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United States v. Beard

United States District Court, S.D. Texas, Houston Division

May 17, 2019

UNITED STATES OF AMERICA
v.
CLARENCE TRAMIEL BEARD

          ORDER ON MOTION TO SUPPRESS

          ANDREW S. HANEN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This matter came before the Court for hearing on the Motion to Suppress filed by the Defendant Clarence Tramiel Beard ("Beard" or "Defendant"). [ECF No. 24]. The Government filed its opposition [ECF No. 25], and Defendant filed a reply to the Government's response. [ECF No. 28]. The Court has reviewed the Parties' briefings and arguments presented at the hearing, as well as the Parties' supplemental post-hearing briefing. [ECF Nos. 37, 38].

         II. Background

         This case involves a mailed package searched by government agents. On November 27, 2017, a United States Postal Inspector named Jeff Gordon ("Gordon") placed a parcel watch on 43482 Little Vegas Dr., Hammond, LA 70403, an address that had been implicated in numerous monetary transactions involving a narcotics trafficking suspect. At the time, Gordon knew the following facts: (1) Beard was suspected of trafficking in narcotics using the mail system, (2) Homeland Security Investigations ("HSI") had an ongoing investigation into Beard, (3) Beard used the alias "Nick Johnson" on prior occasions, (4) numerous structured payments in $1, 000 increments had been sent via wire transfers from the Hammond address to Beard, and (5) the Hammond address was valid and associated with an individual named Kelly McAllister ("McAllister"). [ECF No. 35 at 8-9]. In particular, Gordon testified that through the HSI investigation, several individuals had been arrested for drug possession in Amarillo and that Beard had been identified as the individual who had supplied them with packages of drugs through the mail. [Id. at 9].

         On January 8, 2018, Gordon was alerted to a priority mail parcel destined to the Hammond address. The alert was automatically generated and included an image sent to Gordon of the mailing label and package, but the automated system could not intercept the package. [See Id. at 15]. Gordon testified that the automated alert system is not capable of pulling a package from the mail stream. He also testified that although the package was still in Houston on that date, that it was located in a shipping warehouse in Houston that contains large quantities of mail. He stated that postal inspectors have not successfully requested that packages be retrieved or returned from that warehouse, and that he did not know of any way to stop the package prior to its being mailed to Hammond, Louisiana. [See ECF No. 35 at 38-39, 54]. As a result, the package continued on its way to Hammond and was in transit from Monday, January 8, 2018 through Thursday, January 11, 2018 when it arrived in Hammond.

         According to Gordon, the package had handwritten labels identifying the return address as Nick Johnson at 3746 Ashford, Houston, Texas. He testified at the hearing that the package was sent from a post office that Beard was known to frequent, that it included the known Nick Johnson alias, and that the return address was not a valid address.[1] Gordon testified that the return address was not only incomplete, but it was also a false address. He also explained under oath that this address was notable because Beard's prior address was 3742 East Ashford Villa, and that in Gordon's experience, individuals often use old addresses or slight variations of them to avoid detection. [Id. at 55-56]. Further, Gordon testified that at the time the package was mailed, law enforcement knew that Beard no longer lived on "Ashford anything" or an address including the word "Ashford." [Id. at 56-57].

         Gordon requested on January 8, 2018 that the package be shipped back to him in Houston once it arrived to the post office in Hammond.[2] When the package arrived in Hammond, Gordon testified that it was pulled in the post office prior to being delivered to the recipient address and was shipped on Friday, January 12, 2018 back to Gordon in Houston. He testified that postal workers in Hammond left the parcel intact and placed it in another larger box, which was addressed to Gordon. According to his testimony, packages sent in this manner to postal inspectors are typically sent via Express Mail, but he did not know if this package was actually mailed as such. He testified that it displayed no labels designating that it was being shipped for law enforcement purposes. He further averred that he had no way to request that the package be overnighted or otherwise expedited. [ECF No. 35 at 18-19].

         The package remained in transit from Friday, January 12 until the afternoon of Wednesday, January 17, 2018 when Gordon received it in Houston. At that time, Gordon examined the box in person but did not open it. He testified that the weight of the package was consistent with other known packages of narcotics, in that it contained two separate dense center masses that sounded and felt soft when they touched the sides of the parcel. At this point, Gordon believed the parcel to contain bags of some type of powder. [ECF No. 35 at 21].

         On the morning of January 18, 2018-"first thing the next morning"-Gordon secured a canine unit to conduct a sniff test of the parcel. [Id.]. Gordon testified that the canine unit consisted of Officer Corrales, the handler for canine "Gero." Gordon attested that he had previously worked with this team and knew the dog's name to be "Gero." Gordon was not present in the room when Corrales conducted the sniff test with "Gero," but stated his understanding that Corrales had presented "Gero" with three boxes, including the parcel of interest and two decoys, and "Gero" alerted to the presence of narcotics in the parcel. [Id. at 22-23, 33]. Gordon also testified that he had worked with a dog named "Enzo" previously and recognized that the canine officer used on January 18, 2018 was in fact "Gero," not "Enzo." [Id. at 23].

         Gordon further testified that he then prepared an application for a search warrant, which was reviewed by an Assistant United States Attorney ("AUSA"), and which was then approved by a United States Magistrate Judge. He testified that, as with other affidavits prepared during his tenure at the Postal Inspectors office, he used a template and the "cut-and-paste" function in preparing the document in a computer word processor. In preparing the affidavits, Gordon avers that he reviewed all the paragraphs to ensure that the information reflected the facts of this investigation, but that he (along with the AUSA and Magistrate Judge) missed the "typo" in one sentence of Paragraph 6, where he mistakenly stated that a canine named "Enzo," rather than "Gero," alerted to the package. [See ECF No. 35 at 30].

         Gordon and HSI Agent Therese Renick ("Renick") executed the search warrant on the same date, January 19, 2018, and discovered two socks in the parcel. One sock contained a Ziplock bag filled with approximately 599 Xanax pills and the other with approximately 500 pills containing fentanyl. On October 3, 2018, a federal grand jury returned a one-count indictment charging Beard with possession with intent to distribute a controlled substance (fentanyl). Laboratory tests indicated that the substances were alprazolam and methoxyacetyl fentanyl.

         Beard has now moved to suppress the contents of the parcel. [ECF No. 24]. Beard argues: (1) that the parcel was seized in violation of the Fourth Amendment because Gordon had no reasonable suspicion that the package contained drugs; (2) that the delay between the actual seizure and obtaining a search warrant rendered the seizure and subsequent warrant-based search invalid; (3) that the warrant itself was invalid because it contained falsehoods that were material to establishing probable cause; (4) that the search warrant was nothing more than a barebones affidavit lacking probable cause; and (5) that the good faith exception should not apply. [Id.].

         In return, the Government argues that the initial seizure of the parcel was predicated upon adequate reasonable suspicion, that the delay was reasonable and unforeseen, that the warrant was based upon sufficient probable cause, that any mistakes were merely typographical errors that cannot negate probable cause, and that even if the warrant was invalid, the good faith exception should apply. In addition, the Government challenges Beard's standing to file the suppression motion. [See ECF No. 25].

         Having considered the Parties' arguments, testimony, submissions, and the relevant facts and law, the Court will address the issues in turn.

         III. Analysis

         A. Standing

         "Individuals do not surrender their expectations of privacy in closed containers when they send them by mail or common carrier." United States v. Villarreal, 963 F.2d 770, 773-74 (5th Cir. 1992); United States v. Jacobsen, 466 U.S. 109 (1984) ("Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy."). As such, "[b]oth senders and addressees of packages or other closed containers can reasonably expect that the government will not open them." Villarreal, 963 F.2d at 774 (citing United States v. Jacobsen, 683 F.2d 296, 298 n.2 (8th Cir.1982), rev'don other grounds, 466 U.S. 109 (1984)). Therefore, even when government agents have probable cause to believe a package contains contraband, they generally cannot search it without first obtaining a warrant, unless some exception to the warrant requirement applies. Id.; see also United States v. Van Leeuwen, 397 U.S. 249, 250-53(1970).

         The Government challenges whether Beard has standing to pursue this motion to suppress, arguing that because Beard used an alias when sending the parcel, that he no longer possesses a reasonable expectation of privacy under the Fourth Amendment for its contents.

         The Fifth Circuit, however, has held in similar cases that use of a fictional name does not dispel a defendant's legitimate expectation of privacy. Villarreal, 963 F.2d at 774 ("Although the consignee of the [package] was technically a fictitious person named Roland Martin, this court has made clear that individuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names); see also United States v. Richards, 638 F.2d 765, 770 (5th Cir. 1981); United States v. Pierce, 959 F.2d 1297, 1303 n.11 (5th Cir. 1992).

         Further, Gordon established in his testimony that Beard used the alias Nick Johnson for prior mailings and that the law enforcement agents knew that Beard was the one who mailed the parcel in question. [See ECF No. 35 at 62-63]. Although Beard did not testify as to the nature or reason for his expectation of privacy in the parcel-indeed, Beard did not testify at all-the Court is satisfied that Beard had a reasonable expectation of privacy in the parcel and that he has standing to contest the search, which were adequately established through Gordon's testimony.

         B. Length of the Delay Prior to Establishing Probable Cause

         Beard contends that the postal authorities detained the parcel for an unreasonably long period while investigating. As a result, Beard argues that the delay lasted long enough to require probable cause rather than only reasonable suspicion. He argues that because the Government lacked probable cause for the initial seizure, it was invalid.

         In United States v. Van Leeuwen, the Supreme Court stated that an individual has a Fourth Amendment right to be free from unreasonable searches and seizures of items they place in the mail. 397 U.S. 249, 251 (1970). "However, upon reasonable suspicion that the package contains contraband, law enforcement authorities may detain the package for a reasonable length of time while investigating the package." United States v. Evans, 282 F.3d 451, 454 (7th Cir. 2002) (citing Van Leeuwen, 397 U.S. at 252-53). In determining whether the length of time for the detention was reasonable, courts face a fact-specific inquiry. In reviewing Van Leeuwen, several circuits have found that even where the initial seizure is valid, continued detention could at some point become an unreasonable seizure. See United States v. Aldaz, 921 F.2d 227, 229 (9th Cir. 1990); Evans, 282 F.3d at 455 ("[A]t some point in time, a detention of mail extends from a stop to a seizure requiring probable cause ....").

         The Court must first determine whether Gordon had adequate reasonable suspicion to detain the parcel in question. The evidence shows that prior to requesting that the parcel be pulled from the mail stream, Gordon knew or believed that:

• Beard was suspected for trafficking in narcotics ...

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