Stand And Deliver

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.

18 comments on “Stand And Deliver

  1. Richard G. Kopf

    SHG,

    One question should have been put to the AUSA by the judge:

    Does the government concede that the defendant contracted with UPS to send the package even though he may have used a different name to do so? End of story.

    There is only so much gamesmanship that a realist judge should tolerate.

    All the best.

    RGIK

    1. SHG Post author

      The government doesn’t engage in gamsemanship, Judge. They do justice. Only the defense engages in gamesmanship. Or so I’ve been told.

      1. Richard G. Kopf

        SHG,

        Seriously, though, there a lot of perfectly legitimate reasons for using a different name. Perhaps the sender is doing legitimate business, (a “d/b/a”), and uses that name when mailing packages. Unlike the drop-the-drugs situations, the defendant does not physically relinquish an objective expectation of privacy by using a different name–that is, he does not give up his legal rights under the carriage contract by using a different name.

        Indeed, if I use no name on the envelope in which I mail a letter to my sister via the postal service no objective expectation of privacy is lost, Or if I put on the upper left corner of the envelope the words “The Nose,” which my venomous sister unkindly refers to me as, my objective expectation of privacy remains.

        As for CDLs, yes, it is true that they are mostly rat-faced bastards who employ various and sundry misleading stratagems to insulate those who justly deserved to be sentenced to life plus an incurable venereal disease. But that is so obvious I am stunned that you felt the need to point it out.

        All the best.

        RGK

        1. SHG Post author

          Seriously, I agree completely, and would have loved to see the court address this argument. And the logical extension of the government’s argument produces some very unsavory results. If only the denial wasn’t based on failure to assert a possessory interest.

          Edit: After further deliberation, you raise a really interesting problem, worthy of a post in itself. Some judges would resolve the obvious detail of a subjective possessory interest with a quick question during oral argument. Others, as here, will let the parties fully brief the complex issue and then deny based on a simple question that could have been cleared up in a flash. Or even assumed, based on the tenor of the argument reaching the more complex aspect of the issue.

          As lawyer, which judge is in front of us? Is it the judge who will use the undotted “i” to deny the motion, or the judge who will clear up the missed detail, or the judge who takes the obvious for granted? How do we know? We don’t want to assume too much, as that can either burn us or piss off the judge (I once got my butt chewed out by Judge Kimba Wood for proffering an argument she found too obvious (“I’m a federal judge, you know, counselor. I kinda know the law without you having to explain it to me like I’m a three-year-old.”)

          Well, how am I to know whether the judge will connect the dots? And if she doesn’t, I can’t go back for a Mulligan. What’s a lawyer to do?

  2. Richard G. Kopf

    SHG,

    The idiosyncracies of federal judges, together with some whose ego is completely out of control, make the life of criminal defense lawyers (and other lawyers too) very hard. It need not be that way. Anyway, I will do some thinking about your suggestion for a post.

    All the best.

    RGK

  3. Dan

    I thought the story ended with paragraph 7: “…sequence matters.” It seemed you were telegraphing that since the UPS store owner tampered with the package that the chain of custody was broken. This same employee, especially if they might be compensated, could replace the lingerie I was intending to ship to Louisiana with a brick of something that could get me in real trouble. Especially if I put my name on it.

    1. SHG Post author

      Are you suggesting that a citizen who happens to get paid to find drugs for the cops wouldn’t be so trustworthy as to maintain the integrity of evidence for the purpose of admissibility? You must be one of those snitch haters.

  4. Jim Tyre

    Interesting questions, but, for better or worse, the decision answers most. There was another D who moved to suppress. That D had no problem with standing. The Court ruled that, even though the store owner was a paid snitch, the coppers had specifically instructed the snitch not to open suspicious packages. The Court believed the coppers, as everyone always does. Therefore, the search by the snitch was not a search by the government or an agent of the government. 4th Amendment? Pffft.

    I have a UPS Store box. I s’pose it’s not shocking what the terms of service supposedly are, but I didn’t know that. Always good to read your blog, learn something new!

    1. SHG Post author

      Except not the same issues, and this was a post about standing. Have you ever been tested for Asperger’s?

  5. Kyle W

    Is there any merit in the CDL asserting interest from a “John Doe” that he represents, which may or may not be the defendant present?

    (IANAL)

    1. SHG Post author

      “Merit,” as in “can the lawyer get some dumb schmuck to pay him to try,” or “merit,” as in “is there any chance in the world of being able to intervene and establish standing on behalf of an unknown co-conspirator by availing himself of the legal system while concealing his identity to avoid prosecution”?

  6. John Barleycorn

    “Sam Neil” has never played a CDL on the big screen nor a Judge, but if he ever accepts either role perhaps, one of these days, Judges and CDL’s will start giving a shit about developing “bad reputations”!

    https://www.youtube.com/watch?v=t57z_pZGinI

    P.S. By 1995, some 174,000 inoffizielle Mitarbeiter (IMs) Stasi informants had been identified (after the sheading and all). From the volume of material destroyed in the final days of the regime, the office of the Federal Commissioner for the Stasi Records believes that there could have been as many as 500,000 informers. A former Stasi colonel who served in the counterintelligence directorate estimated that the figure could be as high as 2 million if occasional informants were included.

    There were +/- 16 Million East Germans “citizens” when the wall fell.

    So the numbers above come in at just about 4% of the entire population with 500K informants and 13% of the entire population if the part-timers, under the “might be compensated” category, are included.

    We can do it this! Last time I watched the news ‘Merica is starting to take its “under-employed” issues seriously.

  7. Pingback: Judge Upholds UPS Employee/Paid Informant’s Search Of An Intercepted Package | Curtis Ryals Reports

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