U.S. v. Daniel

• Citation: 982 F.2d 146
• Decision Date: 18 January 1993
• Docket Number: No. 92-7292,92-7292
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricky Lynn DANIEL, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 146

982 F.2d 146

UNITED STATES of America, Plaintiff-Appellee, v. Ricky Lynn DANIEL, Defendant-Appellant.

No. 92-7292

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 18, 1993.

Thomas A. Pritchard, Biloxi, MS (court-appointed), for defendant-appellant.

Calvin D. Buchanan, Asst. U.S. Atty., Robert Q. Whitwell, U.S. Atty., Oxford, MS, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Ricky Lynn Daniel was convicted of one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). On appeal, he claims that the Government violated his Fourth Amendment rights in various ways. Finding no unconstitutional search or seizure, we affirm the judgment of the district court.

I.

On September 26, 1992, an unidentified American Airlines employee in Memphis Tennessee, called a Drug Enforcement Administration (DEA) investigator and reported a "suspicious" package that was being shipped by the airline. The employee suspected that the package contained narcotics. The employee noted that this was at least the second such package shipped by the sender to the same address in a single week. Moreover, the employee noted, the private courier's shipping fee ($55) was rather expensive for such a small package that could just as easily have been mailed for a fraction of the cost. A DEA investigator, J.C. Sneed, arrived at the airport within an hour. Upon his arrival, Sneed was shown a small cardboard box addressed to "Lynn Neal c/o Dottie's Hair Design," a beauty salon located in Nettleton, Mississippi; the return address was a residence in San Bernardino, California. The addresses on the box were handwritten, and the return address did not contain a zip code. Sneed also observed that all the seams in the package were securely sealed with masking tape. According to the receipt completed by the sender, the box contained "parts." Sneed shook and squeezed the box. Because the box did not rattle, Sneed questioned whether in fact it contained parts of any type. He shared the American Airlines' employee's suspicions that the package possibly contained illicit drugs.

In order to confirm his suspicions, Sneed summoned another DEA investigator, Boyd Schaeffer, who handled a narcotics-detecting dog. The second agent arrived at the airport shortly thereafter. A dog-sniff test indicated that the box indeed contained narcotics. Sneed took possession of the box and applied for a search warrant to examine its contents. After obtaining a search warrant soon thereafter, Sneed opened the box and discovered plastic bags filled with a white powdery substance that, after testing, proved to be methamphetamine. Sneed arranged with other DEA agents and Mississippi authorities to make a controlled delivery of the box using an undercover agent as a delivery person.

The agents placed a beeper inside the box designed to transmit a signal when it was opened and procured an anticipatory warrant to search the address listed on the box. Baking powder was substituted for the majority of the methamphetamine, and agents placed a material in the powder that could be detected under ultraviolet light. After the box was delivered to Daniel's trailer and was opened by him, the agents executed the search warrant. Agents discovered the box in a bedroom and empty baggies by the toilet. They held a black light to Daniel's hand that showed he had come in contact with the ultraviolet powder in the box. Daniel waived his rights and signed a statement indicating that he was paid $300 to receive each package and that he had received five or six packages in the past.

II.

On appeal, Daniel argues: i) that the package was illegally searched and seized without a warrant in the first instance, contending Agent Sneed had no reasonably articulable suspicion that the box contained an illicit substance; ii) that the search pursuant to the first warrant issued in Tennessee, which allowed agents to open the box, was unconstitutional; and iii) as a result, the evidence and confession derived from the Mississippi warrant was "tainted fruit." We reject all three arguments.

A. Was there an unlawful warrantless "search" or "seizure"?

Daniel initially challenges the DEA agents' conduct prior to obtaining the first search warrant in Tennessee. Thus, he challenges the initial detention of the box and the dog-sniff test. Daniel argues that the package was searched and seized in violation of his Fourth Amendment rights because DEA Agent Sneed had no reasonably articulable suspicion that the package contained drugs. According to Daniel, because the package was not shown to be distinguishable from any of the other millions of packages placed in the mail daily, and because there was no showing that the American Airline's employee was a reliable informant, the package was illegally seized. We reject Daniel's contention here for two different reasons.

First, we do not believe that Daniel possessed "a legitimate expectation of privacy" under the Fourth Amendment, see Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428-29, 58 L.Ed.2d 387 (1978); Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980), in a package addressed to "Lynn Neal." At trial, Daniel's theory of defense was that Ricky Lynn Daniel and Lynn Neal were different persons. ¹ If we accept this dubious contention, then Daniel has no "standing" ² to raise a Fourth Amendment challenge to the Government's conduct with respect to a package addressed to someone else. See United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir.1992); United States v. Koenig, 856 F.2d 843, 846 (7th Cir.1988). Furthermore, even if we accept the Government's assertion that "Lynn Neal" was Daniel's alias, we still question whether Daniel would have Fourth Amendment "standing" to assert the claim, particularly when the use of that alias was obviously part of his criminal scheme. See United States v. Lewis, 738 F.2d 916, 919-20 n. 2 (8th Cir.1984). ³

Nevertheless, even assuming Daniel possessed some type of legitimate expectation of privacy in connection with the package, we believe that the DEA agents did not violate it by acting as they did prior to obtaining the warrant permitting a full-blown search. Our analysis here is bifurcated: we first must assess the constitutionality of the alleged warrantless seizure of the box; second, we must then determine if the alleged warrantless search was in violation of the Fourth Amendment.

Contrary to the Government's claims, we agree that there was a warrantless "seizure" within the meaning of the Fourth Amendment. Although the initial detention of the box by the American Airline's employee was not a seizure for Fourth Amendment purposes--as the employee was not acting on behalf of the Government, see United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)--we agree with Daniel that DEA Agent Sneed's actions constituted a seizure. ⁴ The record indicates that in the time leading up to the dog-sniff test, Agent Sneed exercised control over the box for approximately forty-five minutes.

The question that we must address, however, is whether that relatively brief investigatory seizure of the package was reasonable; if so, there was no Fourth Amendment violation. Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (brief investigatory detention of person constitutionally permissible when officer has reasonably articulable suspicions based on particular facts that detainee has violated law). We note that the Tenth Circuit has addressed this precise application of the "Terry doctrine" in a case involving facts essentially identical to the instant case. See United States v. Lux, 905 F.2d 1379 (10th Cir.1990), aff'g, United States v. Hill, 701 F.Supp. 1522 (D.Kan.1988); cf. United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970); 3 W. LaFave, Search and Seizure, § 9.6 (2d ed. 1987) ( & Supp.). The Lux court concluded that a temporary seizure of a mailed package--removing it from the normal flow of mail--was not a Fourth Amendment violation because postal inspectors acted on legitimate suspicions. The court discussed the Postal Service's "drug package profile," a list of traits commonly encountered in the vast majority of illicit mailings of drugs. See Lux, 905 F.2d at 1381-82; see also United States v. Cantrall, 762 F.Supp. 875, 879-80 (D.Kan.1991). ⁵ Like the Lux court, we believe that while any one of these factors standing alone might not provide reasonable suspicion, an aggregate of factors passes muster under the Terry doctrine. See Lux, 905 F.2d at 1382 (three factors present); Cantrall, 762 F.Supp. at 879 (three factors present).

In the instant case, although the package was not being handled by the Postal Service, the DEA agents nevertheless appeared to have utilized the same "drug package profile" in articulating their suspicions justifying the temporary seizure of the package until a dog-sniff test could be conducted. At Daniel's suppression hearing, Agent Sneed explained that his suspicions were aroused by the following: i) the package's size and shape, which belied a shipment of "parts," the alleged contents declared by the sender; ii) the fact that the package was securely taped with masking tape all along the seams; iii) the fact that the labels were hand-written, even though the mailing was allegedly business-related; iv) the fact that the American Airlines' employee reported that this was the second such mailing in a week; v) the fact that the sender paid a hefty fee ($55) to ship the relatively small package via private air courier; and vi) the fact that the sender's city was a common "drug source." Thus, we believe that, under widely accepted law enforcement standards regarding the detection of drug-related...