supreme Court has held that a “ ‘seizure’ of property occurs when there is

some meaningful interference with an individual’s possessory interests in that property.”

United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Court noted that “[w]hile the

concept of a ‘seizure’ of property is not much discussed in our cases, this definition

follows from our oft-repeated definition of the ‘seizure’ of a person within the meaning

of the Fourth Amendment—meaningful interference, however brief, with an individual’s

freedom of movement.” Id. at 113 n.5. In United States v. Jacobsen, DEA agents were

summoned to the Minneapolis-Saint Paul Airport Federal Express office to remove and

conduct field testing on plastic bags from a damaged package that was partially opened

and torn by a forklift. Id. at 111-12. The Court concluded that “the agents’ assertion of

dominion and control over the package and its contents” constituted a seizure, but that

this seizure was not unreasonable and so did not violate the Fourth Amendment. Id. at

120-21.

       Eichers and the State highlight different aspects of Jacobsen. Eichers argues that a

seizure occurred because Investigator Meyer asserted physical control over the package

for law enforcement purposes and exercised dominion and control over the package by


                                             9
detaining it for inspection. The State, in contrast, argues that there was no seizure

because Investigator Meyer’s actions in detaining the package did not interfere with any

of Eichers’s possessory interests in the package. But the discussion of dominion and

control in Jacobsen was in the context of custody, not just physical movement, as the

Court stated:

              Both the Magistrate and the District Court found that the agents took
       custody of the package from Federal Express after they arrived. Although
       respondents had entrusted possession of the items to Federal Express, the
       decision by governmental authorities to exert dominion and control over the
       package for their own purposes clearly constituted a “seizure,” though not
       necessarily an unreasonable one.

Id. at 120 n.18. This suggests that the seizure occurred because Jacobsen’s possessory

interest in Federal Express retaining custody of the package was infringed, and that a

technical exercise of control over the package by the officers, standing alone, does not

impact custody and would not necessarily constitute a seizure. Thus, we conclude that

the controlling test for whether there is a seizure under Jacobsen is whether there is

“meaningful interference with an individual’s possessory interests in that property.”

Jacobsen, 466 U.S. at 113. While this standard may, in some instances, be met through

an exercise of dominion and control alone, dominion and control without a meaningful

interference with a possessory interest is insufficient to establish a seizure.

                                              B.

       We turn then to two pre-Jacobsen cases, United States v. Van Leeuwen, 397 U.S.

249 (1970), and United States v. Place, 462 U.S. 696 (1983), to determine what

possessory interests a person might have in a mailed package. In Van Leeuwen, the



                                              10
Supreme Court stated that a person has an interest in the privacy of letters and packages

even after the items are mailed.      397 U.S. at 251. Thus, “[t]he significant Fourth

Amendment interest [is] in the privacy of this first-class mail.” Id. at 253. This privacy

interest may implicate whether mail can be detained, as the Court also noted that

Congress cannot encumber the flow of the mail “by setting ‘administrative officials

astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a

response before dispatching the mail’ to him.”         Id. at 251-52 (quoting Lamont v.

Postmaster Gen., 381 U.S. 301, 306 (1965)). But the Court also stated that “even first-

class mail is not beyond the reach of all inspection.” Id. at 252. In Van Leeuwen, in

which mail was delayed for 29 hours before a search warrant arrived, the Court

concluded that the “detention of mail could at some point become an unreasonable

seizure,” but that “[n]o interest protected by the Fourth Amendment was invaded by

forwarding the packages the following day rather than the day when they were

deposited.” Id. at 252-53.

       In United States v. Place, the Court discussed how a seizure can occur even “after

the owner has relinquished control of the property to a third party,” but noted that

different possessory interests are involved in on-the-spot inquiries, such as immediate

exposure of luggage to a narcotics-detection dog, than in inquiries that involve

transporting the property to another location. 462 U.S. at 705-06. While the Court

acknowledged that “some brief detentions of personal effects may be . . . minimally

intrusive of Fourth Amendment interests,” the Court did not state clearly whether a

detention of property could be so minimal as to not constitute a seizure at all. Id. at 706.


                                             11
      Because guidance from the Supreme Court on what constitutes meaningful

interference with a possessory interest in property is limited and we have not previously

addressed this issue, 2 we elect to examine applicable federal court of appeals decisions

for guidance on this issue. Circuit courts have attempted to apply Jacobsen, using the

background of Van Leeuwen and Place, to cases involving mail and checked luggage 3 on

numerous occasions, but have often reached conflicting results.

       In United States v. England, the Ninth Circuit read the Supreme Court precedent

to mean that timely delivery of a mailed package is a person’s paramount possessory

interest in that package. 971 F.2d 419, 420-21 (9th Cir. 1992). The court noted that “[i]t

is the extent of the interference with the defendant’s possessory interest in his property,

not the physical movement of the property, that determines whether a seizure has


2
       Although we have previously addressed the definition of a seizure in the context
of detaining an individual, see State v. Wiegand, 645 N.W.2d 125, 132 n.7 (Minn. 2002)
(“[I]n Minnesota a seizure occurs when a reasonable person would believe he or she was
not free to leave.”), we have not addressed the meaning of a seizure in the context of
property.
3
        Eichers argues that cases involving checked luggage are not analogous to cases
involving mailed packages. We disagree. Checked luggage and mailed packages both
involve entrusting property to a third party for delivery. Whereas the seizure of carryon
luggage may also result in a de facto seizure of the person, see Place, 462 U.S. at 708,
checked-luggage cases, like mail cases, do not necessarily raise such concerns. Owners
of checked luggage or mailed packages have more limited possessory interests than
people who accompany their property because there is no freedom-of-movement interest
at issue unless there is a delay in delivering the property. Passengers who check luggage,
like people who mail packages, also do so knowing that their property will be handled by
strangers and that the property’s outward characteristics will be observed. See United
States v. Ward, 144 F.3d 1024, 1033 (7th Cir. 1998). We therefore see no basis for
determining that a person has a greater possessory interest in a mailed package than in a
piece of checked luggage.


                                            12
occurred.”   Id. at 420. The Ninth Circuit concluded that there was no meaningful

interference, and thus no seizure, when postal inspectors set aside packages for inspection

by a narcotics-detection dog without causing a delay in the delivery. Id. at 420-21. The

Ninth Circuit has consistently followed England and held that detention of mail or

checked luggage does not constitute a seizure if it does not impact the delivery time. See

United States v. Quoc Viet Hoang, 486 F.3d 1156, 1160 (9th Cir. 2007); United States v.

Hernandez, 313 F.3d 1206, 1210 (9th Cir. 2002).

      The Eighth Circuit also has addressed the issue of when a seizure of property

entrusted to a carrier occurs in an en banc opinion that purported to overrule any prior

conflicting case law. See Va Lerie, 424 F.3d at 700 ( “It can be argued our court has not

spoken with a consistent voice when considering what constitutes a seizure in cases

involving law enforcement’s interference with luggage or mailed packages.”). The court

in Va Lerie laid out three factors of meaningful interference with a possessory interest,

inquiring whether 1) the detention of property impacted a person’s freedom of

movement; 2) the detention delayed timely delivery of the property; and 3) law

enforcement deprived the carrier of custody of the property. Id. at 707. The court also

noted that when examining the third indicator of whether the carrier was deprived of

custody of the property, the relevant question is whether the passenger’s property might

be handled in the same way when in the carrier’s custody. Id. at 707 n.7. The court in Va

Lerie then applied this standard and concluded that the removal of checked luggage from




                                            13
a bus to a room in the bus terminal did not constitute a meaningful interference with the

passenger’s possessory interests, and, therefore, it was not a seizure. 4 Id. at 708.

       We agree with Va Lerie that focusing only on the interest in a timely delivery,

such as the Ninth Circuit has, and thus finding a seizure only in cases of late deliveries,

fails to recognize other legitimate possessory interests that individuals have in mailed

packages.    In particular, we find persuasive the Eighth Circuit’s identification of a

possessory interest in having the carrier retain custody in the package, because, as the

court explained in Va Lerie, it speaks to a person’s reasonable expectations for how the

property might be handled when in the carrier’s custody. See id. at 707 n.7. While the

Eighth Circuit focused its review of custody on whether law enforcement actions are of a

type that a carrier might reasonably perform, we also note that custody may be lost in any

number of ways, including the carrier’s relinquishment of responsibility for the package

by entrusting it to law enforcement for delivery.

       We therefore conclude that a seizure of property must entail meaningful

interference with a possessory interest in that property and that possessory interests may

include, but are not limited to, timely delivery, retention of custody by the carrier, and a


4
        We acknowledge that the Eighth Circuit has not applied Va Lerie consistently
since it was announced. Compare United States v. Lakoskey, 462 F.3d 965, 976 (8th Cir.
2006) (concluding that there was a seizure when an officer moved a mailed package from
the ordinary progress of the mail and diverted it for further inspection), with United
States v. Zacher, 465 F.3d 336, 338-39 (8th Cir. 2006) (concluding that moving a
package to the floor for a dog sniff did not constitute a seizure unless the package was
delayed past its delivery time because it did not involve a change in custody or infringe
on the addressee’s freedom of movement). Notwithstanding the conflicting decisions in
the Eighth Circuit, we consider Va Lerie both persuasive and helpful here.


                                              14
person’s freedom of movement. We disagree with Eichers’s interpretation of Jacobsen,

which would find a seizure wherever there was any exercise of dominion and control, no

matter how minimal, over a package by an agent for examination purposes, and instead

conclude that dominion and control are relevant only as a means of showing that there

has been meaningful interference with a possessory interest.

                                           C.

       Applying this analysis to the case at hand, we must identify whether any of

Eichers’s possessory interests were infringed by the detention of the package prior to the

dog sniff. Eichers argues that the package was seized because he had a possessory

interest in having the package remain in the possession and control of UPS and that

Investigator Meyer interfered with this interest when, absent directions from UPS, he

moved the package from the conveyor belt to the floor for a dog sniff. The State argues

that the movement of the package did not constitute a seizure because it did not interfere

in any meaningful way with Eichers’s possessory interests, as his primary interests were

that the package was timely delivered and that the contents of the package were not

violated.

       After establishing probable cause through the dog sniff, Investigator Meyer did

take custody of the package—removing it from UPS’s control, transporting it to Saint

Cloud, and arranging delivery for the package by another investigator. But although a

seizure of the package did ultimately occur through an infringement of Eichers’s

possessory interest in the carrier retaining custody, Eichers is not challenging the

reasonableness of that seizure. Looking next at Eichers’s possessory interest in timely


                                           15
delivery, Investigator Meyer removed the package from the conveyor belt for initial

inspection at approximately 6:10 a.m. on September 23, 2011. After conducting the dog

sniff, obtaining and executing a search warrant, and repackaging the contents,

Investigator Meyer transported the package to a law enforcement center in Saint Cloud,

arriving at approximately 12:30 p.m. the same day. The duration of Investigator Meyer’s

detention of the package prior to establishing probable cause, was, at most, a few hours,

and delivery was attempted that same afternoon. In addition, Eichers does not argue that

any delay from the initial detention infringed on his right to timely delivery. Therefore,

we conclude that Investigator Meyer’s actions in moving the package from the conveyor

belt to the floor did not infringe on Eichers’s right to a timely delivery of the package.

       Eichers’s possessory interest in the carrier’s custody of the package was also not

infringed until after Investigator Meyer had established probable cause as a result of the

dog sniff. See Illinois v. Caballes, 543 U.S. 405, 409 (2005) (discussing a dog sniff as

sufficiently reliable to establish probable cause). Investigator Meyer’s handling of the

package and placing it on the floor are both actions that a carrier might reasonably be

expected to take. Investigator Meyer also initially detained the package on the carrier’s

premises and presumably would have returned the package to the conveyor belt if the dog

sniff had been negative, and so there is no indication that UPS lost custody of the

package during this initial examination. Therefore, Eichers is incorrect in claiming that

his possessory interest in having the package remain in the possession and control of UPS




                                             16
was infringed, as UPS retained custody and control over the package during the initial

detention. 5

       Therefore, because Eichers has failed to establish any meaningful interference

with a possessory interest he had in the package, we conclude that removing the package

from the conveyor belt for the purpose of a dog sniff was not a seizure under either the

Fourth Amendment to the U.S. Constitution or Article I, Section 10, of the Minnesota

Constitution.

                                             II.

       We now review whether there was an unreasonable search for purposes of the

Fourth Amendment to the U.S. Constitution or Article I, Section 10, of the Minnesota

Constitution when Investigator Meyer used a trained narcotics-detection dog to sniff the

package after it was removed from the conveyor belt. Eichers argues that the package

was searched because the dog sniff infringed his reasonable expectation of privacy and

that the search was unreasonable because it was not supported by probable cause or even

a reasonable, articulable suspicion. The State argues that a minimally intrusive dog sniff

does not infringe any reasonable expectation of privacy, and so the dog sniff of the

package was not a search. The State also argues that even if the dog sniff was a search, it

5
        We reject Eichers’ argument that a seizure through loss of custody occurs
whenever law enforcement acts on its own, rather than at the specific direction of the
carrier. This is not a distinction followed by any court except a panel of the Eighth
Circuit in United States v. Alvarez-Manzo, 570 F.3d 1070, 1075-76 (8th Cir. 2009). The
requirement of specific carrier direction would limit officers’ ability to use their expertise
to identify packages and force them instead to rely on postal workers to determine which
packages are suspicious and what actions should be taken. Such an approach would
almost entirely negate the benefits of having a trained narcotics officer present.


                                             17
only needed to be justified by a reasonable, articulable suspicion, which, the State argues,

Investigator Meyer had. The district court concluded that there was no search; the court

of appeals, in a divided decision, concluded that, even if there was a search, the search

was sufficiently justified by Investigator Meyer’s reasonable, articulable suspicion of

criminal activity. Eichers, 840 N.W.2d at 223. We review legal determinations, such as

whether there was a search and if that search was unreasonable, de novo. Milton, 821

N.W.2d at 798; see Ornelas v. United States, 517 U.S. 690, 699 (1996)

(“[D]eterminations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.”).

                                            A.

       A search under the Fourth Amendment to the U.S. Constitution occurs “when an

expectation of privacy that society is prepared to consider reasonable is infringed.”

Jacobsen, 466 U.S. at 113. In Van Leeuwen, the Court stated that “[l]etters and sealed

packages of this kind in the mail are as fully guarded from examination and inspection,

except as to their outward form and weight, as if they were retained by the parties

forwarding them in their own domiciles.” 397 U.S. at 251. Thus, a person clearly has a

reasonable expectation of privacy as to the content of his or her mail. But the Court also

stated that “even first-class mail is not beyond the reach of all inspection.” Id. at 252.

The question, therefore, is whether a dog sniff infringes on the reasonable expectation of

privacy that a person has for a mailed package. Although a dog sniff reveals little

information about the contents of the package—merely whether it likely does or does not




                                            18
contain drugs—it does perhaps constitute a higher level of inspection beyond simply

observing the outward characteristics of a package as described in Van Leeuwen.

       In United States v. Place, the Supreme Court concluded that a dog sniff is a unique

type of investigation and that a dog sniff of luggage in a public place does not constitute a

search within the meaning of the Fourth Amendment.             462 U.S. 696, 707 (1983).

Explaining why a dog sniff of luggage is not a search, the Court said:

       A “canine sniff” by a well-trained narcotics detection dog . . . does not
       require opening the luggage. It does not expose noncontraband items that
       otherwise would remain hidden from public view, as does, for example, an
       officer’s rummaging through the contents of the luggage. Thus, the manner
       in which information is obtained through this investigative technique is
       much less intrusive than a typical search. Moreover, the sniff discloses
       only the presence or absence of narcotics, a contraband item. Thus, despite
       the fact that the sniff tells the authorities something about the contents of
       the luggage, the information obtained is limited. This limited disclosure
       also ensures that the owner of the property is not subjected to the
       embarrassment and inconvenience entailed in less discriminate and more
       intrusive investigative methods.
              In these respects, the canine sniff is sui generis. We are aware of no
       other investigative procedure that is so limited both in the manner in which
       the information is obtained and in the content of the information revealed
       by the procedure.

Id.

       The Supreme Court in Illinois v. Caballes clarified that in situations in which a

dog sniff is not a search, no level of suspicion is required because actions that do not

constitute a search or a seizure are not subject to scrutiny under the Fourth Amendment.

543 U.S. 405, 408-09 (2005). The Court also explained that any interest in possessing

contraband is not a “legitimate” privacy interest, and so official conduct that reveals only

contraband, without disturbing any privacy rights related to innocent activity, does not



                                             19
violate any reasonable expectation of privacy. Id. Thus, the Court concluded that a dog

sniff that “reveals no information other than the location of a substance that no individual

has any right to possess does not violate the Fourth Amendment.” Id. at 410.

       Although Eichers argues that Place and Caballes can be distinguished from his

situation because those cases took place on public property, as opposed to the property of

a private company like UPS, we disagree that this distinction is relevant here. The

private nature of the location where the dog sniff took place may be relevant in situations

in which the defendant has a higher expectation of privacy due to the location, such as a

residence, but a mailroom at an airport is not such a location. See Florida v. Jardines, __

U.S. __, 133 S. Ct. 1409, 1418 (2013) (Kagan, J., concurring) (concluding that the home

is “the most private and inviolate (or so we expect) of all the places and things the Fourth

Amendment protects,” and so a dog sniff of a home and its surrounding area should be

classified a search). While Eichers may be correct that the general public could not enter

the UPS mailroom at issue here, Eichers would have been unable to enter this location as

well, so he had no special expectation of privacy there. Therefore, a dog sniff in an

airport mailroom is not analogous to a dog sniff in or near a private residence because a

defendant has a strong expectation of privacy in his home that does not correlate to the

expectations of privacy in a mailroom, even if that mailroom is operated by a private

company. We conclude that because a dog sniff of a mailed package, like the dog sniff

of luggage in Place, reveals only contraband, and because no legitimate privacy interest

is compromised, a dog sniff in this situation is not a search for purposes of the Fourth

Amendment.


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                                              B.

       Although a dog sniff of a package in an airport mailroom is not a search under the

Fourth Amendment to the U.S. Constitution, we will also review Eichers’s contention

that this situation constitutes a search under Article I, Section 10, of the Minnesota

Constitution because we have previously held that the Minnesota Constitution provides

greater protection than the U.S. Constitution in some circumstances involving drug

detection by narcotics-trained dogs. See, e.g., State v. Carter, 697 N.W.2d 199, 210-12

(Minn. 2005).

       Although we are free to offer protections under the Minnesota Constitution that

exceed the protections of the United States Constitution, we will not do so cavalierly,

especially in cases in which the relevant language of the two constitutions is identical.

Id. at 210. But in State v. Carter, we concluded that although a drug-detection dog sniff

in an area outside a storage unit was not a search under the Fourth Amendment, it was a

search requiring a reasonable, articulable suspicion of criminal activity for purposes of

the Minnesota Constitution. Id. at 211-12. Noting our concerns about the unrestrained

use of narcotics dogs, especially in light of the risk of false alerts, we concluded that there

was good reason to guard against the random use of drug-detection dogs in an area

immediately outside a storage unit, which could contain a significant number of personal

items and even possibly be the site of some personal activities. Id. at 210-11. We later

applied this holding to a situation involving a hallway outside an apartment, concluding

that a reasonable, articulable suspicion of criminal activity was also required for a dog

sniff in this area. State v. Davis, 732 N.W.2d 173, 181-82 (Minn. 2007).


                                              21
       The primary issue is whether the reasoning set out in Carter and Davis should be

extended to mailed packages. Eichers argues that we should follow Carter and Davis

because, like a storage unit or apartment, a package can store personal effects. But

Carter and Davis are easily distinguished from the facts in Eichers’s case. In Carter we

noted that part of the reason for an expectation of privacy in a storage unit is the

capability of the unit, like a residence, to store a significant amount of personal items and

be the site of personal activity. 697 N.W.2d at 210-11. A mailed package does not give

rise to the same concerns regarding personal activity, and the number of personal items a

package can contain is significantly lower. A residence or storage unit is a window into

a person’s life in a way that a mailed package is not.

       In addition, the concerns we noted in Carter, 697 N.W.2d at 210, regarding the

risk of dog-sniff “false alerts” are less problematic in a situation involving a mailed

package than in a situation involving a storage unit or apartment. A false alert on a

mailed package would generally lead only to opening that package, which can be

repackaged with minimal delay and burden to the owner, whereas a false alert on a

person, storage unit, or apartment would lead to a much more involved and disruptive

search.   See Place, 462 U.S. 696 at 707 (citing the lack of embarrassment and

inconvenience to the owner as reasons why dog sniffs are unique investigative tools).

But see, e.g., Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979) (false alert during a

random dog sniff of students at a school that resulted in nude search of a 13-year-old

girl), aff’d in part, rev’d in part, 631 F.2d 91 (7th Cir. 1980); Leslie A. Lunney, Has the

Fourth Amendment Gone to the Dogs?:            Unreasonable Expansion of Canine Sniff


                                             22
Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829, 873-75 (2009) (arguing that

dog-sniff searches of homes are distinguishable from sniffs of luggage or mail because

“the search of a home on the basis of a positive canine sniff would be both probing and

expansive”). In addition, a false alert on a package is unlikely to result in the immediate

seizure of a person because the owner is not present, whereas in cases of a storage unit or

apartment it is possible that the owner will be present and could be detained, leading to a

much higher level of intrusion and disruption based on the false alert. The concerns

voiced in Carter about random dog sniffs are therefore less relevant in cases involving

mail.

        Because the privacy interest in a mailed package is much lower than the interest in

the privacy of a home or a storage unit, and because the concerns voiced in Carter about

the random use of dog sniffs are less problematic with mailed packages, we decline to

extend Carter and Davis to include dog sniffs of mailed packages as searches requiring a

reasonable, articulable suspicion of criminal activity. Because we see no “language,

concerns, and traditions unique to Minnesota” on the issue of whether a dog sniff of a

mailed package constitutes a search, we conclude that Article I, Section 10, of the

Minnesota Constitution does not offer any greater protections in this situation than the

Fourth Amendment to the U.S. Constitution. Kahn, 701 N.W.2d at 825. We agree with

the district court that the dog sniff of the package was not a search for purposes of either

the Fourth Amendment to the U.S. Constitution or Article I, Section 10, of the Minnesota

Constitution.




                                            23
                                           III.

      Because there was neither a search nor a seizure, Investigator Meyer’s initial

detention of the package and his use of a trained narcotics-detection dog to perform a dog

sniff on the package fall outside the scope of the Fourth Amendment to the U.S.

Constitution and Article I, Section 10, of the Minnesota Constitution, and we need not

address whether Investigator Meyer’s actions were reasonably justified.        Therefore,

although we do so on different grounds, we affirm the court of appeals’ decision

upholding the district court’s order denying Eichers’s motion to suppress evidence.

      Affirmed.


      PAGE, J., took no part in the consideration or decision of this case.




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