Tuesday, February 5, 2013

Federal District Court finds reasonable expectation of privacy in packages mailed with fake recipient and sender

Confronted with an issue of first impression, a federal district court held that the sender of packages labeled with fictitious sender and recipient information retained a reasonable expectation of privacy in the contents of those packages. The case is United States v. Williams, ___ F. Supp. 3d ___ (W.D. Tenn Dec. 6, 2012). The court's decision was based primarily on the Seventh Circuit's opinion in United States v. Pitts, 322 F.3d 449 (7th Cir. 2003), since there was no controlling precedent from the Sixth Circuit.

The facts of the case are quite simple - an informant was working with the DEA to facilitate methamphetamine buys, and when the drugs for two deals were shipped to the informant, the DEA intercepted them before delivery, and confirmed that they were in fact drugs. The defendant argues that the evidence should be suppressed, because he retained a Fourth Amendment right against search of the packages by the DEA (since they never ended up with the recipient). The government argued, alternatively that by using the fictitious names, the packages were essentially abandoned. With respect to the reasonable expectation of privacy component, the court relied on Pitts extensively, quoting a large section of language. The gist was that there are legitimate reasons for using false names, like a literary pseudonym, and those individuals should not lose their expectation of privacy due to the nefarious actions of people who abuse the system. The court quoted Pitts further, for the general point that:

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. 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 reasonable. 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 Fourth Amendment claim.
I think the court's decision here was a no-brainer. What isn't so clear is why the court would reach the issue in the first place, since in the next paragraph, the opinion notes that the defendant lacked Fourth Amendment standing to begin with, since the expectation of privacy ended upon delivery to the DEA.

The court then goes on to assume, arguendo, that the defendant did not lack standing, and tackles the issue of whether the DEA intercepting the packages before arriving at the designated recipient (the informant, who knew where to pick them up, despite the fictitious recipient name) was a valid search due to the lack of the warrant. Here, I think the opinion arrives at its muddiest point. The court concedes a fact that I think draws the entire section just mentioned into question (CS is the informant):
While it is not entirely clear that the agents ever received express consent from the CS, they at minimum had the CS's implied consent.
So, the DEA never had consent, expressly, to search the packages, and the informant was not even aware that they would be intercepted. The court finds implied consent from the informant's relationship and cooperation with the DEA, the fact that the packages were purchased with DEA money, and that the informant allowed his telephone conversations to be recorded. However, that is not enough, in my opinion. The court goes on to analogize the case to a Fourth Circuit case aptly named United States v. Williams, 106 F.3d 1173 (4th Cir. 1997). The court describes the similarities with that case and the present as follows:
The present case is similar to United States v. Williams, 106 F.3d 1173, 1177 (4th Cir. 1997). There, a confidential informant made three separate, DEA-monitored purchases of methamphetamine by mail from the defendant. The methamphetamine packages were mailed by the defendant to the informant at a post office box under the control of the DEA. The defendant argued that the agents violated his Fourth Amendment rights by opening the packages without a warrant. The Court of Appeal rejected this argument, holding that
 We are of opinion that the admission of the contents of the three envelopes did not constitute error at all, much less plain error. Even assuming Williams had standing to challenge the admissibility of the envelopes, the record indicates that [the informant's] consent was implied from his conduct during the investigation. [The informant] had the right to open, or given consent to open, the envelopes because they were addressed to him. Also at this time, [the informant] . . . and the Task Force agents who actually opened the packages were cooperating. [The informant] had agreed to buy methamphetamine using government money. . . . We believe this evidence of the relationship between [the informant] and the Task Force agents establishes [the informant's] implied consent. Accordingly, the agents' search of the packages did not violate Williams' constitutional rights as sender of the package. (my underlining added)
I think there is an easy distinction to be made between the Fourth Circuit case, Williams, and this case; namely, that the DEA owned the post office box in Williams, or had control over it, which makes it easier to jump to the implied consent conclusion - i.e. the informant knew the mail would arrive there and it was not his personal mailbox (so the assumption that the DEA would open it would be clear). Here, the box was intercepted without the knowledge of the informant, without his consent, and in route, instead of at the point of delivery (where the reasonable expectation of privacy ends, per the courts own reasoning). So the court must leap from CS acting as an agent --> assumption that he would consent to interception --> interception was OK prior to delivery (but still during the time that the court concedes there is a reasonable expectation of privacy in the package).

I don't think the distinction above is a condemnation of the opinion, but more a "why include such a long section of dicta which weakens the argument?" If the case really can be resolved on grounds of standing, it is against notions of clarity and narrowness of holding to even include this discussion in the opinion.


  1. Curious to think about how this could be applied to a malformed or encrypted header. Headers are one of the rare digital concepts with a tangible analogy (mail address).