United States of America v. Manuel Romero Flores

United States Court of Appeals
For the Eighth Circuit
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No. 22-1197
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Manuel Romero Flores
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: September 23, 2022
Filed: December 12, 2022
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Before LOKEN, BENTON, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
After the district court1 denied his motion to suppress, Manuel Romero Flores
conditionally pleaded guilty to possession with intent to distribute a controlled
substance. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). The court sentenced Flores to
1The Honorable Stephanie M. Rose, Chief Judge of the United States District
Court for the Southern District of Iowa.

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126 months’ imprisonment, varying upward six months from the mandatory minimum
of 120 months, his advisory guidelines range. Flores appeals the denial of his motion
to suppress, raising three Fourth Amendment issues emanating from a postal
inspector’s warrantless seizure of an undeliverable Express Mail package sent to
“Manuel Flores Rm 512” at a hotel in Des Moines, Iowa. He also appeals his
sentence, arguing it is substantively unreasonable because the district court failed to
adequately justify the upward variance. We affirm.
I. Background
United States Postal Service (“USPS”) Postal Inspector Ryan Brandt was the
only witness at the hearing on Flores’s motion to suppress. The district court found
Brandt credible. Brandt testified that USPS in Des Moines received an Express Mail
package addressed to “Manuel Flores Rm 512” at the Des Lux Hotel in Des Moines,
Iowa. The letter carrier could not deliver the package on July 19, 2020, because
Flores had been removed from the hotel several days earlier. Postal employees at the
main post office in downtown Des Moines marked the package “RTS” (return to
sender) and placed it in the Express Mail room. They also notified Inspector Brandt
of the attempted delivery.
The next morning, Inspector Brandt went to the Express Mail room to inspect
the package. The handwritten Express Mail label showed that it was sent from a
“Manuel Luis Flores” in Oxnard, California to a “Manuel Flores” in Room 512 at the
Des Lux Hotel in Des Moines. The sender included a phone number with a local
California area code and a return address. The return address was a real address in
Oxnard. Inspector Brandt testified that, based on his training and experience, the
label suggested the package might contain controlled substances -- it was sent from
California, a “source state;” it was an Express Mail package; it was sent to a hotel;
it was from an individual to an individual; the label was handwritten; and the names
of the sender and recipient were very similar.
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Inspector Brandt further testified that it is USPS policy to hold undeliverable
packages at the destination post office for “a period of days” to provide the recipient
time to claim the package. If not claimed, the package is then returned to the sender.
In this instance, while still in the Express Mail room, Inspector Brandt called the
sender’s listed California phone number. When a man answered, Brandt identified
himself as a federal agent and asked if he was speaking to “Manuel Flores.” The
speaker said yes, confirmed he had sent an Express Mail package to Des Moines,
requested that USPS return the package, and granted Inspector Brandt consent to
search the package but said he did not know what was in it. When Brandt asked why
the speaker did not know the contents of a package that he mailed, the speaker hung
up. Believing that the speaker was the sender and had consented to search of the
package, Inspector Brandt moved the package from the Express Mail room to his
office, opened the package, and discovered 83.7 grams of methamphetamine.
The next day, Flores visited the post office multiple times to inquire about the
package. Inspector Brandt reassembled the package (minus the methamphetamine)
and arrested Flores after a controlled delivery on July 22. In a police station
interview, officers learned that Flores was now staying at a La Quinta Inn in Clive,
Iowa. They also located his cell phone at a Comfort Inn & Suites near the Des
Moines post office and retrieved the phone from Comfort Inn staff. A warrant search
of the phone uncovered “general discussion about narcotics” and specific information
about the package, including text messages arranging for its shipment.
In the district court, Flores filed two separate motions to suppress, raising
numerous issues. We limit our discussion to the issues Flores raises on appeal. The
district court held that Inspector Brandt had reasonable suspicion to seize the package
when he called the speaker; that postal delivery of the package had not been delayed
prior to that call; that the speaker granted Inspector Brandt valid consent to search the
package; and that any seizure of Flores’s cell phone at the Comfort Inn before a
warrant to search was obtained was not “fruit of a poisonous tree.” In his subsequent
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guilty plea, Flores preserved the right to appeal the district court’s suppression
rulings.
II. Suppression Issues
A. Seizure of the Package. Flores argues on appeal, as he did in the district
court, that Inspector Brandt violated the Fourth Amendment’s protection against
unreasonable seizure of sealed packages placed in the mail when Brandt “took the
package from regular USPS employees on July 20, 2020, which removed it from the
stream of shipping” before Brandt called the sender’s phone number on the Express
Mail label. We disagree. A Fourth Amendment seizure of property requires “some
meaningful interference with an individual’s possessory interests in that property.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984). While a person retains a Fourth
Amendment right of privacy when he places a sealed package in the mail, “there
could be no expectation the package would not be handled or that its physical
attributes would not or could not be observed.” United States v. Terriques, 319 F.3d
1051, 1055 (8th Cir. 2003) (quotation omitted). Accordingly, it is well established
that there is no seizure of mailed packages until a law enforcement officer “delay[s]
or otherwise interfere[s] with the normal processing of the package.” United States
v. Vasquez, 213 F.3d 425, 426 (8th Cir. 2000) (citations omitted); see United States
v. Va Lerie, 424 F.3d 694, 707 (8th Cir. 2005) (en banc) (seizure of checked
luggage).
In this case, Inspector Brandt did not interfere with the normal handling of the
package until after he called the phone number on the Express Mail label. Flores, the
intended recipient, had rendered the package undeliverable when police removed him
from the hotel for unrelated misconduct. At this point, normal USPS policy was to
retain the package in the Express Mail room for a period of time so that it could be
claimed by the absent recipient, and then to return the package to its sender if it is not
claimed. When Inspector Brandt arrived at the Express Mail room on the morning
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of July 20, the package had been there for less than 24 hours, and no one had come
to claim or inquire about the package. Thus, Brandt did not seize the package when
he entered the mail room, inspected the package’s exterior, and called the sender
number on the Express Mail label. No seizure occurred until after Brandt spoke by
phone with a person who claimed to be the sender, and removed the package to his
office where he opened it and inspected what it contained. The district court
expressly found that “the package was not delayed in its delivery to [Flores] prior to
a valid consent to search the package.” That finding was not clearly erroneous. See
Terriques, 319 F.3d at 1055 (standard of review).
B. Consent to Search the Package. Inspector Brandt reasonably seized the
package after his phone call to the sender’s number in California in which he was
given consent to search. Therefore, his warrantless search of the package did not
violate the Fourth Amendment if the speaker voluntarily consented to the search and
Brandt reasonably believed the speaker had actual or apparent authority to give valid
consent. See Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990); Va Lerie, 424 F.3d
at 709. The district court credited Brandt’s unchallenged testimony that the speaker
voluntarily consented to Brandt searching the package and concluded the consent to
search was valid.
Both the sender and the recipient of a mailed package have a Fourth
Amendment interest in a search of the package’s contents. See United States v.
Sierra-Serrano, 11 F.4th 931, 933 (8th Cir. 2021) (quotation omitted), cert. denied,
142 S. Ct. 1219 (2022). Thus, consent sufficient to search a mailed package may
come from the actual sender or recipient, or from an individual that officers
reasonably believe to be the sender or recipient. See Rodriguez, 497 U.S. at 188.
Here, the speaker had this apparent authority if “the facts available to [Brandt] at the
moment” would “warrant a man of reasonable caution” to believe that the speaker
was the package sender. United States v. Cross, 888 F.3d 985, 989 (8th Cir. 2018)
(quotation omitted); see United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012).
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In response to inquiries from Inspector Brandt, who identified himself as a
federal agent, the speaker confirmed that he was the “Manuel Flores” who mailed an
Express Mail package to Des Moines. The speaker asked for the package to be
returned to him, then granted Brandt consent to search the package but denied
knowledge of its contents. When Brandt inquired further, the speaker abruptly hung
up the phone. Flores argues on appeal that Inspector Brandt did not have valid
consent to search because he failed to ascertain the speaker’s “affirmative identity,”
and because the speaker’s lack of knowledge about the package contents should have
raised doubt that he was in fact the package’s sender. We disagree.
Consistent with Brandt’s testimony, the district court found it “unsurprising”
that a speaker who mailed illegal materials would deny knowledge of the package’s
contents to a federal law enforcement agent after confirming that he was the sender.
Brandt had no obligation to ascertain the speaker’s “affirmative identity.” This
objective inquiry turns on “the facts available to the officer at the moment.” United
States v. Gonzalez, 609 F.3d 13, 18 (1st Cir. 2010) (quoting Rodriguez, 497 U.S. at
188). Flores cites cases addressing the knowledge needed to “introduce evidence of
the identity” of a phone call participant at trial, but that is a much different issue.
Like the district court, we conclude that the speaker gave valid consent because his
remarks over the phone plus the information on the Express Mail label led Inspector
Brandt to reasonably believe that the speaker was the package’s sender.
C. Seizure of Flores’s Cell Phone. Flores argues the officers unlawfully
seized his cell phone when they determined the phone had been left at the Comfort
Inn after Flores checked out, persuaded Comfort Inn staff to turn over the phone, and
then “maintained control” of the phone for a brief period before obtaining a search
warrant. The district court rejected this argument because the initial seizure of the
package and consent to open it were lawful so “the tree in this case has not borne any
poisonous fruit.” We agree. In addition, Comfort Inn staff had a legitimate interest
in surrendering the phone to an appropriate person, Flores was in custody, and the
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officers had reasonable suspicion the phone contained evidence of criminal activity.
“A temporary seizure . . . while the officers applied for a search warrant did not
meaningfully interfere with [Flores’s] possessory interests.” Clutter, 674 F.3d at 984.
III. The Sentencing Issue
The district court imposed a 126-month sentence, a six-month upward variance
from Flores’s mandatory minimum sentence. The court explained that, while “I
generally give [downward] variances” because the drug guidelines are too long, an
upward variance was appropriate because Flores had committed 61 security and
disciplinary violations while detained at the Polk County Jail between his arrest in
July 2020 and his sentencing hearing in January 2022, including narcotics violations,
sexual or violent assaultive behavior, rioting, and encouraging others to riot, all while
a short-staffed jail struggled to keep up with the global pandemic. “I think there has
to be some additional measure of punishment imposed here to reflect that behavior.”
On appeal, Flores argues the 126-month sentence is substantively unreasonable
because the district court failed to adequately justify the six-month upward variance.
“The district court has wide latitude to weigh the [18 U.S.C. § 3553(a)] factors and
assign some factors greater weight than others.” United States v. Thibeaux, 784 F.3d
1221, 1227 (8th Cir. 2015). Here, the district court carefully explained why it
imposed a six month upward variance, stating that a mandatory minimum sentence
would “ignore” Flores’s “ridiculously problematic” and “offensive” behavior during
his pre-sentence detention for this offense. The court did not abuse its discretion by
varying upward to account for dozens of serious security and disciplinary violations.
The judgment of the district court is affirmed.
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