USA v. Burno et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
PETER MICHAEL BURNO,
Defendant.
Case No. 3:19-cr-00128-01-RRB
ORDER REGARDING
MOTION TO SUPPRESS
(Docket 137)
Before the Court is Defendant, Peter Michael Burno, with a Motion to
Suppress the November 1, 2019, search and seizure of a parcel by U.S. Postal
Inspectors.1 Defendant alleges that the search and seizure of the parcel was a
violation of his Fourth Amendment rights.2 The United States has opposed the
motion,3 and 	the 	Magistrate 	Judge 	filed 	a 	Report 	and 	Recommendation
recommending that the Motion to Suppress be denied for lack of standing.4
Defendant has objected to the Report and Recommendation,5 to which the United
1 Docket 137.
2 Docket 138.
3 Docket 139.
4 Docket 147.
5 Docket 150.
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States has responded.6 This Court reviewed the matter and requested further
briefing, which has been filed by both parties.7
I. 	FACTS
On Friday, November 1, 2019, a U.S. Postal Inspector in Anchorage,
Alaska, intercepted a package after determining that it had suspicious characteristics
he deemed consistent with drug trafficking. 	The package was mailed from
Hawthorne, CA, with a return address for “D. Rheinschild,” and was addressed to
“Todd Brown” in Anchorage, AK. 	The postal inspector determined that “D.
Rheinschild” was associated with the return address in 2018, but that there were
“more recent records with different names associated with that address.”8 The postal
inspector also determined that “Todd Brown” was not associated with the recipient
address.
A canine examination of the package was conducted on Monday,
November 4, 2019, in Anchorage. 	The dog alerted, indicating the presence of a
controlled substance. 	A search warrant for the package was obtained, revealing
3,816.62 gross grams of methamphetamine.9
In a controlled delivery on November 5, 2019, co-defendant Bell took
delivery of the package and moved it to another location. According to the affidavit
6 Docket 151.
7 Dockets 153, 154, 156.
8 Docket 139 at 3.
9 Docket 1-1 at 3.
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of the postal inspector, a (post-arrest) review of text messages between Defendant
Burno and others suggested that the parcel was retrieved from its destination on
behalf of Burno.10 During a post-arrest interview on November 6, 2019, Burno
indicated that the address on the parcel was his address. He had a key to the front
door to the residence.11
The parties agree that the physical address to which the package was
addressed later was confirmed to be Defendant’s address, and that the investigators
spoke with co-defendant Bell after delivery of the package, and Bell told the officers
the package had been mailed by Defendant Burno.12
II. 	DISCUSSION
“The established principle is that suppression of the product of a Fourth
Amendment violation can be successfully urged only by those whose rights were
violated by the search itself, not by those who are aggrieved solely by the
introduction of damaging evidence.”13 “[T]he proponent of a motion to suppress has
the burden of establishing that his own Fourth Amendment rights were violated by
the challenged search or seizure.”14
10 Docket 1-1 at 5.
11 Id.
12 Docket 150 at 2.
13 United States v. Padilla, 508 U.S. 77, 81–82 (1993) (citation omitted).
14 United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005).
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A. 	Fourth Amendment Standing to Object to Search is Not Jurisdictional
The Magistrate concluded that because Defendant was neither the
purported sender nor the addressee of the package, Defendant reasonably appeared
to be a third party to the package, and third parties typically do not have privacy
interests in packages.15 The Magistrate also noted that Defendant did not address
standing in his underlying motion.16 He therefore determined that Defendant lacked
standing to challenge the search and seizure of the parcel, because he did not fulfill
his “burden to establish that his legitimate expectation of privacy in [the package]
was violated under the totality of the circumstances.”17 Accordingly, the Magistrate
did not reach the merits of Defendant’s underlying motion, and concluded only that
Defendant lacked standing to object to the search.
Article III standing “is jurisdictional and must be assessed before
reaching the merits.”18 In contrast, “Fourth Amendment standing is subsumed under
15 Docket 147 at 4.
16 Id. But this Court notes that the issue of standing was not raised until the government filed its
Opposition to the Motion to Suppress, and Defendant was not entitled to automatically file a Reply. No
Reply was requested prior to the issuance of the report and recommendation. Moreover, no evidentiary
hearing was held. Defendant never was given the opportunity to address standing until he filed objections
to the report and recommendation.
17 Id. at 3, citing Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
18 Byrd v. United States, ___ U.S. ___, 138 S. Ct. 1518, 1530 (2018) (“The concept of standing in
Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a
cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional
search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed
before reaching the merits.”); see also United States v. Taketa, 923 F.2d 665, 669 (9th Cir. 1991) (holding
that Fourth Amendment standing, unlike Article III standing, is a matter of substantive Fourth Amendment
law. “[T]o say that a party lacks Fourth Amendment standing is to say that his reasonable expectation of
privacy has not been infringed.”)
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substantive Fourth Amendment doctrine, it is not a jurisdictional question and hence
need not be addressed before addressing other aspects of the merits of a Fourth
Amendment claim.”19
Here, the Court concludes that the most prudent way to proceed is to
address the merits of Defendant’s Motion to Suppress while assuming, but not
concluding, that Defendant has Fourth Amendment standing to proceed with the
instant motion. 	Inasmuch as the matter has been fully briefed, and in order to
expedite final resolution of the matter, this Court will address and resolve the
pending motion. Assuming that Defendant had a privacy interest in the package, he
still must establish a Fourth Amendment violation in order to prevail on his Motion
to Suppress.
2. 	Government’s Initial Interference with Package was Reasonable
To determine whether the Government's interference with the timely
delivery of the express mail package is reasonable within the meaning of the Fourth
Amendment, the Court first must decide whether the postal inspector had “a
reasonable and articulable suspicion” that the package contained contraband or
evidence of illegal activity. 20 To determine whether reasonable suspicion exists, a
court “must look at the ‘totality of the circumstances’ of each case to see whether
19 Byrd, 138 S. Ct. at 1530.
20 United States v. Hernandez, 313 F.3d 1206, 1210 (9th Cir. 2002) (internal citation omitted).
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the detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing.”21
Defendant argues that reasonable suspicion did not exist to justify
seizure of the package. Highlighting the “Drug Package Profile” used by the U.S.
Postal service, the factors considered include: 	(1) size and shape of the mailing;
(2) package heavily taped and attempts to close or seal all openings; (3) hand printed
or 	written 	labels; 	(4) unusual 	return 	name 	and 	addresses; 	(5) unusual 	odors;
(6) fictitious return addressee; and (7) destination of parcel.22 Defendant argues that
“less than half” of these factors were present.23
The Government’s Opposition to the Motion to Suppress suggests that
there are additional factors that can support a reasonable and articulable suspicion
of criminal activity in the Ninth Circuit, including the use of Priority Express Mail,
shipping 	from 	a 	known 	source 	state; 	paying 	for 	postage 	in 	cash; 	and
incorrect/incomplete information on mailing label.24 The government argues that
there were adequate factors to warrant temporary seizure of this package, including
that Los Angeles is a known source area for narcotics to be shipped to Alaska;
postage of $106.55 was paid in cash; the package was shipped Priority Mail Express;
the mailing label was handwritten; “D. Rheinschild” no longer appeared to live at
21 Id., citing United States v. Arvizu, 534 U.S. 266, 273 (2002).
22 Docket 138 at 4–5.
23 Id. at 5.
24 Docket 139 at 7.
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the return address; “Todd Brown” did not exist at the recipient address; the mailing
post office was located over 7 miles from the return address, despite the location of
several other post offices closer to that address; and the weight of the parcel (just
over 11 pounds) did not reconcile with the outer packaging, which suggested
contents which should have weighed over 20 pounds.25
The Court may not consider each factor in isolation. 	Reasonable
suspicion may exist even if each factor, standing alone, is susceptible to an innocent
explanation.26 Furthermore, while the determination of reasonable suspicion is fact-
specific, the circumstances taken together must be evaluated as they would be
“understood by those versed in the field of law enforcement.”27 The Court finds it
particularly persuasive that postage over $100 was paid for in cash, and that neither
the name of the sender nor the name of the recipient currently was associated with
the 	corresponding 	address. 	The 	Court 	concludes 	that 	the 	Government 	has
established that sufficient reasonable suspicion existed in the minds of the U.S.
Postal Inspectors to justify seizing the package and subjecting it to a canine search.
3. 	Length of Delay was Reasonable
Prolonged detention of a package that initially is seized based on
reasonable suspicion is unreasonable under the Fourth Amendment,28 but the length
25 Id. at 8.
26 Arvizu, 534 U.S. at 277–78.
27 Hernandez, 313 F.3d at 1210.
28 United States v. Aldaz, 921 F.2d 227, 230 (9th Cir. 1990).
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of time that courts have deemed “reasonable” varies. The Ninth Circuit has found
delays ranging from seven to thirteen days to be unreasonable based on the
circumstances of that case.29 The Government suggests that this case is akin to
United 	States 	v. 	Gill, 	where 	a 	six-day 	delay 	was 	reasonable, 	because 	the
investigation was not conducted at a “leisurely pace.”30
This case involved a three-day delay, from Friday until Monday.31
According to the Postal Inspector’s affidavit, the press of business prevented him
from reviewing the package for several hours, and he did not review the package
until almost 4 p.m. on Friday.32 He contacted two canine officers, and determined
that a canine was not available on Friday afternoon, nor was one available over the
weekend. A canine was arranged for Monday.33
Defendant 	argues 	that 	even 	if 	reasonable 	suspicion 	existed, 	the
detention of the package for three days was unreasonable under the Fourth
Amendment.34 Although Defendant acknowledges that the Ninth Circuit has upheld
as reasonable a five-delay delay arising because it involved transporting a canine to
inspect a package located in a remote Alaskan village, he notes that the parcel in this
29 United States v. Dass, 849 F.2d 414, 415 (9th Cir. 1988).
30 280 F.3d 923, 929 (9th Cir. 2002).
31 The Court notes that arguably the package was delayed for only two days, because although it
was seized for further examination on Friday, the scheduled delivery date was not until Saturday.
32 Docket 154.
33 Docket 139 at 3–4; Docket 154.
34 Docket 138 at 5–8.
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case was located in Anchorage, where a canine readily should be available.35 He
further argues, without citation, that contacting two canine officers was insufficient
effort on the part of the Postal Inspector to execute the search in a reasonable
timeframe.36
Regardless of the time of day the package was reviewed by the assigned
Postal Inspector on Friday, the Court cannot conclude, given the intervening
weekend, the general press of postal business, and the immediate unavailability of a
canine, that it was patently unreasonable to wait until Monday to conduct the canine
search.
III. 	CONCLUSION
For the reasons set forth above, and affording Defendant the benefit of
the doubt with regard to standing, the Court concludes that reasonable suspicion
existed on November 1, 2019, for the Postal Inspector to seize the package in
question and submit it to a canine search. Moreover, given the press of business and
the intervening weekend, as well as the lack of immediate access to a canine, the
three days between seizure and search was not unreasonable under the Fourth
Amendment.
Therefore, the Motion to Suppress at Docket 137 is hereby DENIED.
35 Id. at 6, citing Aldaz, 921 F.2d at 231.
36 Docket 156 at 4.
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IT IS SO ORDERED this 13th day of January, 2021, at Anchorage,
Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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