United States Court of Appeals For the First Circuit

No. 18-1793

UNITED STATES OF AMERICA,

Appellee,

v.

DUSTIN MOSS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta, Circuit Judges.

Simon R. Brown, with whom Preti Flaherty PLLP was on brief, for appellant. John S. Davis, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

August 26, 2019 TORRUELLA, Circuit Judge. Dustin Moss ("Moss") appeals

from the district court's denial of his motion to suppress

approximately twenty pounds of methamphetamine that a postal

inspector discovered in two United States Postal Service Priority

Mail Express packages, as well as any evidence resulting from the

searches of those packages. After careful review, we affirm.

I. BACKGROUND

A. Factual Background

1. The 730 Package

On April 18, 2017, U.S. Postal Inspector Bruce Sweet

("Sweet") singled out from a list of incoming mail a package

scheduled to arrive from Las Vegas, Nevada, to Manchester, New

Hampshire. Since October 2016, Sweet had been participating in the

investigation of a drug conspiracy in which packages containing

methamphetamine were sent from Las Vegas to New Hampshire and, in

return, packages containing money were sent from New Hampshire to

Las Vegas. According to postal databases, the singled-out package

weighed twenty-six pounds; was addressed to Brian O'Rourke at 3

Blackberry Way, Apt. 108, Manchester, New Hampshire; and bore the

tracking number EL810533730US (the "730 Package"). More

importantly, it had "328 Florrie Ave."1 in Las Vegas as the return

1 Sweet later determined that the "328 Florrie Ave." address in Las Vegas did not exist.

-2- address, which matched the "Florrie Ave." return address used in

other packages identified throughout the drug conspiracy

investigation. Based on these characteristics and his knowledge

of the investigation, Sweet deemed the 730 Package suspicious.

Accordingly, the night before the package's arrival,

Sweet drafted an affidavit in support of a warrant to search the

730 Package and e-mailed it to Assistant United States Attorney

William Morse ("AUSA Morse"). Sweet's affidavit included an

attachment labelled "Attachment A," which accurately described the

730 Package as a "black 'Kicker Speaker' cardboard box," and

detailed the package's weight and dimensions. The attachment also

identified the 730 Package's addressee, O'Rourke, as well as the

package's final destination.

Sweet collected the 730 Package and placed it in a canine

drug-sniff lineup shortly after the package arrived in Manchester

on the morning of August 19, 2017. After the drug-sniffing dog

alerted on the 730 Package, Sweet secured the package in the United

States Postal Inspection Service's parcel inspection room.2 Sweet

effectively separated the 730 Package from all other mail held in

the postal facility given that there were no other packages in the

parcel inspection room at this point.

2 Access to the parcel inspection room is limited to Postal Inspection Service employees.

-3- AUSA Morse proceeded to e-mail Sweet's affidavit to

court personnel that same morning. AUSA Morse's e-mail indicated

that his office was still working on the associated paperwork.

Within an hour of the e-mail's delivery, AUSA Morse and Sweet

arrived at the magistrate judge's chambers with a complete search

warrant packet consisting of: (1) the search warrant application;

(2) Sweet's affidavit and its two accompanying attachments; and

(3) the proposed search warrant. In the space provided for a

description of the property to be searched, the warrant application

stated: "See Attachment A to Affidavit of U.S. Postal Inspector

Bruce A. Sweet which is incorporated herein by reference.". As

mentioned above, Attachment A of Sweet's affidavit provided an

accurate and detailed description of the 730 Package. After

reviewing the search warrant application and Sweet's affidavit,

the magistrate judge issued the search warrant.3

However, due to a clerical error in the U.S. Attorney's

Office, the document identified as "Attachment A" that was appended

to the search warrant was different from the one attached to

Sweet's affidavit and reviewed by the magistrate judge. The issued

warrant's Attachment A did not describe the 730 Package, a twenty-

3 Similar to the search warrant application, the actual search warrant stated "See Attachment A, as attached hereto and incorporated herein" in the space provided for the description of the property to be searched.

-4- six-pound cardboard box, but rather a five-ounce envelope Sweet

had searched during the course of an unrelated investigation from

November 2016. 4 The warrant, nevertheless, still included

information reflecting its relation to the 730 Package.

Specifically, its caption correctly read:

In the Matter of the Search of

(Briefly describe the property to be searched . . .)

USPS Priority Mail Express Package Bearing Tracking

Number EL810533730US.

In other words, the issued warrant included the 730 Package's

exclusive tracking number, despite the description of another

package in its Attachment A.

Unaware of the mistakenly appended attachment, Sweet

proceeded to search the 730 Package. Inside the package, he found

a large speaker and, inside the speaker, twelve zip-top bags, each

containing almost exactly one pound of a white crystalline

substance later identified as methamphetamine. Sweet then

replaced the narcotics with miscellaneous items to bring the box

to its original weight, repackaged the speaker, resealed the

4 Apart from being of a different type and weight than the 730 Package, the package described in the issued warrant's Attachment A was addressed to a different recipient, Mr. Golden; destined to a different city, Laconia, New Hampshire; had a different sender, Sequoia High School in California; and, of course, was identified with a different tracking number, EL576175385US.

-5- package, and delivered it to the post office for the next stage of

the government's operation -- apprehension of the 730 Package's

addressee, Brian O'Rourke.

O'Rourke was a crack cocaine addict. His supplier was

Sabrina Moss ("Sabrina"), defendant-appellant Moss's sister.

O'Rourke, Sabrina, and Moss had all been in the same hotel room

with other drug users about a week prior to the arrival of the 730

Package. O'Rourke and Moss did not know each other and did not

speak to each other in that hotel room. Their interaction was

limited to what can be described as a mutual acknowledgement of

each other's presence: They waved at each other after Sabrina

pointed out Moss to O'Rourke. Sabrina then asked O'Rourke if he

was willing to receive a package at his apartment on Moss's behalf

in exchange for three-and-a-half grams of crack cocaine.5 O'Rourke

agreed.

But the terms of this agreement were never fleshed out

any further. O'Rourke left the hotel room without Sabrina telling

him when to expect the package to arrive or the number of packages

he would receive. Nonetheless, from their conversation's

reference to "a package," O'Rourke understood that their

arrangement was limited to the receipt of a single piece of mail.

5 According to O'Rourke, this amount of crack cocaine had a street value of around $300.

-6- O'Rourke believed everything would transpire in a simple, quick

manner: The package would arrive at his apartment, Moss would pick

it up, and he would receive his illicit compensation. To

O'Rourke's dismay, not even his first assumption materialized.

The same day the 730 Package arrived in Manchester, a

postal inspector dressed as a letter carrier delivered a notice to

O'Rourke's mailbox informing him that the package was ready for

pickup at the post office. Moss met with O'Rourke at the latter's

apartment, where, instead of going directly to the post office,

they waited, believing that the 730 Package might yet be delivered

there. Several hours later, Sabrina and her boyfriend arrived at

O'Rourke's apartment and joined the waiting game. Once they

realized the 730 Package would not be delivered directly to

O'Rourke's apartment, the four individuals decided to decamp.

O'Rourke and Moss left the apartment at the same time. O'Rourke

drove directly to the post office, while Moss drove to a shopping

center located approximately a quarter mile away from the post

office and parked behind a furniture store.

Sweet, who was behind the counter at the post office,

handed the 730 Package to O'Rourke. O'Rourke then met with Moss

behind the furniture store and placed the 730 Package in the back

seat of Moss's vehicle. Shortly thereafter, law enforcement

-7- intervened and arrested Moss and O'Rourke on the spot. O'Rourke

was subsequently released on bond, while Moss remained in custody.

2. The 962 Package

Three days later, on April 22, 2017, a second package

from Las Vegas, bearing the EL652259962US tracking number (the

"962 Package"), was delivered to O'Rourke's address. Because it

was a box too large to fit in his mailbox, the 962 Package was

placed in the building's parcel lockbox. O'Rourke noticed a key

in his mailbox, which served to notify residents that they had a

larger package ready for pickup. Because he was not expecting a

package and wanted "nothing to do with it," he opted to ignore the

key and wait until he had spoken with his lawyer before taking any

action. The following day, however, O'Rourke's friend, Brenda

Krimtler ("Krimtler") -- who was helping O'Rourke get his affairs

in order before he entered a drug rehabilitation program -- picked

up his mail and used the key to retrieve the 962 Package from the

building's parcel lockbox.

Krimtler then brought the 962 Package to O'Rourke's

kitchen, opened it, and noticed it was full of white powder. She

reacted to this surprise by telling O'Rourke, who was in another

room, about the package's contents. O'Rourke responded by

instructing Krimtler to reseal the package and return it to the

-8- parcel lockbox, which she did without O'Rourke ever setting his

eyes on it.

O'Rourke then called his attorney and told her about the

package. With O'Rourke's agreement, the attorney called Sweet and

explained the situation. She informed Sweet about the 962 Package,

told him that the 962 Package had been opened, that O'Rourke

believed it contained narcotics, that O'Rourke did not want it,

and that Sweet could search it.

With permission from O'Rourke's attorney, Sweet called

O'Rourke later that evening. O'Rourke confirmed the information

that had been previously conveyed by his attorney. He told 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. Because O'Rourke expressly granted him permission to

search the package, Sweet did not seek a warrant. Instead, he

contacted another postal inspector who lived closer to O'Rourke,

Steve Riggins, who proceeded to retrieve the 962 Package from the

parcel lockbox.6

Riggins took the 962 Package to his car and, with Sweet

on the phone, opened it. Inside the package he found a freezer

6 Given that the parcel lockboxes are designed to lock in the key and remain open once a resident gains access, the lockbox with the 962 Package was open when Riggins arrived to retrieve the package.

-9- bag. After unfurling the top of the freezer bag,7 he noticed that

it contained zip-top bags with white powder. Riggins then took

the 962 Package to the Manchester postal facility, where he and

Sweet thoroughly searched it and found that it contained a total

of eight zip-top bags with approximately one pound of

methamphetamine each.

B. Procedural History

On May 17, 2017, a grand jury indicted Moss for

conspiracy to distribute a controlled substance (50 grams or more

of methamphetamine), in violation of

(Count 1),

and possession of a firearm in furtherance of a drug trafficking

crime, in violation of

(c) (Count 2). Moss moved

to suppress the 730 Package and the 962 Package, as well as any

fruits obtained from their searches. The government opposed Moss's

motion to suppress, contending, among other things, that Moss

lacked a reasonable expectation of privacy in the packages.8

7 The top of the freezer bag was not sealed but rather furled to one side, which allowed the bag to fit within the 962 Package. 8 While courts typically treat the question of whether a defendant has a reasonable expectation of privacy as a threshold issue, sometimes "refer[ing] to it as an issue of 'standing,'" United States v. Lipscomb,

(1st Cir. 2008) (citation omitted), this analysis is "more properly placed within the purview of substantive Fourth Amendment law than within that of standing," Minnesota v. Carter,

(1998) (quoting Rakas v. Illinois,

(1978)). As the Supreme Court recently explained, whether a defendant has a reasonable expectation of privacy "is not a jurisdictional question and hence need not be

-10- On April 13, 2018, the district court held an evidentiary

hearing on the motion to suppress. After listening to the

testimony of Sweet, O'Rourke, Riggins, and Moss, the district court

denied Moss's motion to suppress from the bench. In doing so,

however, the court opted to assume Moss had a reasonable

expectation of privacy in the packages and denied his motion to

suppress because neither search was unconstitutional.

On April 25, 2018, Moss pleaded guilty to both counts.

Under the plea agreement, however, Moss explicitly reserved the

right to appeal the district court's denial of his motion to

suppress. On August 2, 2018, the district court issued a written

decision explaining the basis for its ruling on the motion to

suppress, and sentenced Moss to a total of 300 months'

imprisonment: 240 months for Count 1 and 60 months for Count 2, to

be served consecutively.

In its written decision, as it had done in its ruling

from the bench, the district court again assumed arguendo that

Moss held a reasonable expectation of privacy in the searched

packages and concluded that neither search was unconstitutional.

addressed before addressing other aspects of the merits of a Fourth Amendment claim." Byrd v. United States,

(2018). Accordingly, we do not use the term "standing" to describe the question. See United States v. Bouffard,

(1st Cir. 1990).

-11- The district court found that the warrant authorizing

the search of the 730 Package was not facially invalid despite the

government's attachment of the incorrect Attachment A. The court

reasoned that, although the attachment "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 730 package -- would execute the

warrant by searching an incorrect package was exceedingly low."

As to the 962 Package, the court held that Riggins's

warrantless search was justified by both the private search

doctrine and O'Rourke's consent. Specifically, it found that the

private search doctrine applied because Riggins's search did not

exceed the scope of Krimtler's private search, and that O'Rourke

had both apparent and actual authority to provide consent given

that he was both the addressee and recipient of the package. The

current appeal ensued.

II. ANALYSIS

We review the district court's denial of a motion to

suppress scrutinizing its factual findings for clear error and its

legal conclusions, including its ultimate constitutional

determinations, de novo. See United States v. Owens,

(1st Cir. 2019). We "may affirm . . . suppression rulings on

any basis apparent in the record." United States v. Ackies, 918

-12- F.3d 190, 197 (1st Cir. 2019) (quoting United States v. Arnott,

(1st Cir. 2014)).

The Fourth Amendment protects "[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." U.S. Const. amend. IV. A

search within the meaning of the Fourth Amendment occurs whenever

the government intrudes upon any place and in relation to any item

in which a person has a reasonable expectation of privacy. See

United States v. Bain,

(1st Cir. 2017) (quoting

Katz v. United States,

(1967) (Harlan, J.,

concurring)); United States v. Stokes,

(1st Cir.

2016). To advance claims for protection under the Fourth

Amendment, the defendant carries the burden of "showing that he

has 'a reasonable expectation of privacy in the area searched and

in relation to the items seized.'" Stokes,

(quoting

United States v. Aguirre,

(1st Cir. 1988)).

Because whether a defendant has a reasonable expectation

of privacy is not jurisdictional, it is within an appellate court's

discretion to forgo the question and proceed directly to the

constitutionality of the challenged searches. See Byrd v. United

States,

(2018). We opt to exercise this

discretion here and, without deciding whether Moss had a reasonable

-13- expectation of privacy, address the constitutionality of the

searches of the 730 and 962 Packages in turn.

A. Sweet's Search of the 730 Package

Moss contends that the district court erred in denying

his motion to suppress the 730 Package and the fruits of its

search. Because the warrant incorporated by reference an

attachment that described a totally distinct package, Moss argues

that it failed to particularly describe the 730 Package and was

thus facially invalid for failure to comport with the Fourth

Amendment's particularity requirement. While we do not condone

the government oversight in assembling the 730 Package's search

warrant, this argument fails.

The Fourth Amendment unambiguously requires that

warrants "particularly describ[e] the place to be searched, and

the persons or things to be seized." Groh v. Ramírez,

(2004) (quoting U.S. Const. amend. IV) (emphasis omitted).

The manifest purpose of this constitutional rule, known as the

particularity requirement, "is to prevent wide-ranging general

searches by the police." United States v. Bonner,

(1st Cir. 1986). "The test for determining the adequacy of the

description [in a warrant] of the location to be searched is

whether the description is sufficient to enable the executing

officer to locate and identify the premises with reasonable effort,

-14- and whether there is any reasonable probability that another

premise might be mistakenly searched."

(internal quotation

marks omitted). When carrying out our inquiry, we do not strictly

limit our analysis to the four corners of the warrant but also

"consider[] the circumstances of [the warrant's] issuance and

execution."

Notwithstanding, the content of the warrant

application is outside the scope of our analysis -- it cannot save

the actual warrant from its failure to provide an adequate

description. See Groh,

. "The fact that [a

warrant] application adequately describe[s] the 'things to be

seized' does not save [a] warrant from its facial invalidity. The

Fourth Amendment by its terms requires particularity in the

warrant, not in the supporting documents."

(emphasis omitted).9

Supreme Court precedent provides useful guidance. In

Groh, the Supreme Court held that a warrant that "did not describe

the items to be seized at all" was facially invalid under the

9 Notwithstanding, "[a]n affidavit may be referred to for purposes of providing particularity if the affidavit accompanies the warrant, and the warrant uses suitable words of reference which incorporate the affidavit." United States v. Roche,

(1st Cir. 1980) (citation omitted); accord Groh v. Ramírez,

(2004) ("We do not say that the Fourth Amendment prohibits a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.").

-15- Fourth Amendment because it did not meet the particularity

requirement.

. While the warrant application stated

that law enforcement sought to seize "automatic firearms . . .

grenades, grenade launchers, [and] rocket launchers," among other

things, the warrant itself simply referenced the place to be

searched -- a "single dwelling residence . . . blue in color" --

in the space provided for the description of the items to be

seized.

. In reaching its conclusion that the

warrant did not meet the particularity requirement, the Supreme

Court stressed that the "obviously deficient" warrant "did not

simply omit a few items from a list of many to be seized, or

misdescribe a few of several items. Nor did it make what fairly

could be characterized as a mere technical mistake or typographical

error."

.

Our decision in Bonner is similarly helpful here. There,

the defendants challenged a warrant authorizing the search of their

residence, claiming that it was defective because it omitted the

residence's exact address.

. In upholding the

validity of the search warrant, we concluded that, despite the

"technical omission" of the address, the "[defendants'] residence

was described with sufficient particularity," given that a

detailed physical description of the residence was included in the

warrant.

. We also found that "[t]here was no risk

-16- that federal agents would be confused and stumble into the wrong

house, or would take advantage of their unforeseeable windfall and

search houses indiscriminately."

. In support of

this conclusion, we emphasized that "[t]he agents, having

previously conducted the surveillance [of the residence], knew

exactly which house they wanted to search . . . and searched only

that house."

.

We faced a similar situation in United States v. Vega-

Figueroa,

(1st Cir. 2000), and again denied the

defendant's challenge to the district court's denial of his motion

to suppress. In that case, the defendant claimed that a warrant

to search his residence failed to comply with the particularity

requirement because it "mistakenly described the apartment to be

searched as building 44, apartment 446," when "[his] address was

in fact building 45, apartment 446."

. Noting that

the defendant's apartment was the only residence eventually

searched and that the same officer who "made the observations that

were the basis for issuing the warrant" was also the warrant's

executing officer, as well as a member of the search team, we

concluded that there was no risk of the wrong house being searched.

Therefore, we ruled that the warrant was properly issued and

executed.

-17- Here, the district court did not err in denying Moss's

motion to suppress. The present case is distinguishable from Groh

and more analogous to Bonner and Vega-Figueroa. In Groh, the

issued warrant did not describe the items to be seized at all.

. In turn, the warrant at issue in this appeal

provides a description of the 730 Package in the form of its

exclusive tracking number, which was included in the issued

warrant's caption. In other words, the warrant was not totally

devoid of an accurate description of the 730 Package. And Moss

concedes as much.

Our inquiry, however, does not end here. Because the

730 Package's warrant includes two conflicting descriptions -- on

one hand, the correct tracking number in its caption and, on the

other, the inaccurate description in the appended attachment -- we

must look further to ensure it meets the particularity requirement.

Thus, we employ the rubric set out in Bonner to ascertain the

adequacy of the warrant's description.

Under the test established in Bonner, we first examine

the adequacy of a warrant's description based on whether it is

"sufficient to enable the executing officer to locate and identify"

the object to be searched with reasonable effort.

(emphasis added). Because Sweet had segregated the 730 Package in

the parcel inspection room prior to the issuance of the search

-18- warrant, there was no real risk here of him having to expend an

unreasonable effort to locate and identify it. Moreover, Sweet's

familiarity with the 730 Package, which will be discussed in detail

below, meant that, in any case, he did not require a description

beyond the exclusive tracking number to properly execute the

warrant. See

(holding that a detailed description of

a residence, albeit one without a specific address, was sufficient

to meet the particularity requirement given that the agents

executing the warrant because had previously surveilled it). While

definitely not as detailed as the description that Sweet and Moss

intended to incorporate by reference into the warrant, the tracking

number's unique combination of thirteen digits provided a

description with a high degree of particularity. Again, Moss

concedes as much. Thus, we conclude that, within the circumstances

of this case, the inclusion of the 730 Package's tracking number

in the warrant would have been sufficient for the executing

officer, Sweet, to locate and identify it without expending an

unreasonable effort even if he had not isolated it in the parcel

inspection room prior to the issuance of the warrant.

Considering the circumstances of its issuance and

execution, the warrant authorizing the 730 Package's search

suffered from a mere technical error. See

; see also

United States v. Qazah,

(4th Cir. 2015)

-19- (classifying the inclusion of an incorrect attachment in a search

warrant as a "technical one"). The fact that Sweet isolated the

730 Package in the parcel inspection room following the positive

dog sniff but prior to the issuance of the search warrant coupled

with his familiarity with the package's physical characteristics

(e.g., size, weight, etc.) effaced any reasonable probability of

him mistakenly searching another package. Apart from being the

warrant's executing officer, Sweet participated in every stage

leading up to the search of the 730 Package. He conducted the

investigation that led to the 730 Package being singled out even

before its arrival in Manchester; was present during the canine's

drug sniff; drafted the search warrant application's affidavit;

sought issuance of the warrant from the magistrate judge; and, of

course, executed the search. Cf. Bonner,

; Vega-

Figueroa,

. Furthermore, Sweet knew that the

package described in the issued search warrant's Attachment A was

related to a separate 2016 investigation in which he had

participated.10

In sum, we find that, despite the presence of conflicting

descriptions in the warrant, the 730 Package was described with

10 Furthermore, the property described in the issued warrant's Attachment A and the 730 Package had significantly different physical characteristics; while the first was a five-ounce envelope, the second was a twenty-six-pound box.

-20- sufficient particularity for Sweet to identify it and there was no

reasonable probability of Sweet searching another package;

therefore, the warrant was valid.

B. Warrantless Search of 962 Package

The warrantless search of the 962 Package was justified

by O'Rourke's consent. O'Rourke verbally consented to the search

of the 962 Package twice -- first through his attorney and then

directly to Sweet. As the package's addressee and recipient,

O'Rourke had actual authority over the 962 Package and therefore

capacity to consent to its search. See United States v. Matlock,

, 171 n.7 (1974) (recognizing control as a factor to

be considered when determining whether a person has authority over

property); see also Eagle Tr. Fund v. United States Postal Serv.,

(D.D.C. 2019) ("[T]he Domestic Mail

Manual, which sets out the procedures for mail delivery by the

Postal Service, provides that an addressee controls the delivery

of its mail."), appeal on other grounds docketed, No. 19-5090 (D.C.

Cir. Apr. 8, 2019);

(a)(2) (stating that the

Domestic Mail Manual forms part of the Postal Service's

regulations). Notwithstanding, even if he lacked authority, as

Moss contends, the search was valid because, being the package's

addressee, it was reasonable for Sweet and Riggins to believe that

O'Rourke had apparent authority to consent to its search. See

-21- United States v. González,

(1st Cir. 2010) ("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.").

We therefore hold that the warrantless search of the 962

Package did not infringe Moss's Fourth Amendment rights.11

III. CONCLUSION

Based on the foregoing, we affirm the district court's

denial of Moss's motion for suppression of evidence.

Affirmed.

11 Because O'Rourke's consent justified the warrantless search of the 962 Package, we need not address the district court's alternate, private search doctrine basis for the denial of the package's suppression. See United States v. Ackies,

(1st Cir. 2019).

-22-