Opinion
Cause No. IP00-0099-CR-01-H/F
January 31, 2001
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
Defendant Sidney A. Evans has been indicted for conspiring to possess cocaine base with intent to distribute it. Evans has moved to suppress evidence obtained as a result of federal agents' interception and detention of an Express Mail package later found to contain cocaine base. Evans contends the detention violated his Fourth Amendment rights. He seeks to suppress as evidence the package itself and other evidence derived from its seizure, including incriminating statements that Evans made. The court heard evidence on January 5, 2001. This entry sets forth the court's essential findings of fact and conclusions of law pursuant to Fed.R.Crim.P. 12(e).
As explained below, Evans' motion to suppress is denied. The court concludes that Evans did have a protected privacy interest in the package. He had arranged to have it sent to his then-girlfriend, who understood that she was supposed to turn the sealed package over to Evans, which she did. However, on the merits of the motion to suppress, the federal agents' actions did not violate Evans' Fourth Amendment rights. The detention of the package for a check by a drug-detecting dog was justified by reasonable suspicion, and the detention was at most a very brief and reasonable seizure for further investigation that enabled agents to obtain a search warrant for the package.
Findings of Fact
Until about July 17 or 18, 2000, defendants Sidney Evans and Kristy Nicole Kircher were living together in the same residence at 953 So. 23rd Street, Apt. 229, in Richmond, Indiana. The lease apparently was in Kircher's name, but Evans had paid part of the security deposit for the apartment and had bought household items for the apartment from time to time. Evans asked Kircher about five different times in 2000 to receive Express Mail packages for him. The packages came addressed to Kircher with return addresses in California. Kircher always signed for the packages and then turned them over, still sealed, to Evans. She understood from Evans that the packages were not for her and that she was not supposed to open them.
On approximately July 18, 2000, Evans and Kircher had a disagreement and decided that Evans should move out of the apartment. He moved out that day to a residence on North 18th Street. However, as of July 21st, Evans still had some personal belongings in Kircher's apartment. Before July 20th, United States Postal Inspectors had placed a "parcel watch" on certain addresses in Richmond, including Kircher's address. Inspectors had noticed that the addresses had received a number of Express Mail packages with handwritten labels that inspectors later determined had come from California with phony return addresses. Inspectors had found that such packages are often used to ship illegal drugs. Express Mail offers its customers timely delivery and the ability to trace a package by Internet, which can be useful to customers whether their shipments are legal or not. See Ex. 9 (Internet information tracking movement and delivery of package in question). A "parcel watch" does not necessarily involve any seizure or detention of packages. Instead, it simply alerts local postal officials to keep an eye out for possibly suspicious packages and to alert postal inspectors if they come across one.
On the morning of July 20, 2000, the Richmond Post Office received an Express Mail package addressed to "Nicole Kircher" at 953 So. 23rd Street. The package had a handwritten label and had been sent from Sacramento, California. Pursuant to the parcel watch, Richmond postal officials contacted Postal Inspector Steven Sadowitz in Indianapolis. Pursuant to postal policies and procedures for Express Mail, the package addressed to Kircher was a "two-day" Express Mail package that was supposed to be delivered to Kircher no later than 3:00 p.m. on July 20th. However, under those same policies and procedures, postal inspectors have the authority to detain mail, at least briefly. Sadowitz instructed the Richmond officials to delay delivery of the package and to deliver it to him that morning for an inspection by a dog trained to detect illegal drugs.
To speed up the investigative process, Sadowitz arranged to meet a Richmond postal official halfway between Indianapolis and Richmond. Sadowitz also arranged to have an entry made in the computerized tracking system showing that the package had been "missent" that morning after arriving in Richmond, so that if Kircher or others tried to trace the package, they would not surmise, he hoped, that the package had been delayed for inspection as part of a drug investigation. Sadowitz also contacted the Sacramento Post Office and learned that there was no street in Sacramento called "PLMAS CT," which was one way of reading the handwritten return address. He did not ask about variations of the name, or about "Plumas Ct."
At the hearing Evans showed that there is in fact a "Plumas Ct." in Sacramento, and that is probably the street listed in the return address. However, there is no showing that the specific address or the name of the sender was genuine. Given the package's contents, that is hardly surprising.
Sadowitz received the package and took it to the Indianapolis airport. He put the subject package and others known not to contain drugs on the floor for inspection by the dog. The dog alerted to the Kircher package, indicating the presence of illegal drugs.
Sadowitz then sought and obtained from a United States Magistrate Judge a search warrant for the package. The search warrant was issued at 1:34 p.m. on July 20th. Pursuant to the search warrant, Sadowitz opened the package and found a portable compact disc player and approximately four ounces of crack cocaine. He installed a transmitter and resealed the package.
Meanwhile, Evans called Kircher more than once on July 20th to ask if she had received a package. She said she had not. Late in the afternoon, she called the Post Office in Richmond to find out about an Express Mail package she was expecting. She does not recall the response to her inquiry. The morning of July 21, 2000, federal agents arranged for a controlled delivery of the package to Kircher's home. She signed for the package and spoke with Evans by telephone a little while later. She did not open the package. Several hours later, in the early afternoon, Kircher went to the residence in Richmond where co-defendants Evans and Robert Harlan were staying, at 107 North 18th Street. Kircher was under surveillance. She delivered the still-sealed package to Evans and Harlan. Kircher was not sure whether the package was for Evans or Harlan or both. The presence of the package was sufficient to trigger a conditional search warrant. Federal and local law enforcement officers then arrested all three. All three made incriminating admissions.
Evans testified at the hearing on his motion to suppress that the package was for him, that he had arranged with someone he did not identify to receive the shipment, which he was expecting on July 19th or 20th. The court credits his testimony on these points.
Discussion
Evans contends that his Fourth Amendment rights were violated when the Express Mail package addressed to Kircher was diverted from the ordinary flow of packages and delayed so that it could be subjected to inspection by the dog. Evans concedes that if the diversion of the package was reasonable under the Fourth Amendment, then the search warrant for opening the package and the later actions by the federal agents did not violate his Fourth Amendment rights. The government contends that Evans had no protected Fourth Amendment privacy interest in the package addressed to Kircher, at least at the time of the seizure and inspection by the dog. The government also contends the seizure was reasonable in any event because it was based on reasonable suspicion and because it was so brief and non-intrusive.
I. Privacy Interests in the Package
Fourth Amendment rights are personal rights that may not be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). "The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Id. at 131 n. 1, quoted in United States v. Randle, 966 F.2d 1209, 1212-13 (7th Cir. 1992). In United States v. Koenig, 856 F.2d 843 (7th Cir. 1988), the Seventh Circuit addressed this issue with respect to a defendant's ability to challenge the seizure and search of a package in transit when the moving defendant was neither the sender nor the addressee of the package. In Koenig, the carrier was a private express courier, not the United States Postal Service. The private courier's employees had become suspicious about a package and had opened it. When they found what turned out to be cocaine, they contacted federal agents. 856 F.2d at 845.
Two defendants moved to suppress evidence from the package. The package had been addressed to defendant Koenig, but more relevant for present purposes, defendant Graf was neither the sender nor the addressee. The Seventh Circuit held that Graf had not shown that he had any protected Fourth Amendment interest in the package. Both the grounds and the limits of the court's ruling are important here:
Graf's appeal on this point is easily dismissed. Because Graf was neither the sender nor the addressee of the package and thus has no privacy right in it, he therefore has no standing to make the request. On appeal, he fails to point to any other source of a personal privacy interest in Koenig's mail. We need not decide whether a privacy interest could be recognized given proof of an ownership interest in the contents of the parcel and a showing of the ability to control the parcel once delivered. A wife, for example, might have a privacy interest in an envelope containing a life insurance policy covering both husband and wife that was sent to the household addressed to the husband. Graf fails to qualify for that sort of standing, however, because he fails to establish even a limited privacy interest in the package. Graf never asserted that he was part owner of the drugs in transit. To the contrary, he has consistently argued that he was never a part of the conspiracy to distribute, but only a frequent customer of Koenig. His position is that his relationship with Koenig was no more than a buyer/seller, the mandatory implication being that he had no interest, title or control over the drugs Koenig obtained until such time as he had purchased them from her. Graf also points out that `[t]here is ... no evidence that [he] at any time resided with any of the principals.' Graf Brief at 9. Consequently, he could not have exerted control over Koenig's mail upon delivery. Without a privacy interest in the package, Graf lacks standing to assert Fourth Amendment objections to the police conduct.856 F.2d at 846 (emphasis added).
In contrast to defendant Graf in the Koenig case, defendant Evans has testified in sufficiently clear terms at the suppression hearing that the package addressed to Kircher in fact belonged to him and was intended for him. The court credits that incriminating testimony. Even if Evans and Kircher did not work out a detailed contract of bailment, they both understood that packages addressed to Kircher were actually for Evans, and that Kircher was supposed to turn them over to Evans without even opening them. (The fact that Harlan might also have had an interest in the package does not defeat Evans' interest in it.) Thus, this case presents the question left open in Koenig, which is whether a person who is neither the sender nor the addressee of a package seized in transit may assert a Fourth Amendment interest in the package if he nevertheless provides some evidence of ownership.
Such testimony is not admissible against Evans as part of the government's affirmative case at trial. See Simmons v. United States, 390 U.S. 377, 394 (1968).
In a similar case in Maine, a defendant moved to suppress evidence from a mailed envelope where the defendant was neither the sender nor the addressee. In United States v. Allen, 741 F. Supp. 15 (D. Me. 1990), the defendant had paid another person to receive packages and to deliver them to him on several occasions. The addressee did not claim any ownership of either the envelope or the contents. Defendant Allen claimed ownership of both the envelope and the contents. Judge Hornby acknowledged the Seventh Circuit's Koenig decision, but he recognized that, because Allen had actually claimed ownership of the package, his case presented the issue the Seventh Circuit expressly chose not to resolve in Koenig. 741 F. Supp. at 17.
Judge Hornby also discussed United States v. Givens, 733 F.2d 339 (4th Cir. 1984), in which the Fourth Circuit held that defendants had no standing to challenge a police search of a package not sent or addressed to them, despite evidence that the package was intended for them. The Fourth Circuit appears to have embraced a fairly broad rule in Givens, one considerably broader than necessary to decide the case. As Judge Hornby pointed out in Allen, the package in Givens had been addressed to a corporation. See 741 F. Supp. at 17. The police contacted the president of the corporation, who asserted that he was entitled to open any mail addressed to the corporation. He then gave the police permission to open and search the package. That fact made the case more analogous to one in which, for example, one of several people living in a house has the power to consent to a police search and gives consent to such a search that turns up evidence used against another person living in the house.
The court in Allen found that, under all the circumstances in that case, the defendant had an objectively reasonable and subjective expectation of privacy in the envelope and its contents. 741 F. Supp. at 18. The court explained that the expectation was reasonable because federal law protected the envelope in the mail from unauthorized access and because the defendant had arranged with the addressee to receive the envelope and deliver it to the defendant intact upon receipt. "When an individual asks someone else to receive mail for him, he does not by that fact alone surrender a reasonable expectation of privacy." Id., citing 3 LaFave, Searches Seizures § 11.3(f).
The district court in Allen later denied the defendant's motion to suppress on the merits. The First Circuit affirmed that decision without addressing the defendant's ability to assert a privacy interest in the envelope. United States v. Allen, 990 F.2d 667, 671-72 (1st Cir. 1993).
Other courts have expressed some understandable sympathy in similar cases for the simple, bright-line test announced by the Fourth Circuit in Givens. Under that test, only the sender or the addressee could challenge a seizure or search of a package in transit, but these other courts generally have not reached that far because the moving defendants failed to establish some other foundation for asserting a privacy interest. See, e.g., United States v. Daniel, 982 F.2d 146, 149 (5th Cir. 1993) (defendant denied ownership); United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir. 1992) (defendant denied ownership); United States v. Smith, 39 F.3d 1143, 1145 (11th Cir. 1994) (defendant's testimony was equivocal as to whether he owned package); United States v. Wood, 6 F. Supp.2d 1213, 1223-24 (D. Kan. 1998) (defendant failed to establish ownership interest in package not addressed to him and for which he had made no arrangements for control); United States v. Barrios, No. 95 Cr. 5241, 1995 WL 728440, at *3 (S.D.N.Y. Dec. 8, 1995) (defendant did not assert ownership of package not addressed to her), aff'd mem. 210 F.3d 355 (2d Cir. 2000). However, the district court in United States v. DiMaggio, 744 F. Supp. 43, 46-47 (N.D.N.Y. 1990), adopted the broader approach of Givens and held that a defendant had no protected interest in a package because it was not addressed to him.
In Koenig and later cases, the Seventh Circuit has not gone so far as to adopt the bright-line test limiting Fourth Amendment challenges strictly to the sender and addressee of a package when the package is searched or seized while in transit. This court agrees with the court in Allen and the observations of the First Circuit in United States v. Rodriguez-Ramos, 704 F.2d 17, 21 (1st Cir. 1983), in the related context of the luggage of traveling companions: "There are circumstances in which the relationship between the traveling companions, the conditions of the bailment, or the precautions taken to maintain privacy could substantiate an expectation of privacy on the part of a traveler who deposits personal possessions in a companion's traveling bag."
Stepping back from the context of drug investigations, there are many situations in which a person may have perfectly legitimate reasons for arranging to have correspondence or packages shipped to him through another person he trusts. "Privacy expectations do not hinge on the nature of defendant's activities — innocent or criminal." United States v. Fields, 113 F.3d 313, 321 (2d Cir. 1997) (rejecting government argument that defendant's illegal activities defeated privacy interest in apartment that was searched).
Consider, for example, a celebrity's interest in avoiding harassment or intrusion, or a controversial public official's interest in the security of packages or envelopes, or a business executive involved in sensitive merger negotiations who wishes to ensure the secrecy of papers that could give a recipient the ability to take unfair advantage in securities markets. If the privacy of such a package were breached, surely the courts would allow the true owner, whom the courts would treat as a real party in interest, to assert those privacy interests in a civil claim against someone who caused injury by violating the privacy of the package.
Similarly, in analogous criminal law contexts, courts have recognized Fourth Amendment privacy interests where a person entrusts his property to associates. See, e.g., United States v. Blaze, 143 F.3d 585, 591 (10th Cir. 1998) (defendant placed locked briefcase in trunk of auto he entrusted to his associates; defendant held to have abandoned privacy interest in auto generally, but could challenge search of briefcase); United States v. Infante-Ruiz, 13 F.3d 498, 501-02 (1st Cir. 1994) (where defendant put a closed briefcase in a friend's car and allowed the friend limited access to it, the defendant "did nothing to indicate [the briefcase's] availability to the public generally nor did his actions betray an intention to forego an owner's normal right to exclude those he wished to exclude").
In this case, defendant Evans made arrangements that gave him a subjective and objectively reasonable expectation of privacy against having the package addressed to Kircher opened and inspected by anyone else. He arranged for use of Express Mail, which is closed against inspection, and he arranged to have the package sent to his girlfriend, as he had done with other packages before. His girlfriend understood that when she received such a package addressed to her, it was for Evans, and she was supposed to turn it over to Evans without opening it. The fact that Harlan might also have had an interest in the package does not defeat Evans' claim. As in Allen, Evans had a protected privacy interest in the package and is entitled to assert his claim of a Fourth Amendment violation.
Of course, if Kircher had voluntarily turned over the package to government agents, Evans would then have had no basis for asserting any cognizable privacy interest in the package. See United States v. Austin, 66 F.3d 1115, 1119 (10th Cir. 1995) (defendant left his luggage with stranger in airport, who asked law enforcement officers to search it; defendant had no objectively reasonable expectation of privacy); United States v. King, 55 F.3d 1193, 1195-96 (6th Cir. 1995) (defendant had no protected privacy interest in letters he had sent to his wife after they were received and opened; where a private person turned letters over to authorities, defendant could not assert Fourth Amendment violation). Since Kircher took no such action in this case, her responsibility for the package did not diminish Evans' privacy interest in the package.
II. Reasonableness of the Seizure
Although Evans had a protected privacy interest in the package, the brief detention of the package while it was still in transit so that a dog could sniff it to detect drugs was based on reasonable suspicion and did not unreasonably intrude on Evans' privacy or possessory interest.Those who use the United States mails have a Fourth Amendment right not to have items placed in certain classes of the mails subjected to unreasonable searches and seizures. United States v. Van Leeuwen, 397 U.S. 249, 251 (1970) (first class mail deemed "closed" against postal inspection).
Nevertheless, the Supreme Court has held that suspicious packages and letters may be detained briefly to allow a law enforcement investigation for contraband. In Van Leeuwen, the Supreme Court held there was no Fourth Amendment violation when mailed packages were delayed for about 29 hours for an investigation that led to issuance of a search warrant. Id. at 252-53. The Court acknowledged that, at least theoretically, mail might be detained so long as to violate the Fourth Amendment, but the Court found no violation in that case. The Court wrote: "No interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day when they were deposited. The significant Fourth Amendment interest was in the privacy of this first-class mail; and that privacy was not disturbed or invaded until the approval of the magistrate was obtained." Id. at 253.
Following Van Leeuwen, the Seventh Circuit holds that such brief detention of an item in the mails must be based on "reasonable suspicion," which requires law enforcement officers to articulate the specific characteristics or circumstances that aroused their suspicion. United States v. Dennis, 115 F.3d 524, 532 (7th Cir. 1997). "Reasonable suspicion" is a practical concept that requires consideration of all the information available to the relevant law enforcement officers at the time of the detention, including their experience. Id.
The government conceded at the hearing, at least for purposes of argument in this case, that the Express Mail package addressed to Kircher was "seized" for purposes of the Fourth Amendment the morning of July 20th when Inspector Sadowitz instructed Richmond postal officials to remove the package from the ordinary course of handling and to bring it to him for further investigation.
The court need not decide whether the "seizure" occurred that early in the process. It could also be argued that the package was not seized until it became impossible for the Postal Service to deliver the package by the time it had agreed to deliver it, which was 3:00 p.m. on July 20th. See, e.g., United States v. Ward, 144 F.3d 1024, 1033-34 (7th Cir. 1998) (seizure of unaccompanied luggage on a bus required justification because decision to hold bag for canine inspection risked likely delay in agreed upon delivery schedule); see also United States v. Allen, 990 F.2d 667, 671-72 (1st Cir. 1993) (brief detention of mail for investigation by dog did not intrude on possessory interest where investigation was complete before guaranteed delivery time). By the time such delivery became impossible (assuming travel by auto to return the package from Indianapolis to Richmond), the dog had already indicated that illegal drugs were present, and at that point the agents had probable cause sufficient to obtain the search warrant.
At that time, postal officials had the following information relevant to the Kircher package. They knew it came from northern California, known to be a source area for illegal drugs. They knew it had a handwritten label. They knew it was addressed to an address where they had previously delivered packages from California later determined to have phony return addresses. At least with the addition of this last bit of information, which had triggered the "parcel watch" on Kircher's address and a few other Richmond addresses, the court is satisfied that there was reasonable suspicion justifying a brief initial delay of the package so that further investigation could be conducted.
Lots of Express Mail packages are sent from California. About ten percent of Express Mail packages are non-business packages for which handwritten labels are not unusual. Also, the size, shape, and weight of the package were not enough, by themselves, to justify detention of the package. Thus, Evans argues that reasonable suspicion was lacking because the factors Inspector Sadowitz relied upon are perfectly consistent with innocent use of the mails. That's true, but the same could have been said of the suspicious men loitering outside a store and "casing a job" in Terry v. Ohio, 392 U.S. 1, 5-6 (1968), which recognized the reasonable suspicion standard for investigative stops. The comments of the Seventh Circuit in United States v. Dennis apply here: "Here, admittedly, any one of the factors which the postal inspector articulated may be found in innocent mailings as well as packages containing contraband.
However, the confluence of all of these factors in a single package when appraised by the postal inspector, an experienced narcotics investigator, amounted to reasonable suspicion that the Express Mail package may have contained contraband and justified the investigatory detention." 115 F.3d at 533.
Evans also points out that Inspector Sadowitz's affidavit in support of a search warrant did not identify all of these factors when describing his original detention of the package. However, by the time Sadowitz prepared that affidavit, he had already seen a dog detect drugs in the package. His affidavit was intended to establish probable cause for a future search of the package, not to provide a complete explanation of all grounds for the original detention. The affidavit referred to the parcel watch; the court makes nothing of the omission of a more complete explanation of the reasons the parcel watch had been established.
Since the Postal Service had reasonable grounds for suspicion, the next question is whether its treatment of the package amounted to an unreasonable seizure, primarily in terms of the length of the detention and its effect on the defendant's privacy interests. The Seventh Circuit treated a detention of unaccompanied luggage on a bus in a similar way in United States v. Ward, 144 F.3d at 1031. The court explained that detaining the luggage for about three hours for a canine "sniff" did not invade any protected privacy interest that the recipient had in the contents of the luggage. That privacy interest was not invaded until law enforcement officers obtained a search warrant and opened the bag, so that adherence to the warrant requirement provided adequate protection of that interest in the privacy of the bag. The brief detention of mail, like the detention of unaccompanied luggage, does not impair the owner's privacy interest in the contents of the mail. The mail in this case was not opened until a search warrant had been issued on probable cause.
The brief detention of mail may also have a modest effect on the recipient's possessory interest in the property. That interest is defined in terms of the carrier's contractual promises to deliver according to a particular schedule, see Ward, 144 F.3d at 1031 (applied to carriage of unaccompanied luggage), to which, in a case like this one, must be added expected delay because of the arrangements Evans made to have Kircher receive the package and then give it to him. While the package addressed to Kircher was in transit, Evans had no immediate possessory interest in the package. The delay that occurred before the search warrant was obtained had only a minimal effect on his interest in ultimate possession of the package. See Van Leeuwen, 397 U.S. at 252-53 (no Fourth Amendment violation when mailed packages were delayed for about 29 hours for an investigation that led to issuance of a search warrant). Accordingly, the court concludes that the brief investigative detention of the Express Mail package addressed to Kircher in this case was reasonable in length and scope and did not violate Evans' Fourth Amendment rights.
In this case, by the time the package was supposed to have been delivered to Kircher (the 3:00 p.m. deadline on July 20th), the dog had already completed its inspection, and Inspector Sadowitz had already obtained a search warrant and discovered the cocaine base. As in Ward, at that point the investigative detention had ended. The further detention pursuant to the search warrant was fully justified under the Fourth Amendment. See 144 F.3d at 1031-32 ("By that time, however, the temporary detention of his bag for investigatory purposes had long since concluded. The dog had alerted to the bag, a magistrate judge had issued a search warrant, and the cocaine and gun had been discovered. At that juncture, the authorities had every right to keep the bag in their possession given the contraband found inside.").
For the foregoing reasons, defendant Evans' motion to suppress is hereby denied.
So ordered.