U.S. v. Hernandez

• Decision Date: 23 December 2002
• Docket Number: No. 01-10557.,01-10557.
• Citation: 313 F.3d 1206
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rosa HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

313 F.3d 1206

UNITED STATES of America, Plaintiff-Appellee, v. Rosa HERNANDEZ, Defendant-Appellant.

No. 01-10557.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 1, 2002.

Filed December 23, 2002.

Birney B. Bervar, Honolulu, HI, for the defendant-appellant.

Chris A. Thomas, Assistant United States Attorney, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii; Susan Oki Mollway, District Judge, Presiding. D.C. No. CR-00-00139-SOM.

Before: SCHROEDER, Chief Judge, ALARCÓN and FISHER, Circuit Judges.

ALARCÓN, Circuit Judge.

Rosa Hernandez ("Hernandez") appeals from the sentence imposed following her conditional guilty plea to charges of possession with intent to distribute crystal methamphetamine in violation of 21 U.S.C. § 841(a)(1) and conspiracy to possess with intent to distribute in violation of 21 U.S.C. § 846. She contends that the district court erred in denying her motion to suppress evidence seized from a mailed package and the statement she gave to law enforcement officers while in custody. Hernandez seeks reversal on the ground that she was deprived of her Fourth Amendment right to be free from an unreasonable interference with her possessory interest in the mailed package. She also claims that the statements she made were the fruit of an illegal seizure. We review de novo a district court's decision to deny a motion to suppress. United States v. Percy, 250 F.3d 720, 725 (9th Cir.), cert. denied, 534 U.S. 1009, 122 S.Ct. 493, 151 L.Ed.2d 405 (2001) (No. 01-6444). A warrantless seizure is a mixed question of law and fact subject to de novo review. United States v. Aldaz, 921 F.2d 227, 229 (9th Cir.1990). Reasonable suspicion is determined de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

We affirm the district court's denial of the motion to suppress and dismiss the appeal of the sentence because we conclude that the detention of the express mail package was reasonable.

I

On March 28, 2000, Robert E. Phillips ("Phillips"), a postal inspector assigned to the Honolulu Office of the United States Postal Service, was informed by a postal inspector in California that a suspicious express mail package had been sent to Hawaii. Phillips instructed the express mail coordinator at the Honolulu Post Office to "capture" the package upon its arrival. The package was addressed to Hernandez.

Phillips received the package at approximately 3:00 p.m. on March 29, 2000, which was past the time for delivery of express mail on that day. Had he not intercepted the package, it would have been delivered sometime on the following day, March 30, 2000. Phillips inspected the package and detained it for further investigation based on the following factors:

(1) his investigation of several databases revealed that the parcel had a correct return address, but the return addressee "Quiuirly Hernandez," could not be verified as living at that address;

(2) the express mail label was handwritten and sent person-to-person;

(3) the package was mailed from California, a known drug-source state;

(4) the package was almost completely taped on all seams; and

(5) the package was sent via express mail.

Phillips requested a canine examination of the package at approximately 1:00 p.m. on March 30, 2000. He testified that he did not call for the canine unit prior to that time because he was making travel arrangements for witnesses scheduled to appear for trial the following week. At roughly 1:50 p.m. on March 30, 2000, Sheriff Charles Lacaden and his canine arrived at the Post Office to perform the sniff. The canine alerted on the package addressed to Hernandez.

By 7:25 p.m. that same evening, Phillips completed an affidavit in support of a search warrant application. A United States Magistrate Judge issued a warrant to search the package at 10:30 a.m. the following morning. Phillips executed the warrant from 12:45 p.m. to 2:00 p.m. on March 31, 2000. He discovered approximately five pounds of crystal methamphetamine and ten grams of heroin in the package. He replaced the drugs with "pseudo-drugs," placed a beeper in the package set to alert when the package was opened, and resealed the package.

On April 1, 2000, a warrant to search Hernandez's residence was obtained. At approximately 6:00 p.m. that same day, Phillips and members of the Honolulu Police Department made a controlled delivery of the parcel. Once the beeper alerted, indicating that the package had been opened, Honolulu police officers executed the search warrant, recovered the parcel, and arrested Hernandez.

After Hernandez was advised of her Miranda rights, she signed a statement of rights and waiver form. Prior to signing the waiver form, Hernandez wrote, "I think I want to answer questions at this time with out [sic] a lawyer." She then provided a statement implicating herself and her co-defendants as being involved in a conspiracy to possess crystal methamphetamine with intent to distribute it. After her statement was typed, Hernandez reviewed it, and initialed the beginning and end of each paragraph.

On May 31, 2000, Hernandez filed a motion to suppress the controlled substance seized from the package and the statement she made following her arrest. The district court denied the suppression motion. Subsequently, Hernandez entered a conditional plea of guilty, reserving her right to appeal the denial of her motion to suppress. Hernandez timely filed a notice of appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

II

To determine whether the district court properly concluded that the detention of the mailed package did not violate the Fourth Amendment, we must first identify the nature of the interest an addressee has in a package delivered to postal authorities. It has long been established that an addressee has both a possessory and a privacy interest in a mailed package. See Ex parte Jackson, 96 U.S. 727, 732, 24 L.Ed. 877 (1877) (holding that sealed packages in the mail can not be opened without a warrant); Walter v. United States, 447 U.S. 649, 654, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (holding that even though federal agents obtained mailed packages of videos lawfully, they nevertheless violated the Fourth Amendment when they viewed the videos without a warrant); United States v. Gill, 280 F.3d 923, 929 (9th Cir.2002) (stating that even with express mail, the predominant Fourth Amendment interest in the mailed package is in the privacy of its contents, not merely in its prompt delivery). Hernandez does not claim that her privacy interest in the contents of the package was violated when it was opened pursuant to a search warrant after a canine detected that it contained a controlled substance. Instead, Hernandez challenges Phillips's initial detention of the package and the delay in calling for a canine unit to sniff the package. Therefore, the sole issue before us is whether Phillips unreasonably interfered with Hernandez's possessory interest in the mailed package prior to requesting a canine examination.

A person who voluntarily deposits mail in the United States mail for delivery retains a limited possessory interest in the mailed item. See United States v. England, 971 F.2d 419, 420 (9th Cir.1992) (noting that a person who mails an item retains "far less of an interest" in the item than a person who checks his luggage for transport with a common carrier). "[T]he mere detention of mail not in [the addressor's] custody or control amounts to at most a minimal or technical interference with [the addressor's] person or effects, resulting in no personal deprivation at all." United States v. Place, 462 U.S. 696, 718 n. 5, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (Brennan, J., concurring) (quoting United States v. Place, 660 F.2d 44, 53 (2d Cir.1981), aff'd, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). Although a person has a legitimate interest that a mailed package will not be opened and searched en route, see United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), there can be no reasonable expectation that postal service employees will not handle the package or that they will not view its exterior, cf. Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (stating that "[t]his Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.").

The recipient of a mailed item, on the other hand, has a reasonable expectation that the mail will not be detained by postal employees beyond the normal delivery date and time. 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 conveyor belt, sorted in a particular area, or stored in any particular sorting bin for a particular amount of time." United States v. Demoss, 279 F.3d 632, 639 (8th Cir.2002) (Hansen J., concurring). See also England, 971 F.2d at 420-21 (holding that there was no Fourth Amendment "seizure" where delivery of package was not delayed, because it is the extent of the interference with the defendant's possessory interest in the property that determines whether a seizure has occurred); United States v. Vasquez, 213 F.3d 425, 426 (8th Cir.2000) (holding that no detention occurred when the officers had not delayed or interfered with the normal processing of the package).

The Supreme Court has held that even though first-class mail is protected by the Fourth Amendment from unreasonable search and seizure, it is not beyond the reach of all inspection. United States v. Van Leeuwen, 397 U.S. 249, 251-52, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). Rather, the question is "whether the conditions for its detention and inspection have been satisfied." Id. at 252, 90 S.Ct. 1029.

Thus, Hernandez had a protected interest in the timely...