Who’s Got Mail? The Fourth Amendment Impact of Pseudonyms

Category: Print Issues

Who’s Got Mail? The Fourth Amendment Impact of Pseudonyms

Timothy S. Iversen

Volume 31

, Issue 3

31 GEO. MASON L. REV. 961 (2024)

Introduction

What do online drug dealers and Alexander Hamilton have in common? They use pseudonyms. While Hamilton used the pseudonym Publius in the Federalist Papers to help forge a nation, online drug dealers use pseudonyms to poison citizens. Pseudonyms help mask ownership of illegal drugs during delivery to the customer. And who do those online drug dealers prefer as their business partner for making deliveries? The federal government.

The United States Postal Service (“USPS” or “Postal Service”) is aware of this problem.¹ In a sample of online advertisements for illegal drugs, sellers noted their preference for utilizing the Postal Service, touted its reliability, and even offered reshipments for unsuccessful deliveries.² One “cocaine trafficker claimed to have used the Postal Service to successfully distribute nearly 4,000 shipments, stating that they had a 100 percent delivery success rate.”³ Using pseudonyms helps achieve this high success rate by avoiding the scrutiny that might follow from using their real names.

Criminals use pseudonyms regularly to support their criminal activity. In early 2020, Rebecca Morta had more than fifty grams of crystal methamphetamine sent to her father’s residence in Guam through USPS Priority Mail.⁴ In 2016, Faruq Rose received over four kilograms of cocaine that was sent to his friend’s house through FedEx.⁵ The problem is also larger than just drugs. From 2008 to 2012, Darren Stokes, posing as fake trade organizations, solicited thousands of businesses for fraudulent membership dues that were to be delivered to his P.O. Box.⁶ The defendants used pseudonyms⁷ in all three cases.⁸

Hiding identities, however, can also be used for activities that are legal and beneficial to society. During the formative years of the United States, numerous Founding Fathers used pseudonyms to focus debate on their ideas rather than identities, and people continue that tradition today.⁹ During President Donald Trump’s administration, Miles Taylor, a chief of staff at the Department of Homeland Security, published articles and books as “Anonymous” to ensure that his claims regarding the president would be analyzed on their merits rather than who he was.¹⁰ Other whistleblowers might mail materials to parties who could make beneficial use of them and may need to use pseudonyms to help protect themselves while doing so.¹¹

When police investigate criminal activities involving mail, the use of a pseudonym can be one sign (among many) that illegal activity is afoot.¹² But the impact of pseudonym usage on the Fourth Amendment rights of those involved in mail is different from its evidentiary relevance to the existence of reasonable suspicion or probable cause.¹³ Use of pseudonyms on mail can impact Fourth Amendment rights in several ways. One is whether defendants have “standing” to contest the police search of the mail that bore a name other than that by which they are known.¹⁴ Another is whether using pseudonyms weakens substantive Fourth Amendment rights under the two different methods of determining whether the Fourth Amendment applies in a given situation. Those methods are a property-rights or reasonable expectation of privacy analysis.

Currently, the circuit courts are split on these closely related questions.¹⁵ The Court of Appeals for the Fourth Circuit held a subjective intent to receive a package sent to someone else’s name, absent any of the traditional property-based indicators of possession or ownership, was insufficient to receive the protections of the Fourth Amendment.¹⁶ The Court of Appeals for the Fifth Circuit held that “individuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names.”¹⁷ Putting a finer point on it, the Court of Appeals for the Seventh Circuit held that using pseudonyms does not eliminate an expectation of privacy in the mail, although it can be used as evidence of abandonment.¹⁸ Finally, the Court of Appeals for the Eleventh Circuit held that using a pseudonym weakens a person’s expectation of privacy in the mail to the point where the person does not have standing.¹⁹ Even though the police knew the intended recipient of the mail before encountering it, the police’s prior knowledge did not affect the Eleventh Circuit’s standing decision.²⁰

This Comment proposes the following to answer these questions and resolve this split. For the government to rely on an argument that a defendant does not have standing or a personal expectation of privacy, it must have diligently investigated whether a privacy or property interest in the mail was reasonably identifiable as belonging to a distinct person before the search. If the government proves that its diligent investigation did not identify the defendant as having an interest in the mail, the defendant will not have standing. The formulation of this answer resolves and avoids several problems. First, it ensures the burden is on the government to show someone did not make their ownership or privacy interest reasonably identifiable to the delivering party. Second, it allows for the continued beneficial use of mail with pseudonyms without allowing the government free rein to search that mail. Finally, it respects current Supreme Court precedent prohibiting a defendant from claiming the government has violated other people’s rights in obtaining evidence against that defendant, commonly referred to as “third-party standing.”

Part I reviews some basics of Fourth Amendment search and seizure protections. It examines the reasonable expectation of privacy and property-rights analyses of Fourth Amendment protection. While these different methods of analysis are not as cleanly split in reality, the proposed solution must be defensible under either rationale. Part II then examines the various approaches the federal circuit courts have taken to resolve this issue. The circuit courts have used both privacy- and property-based analyses but have reached different conclusions. Both analyses can be used to argue the Fourth Amendment should or should not apply. Next, Part III analyzes the cases and background law to determine whether a strictly legal answer seems apparent. It then demonstrates how the purely legal answer seems insufficient as it does not protect beneficial uses of pseudonyms. Part IV proposes how the legal framework should be changed to protect the beneficial uses of pseudonyms while respecting precedent. It then examines the proposed solution and tests it on various cases drawn from case law and hypothetical situations. This solution grants more protection than is necessary per current Supreme Court precedent but, by doing so, makes allowances for the weighty interests of the legitimate use of pseudonyms. This Comment concludes with a short acknowledgment of other proposed solutions and their legal and practical insufficiencies.

I. The Fourth Amendment’s Protection of Mail

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.²¹

The Supreme Court did not rule on the Fourth Amendment for nearly 100 years.²² In 1877, the Court first broached the subject of mail that had been seized for a criminal investigation in Ex parte Jackson,²³ when it stated in dicta that there were two categories of mail.²⁴ The first category was mail “intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage.”²⁵ The second category was mail “open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined.”²⁶ Here, the Court noted practical distinctions between the items entrusted to the Postal Service for delivery.²⁷ The first category was those items the sender had sealed, and as such, those items were entitled to remain so against Postal Service inspection.²⁸ The second was those that, by their physically unsealed condition, were capable of being perused without violating their integrity.²⁹

The Postal Service is an independent agency of the executive branch, so the Fourth Amendment applies to its actions when it conducts a search.³⁰ The Fourth Amendment still governs searches by government employees based on information obtained from third parties, but the reasonableness of the search is more fact-specific. Items delivered by private, non-government organizations are easily inspected by their employees, unlike those delivered by the Postal Service.³¹ There have been situations, however, where the private, non-government party shipping an item grows suspicious and notifies police before probable cause exists for a search.³² Government agents may legally search an item to the same extent as a third party who has already opened and searched that item and located evidence of criminal activity.³³ Throughout this Comment, two situations are most relevant: (1) the Postal Service is delivering a package, or (2) a third party is shipping a package but notifies police of suspicious activity before opening it.

A. Generally Applicable Legal Principles

Mail is property.³⁴ Mail delivery then can be considered a contract between the sender and the deliverer, with the addressee being a third-party beneficiary.³⁵ Compliance with the terms of the contract is important as the parties all act in reliance upon that compliance.³⁶ The people specifically named on the piece of mail have a possessory right and a right to exclude others from that mail.³⁷

The Postal Service promulgates regulations regarding how it will conduct itself and how the other party to the contract must act for the contract to be successfully completed.³⁸ One basic requirement is that the sender must tell the Postal Service to whom he wants the mail delivered.³⁹ The sender must also tell the Postal Service where to send the mail if it cannot be delivered to the addressee.⁴⁰ The sender and addressees are then capable of controlling what happens to the mail.⁴¹ However, all named parties have those same rights to possess and exclude.⁴² For a person to exercise control over the mail, the Postal Service must confirm his identity.⁴³ People may designate an authorized agent to receive mail for them, but this authorization must be in writing, and the designee may also need to prove their identity.⁴⁴ The Postal Service may require an addressee to provide identification if it believes people are sending mail to an inaccurate address to avoid identification of the person.⁴⁵ Use of fictitious names without other specifically identified criminal activity is not illegal.⁴⁶

Turning to more general principles, the Fourth Amendment’s protections are provided, or applicable, only if the defendant can prove standing.⁴⁷ Standing in the Fourth Amendment context is different from Article III standing.⁴⁸ One formulation of the Fourth Amendment “standing requirement” includes three sub-elements: (1) personal standing, (2) governmental action, and (3) search or seizure.⁴⁹ If the police open and inspect the contents of mail, this will clearly satisfy the second and third elements, but the first must still be analyzed.⁵⁰ Defendants may claim a violation of the Fourth Amendment only if a government actor violated their personal rights.⁵¹ A defendant may not argue for suppression of evidence if the government actor violated someone else’s rights.⁵² When explicitly asked to relax this standard in Rakas v. Illinois,⁵³ the Supreme Court refused.⁵⁴ It stated that passengers in another’s vehicle could not challenge evidence found during a search of the vehicle.⁵⁵ Just because someone is legally present in an area does not mean that person can claim a constitutionally protected privacy interest there.⁵⁶

Since standing is part of the substantive analysis of the Fourth Amendment, how the substantive analysis is conducted—whether via property rights or reasonable expectation of privacy—can mean a party may have standing under one analysis but not the other. For that reason, standing is further discussed in Sections B and C.

Some people undermine or fail to protect their interests in privacy or property, leading a court to find they abandoned their interests for Fourth Amendment purposes.⁵⁷ Abandonment in the Fourth Amendment context is a fact-intensive inquiry that does not completely follow the property-law concept of abandonment.⁵⁸ Fourth Amendment abandonment is broader than property-law abandonment.⁵⁹ Under certain circumstances, a finder may not convert something to the finder’s ownership, but the police may search it.⁶⁰ Many of these cases involve an intentional act by the defendant to fully cease temporary dominion and control over physical objects to decrease the potential of being caught with them.⁶¹

A line of cases involves a person either leaving or delivering items into the temporary custody of a third party, which requires more fact-intensive analysis. Usually, when explicit instructions or widespread customs dictate the disposition of the items, those instructions or customs can provide a continuing Fourth Amendment interest in the items.⁶² Disclaimers of ownership, however, such as “[t]hese aren’t my pants,”⁶³ can effectively eliminate Fourth Amendment protection for items, even if they were in the defendant’s possession or on his body at the time.⁶⁴ Most cases are not so dramatic.

In Hester v. United States,⁶⁵ the Supreme Court stated that specific actions by defendants can undermine the protections of the Fourth Amendment.⁶⁶ Protections do not apply when people act with their property in a way that undermines their ability to control it.⁶⁷ In this case, the defendant undermined his control by throwing bottles on the ground.⁶⁸ In Smith v. Ohio,⁶⁹ however, the Court reached a different result.⁷⁰ Upon confrontation with the police, a defendant tossed a bag he had been holding but then attempted to block the police officer from accessing the bag.⁷¹ Since he continued to exercise his right to exclude from his property, the Court held the property was not abandoned.⁷²

The Court had another opportunity to discuss subtle actions in abandonment in Abel v. United States.⁷³ In Abel, the defendant was arrested in his hotel room but was still allowed to clean up and remove his personal belongings before leaving and closing out his bill.⁷⁴ After he completed this checkout procedure, police searched the room without a warrant and located evidence in the trash can.⁷⁵ By leaving the property in the room, which returned to the complete dominion and control of the hotel, the property was abandoned and could be lawfully seized by police.⁷⁶

The import of intentional actions by the party who allegedly abandoned control over items was similarly demonstrated in Michigan v. Tyler.⁷⁷ When a building burned to the ground, fire and police officials searched the structure without a warrant on several occasions.⁷⁸ While the investigation determined the property lessees had committed arson, this fact was unknown when the search began.⁷⁹ Because there was no evidence of an intent to abandon the property when the searches were conducted, the Court held the government could not justify the searches on an abandonment theory.⁸⁰

Abandonment, like standing, can be analyzed differently based on a property approach or reasonable expectation of privacy approach.⁸¹ It can also be examined either objectively or through the purported intent of the potential abandoner.⁸² Since courts can find abandonment in more situations than those where the property is abandoned,⁸³ the reasonable expectation of privacy approach appears more likely to give an accurate answer to abandonment questions. Similarly, while intent has been considered in many cases, it is mainly the intent as manifested to the police at the time of the incident, making it a more objective test no matter how explicitly it is stated.⁸⁴ Regardless of the search doctrine, when done without a warrant, what is found by the search cannot justify the search after the fact.⁸⁵

The last general principle to be discussed involves the background for the tension involved when claiming Fourth Amendment protections by making incriminating statements that the Fifth Amendment would usually protect. When a person places his name on a package or claims an interest in it in response to police questioning, these actions or statements can be used as evidence, and the Fifth Amendment could be implicated.

In Simmons v. United States,⁸⁶ the Supreme Court addressed the dilemma defendants faced in situations where they wished to claim their Fourth Amendment rights had been violated. A defendant claimed standing to contest a search and testified at a suppression hearing on the subject.⁸⁷ After losing the motion to suppress, the government introduced his hearing testimony during the trial.⁸⁸ The Court found it “intolerable that one constitutional right should have to be surrendered to assert another.”⁸⁹ The Court’s analysis prompted this statement that the only evidence that could support the defendant’s claim of an ownership or privacy interest in the evidence was the defendant’s own words.⁹⁰ Since there was no other evidence, the defendant’s testimony was “an integral part of his Fourth Amendment exclusion claim.”⁹¹ The Court acknowledged that, facially, there was merit to the contention that this testimony was not contemplated by the Fifth Amendment right against compelled self-incrimination.⁹² Despite this, the Court indicated it was improper to place defendants in the position where they have to choose to claim the protections of the Fourth Amendment or to maintain the protections of the Fifth Amendment.⁹³ In situations where general government regulations, laws, or orders are being enforced, the rights against self-incrimination are weakened.⁹⁴

B. Fourth Amendment Rights Based on a Reasonable Expectation of Privacy

The “reasonable expectation of privacy” test stems from Justice John Harlan’s concurrence in Katz v. United States.⁹⁵ The test has two parts. The first is whether a person has “exhibited an actual (subjective) expectation of privacy.”⁹⁶ The second is whether “the expectation [is] one that society is prepared to recognize as ‘reasonable.’”⁹⁷ However, this test has been criticized for being circular or self-reinforcing and difficult to predict.⁹⁸ Justice Sandra Day O’Connor put it well when she stated, “We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.”⁹⁹ It has also led to shifts in what is considered reasonable as time, society, and the Court changes.¹⁰⁰ Despite all this, the “reasonable expectation of privacy” test remains a primary way of analyzing Fourth Amendment protection.¹⁰¹

One attempt to better explain this test added a new first element, which stated “the reasonable expectation of privacy standard exists in concurrence with the question of whether the area involved is a constitutionally protected area.”¹⁰² Professor Thomas Clancy agrees this was part of Justice Harlan’s opinion¹⁰³ but noted about the actual majority, “Katz sought to extinguish inquiry into constitutionally protected areas.”¹⁰⁴ Professor Wayne LaFave notes that even calling this a test is a misnomer; it is unclear, but so was what came before it.¹⁰⁵ However, LaFave’s point is Katz “unquestionably expand[ed] the coverage of the Fourth Amendment . . . despite . . . it [being] impossible to state with precision the degree of this expansion.”¹⁰⁶

Regardless of this frustration and the resurgence of property law to determine Fourth Amendment interests, reasonable expectations of privacy live on in some way.¹⁰⁷ Part of its allure may be the partial grounding in the text of the Constitution in being measured by what is “reasonable.”¹⁰⁸ In what form it lives is difficult to say, but Professor Orin Kerr believes four decision models can represent the various forms.¹⁰⁹ Those models are the (1) probabilistic, (2) private facts, (3) positive law, and (4) policy models.¹¹⁰ Multiple models may apply in certain situations, so the results might differ depending on which model a court uses.¹¹¹ Professor Matthew Tokson analyzed all Supreme Court cases determining a reasonable expectation of privacy decided since Katz.¹¹² In it, he developed a model of decision making that assessed and compared the intimacy of the information sought, the amount of information sought, and the cost to police in seeking the information.¹¹³ The model works well to explain Fourth Amendment cases.¹¹⁴

When it comes to packages, Kerr notes there is no model applied for one reason: “The rule is simple: when a government agent opens a suspect’s sealed package or other container, opening the container is a ‘search’ regardless of what is inside the box.”¹¹⁵ While this is clear, what is less clear is the effects of various actions on whether society will consider a specific expectation of privacy reasonable, even involving searches of packages.

As indicated previously, “standing” is a determination about whether the defendant’s personal substantive rights were violated rather than someone else’s.¹¹⁶ “[A] person is only aggrieved by a violation of his expectation of privacy and not merely by the introduction of evidence against him.”¹¹⁷ According to LaFave, the critical formulation of standing under the reasonable expectation of privacy analysis is in Mancusi v. DeForte.¹¹⁸ In Mancusi, the Court described standing as where a person had “a reasonable expectation of freedom from governmental intrusion.”¹¹⁹ In and of itself, this seems to be as descriptive as the reasonable expectation of privacy it acts as a gatekeeper to. When analyzing standing without the underlying reference to property rights, the situations may end up difficult to predict.

Permission to be alone in someone else’s apartment for less than a day if the person gives you a key may be sufficient to grant standing.¹²⁰ Alternatively, placing drugs in a friend’s purse that is subsequently searched is not sufficient to grant standing.¹²¹ Neither is being involved in a criminal conspiracy with a driver who is subjected to an illegal stop and gets his car searched with 560 pounds of cocaine in the trunk.¹²² Even if a defendant owns a bag, if he denies possession of it while it bears the name of another person, he will not have standing.¹²³

In summary, standing under the reasonable expectation of privacy analysis seems to be a question of whether individuals claim or exercise enough control over an area in which they are legally present. If a person is legally present and has sufficient ability to order his affairs in that location without expecting interference from other parties, there should be standing under the reasonable expectation of privacy analysis.

C. Fourth Amendment Rights Based on Property Rights

According to the Supreme Court, whether a search is also a common-law trespass was the original method of determining whether the Fourth Amendment was applicable.¹²⁴ In Olmstead v. United States,¹²⁵ the Court held wiretapping phone lines outside a residence or the curtilage could not violate the Fourth Amendment.¹²⁶ Whether the Court historically considered the boundary that clear is debated.¹²⁷ For the purposes here, the property-rights analysis is framed specifically to deal with the pre-Katz cases and the recent resurgence of property-based analyses.¹²⁸

One formulation of a search in the property-rights sense is defeating a legal or physical barrier to discover the evidentiary items it protected. A legal barrier could be a law prohibiting police access to certain records without a warrant, and a physical barrier could be anything from a curtain in a window to an actual wall preventing sight of or access to what’s inside. Avoiding the barrier is a different issue, in that if the barrier has inherent limitations that can be avoided, then the court finds the items were in plain view.¹²⁹ The fact that something might be a barrier in one context, like a property boundary line for a trespass, does not mean it automatically functions as a barrier in the Fourth Amendment context.¹³⁰ A person who crosses a property boundary might subject himself to suit, but a police officer may sometimes cross that same line to observe evidence without violating the Fourth Amendment.¹³¹

What is more relevant for this analysis of property rights is the keeper of the barrier. For someone to claim his Fourth Amendment rights were violated, he must show that his barrier was defeated.¹³² He was the one who was able to rely on that barrier to keep out anyone who did not have authorization, and as long as the barrier was lawful, it would function.¹³³ To borrow the rough concept from property law, the one who has standing for Fourth Amendment violations in this analysis is the one who properly has a right to exclude.¹³⁴ But not everyone has the right to exclude the government from everywhere one might wish it not to go.¹³⁵ The Supreme Court previously ruled that when people were charged with crimes based on possessing items of evidence or contraband, they had standing to contest the search.¹³⁶ This was overruled, however, in United States v. Salvucci,¹³⁷ returning standing to a question of whether a person’s own Fourth Amendment rights had been violated.¹³⁸

Automatic standing in cases of possession had been supported by the logic that if a prosecutor believed the defendant possessed the evidence enough to charge him with it, the prosecutor should not be permitted to contradict themselves by also saying the defendant had not possessed the evidence enough to contest how the government came into possession of it.¹³⁹ The Court later found through experience that there were legitimate cases in which possession at the time of the search was not enough to justify Fourth Amendment protection, but there was enough evidence of “possession” at other times for the physical evidence to be relevant.¹⁴⁰

People who personally maintain their Fourth Amendment right-to-exclude barrier can also take actions that let their barrier down. One common manifestation of voluntary action is consent to search.¹⁴¹ Abandonment can be considered another way people let their property-rights barriers down.¹⁴² Finally, there are situations in which a person may share the control of her barrier with another.¹⁴³ In all of these situations, the identity of the main barrier keeper may be known, but the barrier keeper’s actions either make a search acceptable or allow for the search despite potential intentions to keep the barrier up. Especially since the barrier keeper can be countermanded by someone who shares the control of the barrier,¹⁴⁴ his maintenance of it is important, and actions contrary to it will not permit him to still complain of the result if the barrier is undermined.¹⁴⁵

These principles are difficult to apply when all parties are known during a search. Once the evidence has been given to the federal government in a sealed package with false names on it, the principles become even harder to apply.

II. Federal Appellate Cases Involving Pseudonyms on Mail

Federal appellate courts have addressed the Fourth Amendment impacts of names on mail that were not those of the “true” sender or addressee. The Supreme Court was presented with a pseudonymous recipient of contraband in Walter v. United States,¹⁴⁶ but the parties did not argue about the impact this had on the analysis before the Court.¹⁴⁷

Partially supporting the claims mentioned regarding the success rates of deliveries of drugs through the mail, there is not a wealth of federal appellate cases to examine. The cases that follow have several factors that led to their inclusion. In those cases, the defendants challenged the search and seizure of items delivered by a third party. Those items had names on them for senders or addressees that ranged from being a part of the defendant’s real name, a fictitious name unrelated to anyone involved in the case, or a name of another party that was not the defendant seeking exclusion of the evidence. All these cases are after Katz, and most are older than the 2012 case, United States v. Jones,¹⁴⁸ which marked a resurgence in the property-based analysis. Because of this, there is a heavy bias towards the reasonable expectation of privacy analysis, although several courts still conduct some level of property-based analysis as well.

A. Reasonable Expectations of Privacy and Standing

One of the earliest federal appellate court cases to address the use of a pseudonym on mail was United States v. Richards.¹⁴⁹ During its analysis, the Court of Appeals for the Fifth Circuit framed the question of standing as whether the person “has a privacy interest in the area searched.”¹⁵⁰ In the case, Richards opened a P.O. Box in a company’s name while presenting a fake ID.¹⁵¹ Heroin was then mailed to that P.O. Box addressed to that company.¹⁵² The court indicated that since the company “in effect, was Richards,” and the package was still sealed, Richards had a subjective expectation of privacy.¹⁵³ The history of sealed mail being protected from government searches appeared to suffice for the analysis of whether the expectation of privacy was reasonable.¹⁵⁴ The dissent in Richards dissented only because the majority did not go far enough in protecting the mail in question.¹⁵⁵ The dissent indicated how taking practical privacy-protecting precautions strengthens legal protection of that privacy, although without mentioning the use of the pseudonym.¹⁵⁶

The next case demonstrates some complications of names on mail that do not match the intended recipient. In United States v. Givens,¹⁵⁷ Givens ordered cocaine sent to a person with the real name of Starks, but Givens would pick up the package instead of Starks.¹⁵⁸ Police intercepted the cocaine before recovery by Givens and subsequently made it available to her in a controlled delivery.¹⁵⁹ The Court of Appeals for the Fourth Circuit stated that, without a doubt, if the package had been addressed to Givens, she would have had a reasonable expectation of privacy.¹⁶⁰ The court acknowledged throughout the analysis that Givens was the intended recipient of the cocaine but noted that all the precautions taken to hide it were mooted by the name of another party on the envelope.¹⁶¹ While standing was never explicitly mentioned, the comments about who else had the reasonable expectation of privacy make this a case of Givens not having standing.¹⁶²

As a coda in the analysis, the Givens court noted the theory that the intended recipient could claim a reasonable expectation of privacy in a parcel with the name of another person on it “lacks any principled stopping point.”¹⁶³ But the court also indicated a possible distinction if the package had been “addressed . . . to some entity, real or fictitious, which is their alter ego,” rather than to other real people.¹⁶⁴ As this was not the case, the court did not elaborate or provide what legal distinction there might be between alter egos and other real people.¹⁶⁵

Further confounding the issue by considering the purpose of using pseudonyms is United States v. Lewis.¹⁶⁶ In Lewis, police investigating fraudulent activity were led to a mailbox receiving property ordered with stolen credit card numbers.¹⁶⁷ The mailbox was marked for a property that didn’t exist and bore the name of a person, Woods, who was unknown to the neighborhood.¹⁶⁸ The officer then searched the mailbox, which he knew had previously received fraudulently obtained merchandise, and opened mail addressed to Woods without a warrant.¹⁶⁹ The information obtained from that search and other sources led to a search warrant and the arrest of Lewis for the fraudulent activity.¹⁷⁰

Since the Court of Appeals for the Eighth Circuit did not have to rule on this issue, the majority noted in a footnote that it would “have no difficulty in concluding that Lewis lacked a legitimate expectation of privacy” in the mailbox and mail, so he would have no standing.¹⁷¹ The court pointed out there was no house or resident with the addressee’s name at that address and that Lewis had no reasonable expectation of privacy in the mail addressed to Woods.¹⁷² Beyond the standing inquiry, the court noted the combination of the fake name, fake address, and using the mailbox “only to receive fraudulently obtained mailings does not merit an expectation of privacy that society is prepared to recognize as reasonable.”¹⁷³ The concurrence wrote separately to disagree with this footnote but actually conducted a property analysis,¹⁷⁴ which is considered later.

In United States v. Villarreal,¹⁷⁵ the Court of Appeals for the Fifth Circuit returned to the subject of pseudonyms but permitted two defendants to claim a reasonable expectation of privacy in the container searched.¹⁷⁶ Villarreal and Gonzales prepared to pick up drums of marijuana shipped using the name Roland Martin as both the consignor and consignee.¹⁷⁷ Police searched the drums when the shipping company perceived a discrepancy between the expected weight of the purported contents and the real weight.¹⁷⁸ The officers made no attempt to identify or contact Roland Martin before doing so.¹⁷⁹ Once the officers located the marijuana, they facilitated a controlled delivery, and people hired by Villarreal and Gonzales picked up the drums before Villarreal and Gonzalez were arrested.¹⁸⁰ Villarreal possessed the shipping receipt for the drum, but one of the associates hired to pick up the drum noted Gonzalez had been identified to him as Roland Martin.¹⁸¹

The court acknowledged Martin was a fictitious person, but since his presence was a cover for either Villarreal or Gonzales, they could still assert a reasonable expectation of privacy for Martin.¹⁸² The court was untroubled by its inability to determine which of the defendants Martin stood for.¹⁸³ Since Villarreal and Gonzales conspired together to ship and receive the items, they both had standing for a reasonable expectation of privacy as Martin.¹⁸⁴

Even pseudonyms that contain a portion of a person’s real name can weaken an expectation of privacy. In United States v. Daniel,¹⁸⁵ methamphetamine was shipped to Ricky Lynn Daniel by way of “Lynn Neal c/o Dottie’s Hair Design.”¹⁸⁶ Despite being a year after Villarreal and with a closer pseudonym, the Court of Appeals for the Fifth Circuit stated Daniel did not have a reasonable expectation of privacy.¹⁸⁷ It indicated that no deference was due to Daniel’s theory because Daniel and “Lynn” were different people.¹⁸⁸ Even accepting the government’s contention that Daniel and “Lynn” were the same undermined the expectation of privacy due to the criminal scheme the pseudonym was being used for.¹⁸⁹

In United States v. Smith,¹⁹⁰ police investigated Smith, who had a third party mail him LSD.¹⁹¹ Officers investigated a specific envelope with Smith’s address on it, but it had been crossed out and was delivered to the name and address of the third party also on the envelope.¹⁹² Despite the government’s knowledge that the drugs were intended for Smith—and his address having been visible on the envelope—the court held Smith had no reasonable expectation of privacy.¹⁹³ Smith’s “equivocal testimony regarding his ownership interest in the letter” furthered the result.¹⁹⁴ Smith’s claims that he had only authorized the third party to receive and give the mail to him were insufficient.¹⁹⁵

The Court of Appeals for the Seventh Circuit conducted one of the most thorough analyses of pseudonyms on mail from both the privacy and property perspectives in United States v. Pitts.¹⁹⁶ There, Pitts mailed cocaine in a tuna can to Alexander.¹⁹⁷ Pitts used a different address than his own as the return address but sent the fishy package to Alexander’s real address, where Alexander lived alone.¹⁹⁸ The names used as sender and addressee were James Reed, Sr., and James Reed, Jr., respectively.¹⁹⁹ As police investigated the package, they made contact with the resident of the home at the return address, who had no knowledge of the mailing or James Reed, Sr.²⁰⁰ The officers made contact with Alexander over the phone, who identified himself as another known alias during the conversation.²⁰¹ While speaking, Alexander disclaimed knowledge of the package and refused delivery.²⁰² After the conversation, officers obtained and executed a search warrant on the can, locating the drugs.²⁰³

The majority opinion determined the search was constitutional based on abandonment, which it examined under property rights.²⁰⁴ The concurrence argued neither Pitts nor Alexander had standing to contest the search in the first place.²⁰⁵ The main legal point was since Fourth Amendment rights are personal and cannot be asserted vicariously, neither defendant could assert the rights of James Reed, Sr. or Jr.²⁰⁶ Because the defendants intended to hide their connection to these pseudonyms, they could not use them in the same way others who have announced their connection to their pseudonyms could.²⁰⁷

The majority’s response to this argument assumed people have a right to send mail using false names.²⁰⁸ It justified this right by indicating that not protecting mail sent with false names would undermine the rights of those who use anonymity for legally innocuous or justifiable reasons.²⁰⁹ It then proposed two possible undesirable constructions of removing Fourth Amendment protections on mail using pseudonyms.²¹⁰ The first was that since drug dealers use pseudonyms, no one else can use pseudonyms without surrendering their reasonable expectation of privacy, analogizing this to cell phones and hotel rooms.²¹¹ The second was police justifying searches of mail bearing pseudonyms based on the drugs found afterward, mirroring contentions made in Lewis.²¹² In conclusion, the court noted, “There is nothing inherently wrong with a desire to remain anonymous when sending or receiving a package,” so the expectation of privacy in mail bearing pseudonyms is one that society would recognize as reasonable.²¹³

The Court of Appeals for the Ninth Circuit has not ruled on standing when mail bears pseudonyms. In United States v. Lozano,²¹⁴ the majority proceeded straight to the reasonability of the search while the concurrence indicated the use of pseudonyms eliminated standing under both property and privacy analyses.²¹⁵ The two main points used to support the concurrence’s reasoning were (1) a lack of societal understandings supporting an expectation of privacy and (2) assertions of dominion over mail not addressed to a party for wrongful purposes are illegitimate.²¹⁶ Societal understandings of privacy grant privacy to the named party on the mail, and that privacy is not extended to unnamed parties. Nor is a privacy interest in mail protected when parties expose their privacy to interference by putting someone else’s name on mail as having that controlling interest.²¹⁷ The concurrence analogized a pseudonym to a burglar’s expectation of privacy in a summer cabin being illegitimate due to the wrongfulness of their presence.²¹⁸ Finally, the argument that the other name on the mail was an alias was dismissed since there was no previously established connection between the party and the party’s alias.²¹⁹

In United States v. Stokes,²²⁰ the Court of Appeals for the First Circuit considered mail containing something other than drugs. There, Stokes sent faxes to businesses throughout the country posing as trade associations and asking the businesses to mail their dues to several addresses he controlled.²²¹ Postal inspectors seized some of the mail containing checks addressed to the trade associations Stokes posed as and requested permission from the senders to open it, which they granted.²²² Stokes argued he had standing to object to searches of mail coming to all his residential and non-residential addresses.²²³ The court noted difficulty in finding a person’s privacy interest in mail without his name on it, even when a person claims “a privacy interest in ‘my mail coming to me.’”²²⁴ Regarding his addresses, there was no support for his argument that an address alone can justify a privacy interest, especially without evidence of whether anyone else had access to the property of the addresses or not.²²⁵

As these cases demonstrate, even the most common method of determining the applicability of the Fourth Amendment’s protections cannot reliably predict whether a court will provide protection to mail bearing pseudonyms.

B. Property-Based Interests, Standing, and Abandonment

Several cases above also analyzed property rights to determine Fourth Amendment protections. As several of them demonstrates, when a court finds the Fourth Amendment does not apply, it will usually be through the abandonment of the property.

In Richards, examined above, the defendant conceded the legality of a first search that identified heroin in mail addressed to his fake company at a P.O. Box opened with a fake ID.²²⁶ Before the contested second search, though, Richards obtained the package with the heroin and left the post office while under constant surveillance.²²⁷ When confronted, he corrected the officers who called him by the name of the fake ID used to open the P.O. Box.²²⁸ Upon questioning, Richards disavowed ownership of the box but claimed he was picking it up for someone else.²²⁹

After finding Richards had a reasonable expectation of privacy, the court acknowledged the usefulness of property law in determining Fourth Amendment protection.²³⁰ While noting Richards’s disavowal of ownership relates to abandonment of property, it did not eliminate the protection granted due to the totality of the circumstances.²³¹ The court’s language makes it unclear whether the property-based analysis by itself would have ensured standing. The only two factors specifically examined in the property-based analysis were the lawful possessory interest and the disavowal of ownership.²³² In the footnote, the court agreed that lawful possessory interest alone would not have been sufficient to grant protection to Richards and that the disavowal undermines the protection.²³³ From this, it appears the court believed that these facts, divorced from the knowledge that Richards was indeed the renter of the P.O. Box and true owner of the heroin, would have resulted in a finding of abandonment.

When the Court of Appeals for the Fourth Circuit considered property rights in the previously mentioned Givens case, its analysis was clear. The court assumed Givens had a possessory interest in the cocaine that was hidden in a cassette tape and mailed in an envelope to Starks.²³⁴ However, that possessory interest did not extend to the container, so Givens had no right to exclude others from where her cocaine was hidden without her name on the envelope.²³⁵ The court analogized Givens’s claim over the envelope addressed to Starks to two Supreme Court cases in which defendants contested searches of areas they did not own that contained evidence they did own.²³⁶ Because Givens “effectively relinquished control over the area in which the drugs they claim an interest in were secreted,” she was not entitled to Fourth Amendment protection.²³⁷

The concurrence in Lewis in the Court of Appeals for the Eighth Circuit, written solely to disagree with the majority’s standing analysis, indicated an appropriate property analysis showed the mailbox was protected.²³⁸ Judge Theodore McMillian noted that, despite the fake name and address displayed on the mailbox, “it was undisputed that the mailbox belonged to [Lewis].”²³⁹ He further distinguished it from the “burglar in a summer cabin” analogy used by the Supreme Court and the majority, noting that Lewis understood “that access to his mailbox would be limited,” so it should be protected.²⁴⁰ One point of contention between the majority and Judge McMillian was the nature of the activity. The majority indicated that the known fraudulent activity involving the mailbox undermined Fourth Amendment protection, while Judge McMillian approached the analysis by indicating that the identity of items pursued does not change the analysis of whether the area is protected.²⁴¹

In the Court of Appeals for the Fifth Circuit’s Villarreal case, two defendants were granted a reasonable expectation of privacy under one pseudonym.²⁴² However, the government argued the defendants abandoned the drums of marijuana.²⁴³ The drums had been shipped under a complete pseudonym, and the defendants did not pick up the drugs themselves but had others do it for them before taking possession.²⁴⁴ The court found that since there was no denial of a possessory interest in the drums, the fact that the defendants utilized other people and fake information to facilitate their possession meant the property was not abandoned.²⁴⁵ The main point from the abandoned property perspective, though, seemed to be that the defendants “retained possession of the receipt for the drums, which was the only indication of ownership available.”²⁴⁶

The Court of Appeals for the Seventh Circuit’s analysis in Pitts relied heavily on the facts but explained clearly how abandonment had been demonstrated. The court acknowledged that Pitts, as the sender, claimed to have maintained control over the delivery of the package by retaining the tracking number.²⁴⁷ Several facts undermined this control, however. First, manifestations of intent matter.²⁴⁸ Pitts undermined his ability to control the package by placing another person’s address on it, permitting the person at that address to disclaim it themselves.²⁴⁹ By putting someone else’s name on the package as the sender, Pitts ensured he would be unable to retrieve it without an ID that showed he was James Reed, Sr.²⁵⁰ Second, Alexander, the intended recipient, had disavowed any knowledge or ownership interest in the package when he declined delivery, so he could not claim later that he still actually wanted it.²⁵¹ These factors led the court to declare this “a case of classic abandonment.”²⁵²

Most recently, in United States v. Rose,²⁵³ the Court of Appeals for the Fourth Circuit examined a case where Rose arranged for cocaine to be delivered to a friend’s house under the name of the friend’s dead brother.²⁵⁴ Rose had successfully done this multiple times and paid his friend to allow the deliveries to his house without interfering.²⁵⁵ The court framed its analysis as a privacy analysis but primarily used property concepts to support it.²⁵⁶ It focused on the reasonableness of the expectation of privacy but indicated that what made an expectation reasonable was “evidence objectively establishing his ownership, possession, or control of the property at issue.”²⁵⁷ The court determined Rose had no reasonable expectation of privacy because, despite his status as the intended recipient, nothing he had done showed that, at the time of the search, he was the one who exercised dominion over the property.²⁵⁸ All information on the property pointed to his friend’s dead brother rather than Rose.²⁵⁹ The court made clear that subjective interests in privacy, by themselves, were insufficient and that the ownership or possessory interest must be objectively identifiable at the time of the search.²⁶⁰

III. Analysis of Pseudonyms on Mail and the Fourth Amendment

As demonstrated by the various approaches taken by the circuit courts of appeals, pseudonyms on mail create many complications in Fourth Amendment law. The initial question of whether mail should be examined using the reasonable expectation of privacy or property analyses is difficult enough. The dissent in Rose demonstrated this difficulty by arguing for a privacy-based rather than the majority’s property-based approach.²⁶¹ Once either analysis begins, several Supreme Court precedents point in different directions, and the rationale behind these decisions creates further problems.

Answering whether a privacy- or property-based analysis is a better approach for mail is beyond the scope of this Comment. Instead, the proposed solution is analyzed under both. Before doing so, however, this Section attempts to harmonize the various analyses done in this area and determine whether the law supports a specific answer.

A. Impact of Pseudonyms on Standing with a Reasonable Expectation of Privacy Analysis

Pseudonyms impact standing under a privacy analysis more so than under a property analysis. Since people using the mail with pseudonyms will always have a subjective expectation that their mail will be private, the issue is whether that expectation is one that society is prepared to accept as reasonable. The arguments for both stances are compelling but also have weaknesses. However, the standing analysis returns to weaken a defendant’s claim even more because there is no external source of law validating the defendant’s privacy expectations without the concept of ownership.²⁶²

Multiple courts noted how society expects mail to be private, and there is no doubt about this claim. However, courts inadvertently point out part of the issue with society expecting mail to be private.²⁶³ In Richards and Villarreal, the courts acknowledged mail has historically been treated as private.²⁶⁴ While true, it demonstrates part of the problem raised by the circularity of the reasonable expectation of privacy analysis.²⁶⁵ It conflates what people have come to expect from the government with what society is prepared to accept as reasonable.²⁶⁶ The government has respected privacy in mail, so society reasonably expects it. However, this leads to the possibility that if the Postal Service were to do what the Office of the Inspector General recommended and start advertising practices decreasing privacy in mail,²⁶⁷ people would stop expecting it to be private, and the argument could then be made that any expectations of privacy in mail would be unreasonable.

Further, by putting the names of people on the mail other than the actual parties, the probability of someone else interacting with the mail in a way that interferes with the privacy interest of the original parties significantly increases.²⁶⁸ Since the original parties intentionally perform this act, they cripple their privacy interests in that mail.

When the question is framed as, “should drug dealers or scammers be allowed privacy in their mail when they put fake names on it?” very few non-drug dealers or scammers would reflexively answer, “yes!” Using information obtained after the search to justify the search, however, is improper.²⁶⁹ Even if the information is “known” about the illegal activity before the search, as the majority in Lewis seemed to indicate,²⁷⁰ there is the question of whether that specific piece of mail is involved in illegal activity.

In a privacy analysis, standing is where pseudonyms truly cause problems. Without an independently grounded right in the mail,²⁷¹ the claim is simply, “I have an interest in keeping that mail private.” But when the party claiming this right is not named on the mail, there is no basis outside Fourth Amendment law to support the claim. It then directly conflicts with the prohibition on third-party standing. When a party has no evidence for his claim of privacy in mail bearing another person’s name other than an after-the-search statement in court, it is difficult to see how this is not an end-run around the prohibition on third-party standing claims. For this reason, despite the reasonableness (or not) of the expectation of privacy, the privacy analysis does not provide the pseudonymous sender standing to assert Fourth Amendment protections.

B. Impact of Pseudonyms on Standing and Abandonment with a Property Analysis

Using pseudonyms on mail significantly impacts Fourth Amendment rights under the property analysis because of the claim-communication aspects of property. Because mailing labels involve communications, transfer of ownership, and shifting possessory rights via a third party, accurate names are important. When names presented on a label do not correspond to the real name of the parties, it attenuates their claim on the property. While one can argue in favor of facilitating anonymity in communications, the arguments are not based in criminal search-and-seizure law or independently in property law.

Complicating the matter is someone’s choice to use a name other than his own on mail does not eliminate that person’s claim to the property. The person has his claim but clouded his title in it. In Stokes, the defendant posed as various trade associations.²⁷² The government obtained consent to search some of the envelopes from the senders,²⁷³ but it is unclear what would have happened had they sought consent to search from the trade associations instead. The evidence available to postal inspectors seemed to indicate the sender of the mail intended to have it delivered to the trade association, whether the address was accurate or not.²⁷⁴ For that reason, it seems the trade association had a better claim to the mail than Stokes.

While Stokes chose to impersonate trade associations to ensure his scheme was more effective, there is also the situation in Pitts, when the mail was sent “from” a real address belonging to another person but with a fake name.²⁷⁵ Change the facts just slightly and imagine Pitts had sent the mail intending to use a fake name but accidentally chose the real name of a person associated with that address. On the face of the mail, it appears to be the same situation as in Stokes. A real person is identified even though the sender intended to “identify” someone who didn’t exist. Did the sender “accidentally” transfer his interests to control the mail to the person who was not supposed to exist? It does not seem that a person’s claim that the Fourth Amendment protects his property rights in mail sent using fake information should depend on whether he was diligent enough to ensure the fake name was fake enough.

For these reasons, a person cannot claim standing based solely on a subjective intent to control the mail despite the false labeling. Slightly less clear, but still reasonable, is that using any fictitious name on the mail significantly weakens the ownership interest to the point where the defendant no longer has standing to contest what happened to the mail. As previously indicated, recipients must identify themselves to the delivering party to claim the parcel.²⁷⁶ Without presenting a fake ID to demonstrate ownership, that claim will fail. The property was purposefully delivered into a legal gray area where the unnamed parties do not have rightful authority to remove it. This is clearer abandonment than leaving something out in public where it can be picked up again later.

The prohibition against third-party standing further weakens the property-based claim to Fourth Amendment protection. The Supreme Court has been clear that parties cannot claim the protection of the Fourth Amendment unless their own substantive rights were violated.²⁷⁷ The names on the mail are the best, and usually only, external evidence of whose Fourth Amendment rights are at issue. Permitting an unnamed party to claim ownership of the mail departs from the Supreme Court’s guidance. It violates the requirement that standing be granted only to those whose own rights were infringed.

Permitting these claims would also lead to the question of how far objective evidence of the ownership or possessory interest can be contradicted through testimony and in what other circumstances. Instead of the “these aren’t my pants” excuse, what about a “those were my pants” claim? Could a defendant find himself in a situation where he claims an ownership interest in the pants actively worn by another party when evidence detrimental to both is located therein? While this could be phrased as a matter of degree, part of the reason the Supreme Court has declined to permit third-party standing in the first place is the undesirability of dealing with a large number of potential claims. Objective evidence remains the best way to adjudicate these claims. The people named on the mail are the ones who may claim the Fourth Amendment’s protection.

The next question, though, is when is the appropriate time to conduct the property analysis. Under this analysis, the appropriate time to determine whether the actual sender or intended recipient’s property claim was clearly established enough is at the time of the search. While defendants claim the property is theirs to try to defeat the government’s search of the property, this allows for contradictory claims to be made when it is convenient. Defendants disavow ownership of mail to avoid responsibility for what is inside until they need to claim ownership to prevent the admissibility of what is inside. The Fourth and Fifth Amendments should not facilitate this. For this reason, the claim ought to continue being analyzed using evidence known at the time of the search.

The other reason for conducting the analysis using the information available at the time of the search is that it requires both the government and defendants to play on an even playing field. Several judges argued in the federal circuit court cases that providing Fourth Amendment protection to people sending drugs or other contraband through the mail was socially undesirable.²⁷⁸ Therefore, people didn’t have the right to Fourth Amendment protection in mail carrying drugs if the label bore pseudonyms. However, this leads to justifying searches based on finding contraband after the fact. The government should not be allowed to use evidence from a search to justify the initial search. Similarly, defendants should not be allowed to alter their claims regarding their interests in something just because it was searched. For these reasons, under a property-based analysis, defendants who utilize pseudonyms cloud their interest in the property to the point that they do not have standing to contest the searches and have abandoned the property.

Still, there are beneficial uses of pseudonyms. The analysis above indicates there is little room in search-and-seizure law to determine whether the purpose of the pseudonym was useful or not. This issue seems to underlie some of the decisions the Court of Appeals for the Fifth Circuit presented, indicating that people still have standing and expectations of privacy in mail that doesn’t bear their names.²⁷⁹ Although the concern is appropriate, the solution of granting standing in situations that do not warrant it is not. The legal analysis can be adjusted to remain protective of the interests of parties using pseudonyms for beneficial purposes while remaining faithful to precedent.

IV. Investigating Reasonably Traceable Privacy or Ownership Interests

Before the government can rely on an argument that the Fourth Amendment does not protect the mail in question due to pseudonym usage, the government must demonstrate one thing: that before the search, it must have diligently investigated whether the privacy or property interest in the mail was reasonably identifiable as belonging to a distinct person. By requiring this, people can reassert their Fourth Amendment rights in the property in question or abandon them as they decide. Either the sender or recipient can claim those rights, but both need to abandon them for a completely legitimate search where the evidence will be admissible against both parties. This feature is where the property protections of requiring police to investigate before the search works to help protect beneficial uses of pseudonyms.

There is no perfect solution to the issue of trying to protect societally beneficial uses of pseudonyms while encouraging investigations of those that are criminal in nature. There are three different iterations of pseudonym usage, all unprotected under the current framework. The solution this Comment proposes can solve two, but issues remain with the third. When parties are involved in the third, it is unwise for them to send information via government channels in the first place. The solution is tested against several fact patterns, and some potential problems are examined.

A. Fourth Amendment Protections Remain if the Defendant’s Interests Are Reasonably Traceable and the Property Is Not Abandoned

An examination of some of the fact patterns from previous cases and some hypothetical situations assist in fleshing the solution out. Several of the real cases show how an investigation ought to be conducted while others are demonstrations of what not to do under any analysis.

The most clearly demonstrated pre-search investigation is found in the Pitts fact pattern. There, the government contacted the resident of the address Pitts used as the return address, and the resident had no knowledge of or ownership interest in the mail.²⁸⁰ Pitts made himself untraceable via the mail, so he could not be identified through a diligent investigation.²⁸¹ The government then contacted Alexander who, instead of claiming the property and retaining his Fourth Amendment rights, disclaimed and abandoned it.²⁸² In this circumstance, the property was deemed abandoned by both, and they were precluded from challenging the search.²⁸³

In Villarreal, however, the government did not investigate the ownership of the barrels before searching them.²⁸⁴ In that case, the fictitious name of the person who was supposed to pick the drums up was on the containers.²⁸⁵ While Villarreal and Gonzales separated themselves from the property by several layers,²⁸⁶ it was still incumbent upon the government to conduct the investigation into who had claims to the barrels before searching them. Had they tried contacting the named owner by phone beforehand, they may have been able to receive statements that would have indicated abandonment or that the person had taken such other actions as completely removed their personal expectation of privacy in the drums.

United States v. Morta²⁸⁷ demonstrates a proper investigation. Rebecca Morta agreed to receive methamphetamine, which was shipped under the name “Mark Mota,” with the address where she was staying.²⁸⁸ The sender was listed as a real woman’s name and address, but when she was contacted via phone, she had no knowledge of the package.²⁸⁹ Investigators contacted Rebecca’s father at his house who confirmed that no “Mota” lived there, but his grandson, Mark Morta San Agustin did.²⁹⁰ Rebecca’s father then consented to a search of the parcel by the postal inspectors.²⁹¹ Rebecca later claimed she had an ownership and possessory interest in the parcel from living at the destination address and having an ownership interest in the contents, but the court held this was insufficient to grant her Fourth Amendment standing for the parcel.²⁹² For this reason, the court did not need to rule on the sufficiency of the consent to search the package granted by the owner of the residence to which it was addressed.²⁹³

Which investigative actions are diligent enough needs to be a case-by-case evaluation. However, failure to attempt to contact identifiable parties via phone or visiting the sending and receiving addresses would be difficult to justify as diligent. How much further those investigations would need to go after that would depend on how those contacts go. As the purpose of these investigations is to determine who the mail belongs to, if a party claims a Fifth Amendment right against self-incrimination, that claim cannot simultaneously translate into an affirmative claim to an ownership or privacy interest under the Fourth Amendment.

In situations involving socially beneficial uses of pseudonyms, requiring a pre-search investigation allows the parties the chance to claim their interest in the mail. Understandably, if either the sender or recipient feels the need to use a pseudonym, they may still be unwilling to claim responsibility for the package’s contents. In these situations, as long as one named party remains identifiable and can be contacted, that party can retain a claim to privacy, protecting the package. An example is a whistleblower who decides to mail something to a journalist. The whistleblower may desire to use a pseudonym, but the journalist would need to be identifiable to ensure the mailing gets to him. If the package becomes entangled in an investigation, attempts to contact the whistleblower will either be unsuccessful or result in some disclaimer of knowledge. The journalist, on the other hand, as a named party, would likely be contacted successfully and could claim his interest in the parcel, retaining Fourth Amendment protections.

Alternatively, the delivery of fan mail to pseudonymous authors is another situation. Generally, a fan may seem likely to use his real name when sending fan mail, but the author seeks her privacy. During an investigation, an attempt to reach the recipient of the mail would be unsuccessful, or if the true author is contacted, she may disclaim her interest in the mail. However, once the fan is contacted, he could claim his interest, preserving the protection of the Fourth Amendment for both parties.

A required pre-search investigation cannot solve the problem of a beneficial use of pseudonyms with both the sender and recipient not using their real information. Both parties still have a desire to keep their anonymity, so they would likely refuse to acknowledge their interest in the mail. The twin denials could lead to a permissible abandonment search being conducted, with no recourse by the owners of the mail. However, if legal information is of such sensitivity that neither party wishes their involvement to be known to the government, sending it through the government’s system might not be the wisest idea. In this way, full knowledge of the effects of pseudonyms on mail would allow parties who have that need to make appropriate carrier decisions for their sensitive communications.

B. Criticisms and Responses

Several concerns can be raised regarding the proposed scheme. They all have some validity. The first is whether it is appropriate to mandate that people make incriminating statements to restore their Fourth Amendment protections in the mail. Another is whether it is appropriate in the current legal analytical framework to require this pre-search investigation. A final one is concerns about Postal Service regulations and their interactions with undeliverable mail.

First, and most serious, is the interplay between the Fourth and Fifth Amendments when analyzing pseudonymous mail. When people manifest a strong enough connection to property, the Fourth Amendment will protect them by prohibiting unreasonable government searches and seizures.²⁹⁴ The Fifth Amendment prohibits coerced incriminating statements.²⁹⁵

Requiring people to claim their Fourth Amendment interests in mail with a pseudonym on it does not coerce them into making incriminating statements in violation of the Fifth Amendment. As indicated previously, once parties choose to place pseudonyms on their mail, the default legal analysis indicates that intended, but unnamed, recipients do not have a reasonable expectation of privacy in that mail. What the pre-search investigation requirement does is allow the people involved to decide how to proceed. The people involved generally desire their name not be included on the mailing to prevent them from being associated with the results of a search. They have specifically taken steps to undermine their own interests. If asked during the pre-search investigation if mail belongs to them, they have two choices: (1) permit circumstances to continue under the already-undermined Fourth Amendment interests, or (2) revitalize their undermined interests through making incriminating statements. While it is valid that the government should not force people to choose between which amendment they wish the protection of, there is a counterpoint. The government is not responsible to protect people from the legal consequences of their actions undermining their protection. The furthest the Court has gone is requiring that some people be reminded of what their rights are in certain situations.²⁹⁶

A second concern is whether requiring a pre-search investigation into ownership interests of the mail is permissible under current law. Since one of the main ways the protection of the mail is undermined is through the abandonment analysis, courts should already require officers to establish facts that justify proceeding under an abandonment theory prior to the search. As previously indicated, this is not a drastic change. The clarity it would provide to officers and the courts would benefit investigators because they would know what steps they need to take to ensure a legally defensible search.

The third concern mentioned, as indicated in Stokes, is whether the U.S. Code and Postal Service regulations have different answers to this question.²⁹⁷ Sealed letters are protected against being opened by 39 U.S.C. § 404. It states, “No letter . . . shall be opened except under authority of a search warrant . . . or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered.”²⁹⁸

Several interpretations of this code section are possible. The first reads this code section to authorize the Postal Service to follow normal dead mail procedures, whatever those procedures are. The second reading could claim that the Postal Service may not criminally investigate the contents of mail opened without a search warrant, as that goes beyond the “sole purpose” authorized by the statute. Another reading, although least likely considering the weight of Postal Service policy and other U.S. Code sections against it,²⁹⁹ would be that this section implicitly overrules any requirement that mail be delivered to a specific addressee rather than the address itself. This reading would imply that, if a valid address exists on a piece of mail, it must be delivered.

Regardless of the interpretation, the problem identified in Stokes remains. A defendant who cannot challenge a search based on standing cannot reach the merits no matter what those merits are.³⁰⁰ Whether a defendant who does not have standing to challenge the potential statutory violation in the criminal proceeding would have standing for a separate suit seeking declaratory or injunctive relief is beyond the scope of this Comment. If the government complies with the diligent investigation recommendation given herein, it would significantly decrease the chances of a litigant having standing for the same reasons it would decrease the chances in the criminal proceedings themselves.

Once a litigant reaches the merits though, whether the court agrees with the government’s actions appears very likely to depend on the facts of the case and the interpretation of the code section the judge adopts. The permutations are too varied for predictive analysis in this Comment.

Conclusion

Pseudonyms on mail for either the sender or addressee results in the removal of Fourth Amendment protections from that mail. This proposed change, however, permits continued protection of societally beneficial pseudonym usage while providing clarity for those conducting investigations. This clarity and relatively bright line is important under any proposal. One proposal argues that the exclusionary rule is flexible enough to allow for searches of mail for more serious drug crimes while disallowing searches for less serious ones, especially if the alternative is removing protections for mail using pseudonyms.³⁰¹ However, that proposal acknowledges this could potentially incentivize police misconduct and creates line-drawing problems between the serious drug dealer and the person shipping drugs to himself after a vacation to a location where they are legal.³⁰² While the difficulty in drawing these lines is reason enough to pause before relying on the exclusionary rule to handle drug distribution, incentivizing violations of the Fourth Amendment, even for seemingly small things, is a slippery slope.

There are also compelling arguments for expanding Fourth Amendment protections, especially through permitting third-party standing,³⁰³ rather than contracting them, so any solution that potentially encourages warrantless searches should have a pre-search evidentiary basis. It does not appear that any arguments have been made that pseudonyms on mail should be protected as expressive speech under the First Amendment. It is unclear that just the use of the pseudonyms on the mail would be protected. What may be more open to a First Amendment challenge is the impact on speech contained within mail that is selected for police action based on the pseudonyms on the exterior of the mail.

The USPS Office of the Inspector General recommended the Postal Service ask Congress to weaken search protections on all packages sent through the mail and institute “a public awareness campaign designed to reduce the public’s expectation of privacy in packages sent through the mail.”³⁰⁴ This drastic change would reach far beyond the proposed solution here. While that alternative may be likely to be more effective immediately, effectiveness should not be the only measure of whether an option should be selected. Something needs to be done, but it needs to be done within the law and not an attempt to change the nation’s view—held since the Founding—of the Postal Service.

Category: Print Issues

Who’s Got Mail? The Fourth Amendment Impact of Pseudonyms

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