Amanda Shaheen | When Is Your Mail, Really Your Mail? The Fourth Amendment Decides

BACKGROUND

The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures by the government. However, a litigant must have the standing to challenge a governmental action under the Fourth Amendment. To establish Fourth Amendment standing, a party must show that their reasonable expectations of privacy have been infringed upon. In the context of mail, standing can present a unique obstacle for a claimant. The Circuit Courts have disagreed about what reasonable privacy expectations an individual who uses a nickname or alias has in the mail they intend to send or receive.

When Post Office Inspectors examine packages for inconsistencies, contraband, or other suspicious activity, the recipient’s name having no association with the listed address raises a red flag. This was the case in United States v. Morta, No. 1:21-CR-00024, 2022 WL 1447021, at *2-3 (D. Guam May 9, 2022). Inspectors flagged a package addressed to a “Mark Mota” after discovering that nobody by that name resided at the listed delivery address. They conducted a “knock-and-talk,” where officers go to the listed address with the package and requesting permission to open it. Upon arriving at the recipient address, officers spoke to Jesse Morta, who owned the home. Jessie informed the officers that his daughter, Rebecca, and his grandson, Mark, stayed with him but no “Mark Mota” resided there.

Jesse permitted the officers to open the package and they discovered methamphetamine inside. Jesse told the officers he would bring Rebecca in to be interviewed when she got home. This interview resulted in her signing a written statement indicating that she had agreed to “a proposition to make money and receive drugs.” On September 15th 2021 Rebecca Rose San Nicolas Morta was indicted by a grand jury on one count of attempted possession with intent to distribute fifty or more grams of methamphetamine. Id. at 3.

On May 9th, 2022, the District Court of Guam denied her motion to suppress evidence obtained from her statements to police and from the search of her cell phone. The Court held that because she was neither the sender nor addressee of the parcel, she had no reasonable expectation of privacy, and thus lacked Fourth Amendment standing. In doing so, the Court adopted the recent “other indicia” approach used in the First and Fourth Circuits. Id. at 9.

ISSUE

Does an individual have a legitimate expectation of privacy for Fourth Amendment standing purposes with respect to a package that is not addressed to their residence or legal name?

THE SPLIT

The Circuit Courts are split over when, if ever, a defendant has a reasonable expectation of privacy in mail that is not addressed to their legal name and residence. An “intra- and inter-circuit split” exists regarding the use of aliases. United States v. Lozano, 623 F.3d 1055, 1064 (9th Cir. 2010) (per curiam). The implication is that if a defendant has no reasonable expectation of privacy in such mail, they lack Fourth Amendment standing and are barred from asserting an unreasonable search and seizure claim.

Neither the Supreme Court nor the Ninth Circuit has decided whether an individual has a legitimate expectation of privacy regarding a package that is not addressed to him. Id. Although a Ninth Circuit panel held that an individual does not enjoy an expectation of privacy under these circumstances, this was in an unpublished and nonprecedential decision. United States v. Perez, 64 F.App’x. 635, 636 (9th Cir. 2003). Adding to the confusion, the Second, Third, and Sixth Circuits have not addressed the issue.

The Tenth Circuit has found that a reasonable expectation of privacy may exist when using an alias. In explaining this conclusion, the Court, in dicta, stated: “It’s not necessarily illegal to use a pseudonym to receive mail unless fraud or a stolen identification is involved.” United States v. Johnson, 584 F.3d 995, 1002 (10th Cir. 2009). In Johnson, the Court distinguished between cases where harm may result from fraud or stolen identity and cases where an alias is merely used to receive a package, absent any fraudulent behavior. Id. at 1003.

As for the other Circuit courts that have faced the issue, three have found that no reasonable expectation of privacy exists, and three are split between these two positions.

The First, Fourth, and Eighth Circuits

The First Circuit has declined to decide whether a defendant could ever have a reasonable privacy interest in mail that does not list him as the addressee or addressor. United States v. Stokes, 829 F.3d 47, 52 (1st Cir. 2016). However, the Court expressed its reluctance to find an expectation of privacy absent some other showing by the defendant of a connection. Id. Mail simply being sent to a defendant’s address will not, by itself, give that defendant a legitimate privacy interest in the parcel. Id. at 53. Factors that may show a connection include: whether anyone else had access to the address, the nature of the delivery receptacle, or any other information that could shed light on the reasonableness of the claimed privacy interest. Id. This approach has been referred to as the “other indicia” test.

The Fourth Circuit has addressed this question twice and held on both occasions that an individual does not have a legitimate privacy interest in a package that is not addressed to him. United States v. Givens, 733 F.2d 339, 342 (4th Cir. 1984); United States v. Rose, 3 F.4th 722, 728 (4th Cir. 2021). The Court in Rose explained that absent other indicia of ownership or control existing at the time of the search, an individual does not have a privacy interest in a package addressed to a party other than the intended recipient. Id.

The Eighth Circuit has not expressly stated that it relied on the “other indicia” approach but has considered similar factors such as the defendants’ connection to the listed address, the mailbox, and its contents. United States v. Lewis, 738 F.2d 916, 920 (8th Cir. 1984). In Lewis, the Court recognized that possessing the mailbox and its mail does not confer “automatic standing” to raise a Fourth Amendment challenge. Id.

Both the Fourth and Eighth Circuits have distinguished between situations where an alias is used to advance some unlawful purpose and those where it is not. United States v. Walker, 20 F.Supp.2d 971, 974 (4th Cir. 1998). The Tenth Circuit has also recognized the significance of this distinction. Johnson, 584 F.3d at 1002. In Johnson, the Court explained that society is not prepared to acknowledge a defendant’s expectations as objectively reasonable due to his fraudulent and harmful behavior. Id. at 1004.

Intra-Circuit Splits: The Fifth, Seventh, and Eleventh Circuits

The Fifth, Seventh, and Eleventh Circuits have reached inconsistent conclusions over the years, which will be addressed in turn. The Fifth Circuit has held that an individual may assert a reasonable expectation of privacy in packages that are addressed to them under fictitious names. United States v. Villarreal, 963 F.2d 770, 774-775 (5th Cir. 1992). A defendant will generally have a legitimate expectation of privacy if they go by the alias listed on the package or use it as an “alter ego.” In Pierce, the Court clarified that a defendant has no privacy interests when the package is addressed to and received by another person and when the defendant continually disassociates themselves from the package. United States v. Peirce, 959 F.2d 1297 (5th Cir. 1992). Thus, it appears that an individual may have standing if they go by a different name than their legal name and list this “alter ego” on a package. However, they will not have standing if the package is addressed to an entirely different person other than the defendant.

The Fifth Circuit later held that a defendant does not have a legitimate expectation of privacy in a package addressed to someone else. Even if the listed name was the defendant’s alias, there could be no Fourth Amendment standing because the alias was in furtherance of a criminal scheme. United States v. Daniel, 982 F.2d 146, 149 (5th Cir. 1993).

The Seventh Circuit has held that a defendant who is neither the sender nor addressee of a package has no privacy interest, and accordingly, has no Fourth Amendment standing. United States v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988). However, a later opinion recognized that individuals have a right to use false names in sending and receiving mail. United States v. Pitts, 322 F.3d 449, 459 (7th Cir. 2003). The Court explained that this interest might be considered reasonable since there is nothing inherently wrong with a desire to remain anonymous when sending or receiving mail. Id.

Following the Seventh Circuit’s lead, the Eleventh Circuit holds that a defendant has a reasonable expectation of privacy in mail even if it is addressed using a fictitious name. United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009). The Seventh Circuit previously reached the opposite conclusion when it held that a defendant lacked a reasonable expectation of privacy when he was not the sender or addressee of the mail at issue. United States v. Smith, 39 F.3d 1142, 1145 (11th Cir. 1994).

LOOKING FORWARD

Despite the contradictions that exist both between and within the Circuits, a pattern may be emerging from the more recent cases out of the Fifth, Seventh, and Eleventh Circuits. They appear to agree, to some extent, that a legitimate expectation of privacy can exist so long as the defendant can establish (albeit to varying degrees) some connection or relationship to their alias. Morta at 8. Additionally, most of the Circuits that have faced this issue have held that a defendant will not have Fourth Amendment standing when the alias is used solely to advance a criminal scheme.

The Supreme Court has not addressed whether an individual has a legitimate expectation of privacy concerning a package that is neither addressed nor sent using their real name or address. Villarreal, 963 F.2d at 774. While the Supreme Court has long recognized that a sender or recipient enjoys an expectation of privacy in their packages, they have yet to dive deeper into this more nuanced issue concerning a defendant’s constitutional rights. Id.