UNITED STATES of America, Plaintiff-Appellee,
v.
Rаymond 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.
No. 01-3643.
No. 01-3644.
United States Court of Appeals, Seventh Circuit.
Argued April 15, 2002.
Decided March 4, 2003.
COPYRIGHT MATERIAL OMITTED Donald B. Allegro (argued), Office of the 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 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and 21 U.S.C. § 846. Pitts was sentenced to 324 months' incarceration and eight years of supervised release. The district court sentenced Alexander to 267 months' incarceration and five years of supervised release. Both Pitts and Alexander reserved their right to appeal the district court's denial of their motions to suppress evidence. We affirm.
I.
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 hаd 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 from known source areas for narcotics, bore fictitious return addresses, and were addressed to different individuals at the same address in Moline. These three packages were ultimately delivered to the 3rd Street address without incident. The manager of the Moline Post Office notified the Des Moines inspector about the fourth package, the one at issue here, when it arrived in Moline on June 25, a Friday. The package fit the narcotics profile in a number of respects: it weighed between five and ten pounds, was heavily taped, and originated from a known drug source area. One of the previously inspected packages had been addressed to James Reed, and the Des Moines inspector asked the Moline manager to fax a copy of the address label to him. Upon comparing that label with the three prior suspicious packages, the inspector determined that all four labels had been written by the same person.
The inspector had previously determined that the only known resident of 1123 3rd Street was "Bruce Bones." Nevertheless, 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 conduсting additional research on the identity of Bruce Bones, the inspector directed the Moline postal manager to forward the package 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 Mildrеd 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 James 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 notice 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 Bоnes) admitted he was the only resident at the address, denied that he was expecting a package, denied that he had accepted delivery of previous packages, and refused delivery of the package mailed on June 23. The next day, the inspector applied for and received a warrant to search the package. The parcel contained an ounce of crack cocaine sealed inside a tuna can.
Pitts and Alexander were charged with conspiracy to possess with intent to distribute a mixture of heroin and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 21 U.S.C. § 846. Pitts was also charged with possession with intent to distribute a mixture of heroin and cocaine base in violаtion of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) and 18 U.S.C. § 2, as well as possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g), 924(e), and 2. Both Pitts and Alexander moved to suppress the evidence discovered in the package. The district court denied the motion, finding that Pitts and Alexander did not have a reasonable expectation of privacy in the contents of the package because they concealed their identities by using aliases for the mailing. Specifically, the district court found that, although the defendants had a subjective expectation of privacy in the contents of the package, it was not an expectation that society was prepared to recognize as reasonable. The court reasoned that when the identities of both the sender and the recipient are concealed, the expectation of privacy vanishes and the package has effectively been abandoned. Relying largely on United States v. DiMaggio,
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 thеm under fictitious names. See United States v. Villarreal,
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 оr 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 States v. Leon,
A.
Sealed packages sent through the mail are entitled to full protection under the Fourth Amendment. United States v. Jacobsen,
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.
Leon,
Pitts and Alexander have not argued that the magistrate abandoned her detached and neutral role in issuing the warrant at issue here. See United States v. Pless,
The magistrate issuing the warrant was aware of the dеlay 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,
B.
As a factual matter, both Alexander and Pitts abandoned the parcel, and the search may be upheld on that ground as well. Abandoned property is not subject to Fourth Amendment protection. Abel v. United States,
Pitts and Alexander both supplied thе 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 possessory 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 undelivеred 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 was 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 reasonable person in the postal inspector's position would believe that Alexander relinquished his property interests in the parcel. Basinski,
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 acknоwledges he would have been required to produce a copy of the mailing label and proper identification in the name of the sender in order to retrieve the package. His counsel conceded at oral argument that Pitts did not have proper identification in the name of James Reed, Sr. Because Pitts could not retrieve the package and Alexander refused to accept it, the parcel was abandoned. The defendants do not claim that postal officials were required to destroy the package uninspected if they found it was undeliverable and unreturnable. Because they do not make that argument, that issue may be left for another day. Today we have a case of classic abandonment. We affirm the district court's denial of the motions to suppress on that basis as well.
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 tо the package. The district court also cited United States v. Daniel,
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,
D.
The concurrence acknowledges that there are a number of legitimate reasons that a person might wish to send or receive a package using a nom de plume. Some authors and journalists, such as the incomparable Ann Landers, whose real name was Eppie Lederer, employ a pseudonym in their professional life. This is a common and unremarkable practice. In other situations, a celebrity may wish to avoid harassment or intrusion; a government official may have security concerns in using her real name or home address to receive mail; a business executive in merger talks might worry about potential investors misusing the information gained through the mail to manipulate the securities markets. See United States v. Evans,
There are two possible ways to interpret the concurrence. First, because some peoрle 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 Fourth Amendment on its head.
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 conceal that fact will lead to the end of privacy for persons engaged in whоlly 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 Fourth Amendment rights. The illegal contents of the package serve as an after-the-fact justification for a search. The concurrence concludes that society is not prepared to accept as reasonable an expectation of privacy in crack cocaine sent through the United States mail by a sender using a fictitious name for himself and his addressee. Of course, the government did not know the package contained crack cocaine until it opened and inspected the box. We may not justify the search after the fact, once we know illegal activity was afoot; the legitimate expectation of privacy does not depend on the nature of the defendant's activities, whether innocent or criminal. United States v. Fields,
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,
AFFIRMED.
Notes:
Notes
Although there is nothing inherently wrong with the use of a false name in sending and receiving mail, the use of an alias is certainly a relevant factor in the "totality of the circumstances" assessment used to determine whether there is a reasonable suspicion or probable cause to believe that criminal activity is аfootSee United States v. Ganser,
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,
The problem with resting our decisiоn 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 enterprise, escape his due? And instead of two guys using phony names to send cocaine through the mail, tweak the facts a bit more and think of two terrorists using phony names to mаil a package of pipe bombs, or plans to blow up the Brooklyn Bridge, from one to the other. Under an abandonment theory, had the recipient terrorist said the same thing Alexander said in my first example, the evidence in the package would not be admissible during a trial. And that is an even odder, and deadlier, result. For that reason, I submit it would be better in today's case to ground our decision on a more solid basis and hold that using phony names, while using the postal system of the United States, does not, except in unusual circumstances not present here, give rise to the sort of personal Fourth Amendment privacy concerns that the Fourth Amendment's exclusionary rule is designed to protect.
Fourth Amendment rights are personal rights which mаy not be asserted vicariously. Rakas v. Illinois,
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 Fourth Amendment rights as "distinct from the merits of a defendant's Fourth Amendment claim" has been abandoned. Id. at 138,
Going on, the law is fairly well established, at least as far back as Katz v. United States,
Our case is just like United States v. DiMaggio,
But what about people who have legitimate reasons for using a nom de plume, someone like the late Esther Pauline Lederer who, for years, dispensed advice as a syndicated columnist? Could she lose her privacy rights were we to take the route to affirmance I suggest? No. Because Esther Lederer is Ann Landers. Just as her twin sister, Pauline Esther Phillips, is fellow advice-to-the-lovelorn dispenser Abigail ("Dear Abby") Van Buren. They are their alter egos in a way society recognizes as legitimate. No amount of pushing and shoving, however, can turn Pitts and Alexander into the fictitious "Mr. Reeds" in the same way. The denial of the defendants' motion to suppress, I submit, would be better grounded on the basis I, and Judge Mihm, suggest.