N.D.Ohio: Giving a drug courier a duffel bag doesn’t allow one to retain standing under a bailment or joint possession theory

Defendant did not have standing under either a bailment theory or joint possession where a drug courier allegedly hauling his meth on a Greyhound bus had the bag unreasonably seized and searched. Defendant wasn’t there observing the courier holding his bag; he was 800 miles away. United States v. Hayward, 2020 U.S. Dist. LEXIS 192932 (N.D. Ohio Oct. 19, 2020):

Defendant’s reliance on Freire is misplaced. The seizure of the duffel bag in this case is easily distinguishable from the circumstances under which the brief case was seized in Freire. Defendant was not in a nearby vehicle. He was over 800 miles away. Another individual’s duffel bag is not akin to a person’s own briefcase, and no argument has been advanced that the courier was under instructions not to open or use the bag that contained all that he possessed on a multi-day trip.

The Eleventh Circuit, when it decided Freire in 1983, explained that its decision rested on the specific use of, and resulting societal expectations surrounding, one’s own briefcases at the time:

A briefcase is often the repository for more than business documents. Rather, it is the extension of one’s own clothing because it serves as a larger “pocket” in which such items as wallets and credit cards, address books, personal calendar/diaries, correspondence, and reading glasses often are carried. Few places outside one’s home justify a greater expectation of privacy than does the briefcase.

Freire, 710 F.2d at 1519. The Court does not find that a duffel bag, generally, engenders the same inherent heightened privacy expectations as a briefcase, nor has any evidence been presented that the duffel bag belonged to Defendant, or that it contained any of Defendant’s personal possessions, let alone inherently personal or private papers. Defendant only claims that the methamphetamine within the bag was his, not the bag itself or the other contents.

Additionally, and perhaps more importantly, the courier, who at all times controlled the duffel bag and its contents, was not bound to maintain the privacy of the bag. As the record shows, the courier accessed the contents of the duffel bag in the plain view of officers. See ECF No. 16-2 at PageID 104. The duffel bag was the only item, other than the clothes on his back, that the courier had with him on a multi-day bus trip, and contained the courier’s personal items, including his clothes and underwear. See Exhibit D1. The contraband was not in any isolated compartment, and, even it were, the Court is not bound to, nor would it “engage in such metaphysical subtleties” and sub-divide a single, unlocked bag. Frazier v. Cupp, 394 U.S. 731, 740 (1969).

Furthermore, under Defendant’s bailment theory of standing, “[w]hen assessing whether a bailor has assumed the risk that the bailee would consent to a search of the bailed effects, courts generally analyze ‘the extent to which the bailor made efforts to secure, even as against the bailee, the privacy of his effects.'” Horton v. Vinson, No. 1:14CV192, 2015 WL 4774276, at *20-21 (N.D.W. Va. Aug. 12, 2015) (quoting Wayne R. LaFave, 4 Search & Seizure § 8.6(a), Consent by bailee (5th ed.)) (collecting cases, emphasis added). Defendant argues that the courier’s statement to officers that, after Defendant put the contraband in the bag, he instructed the courier not to look, Exhibit D1, not only to establish the bailor bailee relationship, but to show that he made efforts to maintain the privacy of the contraband, giving rise to his allegedly reasonable, subjective, expectation that it would be kept safe.

Even crediting the courier’s statement that Defendant instructed him not to look, which the Court notes is contradicted by other evidence of record, the Court finds that Defendant made no material effort to secure the contraband in the duffel from the courier. Any such request, simply as a matter of logic, would have been unreasonable at the time it was made given the quantity of drugs, the size of the bag and common compartment the drugs and clothing were in, and the conceded expectation that the drugs would be covered only by the courier’s personal belongings, which he would need to access, remove, and replace over the course of his three-day journey. Indeed, Defendant does not claim ownership of the bag itself, yet the courier does in his interactions with officers. Defendant freely acknowledges, through counsel, that the understanding between himself and the courier was that the courier would access the bag throughout his journey, and store his personal belongings in it. Accordingly, any subjective privacy interest Defendant alleges in the duffel bag was relinquished when Defendant disassociated from it in Los Angeles. See, e.g., United States v. Bodnar, No. 3:17CR157 (JBA), 2019 WL 582478, at *5 (D. Conn. Feb. 13, 2019) (Defendant who was not present for the search of his duffel bag after turning it over to a third party for a trip on a “readily-mobile” vehicle lacked standing to challenge a search of the bag). Defendant argues, under his second theory of standing, that such a “joint possessory interest,” with the courier and the courier alone, would allow the courier to consent to a search of the bag, but would still give Defendant standing to challenge any search of the bag before the consent was given, and to challenge the validity of the consent.

While there might be some logic to that argument if Defendant were claiming that the bag, or any of its non-contraband contents, were his, he makes no such claim. The facts of this case fall plainly within a long line of authority concluding that the placement of personal property into a closed container does not create a privacy interest that society is willing to accept as reasonable. Rawlings v. Kentucky, 448 U.S. 98, 103-06 (1980) (No legitimate expectation of privacy in drugs stored in girlfriend’s purse, even when defendant was close by.); United States v. Trejo, 135 F. Supp. 3d 1023, 1033 (D.S.D. 2015) (A court cannot find standing when “the defendant had not presented any evidence that he owned the suitcase, had historical use of it, had the ability to regulate access to it (the suitcase was only zipped shut and had no lock), or that the suitcase had identification tags indicating that the bag belonged to the defendant.”). Simply put, stuffing contraband into someone else’s luggage does not create a reasonable expectation of privacy in that luggage.

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