Use of fictitious name to ship a package is not an abandonment or waiver of expectation of privacy

The defendant used fictitious names to ship packages, this one a teddy bear full of drugs. The shipping store was suspicious, and they called the police. The police came, took the box away, and searched it without a warrant. The trial court suppressed, and the court of appeals affirmed. The use of a fictitious name is not abandonment when the person otherwise objectively manifests control over it. People v. Pereira, 150 Cal. App. 4th 1106, 58 Cal. Rptr. 3d 847 (1st Dist. 2007):

In U.S. v. Pitts (7th Cir. 2003) 322 F.3d 449 (Pitts), a divided panel of the Seventh Circuit rejected this broad proposition, although upholding the denial of a suppression motion under the totality of circumstances in that case. The court reasoned that there are many legitimate reasons for which persons wish to remain anonymous while sending or receiving mail, such as authors and journalists who use pseudonyms, celebrities who wish to avoid intrusion, and government officials and businessmen with security concerns. (Id. at pp. 457-458.) “There is nothing inherently wrong with a desire to remain anonymous when sending or receiving a package, and thus the expectation of privacy for a person using an alias is one that society is prepared to recognize as reasonable.” (Id. at p. 459.) While use of an alias is one factor that may be considered to determine if property has been abandoned, the majority held, it is not dispositive. (Id. at pp. 456-459.) The court upheld the finding of abandonment there because the addressee had expressly refused to accept delivery of the package and by using all fictitious names the defendants had rendered the property irretrievable.

The majority view in Pitts is in accord with the approach in California. “The question whether property is abandoned is an issue of fact, and the court’s finding must be upheld if supported by substantial evidence.” (People v. Daggs, supra, 133 Cal. App. 4th at p. 365.) “[T]he intent to abandon is determined by objective factors, not the defendant’s subjective intent.” (Ibid.) The appropriate test is whether defendant’s words or actions would cause a reasonable person in the searching officer’s position to believe that the property was abandoned. (Id. at pp. 365-366.)

Although in this case defendant’s use of a fictitious name is evidence that might have supported a contrary finding, there is nonetheless substantial evidence to support the trial court’s finding that defendant did not abandon the package. There is no evidence that the name or address of the recipient to whom the package was addressed was fictitious. Moreover, defendant obtained a tracking number for the package, which permitted him to retain significant control over it while in transit. Defendant telephoned Ponce four to five times regarding the whereabouts of the package, objectively demonstrating his continuing interest in it. And the fact that defendant gave Ponce his telephone number and that Ponce was able to return his calls further indicates that defendant did not remain completely anonymous. The trial court concluded, “[E]very other thing [other than the fictitious name and false address] concerning the conduct and the-and the contact that Mr. Pereira has with Mr. Ponce, the shipper, is I am very interested about my package with my phony name and phony address. I really care about it getting delivered. I care about it so much, that I’ve left messages that made Mr. Ponce upset. So that’s the totality. “There is thus substantial evidence of objective factors that support the trial court’s finding that defendant did not abandon his package.

Traffic stop by Park Ranger had objective basis, and odor of alcohol and defendant’s comment “I’m okay to drive” aroused his suspicion. United States v. Camacho-Uranda, 2007 U.S. Dist. LEXIS 35023 (D. Nev. May 9, 2007).*

Ordering defendant from his car at gunpoint, when suspected of a drug offense, is reasonable because “[c]ourts throughout the country have recognized that ‘the nature of narcotics trafficking today reasonably warrants the conclusion that a suspected dealer may be armed and dangerous.’ State v. Evans, 67 Ohio St.3d 405, 413, 1993 Ohio 186, 618 N.E.2d 162, quoting United States v. Ceballos (E.D.N.Y. 1989), 719 F.Supp 119, 126.” State v. Wilson, 2007 Ohio 2298, 2007 Ohio App. LEXIS 2152 (12th Dist. May 14, 2007).*