Fourth Amendment Blog – W.D.Tenn.: Use of alias to mail package is not a waiver of privacy in the package
Citing United States v. Skinner, 690 F.3d 772, 785 (6th Cir. 2012) (Donald, J., concurring) (“While this circuit’s law is not well developed on this point, numerous courts have held that privacy expectations are not diminished by the criminality of a defendant’s activities.”), the Western District of Tennessee concludes that, at least in the Sixth Circuit, use of an alias on a shipped package containing drugs is not an abandonment or a waiver of an expectation of privacy. United States v. Williams, 2012 U.S. Dist. LEXIS 185177 (W.D. Tenn. December 3, 2012):
There are two possible ways to interpret the concurrence. First, because some people employ an alias and use the mail illegally, everyone with a legitimate reason to remain anonymous should lose their expectation of privacy in the post. Alternatively, only people using an alias for legitimate reasons may retain an expectation of privacy in their mailings while those who employ an alias for illicit purposes may not. Both constructions turn the Fourth Amendment on its head.
The first approach assumes that criminals can forfeit the privacy interests of all persons by using a confidential domain for nefarious ends. Any creative means that a person engaging in illegal activity devises to conceal that fact will lead to the end of privacy for persons engaged in wholly legitimate confidential activities. For example, if persons engaged in illegal drug sales often use hotel rooms for their transactions, or commonly employ cellular telephones to communicate the terms of their deals, then under the concurrence’s analysis no one would retain a legitimate expectation of privacy in the use of hotel rooms or cellular telephones.
Under the second approach, only criminals forfeit their Fourth Amendment rights. The illegal contents of the package serve as an after-the-fact justification for a search. .