Monday, October 18, 2010

U.S. v. Lozano, No. 09-30151 (10-18-10) (Per curiam with Schroeder, O'Scannlain, and Clifton; concurrence by O'Scannlain).
Things NOT to ask the postmaster: (1) whether postal workers screened mail?; (2) whether detection dogs were brought into the post office?; and (3) whether postal workers could open packages to look for drugs? It is better just to ask if the new stamps have been issued yet. In this case, the defendant asked the first three questions, which made the post master in the Barrow Alaska post office a tad suspicious. Lo and behold, a month or two later, a package comes to the post office, heavily taped, with an incomplete return address, and addressed to "Bill Corner" at the P.O. box for defendant. The post master sent the package to another site, where the ever-friendly postal dog, Hershey, alerted. The inspector got a warrant. The package (11 lbs. of pot) came back (22 hours later) and a controlled delivery took place. It was picked up by defendant, and although the tracking device was found in the dumpster, $2000 was found on defendant, which had drug residue. The defendant faced possession with intent charges. The defendant argued that the delay of mail was a seizure, but the 9th affirmed the district court in hold that it was not. It was a slight delay, and there were suspicions about the package. Moreover, the previous questions justified having it sniffed by Hershey. The 9th has upheld delays of up to 5 days given the remoteness of postal offices in Alaska. Once Hershey alerted, there was probable cause. The 9th also held that the court did not err in allowing in evidence under 404(b) of a prior search, conducted by state probation officers (defendant's son was on state probation) of defendant's house, which uncovered baggies of marijuana and weapons. It was not too remote in time (8 mos.) and it did not violate 403 either. O'Scannlain specially concurred, arguing that defendant had no standing to contest the mail because it was addressed to "Bill Corner" and not to him. If the mail is addressed to someone else, and not to a the person raising the challenge, there should be no standing because no expectation of privacy. Defendant here argued that the package was not sent to him.


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