Let's say you're on probation, and officers have previously found marijuana at your residence. Let's further say that you're thinking about having a friend send you a huge package of weed from California in the mail.
Let me give you a piece of advice in such settings. Do not -- I repeat, do not -- go to your local post office shortly before this shipment and ask the postmaster whether your local post office conducts dog searches to look for drugs in the mail. Because you know what? Once you ask, they will. At least with respect to your post office box.
And entirely rightly so. Your question alone generates reasonable suspicion up the ying yang. So when your post office box gets a handwritten package addressed to a strange dude who's not you, guess what? They're going to search it. And no one -- not the district court, the Ninth Circuit, or your local law professor -- will have the slightest problem with that.
So that's a practical lesson for today. One which I'd hope would be obvious, and yet one in which reality apparently reflects is not.
Let me also add a doctrinal lesson. One that's far from obvious.
Judge O'Scannlain files a separate concurrence to make an additional, much more expansive, point. He argues that the defendant here has no standing to even raise a Fourth Amendment challenge to the search because the package was sent to an alias and the defendant denied at trial that the marijuana was his. Judge O'Scannlain cites several out-of-circuit cases that hold that people do not have a reasonable expectation of privacy in packages that are addressed to others to argue that, accordingly, a defendant does not have a reasonable expectation of privacy in a package that the defendant argues at trial was indeed addressed to others.
But my initial reaction -- admittedly without reading these out-of-circuit cases -- is that the issue here is different. It's one thing to say that an identifiable person, X, is the only one with standing when a package is addressed to him. If a package is addressed to me, but you open it, I can understand why courts might give me standing but not you, particularly if your receipt or opening of the mail was unauthorized. But it's different when the addressee is a fictional person. In such a setting, it seems strange to deny standing to everyone and essentially make unlimited searches permissible. Seems to me that the guy who receives the package in such a case does indeed have standing. Cases involving real people would thus be distinguishable from cases that involve fictional -- at least as far as we know -- people.
Now, Judge O'Scannlain would hold that the reason the cases should come out the same way is because the defendant has argued at trial that he's not the addressee (in an attempt to escape prosecution), and hence -- according to Judge O'Scannlain -- essentially concedes that he has no standing. This makes internal sense, I guess. But even beyond possessory and other interest that might still grant standing, why isn't the converse perspective equally true? The United States argues that the defendant was the true addressee; hence, why isn't that binding on the government, as an admission that the defendant does have standing?
It seems to me that either perspective is equally valid. It just depends on which way one looks at it. Plus, from a practical perspective, I think it make sense that we realize what we all know to be true: in most of these cases, the defendant was indeed the intended recipient, as the government has rightly argued (and as the jury will most likely conclude). Given this reality, I'm not at all convinced that it makes sense to adopt what seems to me a somewhat too-cute-by-half doctrine that says whenever you have a package mailed to you but use an alias you've entirely waive standing. Such a result seems less compelled by precedent than a desire to achieve a particular result through invocation of stringent, and unnecessary, procedural dictates.
So I would sign on with the per curiam opinion here, but not with Judge O'Scannlain's concurrence.
I might even respond to it in print. As indeed I just did.