Judge Upholds UPS Employee/Paid Informant's Search Of An Intercepted Package
from the can't-challenge-what-you've-taken-steps-to-distance-from-yourself dept
Maybe this is part of UPS's large settlement with the DOJ. Maybe this is what FedEx won't do, which is why the DOJ tried to prosecute it for aiding and abetting illicit drug sales, right up until a federal judge called its prosecution "novel" and ushered it out of the court.
Whatever the case, there's at least one "inside man" (in this case a woman) at the UPS. A San Bernardino UPS store owner acted as a "citizen informant" for the county sheriff. In exchange for unspecified "compensation," the store owner would flag suspicious packages and call in the Sheriff's Department to come in and have a look/sniff at said shipments.
All well and good, if that's the sort of service you expect from a private company, rather than, say, the US Postal Service, which presumably does this sort of thing all the time. The Sheriff's Department, however, did instruct the store owner that she was not to open any suspicious packages.
On May 27, 2014, the UPS store owner contacted Officer Kristina Winegar, a deputy assigned to the narcotics division/parcel interdiction team in the Sheriff’s Department in the County of San Bernardino, California, about a “suspicious package.” The UPS store owner told the deputy that a black male entered the UPS store and paid $90 to have the package shipped to Houma, Louisiana. According to the deputy’s police report, “[d]ue to the [cost of shipping the package] and suspicious behavior of the suspect,” the store owner opened the package and found a container wrapped in cellophane. The store owner smelled a chemical order and resealed the box. The sender of the package, who provided the UPS store with the name “Sam Niel” and a Louisiana phone number, listed “John Lirette” in Houma as the recipient. The shipper used the UPS store address as the return address for the package.
You can't undo a package opening, even with access to official UPS box-sealing tape -- not under the Fourth Amendment. That's what led to this suppression hearing. The sheriff's department showed up and discovered that no "Sam Niel" existed in its criminal record database. It grabbed a dog to sniff the package. The dog alerted. Finally, a warrant was obtained to search the contents of the box that had already sort of been searched by a UPS employee on the Sheriff Department's payroll. This search led to a "controlled delivery" to the address on the box. That residence was also searched.
"Sam Niel," whose given name is actually Phillips Thompson, moved to suppress the evidence as the result of an illegal search. He might have had a point, too. A paid "citizen informant" working for the government and performing "private searches" (against instructions) is very different than non-government employees doing the same thing. The Geek Squad member who comes across child porn while repairing a computer performs a private search, and that's perfectly legal and constitutional.
The government is generally discouraged from availing itself of private searches, especially when it's paying someone at a private company to act on its behalf. So, interesting questions might have been raised, if not for the use of an "alias."
"Sam Niel" does not exist, therefore Phillips Thompson cannot challenge the search. It's a form of disavowal and the courts will not let someone make two incompatible claims:
1. That's not my stuff.
2. The search of that stuff was unconstitutional.
Suppression denied. But that ruling doesn't eliminate another interesting, but mostly unexplored, aspect of this decision. As Scott Greenfield points out, what the government refers to as an "alias," and ties solely to criminal activity, could be something far more innocuous.
Notice that it’s called an “alias” here, whereas it might be called a pseudonym if he used the name “Sam Niel” in a comment to this post telling me that I’m a dumbass. The distinction is that an alias is what’s used to conceal an identity to commit a crime, while a ‘nym is a time-honored, First Amendment protected, effort at quasi-anonymity.
But the government’s argument raises troubling issues. While a person’s intention to conceal his identity may be protected anonymity, should the government allege that its use related to crime, it would, by the government’s argument, morph into an alias, designed to distance the person from the offense. And further by the government’s argument, deprive a person of their right to challenge evidence based on this notion that he “forfeited any objectively reasonable expectation of privacy.”
As we're well aware, the US Postal Service scans every package and envelope and makes this available to law enforcement agencies on request (no warrant required). Maybe you feel the government doesn't really need to know who is sending communications back and forth, just the destination. You use fake names to throw off this tracking or just to dump some garbage data into the bulk collection. There's nothing illegal about it, but the government has determined that -- should one of these packages be searched -- you cannot challenge the search because you've used an "alias." Whatever bit of privacy you've tried to take back by using a pseudonym has only served to prevent you from challenging inspection of the communications content.
To put it another way, most people's email addresses aren't reflective of their real names. NSLs and subpoenas can grab to/from data but not the content. If the government treats email addresses as "aliases," the contents of communications are quickly painted as somehow criminal and it could argue the fake "name" contained in the email address is nothing more than the sender trying to distance themselves from what's contained in the messages. So much for suppression.
Of course, many email addresses are tied to actual people and that identifying info can be obtained from the service provider. But what about throwaway accounts containing nothing linking them to an actual person? There may be no criminal activity but it would be extremely difficult to challenge a search of email contents if someone has made an effort to distance the communications from themself and/or the other parts of their online identity. Pseudonymous speech is apparently protected by the First Amendment. Not so much by the Fourth.