UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 17-cr-79-JL Opinion No.

Dustin Moss

MEMORANDUM ORDER

In advance of a trial on a series of charges related to,

among other things, drug trafficking, money laundering, and

witness tampering, defendant Dustin Moss moved to suppress

approximately 20 pounds of methamphetamine discovered in two

Priority Express Mail packages, and any evidence resulting from

the searches of those two packages. This motion turns on

whether Moss had a reasonable expectation of privacy in the

packages, neither of which was addressed to him; whether the

warrant to search one of the packages sufficiently described the

property to be searched; and whether the warrantless search of

the second package fell under the consent and private search

exceptions to the warrant requirement.

After an evidentiary hearing and permitting Moss to

supplement his arguments, the court denied Moss’s motion.1 Moss

then pleaded guilty to one count of attempting to possess with

1 See Order of April 20, 2018. intent to distribute 500 grams or more of a mixture containing

methamphetamine in violation of

and

841(b)(l)(A)(viii) and one count of possession of a firearm in

furtherance of a drug trafficking crime in violation of

(c).2 Though he waived his right to appeal several

aspects of his plea, Moss, with the government’s consent,

“expressly reserve[d] the right to appeal the denial of his

Motion to Suppress.”3 See Fed. R. Crim. P. 11(a)(2).

This order sets forth the bases for the court’s denial of

Moss’s motion in greater detail. See, e.g., United States v.

Joubert,

, 55 n.1 (D.N.H. 2014), aff'd,

(1st Cir. 2015) (citing In re Mosley,

,

1328 (11th Cir. 2007)) (noting a district court’s authority to

later reduce its prior oral findings and rulings to writing).

First, the court addresses whether Moss had a privacy interest

in the two packages, neither of which was addressed to him,

sufficient to confer on him standing to challenge the searches

of those packages. It then concludes that, even assuming that

he has standing, neither search violated the warrant

requirements of the Fourth Amendment so as to require

suppression of the evidence obtained through them.

2 Plea Agreement (doc. no. 63) at 1. 3 Id. at 13.

2 Background

The court makes the following findings of fact based on the

testimony and other evidence received at the suppression

hearings.

A. The 730 package

A package bearing the tracking number EL810533730US (the

“730 package”) was mailed from Las Vegas, Nevada, on April 18,

2017. Weighing a little over 26 pounds, it was addressed to a

recipient named O’Rourke at 3 Blackberry Way, apt. 108, in

Manchester, New Hampshire. It bore a return address of “Tom

fairbanks, 328 Florrie Ave.” in Las Vegas.

1. Search of the 730 package

On the evening of April 18, United States Postal Inspector

Bruce Sweet reviewed a list of packages scheduled to arrive in

New Hampshire from Las Vegas, Nevada. Based on his

participation in an investigation into Moss and his co-

defendant, Katrina Jones, between October 2016 and April 2017,

Inspector Sweet was aware of a drug conspiracy wherein packages

from Las Vegas containing methamphetamine arrived in New

Hampshire, and packages containing cash were sent from New

Hampshire to Las Vegas. Some of those packages had “Florrie

Ave.” as a return address. Accordingly, while the package was

still in Las Vegas, Inspector Sweet noticed the 730 package as

3 originating from that street and identified it as suspicious

based on his knowledge of that investigation, the origin and

destination, and its weight.

When the package arrived in Manchester the next morning, he

collected the 730 package and placed it into a package lineup

for a drug-sniffing dog. After the dog alerted on the 730

package, Inspector Sweet secured it in the United States Postal

Inspection Service’s offices.

Working with Assistant United States Attorney William

Morse, Sweet applied for a warrant to search the package. His

affidavit attached to the warrant application correctly and

accurately described the 730 package in “Attachment A” as a

“black ‘Kicker Speaker’ cardboard box,” with its dimensions and

address.4

Having reviewed those materials, the magistrate judge

issued a search warrant that same morning. The warrant’s

caption correctly identified the package, reading: “In the

Matter of the Search of USPS Priority Mail Express Package

Bearing Tracking Number EL810533730US.”5 In its body, the

warrant described the area to be searched as “See Attachment A,

as attached hereto and incorporated herein.” But, due to a

4 Mot. to Supp. Ex. A (doc. no. 52-2) at 7. 5 Mot. to Supp. Ex. B (doc. no. 52-3).

4 clerical error in the United States Attorney’s Office,

“Attachment A” to the issued warrant identified the property to

be searched as a completely different package.6 Inspector Sweet

did not review the warrant or its attachments after it issued or

notice the erroneous “Attachment A” when he executed the

warrant, ultimately served it on O’Rourke, or returned it.

An hour or so after the warrant issued, Sweet searched the

730 package. Inside the box he found a large speaker and,

inside the speaker, 12 zip-top bags, each containing almost

exactly one pound of a white crystalline substance that tests

later identified as methamphetamine. Having replaced the

narcotics with miscellaneous items to bring the box to its

original weight, he repackaged the speaker, resealed the

package, and delivered it to the post office.

2. Delivery of the 730 package

Sabrina Moss, the defendant’s sister and O’Rourke’s dealer,

had asked O’Rourke earlier in April to receive a package on

behalf of her brother. In exchange, she offered him three-and-

6 Id. at 3. The package described in the warrant’s Attachment A is a USPS Priority Mail Express package of a different color (white), size (envelope), and weight (5 ounces), addressed to a different recipient (Mr. Golden) in a different city (Laconia, New Hampshire) from a different sender (Sequoia High School) in a different state (California), and, of course, bears a different tracking number (EL576175385US). Inspector Sweet testified that the package actually described in the warrant’s Attachment A related to a package he searched in November 2016.

5 a-half grams of crack cocaine, which O’Rourke testified he would

value at approximately $300. O’Rourke agreed. Sabrina did not

tell him when the package would arrive or to expect more than

one package. Neither Sabrina nor Moss instructed him either to

open or not to open the package.

After Inspector Sweet concluded his search of the package,

a postal inspector dressed as a letter carrier delivered a

notice to O’Rourke’s mailbox that the package had arrived at the

post office. Several hours later, Moss met O’Rourke at

O’Rourke’s apartment, where Sabrina and her boyfriend joined

them. They waited several hours at O’Rourke’s apartment, on the

assumption that the package might yet be delivered there, before

decamping. O’Rourke then drove to the post office while Moss,

who left the apartment at the same time, drove to a nearby

shopping center and parked behind a furniture store.

Inspector Sweet, who was behind the counter at the post

office, delivered the 730 package to O’Rourke after O’Rourke

presented his license and the notice left in his mailbox.

Leaving the post office, O’Rourke met Moss behind the furniture

store and placed the package in the back seat of Moss’s vehicle.

Moss and O’Rourke were both arrested on the spot. O’Rourke was

subsequently released on bond.

6 B. The 962 package

Though he was not expecting one,7 on April 22, a second

parcel addressed to O’Rourke arrived in his apartment’s mailbox

at 3 Blackberry Way. This package, also from Las Vegas, bore

the tracking number EL652259962US (the “962 package”). A key in

his own mailbox indicated a larger package in a bigger mailbox

but O’Rourke, wanting nothing to do with it, left both key and

package alone.

Brenda Krimtler, a friend of O’Rourke’s, retrieved his mail

the next day. She brought the box into the kitchen, opened it,

and observed white powder inside. When she informed O’Rourke of

its contents, he instructed her to reseal the 962 package and

return it to the mailbox, which she did. O’Rourke informed his

attorney about the package who, with O’Rourke’s agreement, in

turn relayed that information to Inspector Sweet. O’Rourke’s

attorney also informed Inspector Sweet that the 962 package had

been opened, that O’Rourke believed it contained narcotics, that

O’Rourke no longer wanted it, and that Inspector Sweet could

search the package.

7 Moss testified that he asked his sister, Sabrina, to find someone who could receive several packages for him, but there is no evidence that Sabrina told O’Rourke to expect more than one package.

7 With O’Rourke’s attorney’s permission, Inspector Sweet

called O’Rourke directly later that evening. O’Rourke,

likewise, informed Inspector Sweet that his friend had opened

the package, that it appeared to contain narcotics, and that he

consented to the package being seized and searched.

Armed with permission to search the package from O’Rourke,

the addressee, Inspector Sweet did not obtain a warrant. He

instead contacted another postal inspector who lived closer to

O’Rourke, Inspector Steve Riggins, who retrieved the

962 package. With Inspector Sweet on the phone, Inspector

Riggins opened it in his car. Like the 730 package, the

962 package contained eight zip-top bags containing a white

substance that later proved to be methamphetamine. Like

Krimtler, Inspector Riggins was able to view the bags of white

powder after having opened the 962 package, without opening any

other container within the 962 package.

Analysis

Moss challenges the searches of both packages -- the

730 package on grounds that the warrant was defective and the

962 package on grounds that the search was warrantless. To

succeed in such challenges, of course, Moss must demonstrate

standing -- that is, that he had a reasonable expectation of

privacy in the packages, which were addressed to O’Rourke, not

8 Moss. Even assuming he had such an expectation, neither of

Moss’s challenges to the searches succeeds.

A. Standing

An individual has a right “to be secure in [his] . . .

papers[] and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. A search within the meaning

of the Fourth Amendment “occurs when the government violates a

subjective expectation of privacy that society recognizes as

reasonable.” United States v. D’Andrea,

, 5-6 (1st

Cir. 2011) (quoting Kyllo v. United States,

(2001)). “Fourth Amendment rights generally cannot be

vicariously asserted.” United States v. Bates,

(D. Mass. 2015) (Saris, J.) (citing Alderman v. United

States,

(1969)). The defendant therefore must

carry the burden of demonstrating that his “reasonable

expectation of privacy in the area searched and in relation to

the items seized . . . at the time of the pretrial hearing and

on the record compiled at that hearing.” United States v.

Aguirre,

(1st Cir. 1988) (internal citations

omitted). “Unless and until the ‘standing’ threshold is

crossed, the bona fides of the search and seizure are not put

legitimately into issue.”

9 “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,

(1984). Sealed packages in the mail are thus

“free from inspection by postal authorities, except in a manner

provided by the Fourth Amendment.” United States v. Van

Leeuwen,

(1970). Despite this general rule,

“the Fourth Amendment does not protect items that a defendant

‘knowingly exposes to the public.’ Consequently, if a letter is

sent to another, the sender’s expectation of privacy ordinarily

terminates upon delivery.” United States v. Dunning,

(1st Cir. 2002) (quoting United States v. Miller,

(1976)).

Whether a defendant has a privacy interest sufficient to

challenge a search of a particular location depends on that

defendant’s:

ownership, possession and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case.

United States v. Stokes,

(1st Cir. 2016)

(quoting Aguirre,

). Invoking these factors,

some courts in this Circuit have concluded that a defendant who

10 is neither the sender nor addressee of a package (like the

defendant here) nevertheless has a privacy interest when the

recipient acts as a bailee for the defendant. In Bates, for

example, the defendant (1) caused the packages to be sent,

(2) meticulously tracked them, and (3) specifically and directly

ordered the addressee not to open them, but instead to deliver

them to the defendant the moment they arrived. Bates,

. Similarly, a non-addressee defendant may have a

reasonable expectation of privacy when he or she asserted an

ownership interest in the package itself, the addressee

disclaimed any interest, and no one with any ownership or

possessory interest participated in the search. United States

v. Allen,

(D. Me. 1990) (Hornby, J.).

By contrast, in United States v. LeClair, the defendant had

no expectation of privacy when he was neither the sender nor

addressee and made no showing that “he at any time exerted

ownership, possession, control, or historical use of the package

or its contents.” No. 11-CR-39-GZS,

, at *3 (D.

Me. Dec. 19, 2011) (Singal, J.). And in United States v. Colon-

Solis, the defendant lacked any expectation of privacy in a box

of cash that he packaged and shipped from New Jersey because he

addressed it to a friend in Puerto Rico at her home and asked

her to hold it until he arrived.

(D.P.R. 2007) (Pérez–Giménez, J.).

11 The Court of Appeals for the First Circuit has not

definitively addressed this issue. It has noted that “many of

the federal courts of appeals have been reluctant to find that a

defendant holds a reasonable expectation of privacy in mail

where he is listed as neither the sender nor the recipient, at

least absent some showing by the defendant of a connection

. . . .” Stokes,

(citing decisions of the

Fourth, Fifth, Seventh, Eighth, and Eleventh Circuit Courts of

Appeals). In Stokes, the Court of Appeals concluded that a

defendant lacked an expectation of privacy in the outsides

(i.e., addresses and writing on the envelopes) of letters that

were addressed to others but placed into his Post Office box.

But it declined to “decide whether a defendant ever could have a

reasonable privacy interest in mail where he is not listed as

addressee or addressor,”

, leaving the possibility

open. And, though it acknowledged the decisions in Bates and

Allen, it specifically avoided “address[ing] the question of

whether a defendant in these situations could assert a

reasonable expectation of privacy in the searched mail.”

Stokes,

n.8. In light of that guidance, the

court declines to conclude that Moss lacked a reasonable

expectation of privacy in either package solely because they

were addressed to O’Rourke instead of Moss, and addresses the

question on a package-by-package basis.

12 1. The 730 package.

Though there is no evidence that either Moss or Sabrina

ever told O’Rourke not to open the 730 package, see Bates,

, Moss exerted a certain amount of “ownership,

possession, [and] control” over the package, LeClair,

, at *3, possibly creating a bailment relationship with

O’Rourke. For example, upon discovering that the package

arrived in Manchester, Moss drove to O’Rourke’s apartment and

waited for O’Rourke to return home from work, retrieve the

package, and deliver it to him. And Moss drove with O’Rourke to

the post office to retrieve it once O’Rourke received the notice

for it, and then waited in a nearby shopping center so that

O’Rourke could deliver the package to him directly.

O’Rourke’s actions further indicate his understanding that

he received the 730 package on Moss’s behalf. Specifically, he

agreed to receive it at his home in exchange for drugs from

Sabrina. When notified of its arrival at the post office, he

picked it up and delivered it straight to Moss.

Apart from the potential bailment relationship, Moss may

also have had an expectation of privacy in the package at the

time that it was searched -- that is, while it remained in the

mail stream. Cf. Dunning,

(sender has

reasonable expectation of privacy in letters until they reach

recipient). As the one who ordered the package, Moss may have

13 had an expectation of privacy in the package before it reached

O’Rourke, and therefore before O’Rourke, as the addressee, had

an opportunity to open it, destroying that expectation. See

Bates

(packages searched before they

reached bailee).

2. The 962 package.

The evidence of Moss’s privacy interest in the 962 package

is somewhat less compelling. Again, there is no evidence that

either Sabrina or Moss asked O’Rourke to receive a second

package or informed him that a second package would arrive.

Thus, there is no evidence that O’Rourke held the 962 package as

Moss’s bailee. Furthermore, the 962 package was not only

delivered to O’Rourke but also opened by a third party,

Krimtler, before the USPIS seized and searched it. Under these

circumstances, any expectation of privacy Moss held in the 962

package likely ceased once it was delivered to O’Rourke. Cf.

The court need not definitively resolve the question of

Moss’s privacy interests in either package, however. Even

assuming that he had such an interest sufficient to confer

standing to challenge the searches, neither of his challenges to

those searches succeeds.

14 B. Moss’s warrant-based challenges

The Fourth Amendment shields individuals from “unreasonable

searches and seizures.” U.S. Const. amend. IV. Accordingly, a

search of private property is generally unconstitutional unless

conducted pursuant to a valid search warrant. Katz v. United

States,

(1967). Absent a warrant, the

prosecution must establish that the search “came within a

recognized exception to the Fourth Amendment warrant

requirement.” United States v. Doward,

(1st

Cir. 1994).

Moss seeks the suppression of evidence from both packages,

arguing that neither search complied with the warrant

requirements of the Fourth Amendment. First, he challenges the

validity of the warrant obtained before searching the 730

package because, he contends, it failed to describe the place to

be searched with the requisite particularity because of the

defective Attachment A. He challenges the admittedly

warrantless search of the 962 package as failing to fall within

any of the recognized exceptions to the warrant requirement.

Neither challenge warrants suppression of the evidence.

Though the attachment to the warrant to search the 730 package

described the wrong package, the face of the warrant listed the

correct tracking number and, under the circumstances, the

probability that Inspector Sweet -- who had already secured the

15 730 package -- would execute the warrant by searching an

incorrect package was exceedingly low. And both the addressee’s

consent and the private search doctrine justified the

warrantless search of the 962 package.

1. 730 package

Under the Fourth Amendment’s particularity requirement, “no

Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. Const.

amend. IV. “The manifest purpose of [this requirement] is to

prevent wide-ranging general searches by the police.” United

States v. Bonner,

(1st Cir. 1986) (quoting

United States v. Leon,

(1984)). A warrant is

therefore facially invalid if it fails to describe with

particularity the place to be searched. Groh v. Ramirez,

(2004). When it so fails, “[t]he fact that the

application adequately described the ‘things to be seized’ does

not save the warrant from its facial invalidity. The Fourth

Amendment by its terms requires particularity in the warrant,

not in the supporting documents.”

“The test for determining the adequacy of the description

of the location to be searched is whether the description is

sufficient ‘to enable the executing officer to locate and

16 identify the premises with reasonable effort, and whether there

is any reasonable probability that another premise might be

mistakenly searched.’” Bonner,

. Here, despite

the facially incorrect Attachment A, the evidence suggests that

there was no reasonable probability that any other package than

the 730 package -- including the one actually described in

Attachment A -- would mistakenly be searched.

First, the warrant did contain the 730 package’s unique

tracking number: it appeared in the caption of the warrant.

Second, even before the warrant issued, Inspector Sweet had

identified the particular package to be searched by its

description (a black “Kicker speaker” box weighing approximately

26 pounds) and, furthermore, had secured it in the USPIS office

at the postal facility in Manchester. Finally, Inspector Sweet

himself executed the warrant on the box so described, which

contained the correct tracking number, and which he had

personally secured in the USPIS office. He testified that

although he did not read the warrant after it issued, because

the magistrate judge made no corrections, he assumed the warrant

covered the package that he correctly described in the

attachments that he had drafted -- specifically, the 730

package. And that is the package that he searched.

Though perhaps troubling that no one noticed the incorrect

Attachment A on the warrant, and while it may have caused

17 ambiguity had the warrant been executed by another inspector,

under the totality of the circumstances present in this case,

there was little, if any, “reasonable probability that another

[package] might be mistakenly searched.” Bonner,

. The warrant was not, therefore, facially invalid. See

United States v. Vega-Figueroa,

(1st Cir.

2000) (warrant that listed the wrong address not invalid where

agent who made observations on which basis the warrant issued

also executed it and searched correct apartment). Accordingly,

the evidence discovered during the search of the 730 package

need not be suppressed.

2. 962 package

The parties agree that the USPIS obtained no warrant to

search the 962 package. Accordingly, the prosecution bears the

burden of establishing that the search of that package “came

within a recognized exception to the Fourth Amendment warrant

requirement.” Doward,

. The United States Attorney

here argues that the search of the 962 package fell within two

such exceptions: that it was justified by O’Rourke’s consent

and by the private search doctrine. The evidence supports both

exceptions.

Consent. Both O’Rourke and Inspector Sweet testified that

he verbally consented to the seizure and search of the 962

18 package. That O’Rourke twice affirmatively consented to the

search and requested that the USPIS seize the package -- first

through his attorney and then directly -- establishes the fact

of his consent.8

The fact that O’Rourke received the package on Moss’s

behalf does not vitiate that consent. First, as the addressee

and actual recipient of the package, O’Rourke likely had the

actual authority to consent to the search. His consent, as “one

who possesses common authority over premises or effects” is thus

“valid as against the absent, nonconsenting person with whom

that authority is shared,” such as Moss. United States v.

Matlock,

(1974).

Even were he a mere bailee of the 962 package -- contrary

to the weight of the evidence, as discussed supra Part III.A.2

-- that status would not invalidate the search. “A search is

valid if, at the time, officers reasonably believe a person who

has consented to a search has apparent authority to consent,

even if the person in fact lacked that authority.” United

States v. Gonzalez,

(1st Cir. 2010). The Postal

8 “For consent to a search to be valid, the government must prove by a preponderance of the evidence that the consent was uncoerced.” United States v. Bey,

(1st Cir. 2016). Moss does not argue that O’Rourke’s consent in this case was in any sense coerced. And the fact that O’Rourke, through counsel, affirmatively contacted the USPIS about the package after it arrived strongly suggests that it was not.

19 Service’s Administrative Support Manual authorizes “a postal

employee acting with the consent of the addressee or sender” to

inspect packages otherwise sealed against inspection.

Accordingly, at the time of the search, Inspectors Sweet and

Riggins reasonably believed that O’Rourke, as the addressee of

the 962 package, had the authority to consent to its search.

The search therefore falls within the consent exception to the

warrant requirement.

Private search. The search of the 962 package was also

justified by the private search doctrine. The Fourth Amendment

protects against warrantless searches by the government, not by

private parties. Jacobsen,

. “The private

search doctrine provides that, if a private actor . . . searches

evidence in which an individual has a reasonable expectation of

privacy, and then provides that evidence to law enforcement or

its agent . . .’ [t]he additional invasions of [the

individual's] privacy by the government agent must be tested by

the degree to which they exceeded the scope of the private

search.’” United States v. Powell, No. 17-1683, slip op. at 8

(1st Cir. July 16, 2018) (quoting Jacobsen,

(1984)). This is because “when an individual reveals private

information to another, he assumes the risk that his confidant

will reveal that information to the authorities, and if that

20 occurs the Fourth Amendment does not prohibit governmental use

of that information.” Jacobsen,

.

Under the private search doctrine, “there is no Fourth

Amendment violation if the search by law enforcement or its

agent is coextensive with the scope of the private actor’s

private search and there is ‘a virtual certainty that nothing

else of significance’ could be revealed by the governmental

search.” Powell, slip. op. at 8 (quoting Jacobsen,

). “But if, instead, that search ‘exceed[s] the scope of the

private search,’ then the government must have ‘the right to

make an independent search’ under the Fourth Amendment in order

for that search to comport with the Constitution.”

(quoting

Jacobsen,

).

Here, O’Rourke’s friend, Krimtler, conducted a private

search before the USPIS inspected the package.9 Specifically,

she opened the package, saw that it contained powder, and

informed O’Rourke of the fact -- an act that prompted O’Rourke,

through his attorney, to contact the USPIS. And the USPIS’s

subsequent search of the package was coextensive with Krimtler’s

private search. Inspector Riggins, after seizing the package,

opened it and was, likewise, able to view the white powder

9 The defendant does not challenge Krimtler’s conduct.

21 contained in clear zip-top baggies. Accordingly, the private

search exception to the warrant requirement applies.

Conclusion

Finding that, even assuming that Moss has standing to

challenge the searches of the 730 and 962 packages, those

searches did not violate the Fourth Amendment, the court DENIED

his motion10 to suppress the evidence discovered during those

searches and resulting therefrom, and his motion for

reconsideration of the same.11

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: August 2, 2018,

cc: John R. Davis, AUSA Shane Kelbley, AUSA Simon R. Brown, Esq.

10 Document no. 52. 11 Document no. 60.

22