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

Tue, Jul 12th 2016 3:52pm — Tim Cushing

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.

So much for that. From the suppression order [PDF] (via Brad Heath):

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.

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Filed Under: 4th amendment, doj, informants, paid informants, searches, ups
Companies: fedex, ups

41 Comments

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James Burkhardt (profile), 12 Jul 2016 @ 4:06pm

But, if the government uses the results of that search against you, isn't it trying the same its not yours but its yours tactic?

Aren't they argueing:
1)Its not your stuff so you can't contest the search
2)Its your Illegal stuff

Why does it work one way but not the other?
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Uriel-238 (profile), 12 Jul 2016 @ 4:13pm

This may also raise whether UPS, as a business values...
...the privacy of their clients or complicity to the state. I don't want Ms. Paid Citizen Informant reporting my parcels as suspicious whether or not I'm shipping contraband.

Especially considering that law enforcement officers seem to be happy to help themselves to things that are not contraband but are valuable, in the name of asset forfeiture.

Servant of two masters and all that.

Then again maybe she's grossly underpaid by UPS and needs to augment her day-wage income with auxiliary sources for her kid's lunch money. Should we start tipping our parcel workers to ensure our crap gets delivered without trouble?
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That Anonymous Coward (profile), 12 Jul 2016 @ 4:15pm

So the fact that Sam Niel doesn't exist, was still enough to get a warrant to search Phillips Thompson's residence?

Some bad person could have arranged to send him a package to get him into trouble.

The chain of custody of this material was broken, and in the interest of justice it should be suppressed. Someone who was not a sworn government agent opened and tampered with the contents. Perhaps she had an axe to grind with the customer?

Her intentions were made clear when she tampered with something she was told not to. Basing a case off of that evidence shows a bold disregard for the law.

The courts allowing it to stand because the target of an investigation into him only exists because allegedly a 3rd party went to send something to a named 3rd party (they believe doesn't exist) and used that to gain entry into the accused home. We send him the meth so when he got it, we could burst in and arrest him for having meth.
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Jigsy (profile), 12 Jul 2016 @ 4:32pm

Re:
>Some bad person could have arranged to send him a package to get him into trouble.

This is what interests me.

For example, if I was a child molester/drug dealer, I could just mail stuff to random people and... they'd get in trouble?
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RandyF, 12 Jul 2016 @ 4:41pm

Re: This may also raise whether UPS, as a business values...
UPS store operators are independent contract franchisees. Workers are not paid by UPS.
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lucidrenegade (profile), 12 Jul 2016 @ 4:47pm

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,”

So apparently if a black man wants to overnight a package they should use FedEx.

(I'm assuming overnight is why the package was so expensive)
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Anonymous Coward, 12 Jul 2016 @ 4:56pm

Re: This may also raise whether UPS, as a business values...
I agree 100% that the police shouldn't search my contraband packages. In fact, I think every criminal in the world doesn't want their contraband packages searched.

It is just so inconvenient that I can't have my 1000 kilo packages of cocaine sent to my customers/users using UPS. Oh well, there is always FedEx.
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Anonymous Coward, 12 Jul 2016 @ 5:00pm

IRS interest
I wonder if this informant is declaring and paying taxes on whatever she is being given to be an informant. I also wonder how pervasive this is for other UPS stores.
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Padpaw (profile), 12 Jul 2016 @ 5:00pm

the problem here is that they can contest that the "paid informant' planted the evidence.

Why is it so hard just to do their job as cops and stop trying to find easier and illegal ways to catch other people doing illegal things?
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Anonymous Coward, 12 Jul 2016 @ 5:24pm

Chemical orders
"The store owner smelled a chemical order and resealed the box."

I can't help it. Especially in the light of the weighty comments posted herein and in the Fine Article.

But... WTF is a 'chemical order', especially one that may be detected by the commonly available olfactory means of the average citizen? Ir it printed on special (amelly) paper? How many nested levels of ignorance and/or laziness are at work here? Can't it be dismissed since the 'chemical order' is not provided or adduced?
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Groaker (profile), 12 Jul 2016 @ 5:26pm

The purpose here is not so much to get catch this particular drug dealer, but rather a part of the continual expansion of the police state. Between LEOs who believe that there actions have no boundaries, and complicit judges who are more interested in the destruction of the Constitution than dispensing justice, the nations rulers will be called "the blue shirts."
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Ploni, 12 Jul 2016 @ 5:26pm

author pen name or trademarked or registered business name
When an author who uses a pen name sends or receives mail using their pen name, do they forfeit their right this way? How about if someone receives postal mail addressed to a trade name, registered or trade mark protected business name, or just a registered domain name? If it is a corporation surely the corporation has some right to privacy under the corporate name which any officer of the corporation would be able to enforce. How is this different? Is "owner" or "occupant" an alias which precludes any privacy?
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Anonymous Anonymous Coward (profile), 12 Jul 2016 @ 5:55pm

Under the color of law enforcement
IANAL but I was under the impression that private citizens acting under the color of law enforcement needed to follow the same rules as law enforcement. Or has that gone by the wayboards along with much of the Fourth Amendment and the need for law enforcement to actually know the laws that they enforce?
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TechDescartes (profile), 12 Jul 2016 @ 5:57pm

Just to be safe
Maybe anonymous posts should be filed under "Pseudononymous Coward".
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Uriel-238 (profile), 12 Jul 2016 @ 6:03pm

Careful, there.
You are criminal. The police may not yet know what you've done that requires incarceration, but should they take an interest in you, they will find out. And all your ill-gotten gains will be seized.

Don't become suspicious enough to catch the interest of law enforcement agents. They always get their man.
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CanadianByChoice (profile), 12 Jul 2016 @ 9:05pm

Re: Under the color of law enforcement
Except, we've seen over and over, law enforcement people don't to follow any rules - they have their "good faith exception", etc, which judges refuse to look at.
So far as I understand it, neither the sender nor the receiver of this package should be prosecutable; the chain of custody for the package was broken and there is no way to establish that the evidence was not tampered with.
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That One Guy (profile), 12 Jul 2016 @ 10:00pm

Re:
Yeah, they're trying to have it both ways and the court is buying the argument. If the defendant isn't allowed to contest the search because it's not 'his' name the search was made under, then nothing that was found as a result of the search should be allowed as evidence against him because the warrant had nothing to do with him.

Either the warrant does apply to him, 'alias' and all, in which case he absolutely should be allowed to contest it and anything found using it, or it doesn't, in which case nothing found via it should be admissible as evidence against him.
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Whatever (profile), 12 Jul 2016 @ 11:00pm

Re:
"So the fact that Sam Niel doesn't exist, was still enough to get a warrant to search Phillips Thompson's residence?"

Re-read the story, and you will see why. The warrant to search the house has nothing to do with Phillips Thompson specifically. Rather, after making a controlled delivery of a known bad package, they got a warrant for the house. Thompson is the resident and the one who received the package.

The question of "sam niel" doesn't enter into it. It's not a warrant on the person, but on the physical location "and it's occupants"

The rest of the argument is pretty simple, please follow:

Sam Niel does not exist. If he existed, he could have objected and possible could have succeeded on his objection / appeal. Mr Thompson is NOT Sam Niel in any legal sense. It's not even a pen name or similar. You or I would have about the same level of claim on the name Sam Niel as he does. So there is nobody to object to the search.

The knowledge of what was found in that search lead to a controlled delivery. That delivery could have been denied by Mr Thompson ("there is no Sam Niel here") but instead he accepted the package without issue. The warrant is for the residence where that package was delivered AND ACCEPTED by parties unknown (who turned out to be Mr Thompson).

Now, had he been commonly known as Sam Niel, if a bunch of people would make statements that they knew him by that name, if he had ID in that name, bank accounts, had written a published book or magazine article, or done other things that showed that he was in fact Sam Niel, then he might have been able to object. But playing the anonymous card cuts both ways - the disconnect created by being anonymous works both for and against.

The courts got this one EXACTLY right. Anonymous isn't a one way deal. It grants you a certain distance from your words and even some actions, but it also takes away all of your other rights as an individual.
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Anonymous Coward, 13 Jul 2016 @ 1:18am

The evidence was tampered with, the judge is a moron. Beware Trojans bearing gifts.
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David, 13 Jul 2016 @ 1:42am

Re: Re:
No, the argument is that the police is allowed to use evidence it stumbled upon by accident rather than actively search for.

The police started an illicit search on the mail for Sam Niel which Sam Niel could have thrown out of court. Sam Niel, however, chooses not to contest this search by virtue of being non-existent.

This uncontested search of Sam Niel's mail turned up bad stuff, so they made a controlled delivery. This controlled delivery while investigating Sam Niel uncovered totally unrelated evidence against Phillips Thompson which they then pursued since Sam Niel proferred no objection against the search of his mail.

I really hope that the IRS might find something unsavory in that judge's tax returns while independently investigating the tooth fairy and figuring out that the judge has had different teeth once.
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beltorak (profile), 13 Jul 2016 @ 2:09am

Re: author pen name or trademarked or registered business name
It's quite simple really. If the author sends someone something using their pseudonym, and that something is legal, then that's OK - their right to privacy remains intact. No one need know about the search that turned up nothing, and as we all know it's impossible to have your rights violated if you don't know about it. But if that something is illegal then that pseudonym becomes an alias that, even this once, was intended to distance the real person from the crime, so the search is now legal and uncontestable. And another Bad Guy gets locked up.

Or, in the words of the Good Guys, "the ends justify the means". See?
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Paul Renault (profile), 13 Jul 2016 @ 4:47am

"The dog alerted."
From what I've read and seen, that phrase often/usually means that the dog responded to the handler's cues.
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David, 13 Jul 2016 @ 5:09am

Re: "The dog alerted."
Frankly, I am rather skeptical that it requires a "dog responding to the handler's cues". A dead parrot would likely alert equally well.
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Anonymous Coward, 13 Jul 2016 @ 6:12am

"Call for Tenders – Not to be opened by the Postal Service“

we use it all the time
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Anonymous Coward, 13 Jul 2016 @ 7:25am

Wait. The civilian tampered with the box that was used as evidence. We have no idea what this civilian did, or tampered with. That one fact alone should throw out all of this crap.
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Michael, 13 Jul 2016 @ 7:38am

Re: Re:
Can't we just start shipping drugs to the DOJ until they arrest themselves?
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Padpaw (profile), 13 Jul 2016 @ 7:38am

Re: Under the color of law enforcement
since the courts have ruled the police don't have to know the laws to enforce the laws. I would say yes they are following what the police do in tandem. Which is enforce whatever they want while following no laws.

Anarchy essentially.
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Michael, 13 Jul 2016 @ 7:41am

Re: Chemical orders
Good point.

I'll add - he was standing in a store FULL OF CHEMICALS at the time. Unwrap a fresh roll of packing tape, open a jar of glue, draw on a box with a marker...
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Michael, 13 Jul 2016 @ 7:44am

Re: "The dog alerted."
It also sometimes means the handler had a hunch, the dog did nothing, but since the dog can't object the handler can simply say it alerted when it was really just being a dog.
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TRX (profile), 13 Jul 2016 @ 7:45am

Re:
> We send him the meth so when he got it,
> we could burst in and arrest him for having meth.

That's not entirely unknown, you know. That used to be the next step up from doxxing; buy a package of "pharmaceutical" from Silk Road, have it shipped to your victim, then drop an anonymous tip with their local PD. If the cops didn't have anything better to do that day, they might send the narc squad out in force.
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TRX (profile), 13 Jul 2016 @ 7:49am

Re: Re: This may also raise whether UPS, as a business values...
Yes. But it's UPS' sign hanging in their window, just like the giant "FEDEX" painted on the side of the "independent contractor"'s truck.

It may be an accepted legal arrangement, but when they're wearing your uniform and are displaying your logo, they're your representatives. And when something turns stinky, who are their customers going to be mad at? Not the "independent contractor" fiction.
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TRX (profile), 13 Jul 2016 @ 7:52am

Re: Re:
20-odd years ago, it was sending kiddie porn to people's work email accounts, then alerting their employers.

That kind of thing is too simple to ever go away. It's probably not as common as it used to be since even Average Employer has finally realized anyone can send anything to any email account, so it's not all that effective any more... though, in many places, they're still liable for receiving it.
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TRX (profile), 13 Jul 2016 @ 7:55am

Re: author pen name or trademarked or registered business name
So, if my name is "Robert", but I get mail addressed to "Bob" or "Junior", it's an alias?

Heck, I know several women who are known by names unrelated to their current legal name, and always have been...
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TRX (profile), 13 Jul 2016 @ 7:59am

Re:
In the end, it comes down to that, I think. They're declaring that testimony from a paid informant trumps chain of evidence.

What boggles my mind is how much effort various PDs and DAs put into these questionable cases when they're also claiming they're too shorthanded to do their jobs to start with. Looks to me like some serious budget reductions might be needed to get rid of all this spare time.
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submandave, 13 Jul 2016 @ 11:57am

Evidence Tampering?
The most obvious defense, I think, would be that the "evidence" was planted by the informant. Once the package seal was broken there is no way to know what was taken from or put into the package before it was resealed.
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Anonymous Coward, 13 Jul 2016 @ 12:27pm

I'm surprised some enterprising (and rich) drug baron doesn't send THOUSANDS of parcels via UPS and rub the outside lightly with cannabis first.

That way even the UPS delivery guys hands would set off the dogs....

Well thank god no-one has thought of that yet eh? phew!
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Anonymous Coward, 13 Jul 2016 @ 2:17pm

Re:
What does this mean?
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That Anonymous Coward (profile), 13 Jul 2016 @ 2:26pm

Re: Re:
So a package can be sent by anyone with a fake name to someone and that creates an event where a warrant can be issued.

I've seen tons of packages get delivered, and not everyone checks the name on the package. UPS drivers rarely announce this package is for so and so, they say I have a package sign here if it needs a signature.
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That Anonymous Coward (profile), 13 Jul 2016 @ 2:32pm

Re: Re:
It becomes an amazing Catch 21 that officials will use how they see fit.

If you delete the CP, you are in trouble for hiding a crime.
If you report the CP, they troll through your life & trash your name.

We've seen people nearly convicted because some system detected a thumbnail of an image believed to be CP, in the cache of the browser that was in an ad that was on a site that the accused might not have even seen. No evidence he was looking for CP, but it was on the HD so he was a scumbag... rather than someone who got screwed.
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John Fenderson (profile), 13 Jul 2016 @ 4:08pm

Re:
There are "joke" sprays readily available that will cause drug dogs to alert. I once read about an attempt at smuggling where the smugglers sprayed the stuff on all the baggage they could get near, in the hopes that the real drugs would get lost in the noise. It didn't work in hiding the drugs, but did cause a delay from all the baggage that had to be searched.
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Anonymous Coward, 17 Jul 2016 @ 6:25am

Infallible dog scam again. How much do we know about human brain? Try now dog,s brain, lead by a bimbo who was too stupid for high school.
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