FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 09-30151 Plaintiff-Appellee,

D.C. No.

v.  4:08-cr-00009-RRB

ROBERT LOZANO, SR., OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted

July 28, 2010—Anchorage, Alaska

Filed October 18, 2010

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and

Richard R. Clifton, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge O’Scannlain

17159
COUNSEL

Robert John, Fairbanks, Alaska, argued the cause and filed the

briefs for defendant-appellant Robert Lozano, Sr.

Craig M. Warner, Assistant United States Attorney, Anchorage, Alaska, argued the cause for plaintiff-appellee United

States. Jo Ann Farrington, Assistant United States Attorney,

Anchorage, Alaska, filed the brief. Karen L. Loeffler, United

States Attorney, Anchorage, Alaska, also was on the brief.

OPINION

PER CURIAM:

We must decide, among other issues, whether the admission of marijuana evidence, found in a mailed package

17162 UNITED STATES v. LOZANO
delayed twenty-two hours in delivery due to the remoteness

of the site from canine investigation, violates the Fourth

Amendment.

I

A

1

In the spring of 2007, Robert Lozano, Sr., shared a residence in Barrow, Alaska, with his son, who was on state probation. Based on suspicion that Lozano’s son had violated the

terms of his probation, state officers conducted a search of the

son’s room and of the common areas of Lozano’s home, and

found concealed drugs and firearms. Lozano returned home

during the search, and the officers told him they found drugs

in his home. Lozano responded by asking if they were in

“bags or baggies.” 

After this exchange, Lozano consented, in a recorded conversation, to a search of the rest of the residence. In his bedroom, officers discovered $12,500 cash, to which Barrow’s

drug-sniffing dog, Hershey, alerted as having been in contact

with drugs, and photographs of Lozano at a marijuana “grow”

in California. In a storage area next to Lozano’s residence,

officers found two baggies of marijuana and an automatic

handgun. Lozano was not charged with respect to these probation and consensual searches.

2

During the winter of 2007, Lozano asked the then-manager

of the Barrow post office, Zachariah Martinez, whether postal

workers screened mail, whether police brought detection dogs

into the post office, and whether postal employees could open

packages to look for drugs. Because these questions were

UNITED STATES v. LOZANO 17163
suspicious, Martinez contacted Postal Inspector Kaminski,

who authorized a “mail watch” on Lozano’s P.O. box.

On January 31, 2008, a package arrived at the Barrow post

office that aroused Martinez’s suspicions. It was a large,

heavily taped U-Haul box that originated in California and

had an incomplete return address. The box was addressed to

“Bill Corner,” although the P.O. box number was Lozano’s.

Neither Martinez nor the other postal employee in the 4,000-

person town of Barrow had ever heard of a “Bill Corner.”

Martinez contacted Inspector Kaminski, who was in

Anchorage at the time training Hershey. Kaminiski requested

that the package be sent to him there. Accordingly, instead of

placing a claim slip in the P.O. box to which the package was

sent, which Martinez would have otherwise done that afternoon or early the next day, Martinez placed the package into

a larger, protective box and shipped it to Kaminski. Because

there are only two flights from Barrow to Anchorage each

day, the package reached Kaminski the afternoon of the next

day, February 1.

At 2 p.m. that afternoon, Kaminski brought Hershey near

the package. Hershey alerted. On that basis, Kaminski

obtained a search warrant for the package. Upon opening the

package, officers discovered eleven pounds of marijuana.

The officers then planned a controlled delivery of the package to the P.O. box in Barrow to which it was sent, fitting the

package with a tracking device. On February 4, Lozano

picked up the controlled delivery package with a friend and

took it to the residence of the friend’s mother. Officers discovered the discarded package, including the tracking device,

in a dumpster across from the residence. Lozano was arrested

that day, with $2,000 cash in his pocket. Hershey later alerted

to the money.

17164 UNITED STATES v. LOZANO
B

A federal grand jury returned an indictment, charging

Lozano with a single count of attempted possession of marijuana with intent to distribute. See 21 U.S.C. §§ 841(b)(1)(D),

846. Lozano filed motions to suppress the evidence discovered in his home during the probation and consensual

searches and the evidence discovered in the search of the

mailed package. Adopting the recommendation of the magistrate judge, the district court denied both motions.

During the trial, the court denied Lozano’s motion to

exclude the evidence seized from his home during the probation and consensual searches as inadmissible under Federal

Rules of Evidence 404(b) and 403. The jury found Lozano

guilty of attempted possession of marijuana with intent to distribute. The judge sentenced Lozano to fifteen months’

imprisonment, which Lozano has now served, and two years’

supervised release, which is still running. Lozano timely

appeals.

II

Lozano first argues that the district court should have

granted his motion to exclude the evidence discovered in the

probation and consensual searches of his home under Federal

Rules of Evidence 404(b) and 403. 

A

[1] “Rule 404(b) provides that the district court may admit

evidence of prior bad acts if it (1) tends to prove a material

point; (2) is not too remote in time; (3) is based upon sufficient evidence; and, (4) in some cases, is similar to the

offense charged.” United States v. Banks, 514 F.3d 959, 976

(9th Cir. 2008) (internal quotation marks omitted). However,

“when offered to prove knowledge, . . . the prior act need not

be similar to the charged act as long as the prior act was one

UNITED STATES v. LOZANO 17165
which would tend to make the existence of the defendant’s

knowledge more probable than it would be without the evidence.” United States v. Vo, 413 F.3d 1010, 1018 (9th Cir.

2005) (quoting United States v. Ramirez-Jiminez, 967 F.2d

1321, 1326 (9th Cir. 1992)). We “review a district court’s

admission of evidence under Federal Rule of Evidence 404(b)

for an abuse of discretion.” United States v. Romero, 282 F.3d

683, 688 (9th Cir. 2002). 

[2] Here, the district court did not abuse its discretion in

concluding that all of the Rule 404(b) requirements were met

and thus that Rule 404(b) did not forbid admission of the evidence. The evidence of Lozano’s prior possession or sale of

narcotics was material to issues of knowledge and intent with

respect to drug distribution. See Vo, 413 F.3d at 1018. It was

not too remote in time because the search occurred merely

eight months before the charged offense and the marijuana

grow pictures dated merely three years before the offense. See

Banks, 514 F.3d at 976-77; see Vo, 413 F.3d at 1019. There

was sufficient evidence to support Lozano’s involvement with

the evidence discovered in the search because Lozano admits

that the cash smelling of marijuana was found in his bedroom

and the photographs of a marijuana “grow” included him. See

United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002).

B

“Even if the proffered evidence satisfies these requirements

[of Rule 404(b)], the district court should decline to admit it

[under Rule 403] if its probative value is substantially outweighed by the danger of unfair prejudice.” Banks, 514 F.3d

at 976 (internal quotation marks omitted). Again, we review

the district court’s admission of evidence under Rule 403 for

abuse of discretion. United States v. Plancarte-Alvarez, 366

F.3d 1058, 1062 (9th Cir. 2004). 

[3] We are satisfied that the district court did not abuse its

discretion in admitting the evidence under Rule 403. Here, the

17166 UNITED STATES v. LOZANO
evidence of prior drug distribution is clearly probative of

Lozano’s intent and knowledge, and prejudice was limited by

a cautionary instruction. See Vo, 413 F.3d at 1019; Dubria v.

Smith, 224 F.3d 995, 1002 (9th Cir. 2000) (en banc). Therefore, the district court did not abuse its discretion in admitting

the home search evidence.

III

Lozano also argues that the district court should have

granted his motion to suppress the marijuana evidence discovered in the search of the mailed package. Specifically, Lozano

argues that the postal inspector lacked reasonable suspicion to

detain the package past its delivery time and that the detention

of the package was unreasonable.

A

[4] “Postal workers may detain a package to conduct an

investigation if they have a reasonable and articulable suspicion that it contains contraband or evidence of illegal activity.” United States v. Hernandez, 313 F.3d 1206, 1210 (9th

Cir. 2002) (internal quotation marks omitted). To determine

whether reasonable suspicion exists, courts “must look at the

totality of the circumstances of each case to see whether the

detaining officer has a particularized and objective basis for

suspecting legal wrongdoing,” United States v. Arvizu, 534

U.S. 266, 273 (2002) (internal quotation marks omitted), as

“understood by those versed in the field of law enforcement,”

United States v. Cortez, 449 U.S. 411, 418 (1981). 

[5] Here, Inspector Kaminski had reasonable suspicion.

The postmaster warned Kaminski that Lozano was behaving

suspiciously, specifically asking whether mail could be

searched for drugs. See United States v. Aldaz, 921 F.2d 227,

229 (9th Cir. 1990). In addition, the package listed a fictitious

sender and addressee and an incomplete return address, was

shipped with delivery confirmation service, had a handwritten

UNITED STATES v. LOZANO 17167
label, had been mailed from California, and was heavily

taped. See Hernandez, 313 F.3d at 1211 (holding inspector

had reasonable suspicion when the return sender was fictitious, the package was shipped special delivery, the label was

handwritten, the package had been mailed from California,

and the package had been taped up at all the seams). Therefore, we are satisfied that Kaminski had reasonable suspicion

to detain the mailed package.

B

[6] “[E]ven if the initial seizure of a mailed package is

based on reasonable suspicion, a prolonged detention is

unreasonable under the Fourth Amendment.” Hernandez, 313

F.3d at 1212. The relevant time period is that between the initial detention and that at which probable cause is developed

because “[p]robable cause is sufficient to support the subsequent detention of the package.” United States v. Hoang, 486

F.3d 1156, 1160 n.1 (9th Cir. 2007).

[7] We have upheld as reasonable a five-day delay arising

because of the difficulty of travel for canines in Alaska.

Aldaz, 921 F.2d at 231; see also United States v. Van Leeuwen, 397 U.S. 249, 252-53 (1970) (holding reasonable

twenty-nine hour delay); Hernandez, 313 F.3d at 1212 (holding reasonable one-day delay); United States v. Gill, 280 F.3d

923, 929 (9th Cir. 2002) (holding reasonable six-day delay).

Here, the delay was less than one day and also was caused by

the difficulty of canine travel in Alaska. The package arrived

at the Barrow post office on January 31, 2008. The earliest it

could have been delivered was 4:30 p.m. that day. The

canine’s “alert,” which “create[s] probable cause,” Hoang,

486 F.3d at 1160 n.1, occurred at 2:15 p.m. on February 1,

less than 22 hours later. In addition, the delay arose because

the drug-sniffing dog was temporarily unavailable. Aldaz, 921

F.2d at 231. We are satisfied that the length of detention

between initial seizure and the development of probable cause

was not unreasonable. 

17168 UNITED STATES v. LOZANO
Lozano argues that the government should have notified

him that delivery was delayed, citing United States v. Place,

462 U.S. 696 (1983). But that case involved the detention of

luggage, which interferes with a traveler’s significant interest

in liberty of movement. Place, 462 U.S. at 708-10. Lozano

cites no authority for the proposition that notice is required for

delays of mail delivery. That is not surprising, because such

authority would render futile the well-established technique of

arranging controlled deliveries. The delay was not unreasonable on account of lack of notice. 

[8] Lozano also argues that the detention of the package

was unreasonable because the package was transported to

Anchorage without probable cause. But we have held that “an

addressee’s possessory interest is in the timely delivery of a

package, not in having his package routed on a particular conveyor belt, sorted in a particular area, or stored in any particular sorting bin for a particular amount of time.” Hernandez,

313 F.3d at 1210 (internal quotation marks omitted); see

United States v. Jefferson, 566 F.3d 928, 933 (9th Cir. 2009).

Indeed, we have approved as reasonable the diversion of

packages during investigations based on reasonable suspicion.

E.g., Aldaz, 921 F.2d at 231. Such action is often the most

reasonable way of enforcing drug laws in remote communities. Id. at 231. We conclude that the transportation of the

package from Barrow to Anchorage without probable cause

did not make the detention unreasonable. Accordingly, the

district court properly denied Lozano’s motion to suppress the

evidence discovered in the search of the package.

IV

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

1

1Lozano’s motion to supplement the record with exhibits presented at

trial is denied as moot because those exhibits were in the district court

record. 

UNITED STATES v. LOZANO 17169
O’SCANNLAIN, Circuit Judge, specially concurring:

I join the court’s opinion. I write separately because, in my

view, this case is more easily resolved on the ground that

Lozano did not have a legitimate expectation of privacy in the

mailed package and therefore had no Fourth Amendment

standing to challenge the admission of the marijuana evidence.

I

Before addressing the merits of this issue, I pause to consider whether it is properly before us. I believe it is. The government raised standing at trial. Lozano argues, however, that

the government has since waived the issue. But “[w]e may

affirm a district court’s denial of a motion to suppress on any

basis supported in the record.” United States v. Ruiz, 428 F.3d

877, 880 (9th Cir. 2005). Lozano’s argument is particularly

unavailing in the Fourth Amendment standing context. We

have held that even if the government does not raise standing

in the district court, “[s]o long as the government did not rely

on facts contrary to its standing argument before the district

court, the standing issue is properly before us on appeal.”

United States v. Reyes-Bosque, 596 F.3d 1017, 1027 n.3 (9th

Cir. 2010). Here, all agree on the facts relevant for the standing issue, namely the circumstances surrounding the mailed

package, such as that Lozano was not the addressee of the

package. Lozano states that he would have argued that he was

the real addressee of the package, i.e., Bill Corner was his

alias. But his entire defense was that the package was not his,

i.e., that Bill Corner was not his alias.

II

Turning to the merits, it is axiomatic that “to claim the protections of the Fourth Amendment, defendants must demonstrate that they had an expectation of privacy in the property

searched and that their expectation was reasonable.” Reyes17170 UNITED STATES v. LOZANO
Bosque, 596 F.3d at 1026 (internal citations omitted). “Letters

and other sealed packages are in the general class of effects

in which the public at large has a legitimate expectation of

privacy.” United States v. Jacobsen, 466 U.S. 109, 114

(1984). Specifically, “[i]t has long been established that an

addressee has both a possessory and a privacy interest in a

mailed package.” United States v. Hernandez, 313 F.3d 1206,

1209 (9th Cir. 2002) (emphasis added). Here, however,

Lozano was not the addressee. The package was addressed to

a Bill Corner.

Our circuit has not decided whether an individual has a

legitimate expectation of privacy with respect to a package

that is not addressed to him. In an unpublished, nonprecedential decision, however, we held that a defendant did

not have a legitimate expectation of privacy in a package

addressed to a co-resident of his home. United States v. Perez,

64 F. App’x 635, 636 (9th Cir. 2003) (per curiam). But four

other circuits have held, and one has stated in reasoned dicta,

that an individual does not have a legitimate privacy expectation in a package that is not addressed to him. United States

v. Smith, 39 F.3d 1143, 1145 (11th Cir. 1994); United States

v. Daniel, 982 F.2d 146, 149 (5th Cir. 1993); United States v.

Koenig, 856 F.2d 843, 846 (7th Cir. 1988); United States v.

Givens, 733 F.2d 339, 341-42 (4th Cir. 1984); see United

States v. Lewis, 738 F.2d 916, 920 & n.2 (8th Cir. 1984); see

also United States v. Pitts, 322 F.3d 449, 460 (7th Cir. 2003)

(Evans, J., concurring).1 One other circuit has recognized but

declined to decide the issue. United States v. Robinson, 390

F.3d 853, 870 n.24 (6th Cir. 2004).

1Several district courts also have so held. United States v. DiMaggio,

744 F. Supp. 43, 45 (N.D.N.Y. 1990); United States v. Walker, 20 F. Supp.

2d 971, 973-74 (S.D. W.Va. 1998); United States v. Gonzalez, 2003 WL

431636, *1 (E.D. Pa. Feb. 20, 2003). 

UNITED STATES v. LOZANO 17171
A

I would follow the weight of authority, and hold that an

individual does not have a legitimate expectation of privacy

in a package not addressed to him. “Legitimation of expectations of privacy by law must have a source outside of the

Fourth Amendment, either by reference to concepts of real or

personal property law or to understandings that are recognized

and permitted by society.” Rakas v. Illinois, 439 U.S. 128,

143 n.12 (1978). Nonaddressees cannot base their claim on

either source of legitimation. An individual who is the

intended recipient of mail has a property right to delivery.

Teal v. Felton, 53 U.S. 284, 291 (1851). But a nonaddressee

is not the intended recipient and, therefore, does not enjoy that

right. Quite the contrary, a nonaddressee who acts based on

such a professed right commits the federal crime of obstruction of correspondence. 18 U.S.C. § 1702. 

Nor do societal understandings legitimize a nonaddressee’s

expectation of privacy. It is well-established that individuals

do not have a legitimate expectation of privacy in items that

are exposed to a third party. E.g., California v. Greenwood,

486 U.S. 35, 40-41 (1980). The mail in which a nonaddressee

claims a legitimate expectation of privacy is exposed to a

third party, namely, the addressee. Relatedly, we have held

that “exclusive use” of the object of a search “is crucial to

Fourth Amendment standing.” United States v. SDI Future

Health, Inc., 568 F.3d 684, 696 (9th Cir. 2009). A nonaddressee does not have any right to enjoy mail not addressed to

him; it follows that he lacks the exclusive right to enjoy that

mail. 

A nonaddressee’s expectation of privacy over mail not

addressed to him is not rendered legitimate merely by his

assertion of dominion when, as here, that assertion is made for

wrongful reasons. In Jacobsen, for example, the Court

observed that “a burglar plying his trade in a summer cabin

during the off season may have a thoroughly justified subjec17172 UNITED STATES v. LOZANO
tive expectation of privacy, but it is not one which the law

recognizes as legitimate.” 466 U.S. at 123 n.22. Because the

burglar’s presence is “wrongful,” his expectation of privacy is

not “reasonable. Id. Similarly, a nonaddressee’s claim of a

criminal interest does not legitimize his expectation. See Daniel, 982 F.2d at 149; Lewis, 738 F.2d at 920 n.2 (stating that

defendant’s expectation of privacy in mailbox with false name

for criminal purposes is “akin to that of the burglar plying his

or her trade in a summer cabin during the off season”). 

Nor is a nonaddressee’s expectation of privacy legitimated

by the presence of his street address on the package, as is the

case here with respect to the P.O. box rented by Lozano.

“[T]he Fourth Amendment protects people, not places.” Katz

v. United States, 389 U.S. 347, 351 (1967). Indeed, an individual does not have a legitimate expectation of privacy in all

things that enter his P.O. box, see United States v. Hinton,

222 F.3d 664, 676 (9th Cir. 2000), let alone a legitimate

expectation of privacy in all things merely destined for that

box but that never make it there. I agree with our unpublished

disposition, which explicitly rejected the claim that a nonaddressee has standing because he resided at the street address

listed on the mail, Perez, 64 F. App’x at 636, and the three

opinions that similarly have stated that a nonaddressee does

not have standing despite his association with the street

address listed on the package. Pitts, 322 F.3d at 460 (Evans,

J., concurring); Daniel, 982 F.2d at 149; Lewis, 738 F.2d at

920 n.2. 

B

Lozano argues that a nonaddressee has a reasonable expectation of privacy if the addressee is his alias. It is true that the

Fifth Circuit in one line of cases has held that a defendant has

a legitimate expectation of privacy in mail addressed to his

“alter ego.” United States v. Richards, 638 F.2d 756, 770 (5th

Cir. 1981); United States v. Villareal, 963 F.2d 770, 774 (5th

Cir. 1992). But that rule does not apply when, “[a]t trial,

UNITED STATES v. LOZANO 17173
[defendant]’s theory of defense was that [the defendant] and

[the alias] were different persons.” Daniels, 982 F.2d at 149.

Here, Lozano’s theory was that he was not the rightful recipient of the package. He denied that Bill Corner was his alias.

In addition, even if Lozano had claimed to be the rightful

recipient, the Fifth Circuit line of cases involves defendants

who had publicly-established connections to their alter ego. In

Richards, for example, the defendant was the owner of the

company that was the addressee. Richards, 638 F.2d at 770.

The owner of a company, as its agent, can send and receive

mail on its behalf under the law. It makes sense, therefore,

that the owner would have a legitimate expectation of privacy

in the company’s mail. Similarly, in Villareal, the defendant

went by the name listed on the package; at least one witness

testified that he knew the defendant only by that name. Villareal, 963 F.2d at 775. Here, Bill Corner was not Lozano’s

publicly-established alias. Lozano cannot send and receive

mail on Corner’s behalf. Nor has Lozano ever been identified

with Corner. Accordingly, it follows that he does not have a

legitimate expectation of privacy in mail addressed to Corner

even under Richards and Villareal. 

In any event, these Fifth Circuit cases represent but one

half of a intra- and intercircuit split regarding aliases, particularly criminal aliases. The better reasoned position is that of

the Fifth Circuit in Daniel, the Eighth Circuit in Lewis, and

Judge Evans’s concurrence in the Seventh Circuit case of

Pitts. In those cases, the judges doubted that a defendant had

a legitimate expectation of privacy in mail addressed to his

public alias when that alias was used solely in a criminal

scheme. Daniel, 982 F.2d at 149; Lewis, 738 F.2d at 920 n.2;

Pitts, 322 F.3d at 460 (Evans, J., concurring); Walker, 20 F.

Supp. 2d at 973-74 (same). That conclusion better accords

with the principle expressed by the Court in Jacobsen that

“wrongful” interests do not give rise to legitimate expectations of privacy. 

17174 UNITED STATES v. LOZANO
I would hold that a defendant does not have a legitimate

expectation of privacy in a package not addressed to him,

even if it listed his street address and even if the addressee

was his criminal alias. Because the package in this case was

not addressed to Lozano, and Bill Corner was at most

Lozano’s criminal alias, I would hold that Lozano did not

have a legitimate expectation of privacy in the mailed package. 

III

Accordingly, I would affirm the denial of the motion to

suppress based on lack of Fourth Amendment standing. 

UNITED STATES v. LOZANO 17175