United States v. Pitts, Raymond F.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3643 & 01-3644
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAYMOND 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.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 00 CR 40004—Michael M. Mihm, Judge.
____________
ARGUED APRIL 15, 2002—DECIDED MARCH 4, 2003
____________
Before ROVNER, DIANE P. WOOD and EVANS, Circuit
Judges.
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 co-
caine 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’ incar-
ceration and eight years of supervised release. The dis-
trict court sentenced Alexander to 267 months’ incar-
ceration and five years of supervised release. Both Pitts
2 Nos. 01-3643 & 01-3644
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 pack-
age 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 had 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 par-
cels matched some of the characteristics of the Post
Office’s “narcotics package profile.” In particular, the pack-
Nos. 01-3643 & 01-3644 3
ages 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 re-
ceived 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
conducting 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 deliv-
4 Nos. 01-3643 & 01-3644
ered 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 Mildred 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 mail-
ing. 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 Of-
fice 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 fed-
eral postal inspector and described the package to Alex-
ander. During that conversation, Alexander (using the
name Bones) admitted he was the only resident at the
address, denied that he was expecting a package, denied
Nos. 01-3643 & 01-3644 5
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 war-
rant 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 violation 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 pack-
age. The district court denied the motion, finding that
Pitts and Alexander did not have a reasonable expecta-
tion 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, al-
though 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, 744 F. Supp. 43 (N.D.N.Y. 1990), and
dicta in United States v. Daniel, 982 F.2d 146, 149 (5th
Cir. 1993), the court found as a matter of public policy
that society is not prepared to recognize as reasonable
an expectation of privacy in the use of an alias as part of
a criminal scheme. Anticipating that the defendants
would appeal this ruling, the court also found that the
length of time the package was diverted and the circum-
stances of the diversion were not reasonable, and that
6 Nos. 01-3643 & 01-3644
if the diversion were the only issue in the suppression,
the court would have granted the motion to suppress.
Specifically, the court found that the package should
have been subjected to inspection by a drug sniffing
canine on Friday, and that once the canine did not alert,
the Post Office had no reason to continue to hold the
package but should have delivered it using policies ap-
plicable to Express Mail. Both Pitts and Alexander pled
guilty to the conspiracy charge but reserved the right
to appeal the district court’s denial of their motions to
suppress.
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 expecta-
tion of privacy in packages addressed to them under
fictitious names. See United States v. Villarreal, 963 F.2d
770, 773 (5th Cir. 1992); United States v. Richards, 638
F.2d 765, 770 (5th Cir. 1981), cert. denied, 454 U.S. 1097(1981). Second, they maintain that their use of fictitious
names in sending and receiving this package cannot
be deemed an abandonment where both defendants as-
serted ownership interests in the contents of the pack-
ages in their affidavits in support of their motions to
suppress. Finally, they contend that by sending the pack-
age via Express Mail, Pitts retained the ability to either
recall the package or redirect its delivery at any time
during the two-day delivery period guaranteed by the
post office. Because of this ability to retrieve or redirect,
the defendants maintain that they continued to exert
control over the package and cannot be deemed to have
abandoned it as a factual matter. Alternately, they ar-
gue that the postal inspector’s detention of the package
Nos. 01-3643 & 01-3644 7
for several days after the contracted delivery date was
constitutionally unreasonable under the circumstances.
In response, the government maintains that the defen-
dants failed to demonstrate a reasonable expectation of
privacy because society is not prepared to accept as rea-
sonable an expectation of privacy in a package when the
sender and recipient have used aliases for the purpose
of hiding their criminal connection to the package. The
government also contends that Alexander’s claim to an
interest in the package fails as a factual matter because
he expressly disavowed ownership when he refused to
accept delivery of the parcel. Finally, the government
protests the district court’s finding that inspectors de-
tained the package for an unreasonable length of time
because they diligently pursued their investigation dur-
ing that time and faced unavoidable delays for reasons
beyond their control.
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 war-
rant wholly abandoned his or her judicial role in the mat-
ter, 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 con-
clusion we assume only for the sake of argument). See
United States v. Leon, 468 U.S. 897, 926 (1984). Second, the
defendants in this case abandoned the package at issue
and thus lost their right to object to the government’s
resultant search. We part company with our concurring
8 Nos. 01-3643 & 01-3644
colleague because we do not agree that the expectation
of privacy in mailing a package using fictitious names
for the sender and addressee is not the sort of interest
that society is willing to recognize as reasonable.
A.
Sealed packages sent through the mail are entitled to
full protection under the Fourth Amendment. United
States v. Jacobsen, 466 U.S. 109, 114 (1984) (“Letters
and other sealed packages are in the general class of
effects in which the public at large has a legitimate ex-
pectation of privacy; warrantless searches of such ef-
fects are presumptively unreasonable”); United States v.
Van Leeuwen, 397 U.S. 249, 251 (1970) (first class mail,
such as letters and sealed packages, is protected from
inspection except in the manner provided by the Fourth
Amendment). The evidence here was seized pursuant to a
search warrant, and when a warrant has been issued,
suppression is appropriate only in limited circumstances:
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, 468 U.S. at 926.
Pitts and Alexander have not argued that the magis-
trate abandoned her detached and neutral role in issu-
ing the warrant at issue here. See United States v.
Pless, 982 F.2d 1118, 1126 (7th Cir. 1992). Nor have
they alleged that the postal inspector was dishonest or
reckless in preparing the affidavit that supported the
warrant. Indeed, they point to no errors in the affidavit
at all. The only question that remains is whether a rea-
Nos. 01-3643 & 01-3644 9
sonably well-trained officer executing the warrant would
have known that the search was illegal despite the magis-
trate’s authorization. Leon, 468 U.S. at 922 n.23; Pless,
982 F.2d at 1126. At most, Pitts and Alexander allege
(and the district court agreed) that the package was
detained for an unreasonable amount of time before the
warrant was obtained. This would be the only arguable
basis for their claim that the officer executing the war-
rant should have known the search of the package
was illegal despite the magistrate’s authorization.
The magistrate issuing the warrant was aware of the
delay 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, 873 F.2d
1049, 1054 (7th Cir. 1989). The Supreme Court has em-
phasized that the significant Fourth Amendment inter-
est is in the privacy of the mail. Van Leeuwen, 397 U.S.
at 253. Here, as in Van Leeuwen, the privacy was not
disturbed or invaded until the approval of the magis-
trate was obtained. Id. Although the length of time of
the detention of the package is an important factor in
determining if the seizure is reasonable, we must also
“take into account whether the police diligently pursue[d]
their investigation.” United States v. Place, 462 U.S. 696,
709 (1983). The postal inspector was unable to obtain the
services of a trained canine over the weekend despite
numerous attempts to contact agencies that had trained
canines available. Although the district court was troubled
that part of the delay was caused by diverting the pack-
age to a different city for investigation, we have previously
held that law enforcement authorities are not required
to have a canine unit present at every location where
a canine inspection is possible or probable. United States
v. Evans, 282 F.3d 451, 455 (7th Cir. 2002), cert. denied,
123 S. Ct. 304 (2002) (citing United States v. Borys, 766
10 Nos. 01-3643 & 01-3644
F.2d 304, 314 (7th Cir. 1985), cert. denied, 474 U.S. 1082(1986)). As soon as the canine failed to alert, a postal
inspector personally drove the package back to Moline
and attempted delivery. When that effort failed, the
inspector obtained a telephone number for the sole resi-
dent of the home to which the package was addressed
(not a simple task given Alexander’s use of multiple
aliases), and called to discuss delivery of the parcel. Once
Alexander refused delivery, and return to the unknown
sender became impossible, the inspector promptly ob-
tained a warrant. Given our prior holdings in similar
cases, and given the disagreement over the reasonable-
ness of the length of the detention by the magistrate
and the district court judge, we do not believe the officer
executing the warrant could be charged with knowing
the search was illegal (a proposition we assume only for
the sake of argument) even though the magistrate au-
thorized it. Thus, under the principle announced in Leon,
we affirm the denial of the defendants’ motion to sup-
press the evidence seized from the package.
B.
As a factual matter, both Alexander and Pitts aban-
doned 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, 362
U.S. 217, 241 (1960); United States v. Basinski, 226 F.3d
829, 836 (7th Cir. 2000). A defendant objecting to a
search bears the burden of proving a legitimate expecta-
tion of privacy in the area searched. United States v.
Ruth, 65 F.3d 599, 604 (7th Cir. 1995), cert. denied, 517
U.S. 1158 (1996). A legitimate expectation of privacy
exists when the defendant exhibits a subjective expecta-
tion of privacy and the expectation is one that society is
prepared to recognize as reasonable. Ruth, 65 F.3d at
Nos. 01-3643 & 01-3644 11
604. “[N]o person can have a reasonable expectation of
privacy in an item that he has abandoned.” Basinski, 226
F.3d at 836. To demonstrate abandonment, the govern-
ment must prove by a preponderance of the evidence
that the defendant’s voluntary words or actions would
lead a reasonable person in the searching officer’s posi-
tion to believe that the defendant relinquished his prop-
erty interests in the item to be searched. Basinski, 226
F.3d at 836. This is an objective test and the defen-
dant’s subjective desire to later reclaim an item is irrele-
vant. Id. We look solely to the external manifestations
of the defendant’s intent as judged by a reasonable per-
son possessing the same knowledge available to the gov-
ernment agents involved in the search. Id.Pitts and Alexander both supplied the 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 undelivered or was not accepted by its ad-
dressee. . . .[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,
12 Nos. 01-3643 & 01-3644
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 ex-
pected it. R. 35.
The defendants’ subjective desire to maintain control of
the package is irrelevant, however, in light of the exter-
nal manifestations of their intent. At the time the war-
rant 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 in-
terests in the parcel. Basinski, 226 F.3d at 836. Alexander
therefore abandoned the package and his Fourth Amend-
ment claim fails.
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
acknowledges 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 aban-
donment. We affirm the district court’s denial of the
motions to suppress on that basis as well.
Nos. 01-3643 & 01-3644 13
C.
Normally, we would not concern ourselves with a dis-
parity between the holding of a district court sitting in
the Second Circuit and the law of the Fifth Circuit. How-
ever, 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 to
the package. The district court also cited United States
v. Daniel, 982 F.2d 146, 149 (5th Cir. 1993), for the prop-
osition that a defendant does not have standing to raise
a Fourth Amendment objection when the defendant has
used an alias to protect himself from identification in the
course of a criminal scheme. The court found it counter-
intuitive and against public policy to recognize a reason-
able expectation of privacy in the use of a fictitious name
by a person engaged in criminal activity. Tr. at 96-97.
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 de-
fendant disavowed the package in question, consistently
claiming he was not the addressee. It was the govern-
ment 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, how-
ever, because the court went on to analyze the claim by
assuming that the defendant had a legitimate expecta-
14 Nos. 01-3643 & 01-3644
tion of privacy, ultimately finding that a warrant to
search the package was properly issued. Daniel, 982 F.2d
at 149-52. Other cases in the Fifth Circuit clearly hold
that individuals have a reasonable expectation of privacy
in packages addressed to them under fictitious names
even when the false names are used to distance the send-
er or recipient from the criminal nature of the contents
of the package. See Villarreal, 963 F.2d at 774; Richards,
638 F.2d at 770. Thus, the defendants are correct
that DiMaggio and the dicta in Daniel conflict with well-
settled law in the Fifth Circuit. Our opinion creates no
conflict with the well-settled law of the Fifth Circuit.
Because we have affirmed on other grounds, we see no
reason to take a position on this issue now except to
respond to the concurrence.
D.
The concurrence acknowledges that there are a num-
ber 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 celeb-
rity may wish to avoid harassment or intrusion; a gov-
ernment official may have security concerns in using
her real name or home address to receive mail; a busi-
ness executive in merger talks might worry about poten-
tial investors misusing the information gained through
the mail to manipulate the securities markets. See United
States v. Evans, 2001 WL 243287, *5 (S.D. Ind. Jan 31,
2001), aff’d, 282 F.3d 451 (7th Cir. 2002), cert. denied, 123
S. Ct. 304 (2002). Indeed, a sender of mail might wish to
remain completely anonymous for any number of rea-
sons. The Supreme Court has held that anonymity of an
Nos. 01-3643 & 01-3644 15
author is not a sufficient reason to exclude literary works
or political advocacy from the protections of the First
Amendment. McIntyre v. Ohio Elections Comm’n, 514 U.S.
334, 341-43 (1995). As the Court noted there, an author
may decide to remain anonymous for fear of economic or
official retaliation, out of concern for social ostracism, or
merely because of a desire to preserve as much of one’s
privacy as possible. McIntyre, 514 U.S. at 341-42. So too
with the sender or receiver of mail. Yet, because an
alias was in this instance used to cloak the identities of
the true parties to a narcotics transaction, our colleague
concludes that the mailing should have no protection
whatever.
There are two possible ways to interpret the concur-
rence. First, because some people 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 confiden-
tial 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 en-
gaged in wholly legitimate confidential activities. For
example, if persons engaged in illegal drug sales often
use hotel rooms for their transactions, or commonly em-
ploy 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
16 Nos. 01-3643 & 01-3644
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 pri-
vacy 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, 113 F.3d 313, 321
(2d Cir. 1997), cert. denied, 522 U.S. 976 (1997). If this
were the case, then the police could enter private homes
without warrants, and if they find drugs, justify the
search by citing the rule that society is not prepared to
accept as reasonable an expectation of privacy in crack
cocaine kept in private homes. Presumably if no narcotics
are found (or, as the concurrence speculates, no pipe
bombs are found), the owner of the home would be able
to bring a civil lawsuit for nominal damages for the tech-
nical violation of privacy rights. The Fourth Amendment
requires more than this.
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, 439 U.S.
1
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 circum-
stances” assessment used to determine whether there is a
reasonable suspicion or probable cause to believe that criminal
activity is afoot. See United States v. Ganser, 315 F.3d 839, 843
(continued...)
Nos. 01-3643 & 01-3644 17
128, 143 n.12 (1978). 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 pack-
age, they surrender their Fourth Amendment claim.
AFFIRMED.
1
(...continued)
(7th Cir. 2003) (in determining whether reasonable suspicion
exists, totality of circumstances must be considered); United
States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002) (probable
cause determined by examining the totality of the circumstances).
Thus, although a person generally maintains a reasonable ex-
pectation of privacy in mail sent or received using an alias and
the use of an alias does not result in an outright loss of Fourth
Amendment rights, a law enforcement officer or a court is cer-
tainly entitled to consider the use of an alias a relevant factor
in deciding whether to detain mail for further investigation or
issue a warrant authorizing search of a package. Evans, 282 F.3d
at 455 (circumstances which appear innocent to an outside
observer may suggest criminal activity to experienced law
enforcement officers, and they may assess these circumstances
in light of their experiences in determining whether reasonable
suspicion exists).
18 Nos. 01-3643 & 01-3644
EVANS, Circuit Judge, concurring. Although I agree
with the majority that Messrs. Pitts and Alexander aban-
doned the package, and that in any event United States
v. Leon, 468 U.S. 897 (1984), compels the denial of their
motion to suppress, I would prefer, however, to resolve
this case on the same basis as Judge Mihm resolved it in
the district court. Like him, I would conclude that the
defendants lack the type of legitimate expectation of pri-
vacy that society is prepared to recognize as reasonable,
and thus their motion to suppress should be denied on
that basis.
The problem with resting our decision on an abandon-
ment 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, in-
deed, like a fairly odd result. Why should such an ob-
viously 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
mail a package of pipe bombs, or plans to blow up the
Brooklyn Bridge, from one to the other. Under an aban-
donment theory, had the recipient terrorist said the
same thing Alexander said in my first example, the evi-
dence 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 sys-
tem of the United States, does not, except in unusual
Nos. 01-3643 & 01-3644 19
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
may not be asserted vicariously. Rakas v. Illinois, 439
U.S. 128, 133-34 (1978). As the Court observed, “The propo-
nent of a motion to suppress has the burden of establish-
ing that his own Fourth Amendment rights were violated
by the challenged search or seizure.” Id. at 131 n.1.
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. In Rakas, the Court
held that “the better analysis forthrightly focuses on the
extent of a particular defendant’s rights under the Fourth
Amendment, rather than on any theoretically separate,
but invariably intertwined concept of standing.” Id. at
139. Specifically, this analysis involves an inquiry into
“whether the disputed search and seizure has infringed
an interest of the defendant which the Fourth Amend-
ment was designed to protect.” Id. at 140.
Going on, the law is fairly well established, at least as
far back as Katz v. United States, 389 U.S. 347 (1967),
that the Fourth Amendment protects people, not places,
and one may assert a valid claim under the amendment
only if one enjoys a legitimate expectation of privacy in
a searched item, like the package here. Rakas, at 143.
Determining whether defendants possess a legitimate
expectation of privacy involves a two-part inquiry: (1) did
they demonstrate a subjective expectation that the con-
tents of the package would remain free from public intru-
sion, and (2) are their subjective expectations of privacy
20 Nos. 01-3643 & 01-3644
“one[s] that society is prepared to recognize as ‘reason-
able.’ ” Id. (quoting Katz v. United States at 361).
Our case is just like United States v. DiMaggio, 744
F.Supp. 43 (N.D.N.Y. 1990), where a perceptive district
judge (Munson) observed that the “expectation of privacy
vanishes, however, when the identity of the sender and
intended recipient is not indicated . . . on the package.” Id.
at 46. Neither our sender nor our recipient have an-
nounced, because they used phony names, that either
claims a privacy interest that our society is prepared to
recognize as reasonable. While “James Reed, Sr.” of Sacra-
mento (as the sender) and “James Reed, Jr.” of Moline
have a privacy interest, they don’t actually exist. So I
think it makes good sense to conclude that even though
Pitts and Alexander created them, they cannot success-
fully hide behind them.
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 legiti-
mate. 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.
Nos. 01-3643 & 01-3644 21
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-4-03