The stars almost aligned for Philips Thompson. He was mere inches away from a really fascinating attack on the search and seizure of a package of crystal meth he brought to his local UPS store for shipment. There are any number of ways to get drugs from here to there, but since the UPS guy was going that way anyway, why not?
Thompson wrapped it well and sent it under the name of “Sam Niel.” Maybe this was his twitter name. Maybe he just liked the name a lot. Maybe he used an alias to create plausible deniability that he was the sender. But the woman at the UPS store took it anyway, charged him for the pleasure, and reported it to the San Bernardino Sheriff’s Department. She was, you see, a snitch, a paid confidential informant.
In May 2012, the UPS store owner signed a confidential agreement whereby she agreed to assist the sheriff’s department in the investigation of crimes. The sheriff’s office considered her to be a citizen informant. She agreed not to disclose her association with the sheriff’s department and to keep in “constant contact” with the sheriff’s department while participating in any investigation. Detective Hague told the UPS owner she might be compensated for her cooperation.
Included in the terms of service of shippers is the right to open packages to ascertain if they are dangerous or contain contraband. While you may not have realized this, it’s likely not terribly surprising. What if they were asked to ship an explosive? Wouldn’t it be reasonable to expect them not to want their cool truck blown up? But then, it’s not as if they’re going to open every package, as that would make on-time delivery a problem and piss off a lot of customers. It’s hard to run a business pissing off customers.
But this UPS store employee kept an eye out for suspicious packages, as instructed by the cops and for which she “might” be compensated. Who doesn’t like compensation? So when Sam Niel fit her profile, she did as she was told. But this didn’t fall under her authority per the UPS terms of service, since she acted as a government agent.
On May 27, 2014, the UPS store owner contacted Officer Kristina Winegar, a deputy assigned to the narcotics division/parcel interdiction team in the Sheriff’s Department in the County of San Bernardino, California, about a “suspicious package.” The UPS store owner told the deputy that a black male entered the UPS store and paid $90 to have the package shipped to Houma, Louisiana. According to the deputy’s police report, “[d]ue to the [cost of shipping the package] and suspicious behavior of the suspect,” the store owner opened the package and found a container wrapped in cellophane. The store owner smelled a chemical order and resealed the box.
Then came a dog hit, and the inevitable warrant, revealing the package contained meth. But too late, as the paid snitch already opened the package, and that gave rise to the challenge of a Fourth Amendment violation. Sequence matters.
But the government proffered a curious argument to the challenge: that the defendant, Thompson, wasn’t the sender, Sam Niel. Well, he was the sender, but by using a fake name, he blew it.
The Government argues in its opposition that Thompson lacks standing to object to the search. The Government contends that, because Thompson “intentionally distanced himself from the package” by using an alias to ship the package, he forfeited any objectively reasonable expectation of privacy for the package.
There’s a strong inference that Thompson used an alias to distance himself from the drugs. Notice that it’s called an “alias” here, whereas it might be called a pseudonym if he used the name “Sam Niel” in a comment to this post telling me that I’m a dumbass? The distinction is that an alias is what’s used to conceal an identity to commit a crime, while a ‘nym is a time-honored, First Amendment protected, effort at quasi-anonymity.
But the government’s argument raises troubling issues. While a person’s intention to conceal his identity may be protected anonymity, should the government allege that its use related to crime, it would, by the government’s argument, morph into an alias, designed to distance the person from the offense. And further by the government’s argument, deprive a person of their right to challenge evidence based on this notion that he “forfeited any objectively reasonable expectation of privacy.”
That a person can lose his expectation of privacy is not a new concept. This was the basis for the old dropsy claims, that a person who tossed the drugs or gun as the cop approached abandoned his claim on the contraband, and the evidence was then free for anyone to pick up off the ground. You don’t get the benefit of tossing it away to claim you never had it, and then enjoy the argument that it was yours and its seizure violated your constitutional rights. You have to pick a side, for better or worse.
And what did Eastern District of Louisiana Judge Susie Morgan do with this interesting set of circumstances, these vexing arguments? Not much, because there was one little detail the defendant failed to address on his way to the challenge.
Thompson made arguments regarding the objective prong—whether any actual, subjective expectation of privacy the sender of a package has is one that society would recognize as objectively reasonable. But he made these arguments “[w]ithout conceding that Mr. Thompson had any involvement in the underlying conduct alleged by the Government.” Thompson’s arguments addressed only the second, objective prong of the standing framework— whether any expectation of privacy the sender may have had is one that society would recognize as objectively reasonable. Thompson failed to address the first, subjective prong—whether he had an actual, subjective expectation of privacy in the package.
Oof. This is Suppression Motion 101, that you can’t move to suppress that which isn’t yours.* What will stop a really good suppression motion dead in its tracks is the failure of a defendant to assert that the drugs he claims were seized in violation of his constitutional rights were his.
Sure, who wouldn’t want to be able to argue that (1) the drugs weren’t mine, but (2) if they were, they were unlawfully seized? The law, however, won’t let you get away with that. It’s a risky proposition to admit possession, the very thing the government must prove you possessed to convict you, in order to raise a Fourth Amendment challenge, but that is what is required in order to contend that the seizure violated your reasonable expectation of privacy. You have to have an expectation of privacy before it can be violated.
Such an interesting case. So many curious arguments and issues, But one cool trick gave the court a quick and easy out from reaching any of the fascinating issues. Wonder what Sam Niel would have to say about all this?
*There are exceptions, where the government’s allegation of possession is based on a statutory presumption rather than facts, and confers automatic standing on the defendant.