UNITED STATES of America, Plaintiff-Appellee, v. Raymond F. PITTS, a/k/a Lonnie D. Sanders, and Erik T. Alexander, a/k/a John Eugene Mills, a/k/a Bruce Bones, Defendants-Appellants.
Nos. 01-3643, 01-3644
United States Court of Appeals, Seventh Circuit
March 4, 2003
322 F.3d 449
Argued April 15, 2002.
One loose end remains to be tied up. We have assumed thus far that the only pigeonhole in which to place Rezin‘s conviction for third-degree sexual assault is “abusive sexual conduct involving a minor.” But actually this is not clear. It could be “sexual abuse” or even, considering the age of the victims, “aggravated sexual abuse.” There are two ways to interpret the part of
AFFIRMED.
Donald B. Allegro (argued), Office of U.S. Attorney, Rock Island, IL, K. Tate Chambers, Office of U.S. Attorney, Peoria, IL, for Plaintiff-Appellee, in Nos. 01-3643, 01-3644.
George F. Taseff (argued), Office of Federal Public Defender, Peoria, IL, James B. Clements, Davenport, IA, for Defendants-Appellants, in Nos. 01-3643, 01-3644.
Before ROVNER, DIANE P. WOOD and EVANS, Circuit Judges.
ILANA DIAMOND ROVNER, Circuit Judge.
Raymond Pitts and Erik T. Alexander each pleaded guilty to one count of conspiracy to possess with intent to distribute heroin and crack cocaine in violation of
On June 23, 1999, Pitts went to a United States Post Office and mailed a package using Express Mail Service. The package, which contained illegal drugs concealed inside a sealed tuna can, was addressed to James Reed, Jr., 1123 3rd Street, Moline, Illinois, 61265. It listed a return address of James Reed, Sr., 3346 Cypress Street, Sacramento, California, 95838. A postal employee issued a tracking number to Pitts at the time of the mailing. This number was intended to allow the sender to track the status of the package and direct its return to the sender if it could not be delivered for any reason. Pitts called Alexander, the sole resident of 1123 3rd Street in Moline, and told him to expect an Express Mail package addressed to the alias James Reed, Jr. Pitts had previously mailed packages to Alexander using aliases, including the name James Reed. No one named James Reed, Sr. resided at 3346 Cypress Street in Sacramento; the woman who lived there had never heard of James Reed and had no knowledge of a package being mailed using her address. On June 25, Pitts called the Post Office to check the status of the package and was told that it had been delivered to the addressee listed on the parcel.
The package had not been delivered, however, because postal inspectors had intercepted it. In May 1999, postal inspectors in Des Moines, Iowa began investigating three suspicious Express Mail packages mailed to 1123 3rd Street in Moline from Northern California. The parcels matched some of the characteristics of the Post Office‘s “narcotics package profile.” In particular, the packages were large, person-to-person Express Mail parcels weighing between five and ten pounds, were heavily taped, were sent
The inspector had previously determined that the only known resident of 1123 3rd Street was “Bruce Bones.” Nеvertheless, the three prior packages had been received and signed for by a person or persons claiming to be James Ray, Billy Johnson and James Reed, the individuals to whom the packages were respectively addressed. The inspector already knew that the return addresses on two of the prior packages were entirely fictitious. The return address on the third was the same as that used on the fourth package. A dog trained in drug detection had sniffed the third package and had not alerted. This was the state of the investigation when the call came from Moline on June 25. That afternoon, after conducting additional research on the identity of Bruce Bones, the inspector directed the Moline postal manager to forward the pаckage to his Des Moines office. Under Express Mail standards, the package was due to be delivered to the 3rd Street address in Moline by 3 p.m. that day, but was diverted to Des Moines where it arrived the next morning, a Saturday. Although the inspector paged two local law enforcement agencies that morning to get a drug sniffing canine to inspect the package, neither department returned the inspector‘s pages over the weekend. The inspector continued the investigation by researching the return address of the fourth package. The inspector spoke to Mildred Willard, the resident of 3346 Cypress Street in Sacramento, who confirmed that she lived at that address with her husband, that she had not mailed any packages to Moline, that no one named Jamеs Reed lived at her address and that she had not given anyone permission to use her address for a mailing. The inspector spent the rest of Saturday and Sunday drafting a search warrant affidavit.
On Monday morning, a drug detecting canine sniffed the package but did not alert for the presence of drugs. Later that morning, another inspector from the Des Moines Post Office drove the package back to Moline in order to attempt to obtain consent to search the package. The inspector arrived at 1123 3rd Street before noon, but no one was home. After waiting outside the home until 5 or 6 p.m., the inspector placed a business card in the mailbox and left with the package. Contrary to Post Office policy, the inspector did not place any notiсe in the mailbox regarding an undelivered Express Mail package. No one called the inspector back and the next day, the inspector obtained a phone number for Bruce Bones and called him. Alexander later admitted that he talked to the inspector and identified himself as Bruce Bones. The inspector identified himself to Alexander as a federal postal inspector and described the package to Alexander. During that conversation, Alexander (using the name Bones) admitted
Pitts and Alexander were charged with conspiracy to possess with intent to distribute a mixture of heroin and cocaine base in violation of
II.
On appeal, Pitts and Alexander question the district court‘s reliance on DiMaggio for a number of reasons. First, they claim that DiMaggio conflicts with Fifth Circuit cases holding that persons retain a reasonable expectation of privacy in packages addressed to them under fictitious names. See United States v. Villarreal, 963 F.2d 770, 773 (5th Cir.1992); United States v. Richards, 638 F.2d 765, 770 (5th Cir.1981), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981). Second, they maintain that their use of fictitious names in sending and receiving this package cannot be deemed an abandonment where both defendants asserted ownership interests in the contents of the packages in their affidavits in support of their motions to suppress. Finally, they contend that by sending the package via Express Mail, Pitts retained the ability to either reсall the package or redirect its delivery at any time during the two-day delivery period guaranteed by the post office. Because of this ability to retrieve or redirect, the defendants maintain that they continued to exert control over the package and cannot
We believe the district court‘s denial of the defendants’ motions to suppress can be affirmed on either of two grounds. First, the search here was conducted pursuant to a lawfully issued warrant, and the defendants have not suggested that (1) the magistrate issuing the warrant wholly abandoned his or her judicial role in the matter, or (2) the magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for reckless disregard of the truth, or (3) the warrant was so deficient on its face that the executing officers could not reasonably presume it to be valid. Thus, the evidence was admissible under the good faith exception to the exclusionary rule even if the warrant was issued without probable cause (a conclusion we assume only for the sake of argument). See United Stаtes v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Second, the defendants in this case abandoned the package at issue and thus lost their right to object to the government‘s resultant search. We part company with our concurring colleague because we do not agree that the expectation of privacy in mailing a package using fictitious names for the sender and addressee is not the sort of interest that society is willing to recognize as reasonable.
A.
Sealed packages sent through the mail are entitled to full protection under the
In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.
Pitts and Alexander have not argued that the magistrate abandoned her detached and neutral role in issuing the
The magistrate issuing the warrant was aware of the delay and was apparently untroubled by it. R. 17, Ex. 5. We have previously upheld as reasonable a detention of letters over a weekend for the purpose of subjecting them to a canine sniff test. United States v. Mayomi, 873 F.2d 1049, 1054 (7th Cir.1989). The Supreme Court has emphasized that the significant
B.
As a fаctual matter, both Alexander and Pitts abandoned the parcel, and the search may be upheld on that ground as well. Abandoned property is not sub
Pitts and Alexander both supplied the district court with affidavits claiming a property interest in the parcel. Pitts averred that he mailed the package in question:
I knew of the parcel‘s contents and had both a possessоry and proprietary interest in said parcel and its contents.... I did not abandon my possessory and proprietary interest in said parcel and its contents. To the contrary, I maintained my possessory and proprietary interest in said parcel and its contents by possessing a tracking number for said parcel that was given to me by the United States Post Office employee at the time of mailing that allowed me to track the status of said parcel and to direct its return to me, if, for whatever reason, said parcel was undelivered or was not accepted by its addressee.... [B]ased on the foregoing, I believe that I had a reasonable expectation of privacy as to the parcel and its contents[.]
R. 27, ¶¶ 3-6. Alexander merely asserted that he wаs the sole resident of 1123 3rd Street in Moline, that Pitts called him to inform him that a package was on the way, that Pitts had previously mailed packages to him using aliases including the aliases used on this occasion, and that the package did not arrive during the time he expected it. R. 35.
The defendants’ subjective desire to maintain control of the package is irrelevant, however, in light of the external manifestations of their intent. At the time the warrant was issued, Alexander had expressly disavowed the package. He refused to accept its delivery and he was the only resident of the home to whom the package was addressed. The postal inspectors were obviously not aware of his later-expressed intent to receive the package. A reаsonable person in the postal inspector‘s position would believe that Alexander relinquished his property interests in the parcel. Basinski, 226 F.3d at 836. Alexander therefore abandoned the package and his
The case for Pitts is only a little more difficult. He launched the package into the stream of mail without any legitimate way of retrieving it. Because he sent it via Express Mail and used a false return address, he acknowledges he would have been required to produce a copy of the
C.
Normally, we would not concern ourselves with a disparity between the holding of a district court sitting in the Second Circuit and the law of the Fifth Circuit. However, because the district court and the concurrence in our case rely on a case from the Northern District of New York, and because the defendants maintain that we risk creating a circuit split if we similarly rely on that case, we will briefly address the defendants’ contention that DiMaggio conflicts with the law of the Fifth Circuit. The district court relied on DiMaggio in finding that the defendants abandoned their interest in the package when they used aliases to conceal their connection to the package. The district court also cited United States v. Daniel, 982 F.2d 146, 149 (5th Cir.1993), for the proposition that a defendant does not have standing to raise a
In DiMaggio, the court ultimately rested on a theory of abandonment in finding that the defendant‘s expectation of privacy in a package mailed with false names for both sender and recipient was not an expectation that society would accept as reasonable. Similarly, in Daniel, the defendant disavowed the package in question, consistently claiming he was not the addressee. It was the government that claimed the name on the label was an alias for the defendant. The court did no more than raise the question of whether the defendant would have standing to assert a claim given that the use of an alias was part of his criminal scheme. This questioning was dicta, however, because the court went on to analyze the claim by assuming that the defendant had a legitimate expectation of privacy, ultimately finding that a warrant to search the package was properly issued. Daniel, 982 F.2d at 149-52. Other cases in the Fifth Circuit clearly hold that individuals have a reasonable expectation of privacy in packages addressed to them under fictitious names even when the false names are used to distance the sender or recipient from the criminal nature of the contents of the package. See Villarreal, 963 F.2d at 774; Richards, 638 F.2d at 770. Thus, the defendants are correct that DiMaggio and the dicta in Daniel conflict with well-settled law in the Fifth Circuit. Our opinion creates no conflict with the well-settled law of the Fifth Circuit. Because we have affirmed on other grounds, we see no reason to take a position on this issue now except to respond to the concurrence.
D.
The concurrence acknowledges that there are a number of legitimate reasons that a person might wish to send or re
There are two possible ways to interpret the concurrence. First, because some people employ an alias and use the mail illegally, everyone with a legitimate reason to remain anonymous should lose their expectation of privacy in the post. Alternatively, only people using an alias for legitimate reasons may retain an expectation of privacy in their mailings while those who employ an alias for illicit purposes may not. Both constructions turn the
The first approach assumes that criminals can forfeit the privacy interests of all persons by using a confidential domain for nefarious ends. Any creative means that a person engaging in illegal activity devises to сonceal that fact will lead to the end of privacy for persons engaged in wholly legitimate confidential activities. For example, if persons engaged in illegal drug sales often use hotel rooms for their transactions, or commonly employ cellular telephones to communicate the terms of their deals, then under the concurrence‘s analysis no one would retain a legitimate expectation of privacy in the use of hotel rooms or cellular telephones.
Under the second approach, only criminals forfeit their
Unlike the theoretical burglar in Rakas, who is plying his trade in a summer cabin during the off-season and who is wrongfully present on someone else‘s property, Pitts and Alexander had a right to use false names in sending and receiving mail.1 See Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). There is nothing inherently wrong with a desire to remain anonymous when sending or receiving a package, and thus the expectation of privacy for a person using an alias in sending or receiving mail is one that society is prepared to recognize as reаsonable. A person using this means of maintaining privacy runs the risk that if the mail is undeliverable, as occurred here, it might become irretrievable. Pitts and Alexander took that risk and ended up losing—indeed, abandoning—control of their property. Having abandoned the package, they surrender their
AFFIRMED.
TERENCE T. EVANS, Circuit Judge, concurring.
Although I agree with the majority that Messrs. Pitts and Alexander abandoned the package, and that in any event United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), compels the denial of their motion to suppress, I would prefer, however, to resolve this case on the same basis as Judge Mihm resolved it in the district court. Like him, I would conclude that the defendants lack the type of legitimate expectation of privacy that society is prepared to recognize as reasonable, and thus their motion to suppress should be denied on that basis.
The problem with resting our decision on an abandonment theory is apparent if the facts are tweaked a bit. Assume that instead of disclaiming the package, as he did, Alexander accepted it and told the inspector “Yes, it‘s my package, but that‘s not my real name. I just use the name James Reed, Jr. when it suits my purposes.” Had he said that, there would be no abandonment, and if that was the only theory to hang one‘s hat on, his motion to suppress would have to be granted. Which seems, indeed, like a fairly odd result. Why should such an obviously guilty defendant, who uses the United States Postal System to further a criminal
Although both the government and the defendants focus on the question of standing to challenge the search, ever since Rakas the type of analysis that centers on standing to assert
Going on, the law is fairly well established, at least as far back as Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the
Our case is just like United States v. DiMaggio, 744 F.Supp. 43 (N.D.N.Y.1990), where a perceptive district judge (Munson) observed that the “expectation of privacy vanishes, however, when the identity of the sender and intended recipient is not indicated on the package.” Id. at 46. Neither our sender nor our recipient have announced, because they used phony names, that either claims a privacy interest that our society is prepared to recognize as reasonable. While “James Reed, Sr.” of Sacramento (as the sender) and “James Reed, Jr.” of Moline have a privacy interest, they don‘t actually exist. So I think it makes good sense to conclude that even though Pitts and Alexander created them, they cannot successfully hide behind them.
But what about people who have legitimate reasons for using a nom de plume,
ILANA DIAMOND ROVNER
CIRCUIT JUDGE