Opinion
Case No. 3:21-cr-00374-JGC
11-01-2022
UNITED STATES of America, Plaintiff v. Jaavaid MCCARLEY-CONNIN, Defendant.
Henry F. DeBaggis, II, Robert J. Kolansky, Sara A. Al-Sorghali, Office of the U.S. Attorney - Toledo, Toledo, OH, for Plaintiff. Claire R. Cahoon, Krysten E. Beech, Office of the Federal Public Defender - Toledo, Toledo, OH, for Defendants.
Henry F. DeBaggis, II, Robert J. Kolansky, Sara A. Al-Sorghali, Office of the U.S. Attorney - Toledo, Toledo, OH, for Plaintiff. Claire R. Cahoon, Krysten E. Beech, Office of the Federal Public Defender - Toledo, Toledo, OH, for Defendants.
ORDER
James G. Carr, Senior United States District Judge
This is a criminal case in which the grand jury indicted the defendant, Jaavaid Alan McCarley-Connin, on charges of: (1) Conspiracy to Distribute and Possess with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. § 846; (2) Attempted Possession with Intent to Distribute Controlled Substances in violation of 21 U.S.C. § 846; (3) Use of a Communications Facility in the Commission of a Drug Trafficking Crime in violation of 21 U.S.C. § 843(b); and (4) Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(i), 924(a)(2).
Pending is defendant's motion to suppress evidence that the government obtained as a result of narcotic canine sniffs and request for hearing, (Doc. 41), and a supplement to that motion, (Doc. 42). The government has requested that I determine the standing issue before setting a hearing on the motion to suppress. (Doc. 45).
For the following reasons, I find that defendant has standing.
Background
In a February 22, 2022 ruling on defendant's motion to suppress statements, I discussed at length the circumstances of defendant's arrest. United States v. McCarley-Connin, No. 3:21-CR-00374-JGC-1, 2022 WL 586607 (N.D. Ohio Feb. 22, 2022). I will therefore limit my discussion only to the facts relevant to this order.
On February 8, 2021, Postal Inspectors in Cleveland, Ohio interdicted a priority mail parcel (Package One). Id. at *1. They did so because the parcel's size, mode of shipment, and cash payment for its cost are characteristic of drug trafficking. Id. The package was addressed to South Gate, California. Id. One of the Inspectors read the sender's name on the return address as "D. McCarley," and the return address was 228 E. Tiffin St., Fostoria, Ohio. Id. The Inspector could not connect the name "D. McCarley" with that address. Id. This increased the Inspector's suspicions about the parcel's connection with drug trafficking. (Doc. 41-1, pgID 189).
The parties dispute whether the handwritten initial in front of "McCarley" is a "D" (the implication being that Defendant obscured the true sender of the package) or a "J" (the implication being that Defendant used his actual first initial). (Doc. 42, pgID 225; Doc. 45, pgID 254-56; Doc. 49, pgID 274-76). I decline to resolve this dispute at this time. In any case, defendant did not use his full name: "Jaavaid McCarley-Connin." Absent proof on his part to the contrary, and solely for purposes of this order, it appears that, by not using his full last name (setting aside the dispute regarding the first initial), defendant used a partially-fictitious name intending to conceal the fact that he sent Package One.
The Inspectors exposed the package to a drug detection dog, Ciga. (Id.). The dog gave a positive alert. McCarley-Connin, supra, 2022 WL 586607, at *1. The Inspectors opened the package pursuant to a search warrant. In it was $19,440 in cash wrapped in magazines. Id.
On February 16, Inspectors interdicted a Priority Mail Express package (Package Two) from California to "Lily Roberts" at the 228 E. Tiffin St. return address listed on Package One. Id. The Inspectors determined that no one of that name had a connection with that address. Id. In addition, the return address was from Lynwood, California. Id.
Defendant does not contest the propriety of the government's brief detention and dog sniff of either Package One or Package Two.
On February 24, 2021, Ciga alerted on Package Two. Id. After obtaining another search warrant, Inspectors opened Package Two and found 1,250 grams of Fentanyl. Id.
On May 31, 2022, defendant filed a supplement to his motion to suppress (Doc. 41), arguing that he has standing to challenge the opening and search of Package One because he had a constitutionally protected legitimate expectation of privacy in its contents. (Doc. 42, pgID 224). He further argues that he has standing to challenge the opening and search of Package Two through the fruit of the poisonous tree doctrine. (Id.). On June 17, 2022, the government filed its opposition regarding the standing issue. (Doc. 45). On July 15, 2022, defendant filed his reply. (Doc. 49).
Discussion
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV.
The Supreme Court has stated that the standing analysis under the Fourth Amendment is "subsumed under substantive Fourth Amendment doctrine." Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The Supreme Court has articulated a reasonable-expectation-of-privacy test, which asks (1) whether the individual has a subjective expectation of privacy in the searched area and (2) whether that expectation is one society recognizes as reasonable. See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)).
To claim standing, a defendant must therefore "demonstrate that he personally has an expectation of privacy in the place (or item) searched, and that his expectation is reasonable . . . either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (internal quotations and citations omitted).
Defendant admits he is the sender of Package One, (Doc. 42, pgID 226), and this fact is sufficient to satisfy the subjective element of the standing inquiry—defendant's personal expectation of privacy in the package. See United States v. Hicks, 59 F. App'x 703, 706 (6th Cir. 2003) (finding that a package sender, though using a fictitious name, "exhibited an actual expectation of privacy" by "packing and labeling the package").
The only question that remains is whether defendant satisfies the objective prong of the inquiry—namely, whether his expectation of privacy is reasonable because society recognizes and permits it and/or it is consistent with concepts of property law. Carter, supra, 525 U.S. at 88, 119 S.Ct. 469.
"Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy . . . ." United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see also Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1877) (holding that "sealed packages . . . are as fully guarded from examination and inspection . . . as if they were retained by the parties forwarding them in their own domiciles").
The government argues that defendant does not have standing for his motion to suppress because his use of a partially fake name, "D. McCarley," when sending Package One, neutralizes any reasonable expectation of privacy he had in its contents at the time of the challenged search. (Doc. 45, pgID 251-53). I disagree. Even without using his full last name and, potentially, his real first initial on the sender label, defendant has a legitimate expectation of privacy in the contents of Package One because society recognizes the expectation as reasonable.
The Sixth Circuit has yet, in a published opinion, to decide whether a person has standing when mailing a package under a fictitious name. Other Circuits, applying the Katz, supra, mandate that one's subjective expectation of privacy must be objectively reasonable, have reached various conclusions.
For example, in United States v. Lewis, 738 F.2d 916, 919 (8th Cir. 1984), the defendant was convicted for implementing a fraudulent credit card scheme, pursuant to which he received mail addressed to "David Woods," a fictitious name. The government seized and opened the mail, and the defendant moved to suppress its contents. Id. The Eighth Circuit found that the defendant lacked standing because he had no legitimate expectation of privacy that society accepted as reasonable in the mail due to the fraudulent use of a fictitious name. Id. at 919 n.2.
On the other end of the spectrum is the Seventh Circuit's decision in United States v. Pitts, 322 F.3d 449 (7th Cir. 2003). In Pitts, the defendant, using a fictitious name, "James Reed, Sr.," and a false return address, mailed a package containing drugs. Id. at 451-52. The Seventh Circuit determined that the defendant had no legitimate expectation of privacy in the package because he had abandoned it. Id. at 456-57. He had no way of retrieving the package because he used both a fictitious name and a fictitious address. Id.
However, the Seventh Circuit took care to note that, absent abandonment, an individual can still have a legitimate expectation of privacy in a package sent under a fictitious name. Id. at 458-59. The court observed that senders and recipients of packages "might wish to remain completely anonymous for any number of reasons." Id. at 458 (dictum). Therefore, individuals with completely legitimate reasons for remaining anonymous should not lose their expectation of privacy in their packages because others use pseudonyms "for nefarious ends." Id. (dictum).
Alternatively, the court reasoned, a rule that only senders and recipients, who employ pseudonyms for lawful ends, maintain a reasonable expectation of privacy would be inconsistent with the Fourth Amendment. Id. at 458-59 (dictum). Such a rule would allow the police to open any package sent to or addressed from a fictitious name without a warrant on the chance that the discovery of contraband provides post hoc justification for the search. Id. In other words, if the government ascertains that a parcel was sent or received by anyone unknown to a particular address, it would have free license to search those packages without a warrant.
This would be particularly so because, in real-world terms, the only (in my view illusory) remedy for the constitutional violation for those using fictitious names for non-nefarious purposes would be a civil suit with, the likely prospect of only nominal damages. Id. A suit which no lawyer would bring, and no pro se plaintiff would win.
As the court made clear: the Fourth Amendment "requires more." Id. See also United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009) (finding that a defendant, the intended recipient of a package containing marijuana, had standing when the package was addressed to a fictitious company); United States v. Villarreal, 963 F.2d 770, 774-75 (5th Cir. 1992) (finding that defendants, the intended recipients of a drum containing marijuana, had standing when the package was addressed to a fictitious name).
Finally, United States v. Rose, 3 F.4th 722 (4th Cir. 2021), cert. denied, — U.S. —, 142 S.Ct. 1676, 212 L.Ed.2d 582 (2022), illustrates a middle approach. In Rose, the defendant was the intended recipient of a package containing cocaine. Id. at 725. However, the package listed the defendant's deceased brother, Ronald West, as the recipient, along with West's address. Id. The Fourth Circuit found that the defendant lacked standing under these circumstances—reasoning that a defendant receiving a package under another name must show there was "objective indicia" at the time of the search connecting him to the package. Id. at 729. The court noted that the name of the recipient, the address, or the phone number listed on the package did not provide any objective indicia that the defendant was the intended recipient. Id.
The Sixth Circuit analyzed whether a defendant, who uses a fictitious name on a package, has standing in an unpublished opinion, United States v. James, No. 19-2057, 2020 U.S. App. LEXIS 22766 (6th Cir. July 21, 2020). In that case, the defendant, James, used a pseudonym, "J. Fevers," to receive a package containing cocaine. Id. at *1-2. The court stated that, even if the package arrived at the defendant's actual address, "it would not, without more, establish that he had a legitimate expectation of privacy" when it was addressed to a different individual altogether. Id. at *9 (emphasis added). The court also noted that it had never addressed the issue in a published opinion. Id. at *8.
I agree with the Seventh Circuit's reasoning in Pitts and find that an individual, who sends a package under a fictitious name, has an expectation of privacy in the package's contents that society is willing to recognize. Individuals send and receive mail under pseudonyms for reasons both legitimate and nefarious, and the Fourth Amendment cannot be contorted to protect only the former. See Pitts, supra, 322 F.3d at 458-59; see also Hicks, supra, 59 F. App'x at 706 ("[I]t is far from clear that the legitimacy of one's privacy expectation can be made to depend on the nature of his activities—innocent or criminal.") (dictum).
For example, what if someone sends a Valentine's Day card from "S.A. [Secret Admirer], #1 Luv U Lane, Somewhere Over the Rainbow, Oz?" If the government opened the envelope, I think there is no doubt that society would find the sender's subjective expectation of privacy to be objectively reasonable.
Or if, two days before an addressee's twenty-first birthday, a gift giver pays cash to send a Priority Mail Express Mail package containing (foolishly) twenty-one hundred-dollar bills to "Clare (not the addressee's correctly-spelled first name, "Claire") Jones" (the addressee's maiden name), not realizing the birthday girl is now using her married named (Smith). Finding no connection between the names and addresses, Inspectors call in Ciga, who alerts, and the addressee's husband happens to be a suspected drug dealer, though, at that point, there is no reason to suspect Mrs. Smith is involved in criminality. A judge then issues a warrant, and the Inspectors open the package. The government, without any other evidence against Mrs. Smith, indicts her. Does Mrs. Smith have standing to challenge the search based on her misspelled first name and use of her maiden name, which would prevent a Postal Inspector from connecting her to the indicated address? I think she undoubtedly would, despite the government's (mistaken) belief that the package is connected to nefarious purposes.
The government argues defendant's failure to show that "D. McCarley" was an "established alias" dispositively deprives him of standing to challenge its actions. (Doc. 45, pgID 252) (emphasis added). I disagree.
An individual sending a package under an alias for the first time, a "common and unremarkable practice," Pitts, supra, 322 F.3d at 458, has the same reasonable expectation of privacy as someone who has used that alias multiple times.
Efforts to conceal criminal activity and the identities of its participants therein within a dwelling do not make the occupants' subjective expectation of privacy objectively unreasonable. Cf. Carter, supra, 525 U.S. at 90, 119 S.Ct. 469. Their efforts to conceal their identities and criminal activities do not render unreasonable their objective and socially acceptable expectation of privacy vis-a-vis what is inside the dwelling. That is why the government must get a search warrant. An occupant's criminal intent does not open the door or enable unconsented entry, no matter how great the investigator's probable cause.
If an occupant's use of a dwelling for criminal activities made his subjective expectation of privacy unreasonable, there would be no warrant requirement that would protect him, his dwelling, and whatever was in it from loss of the Fourth Amendment's guarantee of individuals' "right to be secure in their . . . houses [and] papers . . . . against unreasonable searches and seizures . . . ."
An occupant's criminal intent is immaterial. Warrants are usually needed before law enforcement officers can get inside someone's home. Criminal conduct therein does not cause an occupant's subjective expectation somehow to evaporate and to become unreasonable, thereby resulting in a loss of the right to challenge the lawfulness of warranted (or warrantless) entry. See also U.S. v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (observing that a warrant is usually required to search the contents of luggage).
The government, however, argues that, somehow, one's criminal intent in using the U.S. Postal Service forfeits his right to challenge the lawfulness of the government's actions vis-a-vis what he sends by mail. It offers no explanation, much less a persuasive one, for carving out a nefarious-intent, no-standing exception here.
To be sure, it points to the Sixth Circuit's unpublished decision in United State v. James, supra, U.S. App. LEXIS 22766 at *9, in which the court held that a package recipient did not have standing when the package was addressed to a fully-fictitious name. This decision is neither controlling nor persuasive.
As an unpublished decision, James is controlling only as to the parties. See Sun Life Assurance Co. of Canada v. Jackson, 877 F.3d 698, 702 (6th Cir. 2017) (noting that the Sixth Circuit's unpublished decisions "are non-precedential and bind only the parties to those cases"). Though I must, and do, give it due consideration.
Doing so, I decline to use it to deprive the defendant of his ability to seek suppression.
To the extent James conflicts with Pitts, I find defendant's use of a portion of his own partial last name, "McCarley," albeit with a disputedly fictitious first initial, a key distinction from the facts of James. See also U.S. v. Williams, No. 10-CR-20357-STA/TMP, 2012 WL 6936619, at *1-6 (W.D. Tenn. Dec. 3, 2012) (finding that defendant who sent packages using his real last name but fictitious first names had a legitimate expectation of privacy while the packages were en route to their destination), report and recommendation adopted in part, No. 10-20357-STA-TMP, 2013 WL 310562 (W.D. Tenn. Jan. 25, 2013).
It is not just that it is factually distinguishable. More importantly, the decision in that case, and the government's brief as well, fails to examine, or explain why the defendant's intent matters, when it does not in other situations in which such intent is immaterial, and where defendants can bring motions to suppress regardless of their criminal motives, objectives, and actions.
The court in James did not acknowledge the anomalous nature of the government's implicit claim that mailed packages differ from other modes of conveyance and other containers that drug traffickers employ - ones which the government cannot normally search without a warrant. I perceive no inherent distinction, much less one that justifies depriving the defendant here of an opportunity to seek suppression.
The reasoning of Pitts is persuasive to me. But, I also find that defendant has met the Fourth Circuit's "objective indicia" test in Rose. Here, unlike in that case, defendant included, in part, his own name and home address on Package One. See Rose, supra, 3 F.4th at 729. These are "objective indicia" that connect Package One back to defendant.
To withhold standing here simply because the defendant used a partial alias to avoid detection when using the mail to pay for (and, in time, receive) Fentanyl would ignore the Fourth Amendment's protections against warrantless searches of premises. That protection stands firm without regard to a dweller's desire to conceal his illegal activity by, e.g., drawing down his shades.
Neither criminal intent nor concealment deprives such individual of his rights under the Warrant Clause or his standing to assert those rights. The law, by giving him standing to seek suppression, acknowledges the objective reasonableness of his subjective expectation of privacy.
Here, the government would have me strip away that requirement simply because defendant sought to avoid detection while sending a package with a partial alias. An intent to conceal is an intent to conceal, whether one draws down the shade of his dwelling or sends a deceitfully labelled package.
That being so, the law cannot logically grant, as it irrefutably does, Fourth Amendment protection against warrantless searches to the one and withhold it from the other. But that is what would happen if I accepted the government's claim that the defendant here has no standing to challenge the government's opening and search of Package One.
I see no logical reason or legally sustainable justification for denying standing in this case. The Fourth Amendment "is to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection . . . [for] which it was adopted." Ker v. State of Cal., 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (internal quotations and citations omitted). To deny standing to this defendant's challenge would illiberally, and, I believe, unjustifiably apply the threshold standing doctrine.
Other courts have overlooked this touchstone of Fourth Amendment interpretation. Here, though, I conclude its application leads to allowing the defendant's challenge to be heard.
That is all. If, on the merits, he loses, he alone is harmed. If he prevails, so does the Fourth Amendment.
Conclusion
I cannot discern, and James does not explain, why the defendant's criminal intent and desire to avoid detection matter when it comes to whether he can seek suppression.
After all, what is it, in the end, that he is asking for?
A chance to be heard, which is, of course, what due process is all about.
When that is what is at stake, we should favor having a hearing. That is how we map out the Fourth Amendment's scope and limits.
It is also better pragmatically. If I agree with the government, the substantive Fourth Amendment issue raised by defendant's challenge will remain on the shelf, to be picked up again upwards of two years from now if the Circuit disagrees with me. It is better on balance, where standing is uncertain, for a district court to go ahead and decide both the procedural and substantive issues. At worst, the Circuit's decision will end the uncertainty as to standing. At best, the case—and delay—will end here.
When, as here, courts are in doubt, they should not be too quick to raise the shield of standing. Better to let it lie.
That is the way best to interpret, apply, and uphold liberally the Fourth Amendment.
In light of the foregoing, it is hereby ORDERED THAT:
1. The government's request that I initially determine the defendant's standing (Doc. 45) be, and the same hereby is granted;
2. The defendant's request that I hold a hearing on his motion to suppress
(Doc. 41) be, and the same hereby is granted.
The hearing set for December 7, 2022 at 12:00 pm is hereby confirmed.
So ordered.