Police Search For Drugs

Police Search For Drugs

Copyright 2004, Traffic World, Inc.

Q:

We are a surface freight forwarder. A few weeks ago, one of our subcontractors had a run-in with the police. It seems that the drivers had pulled into the receiver's parking lot on a Sunday evening for delivery the following morning. The police came along and questioned the drivers.

When one of the drivers came up in the wrong database due to a circumstance for which we still don't have an explanation, the police decided to use a drug-sniffing dog to examine the trailer. The dog indicated the presence of some type of drugs.

The police promptly impounded the truck and brought it to an impound lot, whereupon they roughly handled the merchandise. The merchandise included desks, which for security had locked drawers. They used pry bars to open them. No drugs were ever found.

The load was a mess and the shipper wants compensation. The subcontractor doesn't think he is liable. Our contract with the truckline does require them to hold us harmless and indemnify and defend us. Also the truckline never completed the contract of carriage as the shipment was ultimately picked up by the receiver in the police impound lot.

The police action seems unreasonable as there was no "hot pursuit," and this damage claim may fall under the "act of public authority" exemption in the bill of lading contract. Who is our claim against and why? Also, given that the carrier never made delivery, are the freight charges due?

A:

You don't have a claim because you don't owe one to the shipper. Neither does the carrier.

You're right, this damage was due to an act of a public authority, for which neither carriers nor forwarders are liable; see, e.g., Pingree v. Railroad Co., 66 Mich. 143. It's a rarely used exception to the rule of carrier liability but if the local cops aren't a "public authority" I don't know who is, and they're the ones who caused the damage.

It doesn't matter if the suspect driver deserved to be in the bad-guy database. To be sure, that led to the summoning of the dog, whose response in turn led to the destructive search. I suppose you could argue that the carrier's putative laxity in hiring that particular driver therefore triggered the whole chain of events but it's too fragile a linkage to ascribe liability to the carrier (or, in turn, to you for engaging that carrier).

So the shipper is going to have to go after its compensation from the municipality, county, state, whatever, by whom these particular police are employed, and now we hit a very narrow Constitutional issue. You call this action by the police "unreasonable," but the search itself was not; they had "probable cause" to conduct it once the dog had reacted, and unless they performed it with wanton disregard for the goods - and that does not include using the pry-bar, which was the only way to get the locked drawers open - they were within their rights even though no drugs were found.

What's at issue is whether use of the dog in the first place violated the Fourth Amendment prohibition against "unreasonable searches and seizures." The Supreme Court has held that having dogs sniff the exterior of an article of private property is not a "search" because it's noninvasive. But compelling the owner of the property to leave it in place until such a dog can be summoned is a "seizure," and may not be done without the same probable cause; U.S. v. Place, 462 U.S. 696 (1983). And mere appearance of the driver's name in "the wrong data base" is scarcely that.

But any person is always free to waive his or her Constitutional rights. To apply that here - if the drivers agreed to wait for the dog's arrival without overt coercion or compulsion - would make the entire chain of events that ensued quite legal. It's on this fine point that the legality of the search, and therefore the shipper's right to recovery, depends.

My bet is that they did agree; police "requests" can be pretty intimidating, and truck drivers don't prosper by getting on the wrong side of officers of the law.

Which brings us around to your question about freight charges.

Yes, strictly speaking you and the trucker are both entitled to your money. The carrier actually did make it to destination before the vehicle was forcibly taken to the impound lot, but that's not really the point. I expect it was the receiver's decision to collect the freight itself rather than wait for the "mess" to be reloaded and delivered, so the carrier completed its contract as far as it was allowed to by the contracting parties. Since the damage was due to an excepted cause for which the carrier is not liable, it's entitled to payment - and so are you.

But assuming I'm right on the consent question and the shipper can't recover for its loss, I think it would be pretty impolitic to pursue the matter. By agreeing to wait for the dog, the drivers were indirectly (and unrecoverably) responsible for the whole shebang. In the circumstances, I think agreeing to accept some small part of the economic burden would be the right thing for the carrier and you to do.

-- Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at P.O. Box 76, Morganton, Ga. 30560; phone, (706) 374-7201; fax, (706) 374-7202; e-mail, BarrettTrn@aol.com. Contact him to order the 536-page compiled edition of past Q&A columns, published in 2001, at $80 plus shipping.