Ninth Circuit says the mail must go through, but not early or even on time
Posted by: Gerald Smith
June 17, 2009
Topic: U.S. Courts of Appeals
In United States v. Jefferson, -- F.3d --, 2009 WL 1444555 (9th Cir. No. 08-30067, May 26, 2009), the Ninth Circuit recently held that a defendant did not have a Fourth Amendment possessory interest in a package that has a guaranteed delivery time until such time has passed.
John Jefferson appealed the denial of his suppression motion. An expressed package addressed to him arrived at the post office for delivery on the morning of April 6, 2006. The package had been mailed on April 5 with delivery guaranteed by 3:00 p.m. on April 7. The postal inspector had previously instructed clerks to notify him of any packages addressed to Jefferson. Upon being notified, the inspector told the clerk to hold the package overnight.
The inspector arrived at the post office at 7:00 a.m. on April 7 and inspected the package. He then submitted it to a canine sniff. The dog alerted to narcotics. Law enforcement applied for a warrant, which was issued at 11:55 a.m. The package was opened and found to contain 253 grams of methamphetamine. At 1:30 p.m., a beeper warrant was issued to place a beeper in the package. A controlled delivery of the package was made at about 5:00 p.m., and Jefferson was arrested when the beeper went off.
Citing United States v. Hernandez, 313 F.3d 1206 (9th Cir. 2002), the Court noted that a person has both a privacy and possessory interest in a mailed package. The Court concluded, however, that Jefferson's privacy interests were not implicated by the visual inspection because what is knowingly exposed to the public is not protected by the Fourth Amendment. Similarly, according to the Court, the use of a well-trained narcotics-detection dog does not implicate legitimate privacy interests.
Thus, only Jefferson's possessory interests were at issue. Jefferson asserted that this interest arose on April 6 when the package arrived at the post office and was removed from the mail stream rather being delivered in the normal fashion with other express mail packages. The Court disagreed, relying in large part on United States v. LaFrance, 879 F.2d 1 (1st Cir. 1989).
LaFrance was a case with remarkably similar facts. The First Circuit found in that case that the question of when a possessory interest arises would be determined by general contract principles. The Ninth Circuit quoted LaFrance: "'[W]here a delivery time is agreed upon, a court should not intrude to imply a (different) reasonable time for delivery.' LaFrance, 879 F.2d at 7."
As in LaFrance, the actual delivery time to Jefferson was in fact after the agreed upon time. LaFrance concluded that once the delivery time had passed, further detention of the package was reasonable under the circumstances. The Ninth Circuit agreed, holding that before a guaranteed delivery time, law enforcement may detain a package for inspection with no Fourth Amendment curtailment. Once that time has passed, law enforcement must have a "reasonable and articulable suspicion." Here, by the guaranteed delivery time, law enforcement not only had such suspicion, but had already established probable cause.
The Court also rejected Jefferson's double jeopardy claim based on the jury's inability to reach a verdict at his first trial.
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