Virginia Lawyers Weekly VA Lawyers Weekly
Where FedEx packages containing cocaine were intentionally addressed to a deceased person, the intended recipient lacked any expectation of privacy because he had no ability to exercise ownership, possession or control of the packages at the time they were searched.
Background
This appeal involves searches of two packages at a FedEx processing facility that were addressed to a deceased person. Before trial, the defendant, Faruq Rose, the intended recipient of those packages, filed a motion to suppress evidence of the cocaine found in the two searches conducted at the FedEx processing facility.
Rose argued that although he was neither the sender of, nor the named recipient on, the packages, he nonetheless had a reasonable expectation of privacy in those packages because he was their intended recipient. The district court denied Rose’s motion.
Search
Rose did not have a reasonable expectation of privacy in the packages addressed to Ronald West because, at the time of the searches, there were no objective indicia that Rose owned, possessed or exercised control over the packages. Nothing about the packages, including the sender’s name, the named recipient, the address or the phone number listed on the packages signaled in an objective sense that Rose had a protected interest in the packages. The packages were addressed to a deceased individual at a residence lacking any established connection to Rose. Moreover, at the time of the searches, Rose had not taken possession of the packages.
The Supreme Court’s decision in Byrd v. United States, 138 S. Ct. 1518 (2018), does not require a different result. In Byrd, the Supreme Court concluded that a defendant had a reasonable expectation of privacy in a rented vehicle even when he was not listed as an authorized driver of the vehicle because, at the time of the search, he had lawful possession and control of the rental car.
Here, Rose did not have possession of the packages at the time of the searches, and nothing in the record demonstrates that he would have been able to gain possession of the packages at the FedEx facility. Because the two packages bore another person’s name and lacked objective indicia connecting Rose to the packages as the intended recipient, he would not have been able to exercise at the FedEx facility any ownership rights or control over the packages.
Contrary to Rose’s arguments, his subjective interest as the intended recipient of the packages is insufficient on its own to warrant protection under the Fourth Amendment. Instead, a party’s subjective interest in a package must be accompanied by reasonable, objective indicia of a possessory interest. Absent any ability to exercise ownership, possession or control of the packages at the time of the searches, Rose had no greater privacy interest in the packages than an airport bystander.
This conclusion likewise is not altered by the fact that Rose previously had collected from West’s home multiple packages addressed to Ronald West using the same delivery scheme. Rose’s limited use of this deceased, third party’s name does not establish that Rose used “Ronald West” as an alias or was commonly known by that name.
Sentencing
According to Rose, the district court erred in applying the two-level leadership enhancement. But Rose’s guidelines range would not have changed absent the leadership enhancement. Accordingly, even if the court erred in applying the leadership enhancement, that error was harmless and Rose’s sentence was procedurally reasonable.
Rose also contends that the district court’s comments at sentencing reflect that the court did not act impartially in determining his sentence. Rose submits that the district court’s comments demonstrated its bias, which affected the length of his sentence. The court disagrees. Rather than showing bias, the district court’s comments regarding Rose’s repeated interruptions and attempts to obstruct justice were justified based on the present record. Moreover, none of the court’s comments manifested an “inability to render fair judgment.” Furthermore, the record shows that the district court took care in addressing the sentencing factors under 18 U.S.C. § 3553(a).
Affirmed.
Dissenting opinion
Gregory, C.J., dissenting:
Law enforcement officers opened a package that was mailed to Faruq Rose under a false name. Rose had a legitimate expectation of privacy in the mailing, despite his use of an alias, and the officers violated his Fourth Amendment rights by searching it without a warrant. Because the majority’s contrary conclusions misconstrue the law and misapply the facts, I respectfully dissent.
United States v. Rose, Case No. 19-4755, July 9, 2021. 4th Cir. (Keenan), from EDNC at Wilmington (Dever). William David Auman for Appellant. Scott Andrew Lemmon for Appellee. VLW 021-2-254. 36 pp.
