United States v. Hoang ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10669
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00431-JMS
QUOC VIET HOANG,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted
November 16, 2006—Honolulu, Hawaii
Filed May 14, 2007
Before: Stephen S. Trott, Kim McLane Wardlaw, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Wardlaw
5667
UNITED STATES v. HOANG 5669
COUNSEL
Peter C. Wolff, Jr., Federal Public Defender, Honolulu,
Hawaii, for the defendant-appellant.
5670 UNITED STATES v. HOANG
Edward H. Kubo, Jr., United States Attorney, Beverly Wee
Sameshima, Assistant United States Attorney, Honolulu,
Hawaii, for the plaintiff-appellee.
OPINION
WARDLAW, Circuit Judge:
Quoc Viet Hoang entered a conditional guilty plea to fed-
eral narcotics charges after methamphetamine was found in a
package sent to him via FedEx. A narcotics detection dog
alerted to the package while it was in transit, and it was then
diverted while a search warrant was obtained. The search
revealed the presence of drugs, and a controlled delivery to
Hoang resulted in his arrest. Before entering his plea, Hoang
moved to suppress evidence of the methamphetamine, assert-
ing that the detention and search of the package violated the
Fourth Amendment. He contends that the district court erred
by refusing to conduct an evidentiary hearing and by denying
the motion to suppress. We have jurisdiction pursuant to 28
U.S.C. § 1291. Because under United States v. England, 971
F.2d 419 (9th Cir. 1992), a temporary diversion of a package
that does not affect its regularly scheduled delivery does not
violate the Fourth Amendment, we affirm the district court.
I. BACKGROUND
On November 2, 2004, an Orange County Sheriff’s Depart-
ment investigator, Officer Todd, was inspecting packages at
the FedEx World Service Center Office at John Wayne Air-
port in Orange County, California. FedEx Corporate Security
authorized Officer Todd, accompanied by his narcotics detec-
tion canine, Otto, to be on its premises. At approximately 9:05
a.m., a FedEx employee allowed the investigator into the
facility’s hold room. The hold room is used for the processing
of parcels as they enter the facility or are sent out for delivery.
UNITED STATES v. HOANG 5671
At 9:10 a.m., Otto was let into the hold room off-lead,
where he randomly sniffed approximately seven packages
located in various parts of the room. Otto alerted to one of the
packages, indicating that he had detected the odor of a con-
trolled substance. Officer Todd examined the package, which
was addressed to Hoang at an address in Hawaii, and noticed
several features that, based on his experience, suggested that
the package contained narcotics. First, it was scheduled for
priority overnight delivery, and the delivery fee had been paid
in cash. Second, there were no telephone numbers for the
sender or recipient listed on the package. Third, the parcel
emanated an odor of coffee, a common masking agent. At
9:15 a.m., Officer Todd confiscated the suspicious package
and left his business card with the FedEx employee who had
provided access to the hold room. He then locked the package
in his John Wayne Airport office and attempted to locate the
sender’s address. He determined that the sender’s address on
the package was fictitious. Based on an affidavit containing
these facts, an Orange County Magistrate Judge issued a
search warrant for the package that same day at 11:40 a.m.
Nothing in the record suggests that the package was ever
returned to FedEx in Orange County.
The package did indeed contain narcotics. The Orange
County Sheriff’s Department sent the package to drug
enforcement authorities in Hawaii. They obtained anticipatory
search warrants. An undercover officer in the guise of a
FedEx driver made a controlled delivery of the package to
Hoang. Hoang accepted and opened the package. He then
unpacked the pseudo-drugs that had been substituted for the
methamphetamine. He was subsequently arrested and was
indicted on November 9, 2004.
Hoang moved to suppress the evidence obtained or derived
from the seizure and search of the package as having been
obtained in violation of the Fourth Amendment. He made
claims relating to both search and seizure. He asserted that
there was no reasonable suspicion to support detaining the
5672 UNITED STATES v. HOANG
package initially; the inspector’s confiscation was a seizure
unsupported by probable cause; and the initial random search
lacked individualized suspicion. He also claimed that the dog
sniff was an illegal search. The government conceded that the
selection of which packages to subject to a dog sniff was not
supported by any reasonable, articulable suspicion. The dis-
trict court denied the motion to suppress and Hoang pled
guilty to possession with intent to distribute methamphet-
amine in violation of 21 U.S.C. §§ 841(a)(1) and 846, subject
to the outcome of this appeal.
II. DISCUSSION
“We review de novo the denial of a motion to suppress.
Whether the exclusionary rule applies to a given case is
reviewed de novo, while the underlying factual findings are
reviewed for clear error.” United States v. Crawford, 372 F.3d
1048, 1053 (9th Cir. 2004) (en banc) (citations omitted).
The exclusionary rule may be invoked only if there was a
violation of Hoang’s Fourth Amendment interests. See Mapp
v. Ohio, 367 U.S. 643, 656 (1961). “It has long been estab-
lished that an addressee has both a possessory and a privacy
interest in a mailed package.” United States v. Hernandez,
313 F.3d 1206, 1209 (9th Cir. 2002) (collecting cases). Once
a search or seizure that implicates the Fourth Amendment has
occurred, the reasonableness of that act must be determined
by weighing the public interest against the protected private
interest. See Terry v. Ohio, 392 U.S. 1, 20-21 (1968). Thus,
before addressing the reasonableness of Agent Todd’s actions,
we must ascertain the extent of Hoang’s Fourth Amendment
possessory and privacy interests, and second, determine if
those interests were meaningfully implicated in the detention
and search of the package. See England, 971 F.2d at 420. If
there was no meaningful interference with Hoang’s Fourth
Amendment interests, then we need not consider whether
Officer Todd’s actions were reasonable. Id. at 421.
 UNITED STATES v. HOANG 5673
1. Hoang’s Fourth Amendment Interests
[1] “Letters and other sealed packages are in the general
class of effects in which the public at large has a legitimate
expectation of privacy; warrantless searches of such effects
are presumptively unreasonable.” United States v. Jacobsen,
466 U.S. 109, 114 (1984). However, “[w]hat a person know-
ingly exposes to the public, even in his own home or office,
is not a subject of Fourth Amendment protection.” Katz v.
United States, 389 U.S. 347, 351 (1967). Thus, the Fourth
Amendment is not implicated when only the external features
of a package, like the address label are examined; there is no
reasonable expectation that the outside of a package given to
a mail-carrier will be kept private. See, e.g., United States v.
Choate, 576 F.2d 165, 174 (9th Cir. 1978) (discussing collec-
tion of information from the exterior of mail). Similarly, the
Fourth Amendment is not implicated by the use of a dog sniff
by a trained dog to detect contraband in a package. See Illi-
nois v. Caballes, 543 U.S. 405, 408-10 (2005); United States
v. Place, 462 U.S. 696, 707 (1983). Thus, neither the sniff by
Otto nor Agent Todd’s visual inspection were searches within
the meaning of the Fourth Amendment.1 Because there was no
search, the only constitutional interest potentially implicated
is Hoang’s possessory interest in the package.
2. Hoang’s Possessory Interest
[2] We have characterized the possessory interest in a
mailed package as being solely in the package’s timely deliv-
ery. England, 971 F.2d at 420-21. “In other words, an
addressee’s possessory interest is in the timely delivery of a
package, not in ‘having his package routed on a particular
1
We note that Otto’s alert to the package created probable cause to
believe that the package contained illicit drugs. United States v. Hillison,
733 F.2d 692, 696 (9th Cir. 1984). Probable cause is sufficient to support
the subsequent detention of the package. See, e.g., Hernandez, 313 F.3d
at 1213.
5674 UNITED STATES v. HOANG
conveyor belt, sorted in a particular area, or stored in any par-
ticular sorting bin for a particular amount of time.’ ” Her-
nandez, 313 F.3d at 1210 (quoting United States v. Demoss,
279 F.3d 632, 639 (8th Cir. 2002) (Hansen J., concurring)). In
Hernandez, the package was delayed past its normal delivery
time, but we found that the delay was supported by “ ‘a rea-
sonable and articulable suspicion’ that it contain[ed] contra-
band or evidence of illegal activity.” Id. at 1210 (quoting
United States v. Aldaz, 921 F.2d 227, 229 (9th Cir. 1990)).
See also United States v. Gill, 280 F.3d 923, 932-33 (9th Cir.
2002) (Gould, J., concurring) (“Investigators may inspect mail
as they wish without any Fourth Amendment curtailment, so
long as the inspection does not amount to a ‘search,’ and so
long as it is conducted quickly enough so that it does not
become a seizure by significantly delaying the date of deliv-
ery.”).
Notwithstanding the clear language in England and Her-
nandez, Hoang argues that the momentary diversion of the
package without reasonable suspicion violated his Fourth
Amendment rights, relying upon some of our earlier cases
suggesting that any detention of mail may require a showing
of reasonable suspicion or probable cause. See Aldaz, 921
F.2d at 229-30 (9th Cir. 1990); United States v. Dass, 849
F.2d 414 (9th Cir. 1988). Neither the Aldaz nor the Dass panel
discussed which, if any, Fourth Amendment interest was
implicated by the detention of Aldaz’s express delivery pack-
age or the seizure of Dass’s suspicious packages. Both cases,
however, went on to examine the reasonableness of the deten-
tion under the Fourth Amendment. Aldaz, 921 F.3d at 231
(“Under the facts before us, the detention and delay of
Aldaz’s packages were not unreasonable.”); Dass, 849 F.2d at
415 (holding detentions ranging between seven days and three
weeks were unreasonable). In England, we distinguished
Aldaz because it never squarely addressed the seizure issue in
isolation, instead finding no Fourth Amendment violation
because reasonable suspicion supported the detention of the
package. 971 F.2d at 421. Other circuits have hinted at a rea-
UNITED STATES v. HOANG 5675
sonable suspicion requirement for the detention of mail. See,
e.g., United States v. Robinson, 390 F.3d 853, 869-70 (6th
Cir. 2004) (“More specifically, this and many other courts
have found that only reasonable suspicion, and not probable
cause, is necessary in order to briefly detain a package for fur-
ther investigation, such as examination by a drug-sniffing
dog.”); United States v. Ramirez, 342 F.3d 1210, 1212 (10th
Cir. 2003) (“However, certain packages may be detained for
investigative purposes when the authorities have reasonable
suspicion of criminal activity.”) (citing United States v. Lux,
905 F.2d 1379, 1382 (10th Cir. 1990)).
The leading Supreme Court case addressing the possessory
interest potentially implicated by detention of mail, United
States v. Van Leeuwen, 397 U.S. 249 (1970), is equivocal. In
Van Leeuwen, two packages were mailed from Washington
under suspicious circumstances and were diverted by customs
officials from the stream of the mail. Id. at 249-50. Customs
officials discovered that each of the addressees was under
investigation for dealing in illicit gold coins. Id. at 250. At
that point, probable cause was established, a warrant issued
and the packages were opened by authorities. Id. Probable
cause was established after less than two hours for the first
package, and after slightly more than twenty-six hours for the
second package. Id. at 252-53. The Court held that “[n]o
interest protected by the Fourth Amendment was invaded by
forwarding the packages the following day rather than the day
when they were deposited.” Id. at 253. It also explained that
“[t]heoretically—and it is theory only that respondent has on
his side—detention of mail could at some point become an
unreasonable seizure . . . within the meaning of the Fourth
Amendment.” Id. at 252. In a retreat from this strong rhetoric,
however, the closing paragraph in Van Leeuwen purports to
limit its holding to the facts of the case:
We only hold that on the facts of this case—the
nature of the mailings, their suspicious character, the
fact that there were two packages going to separate
5676 UNITED STATES v. HOANG
destinations, the unavoidable delay in contacting the
more distant of the two destinations, the distance
between Mt. Vernon and Seattle—a 29-hour delay
between the mailings and the service of the warrant
cannot be said to be ‘unreasonable’ within the mean-
ing of the Fourth Amendment.
Id. at 253.
In England, two packages of cocaine were sent by the
defendant from California to Alabama. 971 F.2d at 420. The
first package aroused the suspicions of a postal clerk and was
subjected to a dog sniff at the post office. The dog alerted, but
the package was placed on the regularly scheduled flight to
Alabama, “the same flight it would have been on had no
detention occurred.” Id. A warrant was obtained and the pack-
age was opened on its arrival in Alabama. The second pack-
age was mailed ten months later, and from a different post
office. It was transported to a local police station, subjected
to a sniff test and subsequently opened pursuant to a warrant.
“It [was] not disputed that had the sniff test been negative, the
package could easily have been returned to the postal station
and put on its regularly scheduled flight to Birmingham.” Id.
We held that there had been no seizure of England’s packages
because it was undisputed that the packages were not delayed
by their detention.
[3] We distinguished Van Leeuwen because,
[u]nlike the present case, the delivery of Van Leeu-
wen’s packages was substantially delayed by their
detention. As a result, the primary issue before the
Court was not whether the detention of Van Leeu-
wen’s packages interfered with his interest in them,
but whether this interference was justified despite
the lack of probable cause.
UNITED STATES v. HOANG 5677
Id. at 421. Nevertheless, Van Leeuwen supports our conclu-
sion in England that any possessory interest in packages
placed in the United States mail is attenuated. At least two
other circuit courts have similarly interpreted the limits of the
Fourth Amendment possessory interest. See United States v.
Zacher, 465 F.3d 336, 338-39 (8th Cir. 2006) (holding that
police taking a package and placing it on the floor of a FedEx
facility for a dog sniff was not a seizure) (citing United States
v. Va Lerie, 424 F.3d 694 (8th Cir. 2005) (en banc)); United
States v. LaFrance, 879 F.2d 1, 7 (1st Cir. 1989) (“On this
record, the only possessory interest at stake before Thursday
noon was the contract-based expectancy that the package
would be delivered [on time]. . . . Thus, detention of the par-
cel did not, indeed could not on these facts, intrude on appel-
lees’ possessory interest until the appointed hour, noon, had
come and gone.”) (citation omitted). But see Robinson, 390
F.3d at 869-70; Ramirez, 342 F.3d at 1212; United States v.
Banks, 3 F.3d 399, 401 (11th Cir. 1993) (“The Supreme Court
has held that no Fourth Amendment privacy interest in first-
class mail is invaded by detaining such mail based on facts
that create reasonable suspicion until a search warrant can be
obtained.”); United States v. Mayomi, 873 F.2d 1049, 1053-54
(7th Cir. 1989) (holding that two day detention of two letters
was acceptable because it was supported by probable cause).2
[4] Under England, as subsequently interpreted in Her-
nandez and Judge Gould’s well-reasoned concurrence in Gill,
for the purposes of the Fourth Amendment, no seizure occurs
if a package is detained in a manner that does not significantly
interfere with its timely delivery in the normal course of busi-
ness.3 Therefore, the ten minute detention of Hoang’s package
2
In England, Van Leeuwen, and Zacher, the defendant was the sender
of the diverted package, while in Hernandez, LaFrance, and Banks, the
defendant was the recipient of the package. Here, Hoang was the recipient,
and thus we are guided by the Hernandez court’s application of the
England holding to recipients.
3
Thus, law enforcement interactions with packages that cause a de
minimis interference with the flow of delivery do not implicate the Fourth
Amendment. We need not and do not hold that if delivery could hypotheti-
cally or by some extraordinary measure be made on time, there is no sei-
zure.
5678 UNITED STATES v. HOANG
in the FedEx hold room without reasonable suspicion does not
implicate his Fourth Amendment rights.4 Hoang cannot credi-
bly argue that a ten minute delay on that morning interfered
with FedEx’s ability to deliver his package on time the next
day. Hoang’s Fourth Amendment rights were not implicated
by the brief pre-sniff detention, and thus could not be vio-
lated. Once Otto alerted, probable cause supported the further
diversion of the package, and the search was properly con-
ducted pursuant to a warrant. Accordingly, the district court
properly denied the motion to suppress evidence derived from
the search of the package.5
3. Evidentiary Hearing
[5] We reject Hoang’s argument that the district court
should have held an evidentiary hearing. “We review for an
abuse of discretion a court’s decision whether to conduct an
evidentiary hearing on a motion to suppress. An evidentiary
hearing on a motion to suppress need be held only when the
moving papers allege facts with sufficient definiteness, clar-
ity, and specificity to enable the trial court to conclude that
contested issues of fact exist.” United States v. Howell, 231
F.3d 615, 620 (9th Cir. 2000) (citations omitted). Although
the parties disputed how and whether Officer Todd selected
the package for inspection, the government’s concession that
it lacked reasonable suspicion rendered the dispute immate-
rial. Nor would resolution of that dispute alter the outcome of
our Fourth Amendment analysis. Therefore, the district court
did not abuse its discretion in refusing to hold an evidentiary
hearing.
4
Officer Todd entered the hold room at 9:05 and seized the package at
9:15, after Otto alerted. Thus, the period of detention before probable
cause arose was at most ten minutes.
5
We observe that the terms of service in the contract between the sender
and FedEx may also alter the expectations of the sender or the recipient
and may very well affect a subsequent court’s analysis of the propriety of
any FedEx-approved inspection and diversion of packages. Because that
issue was not raised by the parties, we do not address it here.
UNITED STATES v. HOANG 5679
III. CONCLUSION
For the foregoing reasons, Hoang’s conviction and sentence
are AFFIRMED.