United States v. Moss

936 F.3d 52

UNITED STATES of America, Appellee,

v.Dustin MOSS, Defendant, Appellant.

No. 18-1793

United States Court of Appeals, First Circuit.

August 26, 2019

Simon R. Brown, with whom Preti Flaherty PLLP, Concord, NH, was on brief, for appellant.

John S. Davis, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

Before Torruella, Lynch, and Kayatta, Circuit Judges.

TORRUELLA, Circuit Judge.

Dustin Moss ("Moss") appeals from the district court's denial of his motion to suppress approximately twenty pounds of methamphetamine that a postal inspector discovered in two United States Postal Service Priority Mail Express packages, as well as any evidence resulting from the searches of those packages. After careful review, we affirm.

I. BACKGROUND

A. Factual Background

1. The 730 Package

On April 18, 2017, U.S. Postal Inspector Bruce Sweet ("Sweet") singled out from a list of incoming mail a package scheduled to arrive from Las Vegas, Nevada, to Manchester, New Hampshire. Since October 2016, Sweet had been participating in the investigation of a drug conspiracy in which packages containing methamphetamine were sent from Las Vegas to New Hampshire and, in return, packages containing money were sent from New Hampshire to Las Vegas. According to postal databases, the singled-out package weighed twenty-six pounds; was addressed to Brian O'Rourke at 3 Blackberry Way, Apt. 108, Manchester, New Hampshire; and bore the tracking number EL810533730US (the "730 Package"). More importantly, it had "328 Florrie Ave."¹ in Las Vegas as the return address, which matched the "Florrie Ave." return address used in other packages identified throughout the drug conspiracy investigation. Based on these characteristics and his knowledge of the investigation, Sweet deemed the 730 Package suspicious.

Accordingly, the night before the package's arrival, Sweet drafted an affidavit in support of a warrant to search the 730 Package and e-mailed it to Assistant United States Attorney William Morse ("AUSA Morse"). Sweet's affidavit included an attachment labelled "Attachment A," which accurately described the 730 Package as a "black ‘Kicker Speaker’ cardboard box," and detailed the package's weight and dimensions. The attachment also identified the 730 Package's addressee, O'Rourke, as well as the package's final destination.

Sweet collected the 730 Package and placed it in a canine drug-sniff lineup shortly after the package arrived in Manchester on the morning of August 19, 2017. After the drug-sniffing dog alerted on the 730 Package, Sweet secured the package in the United States Postal Inspection Service's parcel inspection room.² Sweet effectively separated the 730 Package from all other mail held in the postal facility given that there were no other packages in the parcel inspection room at this point.

AUSA Morse proceeded to e-mail Sweet's affidavit to court personnel that same morning. AUSA Morse's e-mail indicated that his office was still working on the associated paperwork. Within an hour of the e-mail's delivery, AUSA Morse and Sweet arrived at the magistrate judge's chambers with a complete search warrant packet consisting of: (1) the search warrant application; (2) Sweet's affidavit and its two accompanying attachments; and (3) the proposed search warrant. In the space provided for a description of the property to be searched, the warrant application stated: "See Attachment A to Affidavit of U.S. Postal Inspector Bruce A. Sweet which is incorporated herein by reference.". As mentioned above, Attachment A of Sweet's affidavit provided an accurate and detailed description of the 730 Package. After reviewing the search warrant application and Sweet's affidavit, the magistrate judge issued the search warrant.³

However, due to a clerical error in the U.S. Attorney's Office, the document identified as "Attachment A" that was appended to the search warrant was different from the one attached to Sweet's affidavit and reviewed by the magistrate judge. The issued warrant's Attachment A did not describe the 730 Package, a twenty-six-pound cardboard box, but rather a five-ounce envelope Sweet had searched during the course of an unrelated investigation from November 2016.⁴ The warrant, nevertheless, still included information reflecting its relation to the 730 Package. Specifically, its caption correctly read:

In the Matter of the Search of

(Briefly describe the property to be searched ...)

USPS Priority Mail Express Package Bearing Tracking

Number EL810533730US.

In other words, the issued warrant included the 730 Package's exclusive tracking number, despite the description of another package in its Attachment A.

Unaware of the mistakenly appended attachment, Sweet proceeded to search the 730 Package. Inside the package, he found a large speaker and, inside the speaker, twelve zip-top bags, each containing almost exactly one pound of a white crystalline substance later identified as methamphetamine. Sweet then replaced the narcotics with miscellaneous items to bring the box to its original weight, repackaged the speaker, resealed the package, and delivered it to the post office for the next stage of the government's operation -- apprehension of the 730 Package's addressee, Brian O'Rourke.

O'Rourke was a crack cocaine addict. His supplier was Sabrina Moss ("Sabrina"), defendant-appellant Moss's sister. O'Rourke, Sabrina, and Moss had all been in the same hotel room with other drug users about a week prior to the arrival of the 730 Package. O'Rourke and Moss did not know each other and did not speak to each other in that hotel room. Their interaction was limited to what can be described as a mutual acknowledgement of each other's presence: They waved at each other after Sabrina pointed out Moss to O'Rourke. Sabrina then asked O'Rourke if he was willing to receive a package at his apartment on Moss's behalf in exchange for three-and-a-half grams of crack cocaine.⁵ O'Rourke agreed.

But the terms of this agreement were never fleshed out any further. O'Rourke left the hotel room without Sabrina telling him when to expect the package to arrive or the number of packages he would receive. Nonetheless, from their conversation's reference to "a package," O'Rourke understood that their arrangement was limited to the receipt of a single piece of mail. O'Rourke believed everything would transpire in a simple, quick manner: The package would arrive at his apartment, Moss would pick it up, and he would receive his illicit compensation. To O'Rourke's dismay, not even his first assumption materialized.

The same day the 730 Package arrived in Manchester, a postal inspector dressed as a letter carrier delivered a notice to O'Rourke's mailbox informing him that the package was ready for pickup at the post office. Moss met with O'Rourke at the latter's apartment, where, instead of going directly to the post office, they waited, believing that the 730 Package might yet be delivered there. Several hours later, Sabrina and her boyfriend arrived at O'Rourke's apartment and joined the waiting game. Once they realized the 730 Package would not be delivered directly to O'Rourke's apartment, the four individuals decided to decamp. O'Rourke and Moss left the apartment at the same time. O'Rourke drove directly to the post office, while Moss drove to a shopping center located approximately a quarter mile away from the post office and parked behind a furniture store.

Sweet, who was behind the counter at the post office, handed the 730 Package to O'Rourke. O'Rourke then met with Moss behind the furniture store and placed the 730 Package in the back seat of Moss's vehicle. Shortly thereafter, law enforcement intervened and arrested Moss and O'Rourke on the spot. O'Rourke was subsequently released on bond, while Moss remained in custody.

2. The 962 Package

Three days later, on April 22, 2017, a second package from Las Vegas, bearing the EL652259962US tracking number (the "962 Package"), was delivered to O'Rourke's address. Because it was a box too large to fit in his mailbox, the 962 Package was placed in the building's parcel lockbox. O'Rourke noticed a key in his mailbox, which served to notify residents that they had a larger package ready for pickup. Because he was not expecting a package and wanted "nothing to do with it," he opted to ignore the key and wait until he had spoken with his lawyer before taking any action. The following day, however, O'Rourke's friend, Brenda Krimtler ("Krimtler") -- who was helping O'Rourke get his affairs in order before he entered a drug rehabilitation program -- picked up his mail and used the key to retrieve the 962 Package from the building's parcel lockbox.

Krimtler then brought the 962 Package to O'Rourke's kitchen, opened it, and noticed it was full of white powder. She reacted to this surprise by telling O'Rourke, who was in another room, about the package's contents. O'Rourke responded by instructing Krimtler to reseal the package and return it to the parcel lockbox, which she did without O'Rourke ever setting his eyes on it.

O'Rourke then called his attorney and told her about the package. With O'Rourke's agreement, the attorney called Sweet and explained the situation. She informed Sweet about the 962 Package, told him that the 962 Package had been opened, that O'Rourke believed it contained narcotics, that O'Rourke did not want it, and that Sweet could search it.

With permission from O'Rourke's attorney, Sweet called O'Rourke later that evening. O'Rourke confirmed the information that had been previously conveyed by his attorney. He told Sweet that his friend had opened the package, that it appeared to contain narcotics, and that he consented to the package being seized and searched. Because O'Rourke expressly granted him permission to search the package, Sweet did not seek a warrant. Instead, he contacted another postal inspector who lived closer to O'Rourke, Steve Riggins, who proceeded to...