In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 01-3643 & 01-3644

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAYMOND F. PITTS, a/k/a

LONNIE D. SANDERS, and

ERIK T. ALEXANDER, a/k/a

JOHN EUGENE MILLS, a/k/a

BRUCE BONES,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Central District of Illinois.

No. 00 CR 40004—Michael M. Mihm, Judge.

____________

ARGUED APRIL 15, 2002—DECIDED MARCH 4, 2003

____________

Before ROVNER, DIANE P. WOOD and EVANS, Circuit

Judges.

ROVNER, Circuit Judge. Raymond Pitts and Erik T.

Alexander each pleaded guilty to one count of conspiracy

to possess with intent to distribute heroin and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and

21 U.S.C. § 846. Pitts was sentenced to 324 months’ incarceration and eight years of supervised release. The district court sentenced Alexander to 267 months’ incarceration and five years of supervised release. Both Pitts
2 Nos. 01-3643 & 01-3644

and Alexander reserved their right to appeal the district

court’s denial of their motions to suppress evidence. We

affirm.

I.

On June 23, 1999, Pitts went to a United States Post

Office and mailed a package using Express Mail Service.

The package, which contained illegal drugs concealed

inside a sealed tuna can, was addressed to James Reed,

Jr., 1123 3rd Street, Moline, Illinois, 61265. It listed a

return address of James Reed, Sr., 3346 Cypress Street,

Sacramento, California, 95838. A postal employee issued

a tracking number to Pitts at the time of the mailing.

This number was intended to allow the sender to track

the status of the package and direct its return to the

sender if it could not be delivered for any reason. Pitts

called Alexander, the sole resident of 1123 3rd Street

in Moline, and told him to expect an Express Mail package addressed to the alias James Reed, Jr. Pitts had

previously mailed packages to Alexander using aliases,

including the name James Reed. No one named James

Reed, Sr. resided at 3346 Cypress Street in Sacramento;

the woman who lived there had never heard of James

Reed and had no knowledge of a package being mailed

using her address. On June 25, Pitts called the Post

Office to check the status of the package and was told

that it had been delivered to the addressee listed on the

parcel.

The package had not been delivered, however, because

postal inspectors had intercepted it. In May 1999, postal

inspectors in Des Moines, Iowa began investigating

three suspicious Express Mail packages mailed to 1123

3rd Street in Moline from Northern California. The parcels matched some of the characteristics of the Post

Office’s “narcotics package profile.” In particular, the pack-
Nos. 01-3643 & 01-3644 3

ages were large, person-to-person Express Mail parcels

weighing between five and ten pounds, were heavily

taped, were sent from known source areas for narcotics,

bore fictitious return addresses, and were addressed

to different individuals at the same address in Moline.

These three packages were ultimately delivered to the

3rd Street address without incident. The manager of

the Moline Post Office notified the Des Moines inspector

about the fourth package, the one at issue here, when

it arrived in Moline on June 25, a Friday. The package

fit the narcotics profile in a number of respects: it weighed

between five and ten pounds, was heavily taped, and

originated from a known drug source area. One of the

previously inspected packages had been addressed to

James Reed, and the Des Moines inspector asked the

Moline manager to fax a copy of the address label to

him. Upon comparing that label with the three prior

suspicious packages, the inspector determined that all

four labels had been written by the same person.

The inspector had previously determined that the only

known resident of 1123 3rd Street was “Bruce Bones.”

Nevertheless, the three prior packages had been received and signed for by a person or persons claiming

to be James Ray, Billy Johnson and James Reed, the

individuals to whom the packages were respectively

addressed. The inspector already knew that the return

addresses on two of the prior packages were entirely

fictitious. The return address on the third was the same

as that used on the fourth package. A dog trained in drug

detection had sniffed the third package and had not

alerted. This was the state of the investigation when the

call came from Moline on June 25. That afternoon, after

conducting additional research on the identity of Bruce

Bones, the inspector directed the Moline postal manager

to forward the package to his Des Moines office. Under

Express Mail standards, the package was due to be deliv-
4 Nos. 01-3643 & 01-3644

ered to the 3rd Street address in Moline by 3 p.m. that

day, but was diverted to Des Moines where it arrived

the next morning, a Saturday. Although the inspector

paged two local law enforcement agencies that morning

to get a drug sniffing canine to inspect the package,

neither department returned the inspector’s pages over

the weekend. The inspector continued the investigation

by researching the return address of the fourth package.

The inspector spoke to Mildred Willard, the resident of

3346 Cypress Street in Sacramento, who confirmed that

she lived at that address with her husband, that she had

not mailed any packages to Moline, that no one named

James Reed lived at her address and that she had not

given anyone permission to use her address for a mailing. The inspector spent the rest of Saturday and Sunday

drafting a search warrant affidavit.

On Monday morning, a drug detecting canine sniffed

the package but did not alert for the presence of drugs.

Later that morning, another inspector from the Des

Moines Post Office drove the package back to Moline in

order to attempt to obtain consent to search the package.

The inspector arrived at 1123 3rd Street before noon, but

no one was home. After waiting outside the home until

5 or 6 p.m., the inspector placed a business card in the

mailbox and left with the package. Contrary to Post Office policy, the inspector did not place any notice in the

mailbox regarding an undelivered Express Mail package.

No one called the inspector back and the next day, the

inspector obtained a phone number for Bruce Bones

and called him. Alexander later admitted that he talked

to the inspector and identified himself as Bruce Bones.

The inspector identified himself to Alexander as a federal postal inspector and described the package to Alexander. During that conversation, Alexander (using the

name Bones) admitted he was the only resident at the

address, denied that he was expecting a package, denied
Nos. 01-3643 & 01-3644 5

that he had accepted delivery of previous packages, and

refused delivery of the package mailed on June 23. The

next day, the inspector applied for and received a warrant to search the package. The parcel contained an ounce

of crack cocaine sealed inside a tuna can.

Pitts and Alexander were charged with conspiracy to

possess with intent to distribute a mixture of heroin and

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B) and 21 U.S.C. § 846. Pitts was also charged

with possession with intent to distribute a mixture

of heroin and cocaine base in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B)(iii) and 18 U.S.C. § 2, as well

as possession of a firearm by a felon in violation of 18

U.S.C. §§ 922(g), 924(e), and 2. Both Pitts and Alexander

moved to suppress the evidence discovered in the package. The district court denied the motion, finding that

Pitts and Alexander did not have a reasonable expectation of privacy in the contents of the package because

they concealed their identities by using aliases for the

mailing. Specifically, the district court found that, although the defendants had a subjective expectation of

privacy in the contents of the package, it was not an

expectation that society was prepared to recognize as

reasonable. The court reasoned that when the identities

of both the sender and the recipient are concealed, the

expectation of privacy vanishes and the package has

effectively been abandoned. Relying largely on United

States v. DiMaggio, 744 F. Supp. 43 (N.D.N.Y. 1990), and

dicta in United States v. Daniel, 982 F.2d 146, 149 (5th

Cir. 1993), the court found as a matter of public policy

that society is not prepared to recognize as reasonable

an expectation of privacy in the use of an alias as part of

a criminal scheme. Anticipating that the defendants

would appeal this ruling, the court also found that the

length of time the package was diverted and the circumstances of the diversion were not reasonable, and that
6 Nos. 01-3643 & 01-3644

if the diversion were the only issue in the suppression,

the court would have granted the motion to suppress.

Specifically, the court found that the package should

have been subjected to inspection by a drug sniffing

canine on Friday, and that once the canine did not alert,

the Post Office had no reason to continue to hold the

package but should have delivered it using policies applicable to Express Mail. Both Pitts and Alexander pled

guilty to the conspiracy charge but reserved the right

to appeal the district court’s denial of their motions to

suppress.

II.

On appeal, Pitts and Alexander question the district

court’s reliance on DiMaggio for a number of reasons. First,

they claim that DiMaggio conflicts with Fifth Circuit

cases holding that persons retain a reasonable expectation of privacy in packages addressed to them under

fictitious names. See United States v. Villarreal, 963 F.2d

770, 773 (5th Cir. 1992); United States v. Richards, 638

F.2d 765, 770 (5th Cir. 1981), cert. denied, 454 U.S. 1097

(1981). Second, they maintain that their use of fictitious

names in sending and receiving this package cannot

be deemed an abandonment where both defendants asserted ownership interests in the contents of the packages in their affidavits in support of their motions to

suppress. Finally, they contend that by sending the package via Express Mail, Pitts retained the ability to either

recall the package or redirect its delivery at any time

during the two-day delivery period guaranteed by the

post office. Because of this ability to retrieve or redirect,

the defendants maintain that they continued to exert

control over the package and cannot be deemed to have

abandoned it as a factual matter. Alternately, they argue that the postal inspector’s detention of the package
Nos. 01-3643 & 01-3644 7

for several days after the contracted delivery date was

constitutionally unreasonable under the circumstances.

In response, the government maintains that the defendants failed to demonstrate a reasonable expectation of

privacy because society is not prepared to accept as reasonable an expectation of privacy in a package when the

sender and recipient have used aliases for the purpose

of hiding their criminal connection to the package. The

government also contends that Alexander’s claim to an

interest in the package fails as a factual matter because

he expressly disavowed ownership when he refused to

accept delivery of the parcel. Finally, the government

protests the district court’s finding that inspectors detained the package for an unreasonable length of time

because they diligently pursued their investigation during that time and faced unavoidable delays for reasons

beyond their control.

We believe the district court’s denial of the defendants’

motions to suppress can be affirmed on either of two

grounds. First, the search here was conducted pursuant

to a lawfully issued warrant, and the defendants have

not suggested that (1) the magistrate issuing the warrant wholly abandoned his or her judicial role in the matter, or (2) the magistrate was misled by information in

an affidavit that the affiant knew was false or would

have known was false except for reckless disregard of

the truth, or (3) the warrant was so deficient on its face

that the executing officers could not reasonably presume

it to be valid. Thus, the evidence was admissible under

the good faith exception to the exclusionary rule even if

the warrant was issued without probable cause (a conclusion we assume only for the sake of argument). See

United States v. Leon, 468 U.S. 897, 926 (1984). Second, the

defendants in this case abandoned the package at issue

and thus lost their right to object to the government’s

resultant search. We part company with our concurring
8 Nos. 01-3643 & 01-3644

colleague because we do not agree that the expectation

of privacy in mailing a package using fictitious names

for the sender and addressee is not the sort of interest

that society is willing to recognize as reasonable.

A.

Sealed packages sent through the mail are entitled to

full protection under the Fourth Amendment. United

States v. Jacobsen, 466 U.S. 109, 114 (1984) (“Letters

and other sealed packages are in the general class of

effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable”); United States v.

Van Leeuwen, 397 U.S. 249, 251 (1970) (first class mail,

such as letters and sealed packages, is protected from

inspection except in the manner provided by the Fourth

Amendment). The evidence here was seized pursuant to a

search warrant, and when a warrant has been issued,

suppression is appropriate only in limited circumstances:

In the absence of an allegation that the magistrate

abandoned his detached and neutral role, suppression

is appropriate only if the officers were dishonest or

reckless in preparing their affidavit or could not

have harbored an objectively reasonable belief in the

existence of probable cause.

Leon, 468 U.S. at 926.

Pitts and Alexander have not argued that the magistrate abandoned her detached and neutral role in issuing the warrant at issue here. See United States v.

Pless, 982 F.2d 1118, 1126 (7th Cir. 1992). Nor have

they alleged that the postal inspector was dishonest or

reckless in preparing the affidavit that supported the

warrant. Indeed, they point to no errors in the affidavit

at all. The only question that remains is whether a rea-
Nos. 01-3643 & 01-3644 9

sonably well-trained officer executing the warrant would

have known that the search was illegal despite the magistrate’s authorization. Leon, 468 U.S. at 922 n.23; Pless,

982 F.2d at 1126. At most, Pitts and Alexander allege

(and the district court agreed) that the package was

detained for an unreasonable amount of time before the

warrant was obtained. This would be the only arguable

basis for their claim that the officer executing the warrant should have known the search of the package

was illegal despite the magistrate’s authorization.

The magistrate issuing the warrant was aware of the

delay and was apparently untroubled by it. R. 17, Ex. 5. We

have previously upheld as reasonable a detention of

letters over a weekend for the purpose of subjecting them

to a canine sniff test. United States v. Mayomi, 873 F.2d

1049, 1054 (7th Cir. 1989). The Supreme Court has emphasized that the significant Fourth Amendment interest is in the privacy of the mail. Van Leeuwen, 397 U.S.

at 253. Here, as in Van Leeuwen, the privacy was not

disturbed or invaded until the approval of the magistrate was obtained. Id. Although the length of time of

the detention of the package is an important factor in

determining if the seizure is reasonable, we must also

“take into account whether the police diligently pursue[d]

their investigation.” United States v. Place, 462 U.S. 696,

709 (1983). The postal inspector was unable to obtain the

services of a trained canine over the weekend despite

numerous attempts to contact agencies that had trained

canines available. Although the district court was troubled

that part of the delay was caused by diverting the package to a different city for investigation, we have previously

held that law enforcement authorities are not required

to have a canine unit present at every location where

a canine inspection is possible or probable. United States

v. Evans, 282 F.3d 451, 455 (7th Cir. 2002), cert. denied,

123 S. Ct. 304 (2002) (citing United States v. Borys, 766
10 Nos. 01-3643 & 01-3644

F.2d 304, 314 (7th Cir. 1985), cert. denied, 474 U.S. 1082

(1986)). As soon as the canine failed to alert, a postal

inspector personally drove the package back to Moline

and attempted delivery. When that effort failed, the

inspector obtained a telephone number for the sole resident of the home to which the package was addressed

(not a simple task given Alexander’s use of multiple

aliases), and called to discuss delivery of the parcel. Once

Alexander refused delivery, and return to the unknown

sender became impossible, the inspector promptly obtained a warrant. Given our prior holdings in similar

cases, and given the disagreement over the reasonableness of the length of the detention by the magistrate

and the district court judge, we do not believe the officer

executing the warrant could be charged with knowing

the search was illegal (a proposition we assume only for

the sake of argument) even though the magistrate authorized it. Thus, under the principle announced in Leon,

we affirm the denial of the defendants’ motion to suppress the evidence seized from the package.

B.

As a factual matter, both Alexander and Pitts abandoned the parcel, and the search may be upheld on that

ground as well. Abandoned property is not subject to

Fourth Amendment protection. Abel v. United States, 362

U.S. 217, 241 (1960); United States v. Basinski, 226 F.3d

829, 836 (7th Cir. 2000). A defendant objecting to a

search bears the burden of proving a legitimate expectation of privacy in the area searched. United States v.

Ruth, 65 F.3d 599, 604 (7th Cir. 1995), cert. denied, 517

U.S. 1158 (1996). A legitimate expectation of privacy

exists when the defendant exhibits a subjective expectation of privacy and the expectation is one that society is

prepared to recognize as reasonable. Ruth, 65 F.3d at
Nos. 01-3643 & 01-3644 11

604. “[N]o person can have a reasonable expectation of

privacy in an item that he has abandoned.” Basinski, 226

F.3d at 836. To demonstrate abandonment, the government must prove by a preponderance of the evidence

that the defendant’s voluntary words or actions would

lead a reasonable person in the searching officer’s position to believe that the defendant relinquished his property interests in the item to be searched. Basinski, 226

F.3d at 836. This is an objective test and the defendant’s subjective desire to later reclaim an item is irrelevant. Id. We look solely to the external manifestations

of the defendant’s intent as judged by a reasonable person possessing the same knowledge available to the government agents involved in the search. Id.

Pitts and Alexander both supplied the district court

with affidavits claiming a property interest in the parcel.

Pitts averred that he mailed the package in question:

I knew of the parcel’s contents and had both a

possessory and proprietary interest in said parcel and

its contents. . . . I did not abandon my possessory

and proprietary interest in said parcel and its contents.

To the contrary, I maintained my possessory and

proprietary interest in said parcel and its contents

by possessing a tracking number for said parcel that

was given to me by the United States Post Office

employee at the time of mailing that allowed me

to track the status of said parcel and to direct its

return to me, if, for whatever reason, said parcel

was undelivered or was not accepted by its addressee. . . .[B]ased on the foregoing, I believe that

I had a reasonable expectation of privacy as to the

parcel and its contents[.]

R. 27, ¶¶ 3-6. Alexander merely asserted that he was

the sole resident of 1123 3rd Street in Moline, that Pitts

called him to inform him that a package was on the way,
12 Nos. 01-3643 & 01-3644

that Pitts had previously mailed packages to him using

aliases including the aliases used on this occasion, and

that the package did not arrive during the time he expected it. R. 35.

The defendants’ subjective desire to maintain control of

the package is irrelevant, however, in light of the external manifestations of their intent. At the time the warrant was issued, Alexander had expressly disavowed the

package. He refused to accept its delivery and he was

the only resident of the home to whom the package

was addressed. The postal inspectors were obviously not

aware of his later-expressed intent to receive the package.

A reasonable person in the postal inspector’s position

would believe that Alexander relinquished his property interests in the parcel. Basinski, 226 F.3d at 836. Alexander

therefore abandoned the package and his Fourth Amendment claim fails.

The case for Pitts is only a little more difficult. He

launched the package into the stream of mail without

any legitimate way of retrieving it. Because he sent it

via Express Mail and used a false return address, he

acknowledges he would have been required to produce

a copy of the mailing label and proper identification in

the name of the sender in order to retrieve the package.

His counsel conceded at oral argument that Pitts did

not have proper identification in the name of James Reed,

Sr. Because Pitts could not retrieve the package and

Alexander refused to accept it, the parcel was abandoned.

The defendants do not claim that postal officials were

required to destroy the package uninspected if they

found it was undeliverable and unreturnable. Because

they do not make that argument, that issue may be left

for another day. Today we have a case of classic abandonment. We affirm the district court’s denial of the

motions to suppress on that basis as well.
Nos. 01-3643 & 01-3644 13

C.

Normally, we would not concern ourselves with a disparity between the holding of a district court sitting in

the Second Circuit and the law of the Fifth Circuit. However, because the district court and the concurrence in

our case rely on a case from the Northern District of

New York, and because the defendants maintain that

we risk creating a circuit split if we similarly rely on that

case, we will briefly address the defendants’ contention

that DiMaggio conflicts with the law of the Fifth Circuit.

The district court relied on DiMaggio in finding that

the defendants abandoned their interest in the package

when they used aliases to conceal their connection to

the package. The district court also cited United States

v. Daniel, 982 F.2d 146, 149 (5th Cir. 1993), for the proposition that a defendant does not have standing to raise

a Fourth Amendment objection when the defendant has

used an alias to protect himself from identification in the

course of a criminal scheme. The court found it counterintuitive and against public policy to recognize a reasonable expectation of privacy in the use of a fictitious name

by a person engaged in criminal activity. Tr. at 96-97.

In DiMaggio, the court ultimately rested on a theory of

abandonment in finding that the defendant’s expectation

of privacy in a package mailed with false names for both

sender and recipient was not an expectation that society

would accept as reasonable. Similarly, in Daniel, the defendant disavowed the package in question, consistently

claiming he was not the addressee. It was the government that claimed the name on the label was an alias

for the defendant. The court did no more than raise the

question of whether the defendant would have standing

to assert a claim given that the use of an alias was part

of his criminal scheme. This questioning was dicta, however, because the court went on to analyze the claim by

assuming that the defendant had a legitimate expecta-
14 Nos. 01-3643 & 01-3644

tion of privacy, ultimately finding that a warrant to

search the package was properly issued. Daniel, 982 F.2d

at 149-52. Other cases in the Fifth Circuit clearly hold

that individuals have a reasonable expectation of privacy

in packages addressed to them under fictitious names

even when the false names are used to distance the sender or recipient from the criminal nature of the contents

of the package. See Villarreal, 963 F.2d at 774; Richards,

638 F.2d at 770. Thus, the defendants are correct

that DiMaggio and the dicta in Daniel conflict with wellsettled law in the Fifth Circuit. Our opinion creates no

conflict with the well-settled law of the Fifth Circuit.

Because we have affirmed on other grounds, we see no

reason to take a position on this issue now except to

respond to the concurrence.

D.

The concurrence acknowledges that there are a number of legitimate reasons that a person might wish to

send or receive a package using a nom de plume. Some

authors and journalists, such as the incomparable Ann

Landers, whose real name was Eppie Lederer, employ

a pseudonym in their professional life. This is a common

and unremarkable practice. In other situations, a celebrity may wish to avoid harassment or intrusion; a government official may have security concerns in using

her real name or home address to receive mail; a business executive in merger talks might worry about potential investors misusing the information gained through

the mail to manipulate the securities markets. See United

States v. Evans, 2001 WL 243287, *5 (S.D. Ind. Jan 31,

2001), aff’d, 282 F.3d 451 (7th Cir. 2002), cert. denied, 123

S. Ct. 304 (2002). Indeed, a sender of mail might wish to

remain completely anonymous for any number of reasons. The Supreme Court has held that anonymity of an
Nos. 01-3643 & 01-3644 15

author is not a sufficient reason to exclude literary works

or political advocacy from the protections of the First

Amendment. McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 341-43 (1995). As the Court noted there, an author

may decide to remain anonymous for fear of economic or

official retaliation, out of concern for social ostracism, or

merely because of a desire to preserve as much of one’s

privacy as possible. McIntyre, 514 U.S. at 341-42. So too

with the sender or receiver of mail. Yet, because an

alias was in this instance used to cloak the identities of

the true parties to a narcotics transaction, our colleague

concludes that the mailing should have no protection

whatever.

There are two possible ways to interpret the concurrence. First, because some people employ an alias and

use the mail illegally, everyone with a legitimate reason

to remain anonymous should lose their expectation of

privacy in the post. Alternatively, only people using an

alias for legitimate reasons may retain an expectation of

privacy in their mailings while those who employ an alias

for illicit purposes may not. Both constructions turn the

Fourth Amendment on its head.

The first approach assumes that criminals can forfeit

the privacy interests of all persons by using a confidential domain for nefarious ends. Any creative means that

a person engaging in illegal activity devises to conceal

that fact will lead to the end of privacy for persons engaged in wholly legitimate confidential activities. For

example, if persons engaged in illegal drug sales often

use hotel rooms for their transactions, or commonly employ cellular telephones to communicate the terms of

their deals, then under the concurrence’s analysis no

one would retain a legitimate expectation of privacy in

the use of hotel rooms or cellular telephones.

Under the second approach, only criminals forfeit their

Fourth Amendment rights. The illegal contents of the
16 Nos. 01-3643 & 01-3644

1 Although there is nothing inherently wrong with the use of a

false name in sending and receiving mail, the use of an alias

is certainly a relevant factor in the “totality of the circumstances” assessment used to determine whether there is a

reasonable suspicion or probable cause to believe that criminal

activity is afoot. See United States v. Ganser, 315 F.3d 839, 843

(continued...)

package serve as an after-the-fact justification for a

search. The concurrence concludes that society is not

prepared to accept as reasonable an expectation of privacy in crack cocaine sent through the United States

mail by a sender using a fictitious name for himself and

his addressee. Of course, the government did not know

the package contained crack cocaine until it opened and

inspected the box. We may not justify the search after

the fact, once we know illegal activity was afoot; the

legitimate expectation of privacy does not depend on the

nature of the defendant’s activities, whether innocent

or criminal. United States v. Fields, 113 F.3d 313, 321

(2d Cir. 1997), cert. denied, 522 U.S. 976 (1997). If this

were the case, then the police could enter private homes

without warrants, and if they find drugs, justify the

search by citing the rule that society is not prepared to

accept as reasonable an expectation of privacy in crack

cocaine kept in private homes. Presumably if no narcotics

are found (or, as the concurrence speculates, no pipe

bombs are found), the owner of the home would be able

to bring a civil lawsuit for nominal damages for the technical violation of privacy rights. The Fourth Amendment

requires more than this.

Unlike the theoretical burglar in Rakas, who is plying

his trade in a summer cabin during the off-season and

who is wrongfully present on someone else’s property,

Pitts and Alexander had a right to use false names in

sending and receiving mail.1 See Rakas v. Illinois, 439 U.S.
Nos. 01-3643 & 01-3644 17

1 (...continued)

(7th Cir. 2003) (in determining whether reasonable suspicion

exists, totality of circumstances must be considered); United

States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002) (probable

cause determined by examining the totality of the circumstances).

Thus, although a person generally maintains a reasonable expectation of privacy in mail sent or received using an alias and

the use of an alias does not result in an outright loss of Fourth

Amendment rights, a law enforcement officer or a court is certainly entitled to consider the use of an alias a relevant factor

in deciding whether to detain mail for further investigation or

issue a warrant authorizing search of a package. Evans, 282 F.3d

at 455 (circumstances which appear innocent to an outside

observer may suggest criminal activity to experienced law

enforcement officers, and they may assess these circumstances

in light of their experiences in determining whether reasonable

suspicion exists).

128, 143 n.12 (1978). There is nothing inherently wrong

with a desire to remain anonymous when sending or

receiving a package, and thus the expectation of privacy

for a person using an alias in sending or receiving mail

is one that society is prepared to recognize as reasonable.

A person using this means of maintaining privacy runs

the risk that if the mail is undeliverable, as occurred

here, it might become irretrievable. Pitts and Alexander

took that risk and ended up losing—indeed, abandoning—

control of their property. Having abandoned the package, they surrender their Fourth Amendment claim.

AFFIRMED.
18 Nos. 01-3643 & 01-3644

EVANS, Circuit Judge, concurring. Although I agree

with the majority that Messrs. Pitts and Alexander abandoned the package, and that in any event United States

v. Leon, 468 U.S. 897 (1984), compels the denial of their

motion to suppress, I would prefer, however, to resolve

this case on the same basis as Judge Mihm resolved it in

the district court. Like him, I would conclude that the

defendants lack the type of legitimate expectation of privacy that society is prepared to recognize as reasonable,

and thus their motion to suppress should be denied on

that basis.

The problem with resting our decision on an abandonment theory is apparent if the facts are tweaked a bit.

Assume that instead of disclaiming the package, as he

did, Alexander accepted it and told the inspector “Yes, it’s

my package, but that’s not my real name. I just use the

name James Reed, Jr. when it suits my purposes.” Had

he said that, there would be no abandonment, and if

that was the only theory to hang one’s hat on, his motion

to suppress would have to be granted. Which seems, indeed, like a fairly odd result. Why should such an obviously guilty defendant, who uses the United States

Postal System to further a criminal enterprise, escape

his due? And instead of two guys using phony names to

send cocaine through the mail, tweak the facts a bit

more and think of two terrorists using phony names to

mail a package of pipe bombs, or plans to blow up the

Brooklyn Bridge, from one to the other. Under an abandonment theory, had the recipient terrorist said the

same thing Alexander said in my first example, the evidence in the package would not be admissible during a

trial. And that is an even odder, and deadlier, result.

For that reason, I submit it would be better in today’s

case to ground our decision on a more solid basis and

hold that using phony names, while using the postal system of the United States, does not, except in unusual
Nos. 01-3643 & 01-3644 19

circumstances not present here, give rise to the sort of

personal Fourth Amendment privacy concerns that the

Fourth Amendment’s exclusionary rule is designed to

protect.

Fourth Amendment rights are personal rights which

may not be asserted vicariously. Rakas v. Illinois, 439

U.S. 128, 133-34 (1978). As the Court observed, “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated

by the challenged search or seizure.” Id. at 131 n.1.

Although both the government and the defendants focus

on the question of standing to challenge the search, ever

since Rakas the type of analysis that centers on standing

to assert Fourth Amendment rights as “distinct from

the merits of a defendant’s Fourth Amendment claim”

has been abandoned. Id. at 138. In Rakas, the Court

held that “the better analysis forthrightly focuses on the

extent of a particular defendant’s rights under the Fourth

Amendment, rather than on any theoretically separate,

but invariably intertwined concept of standing.” Id. at

139. Specifically, this analysis involves an inquiry into

“whether the disputed search and seizure has infringed

an interest of the defendant which the Fourth Amendment was designed to protect.” Id. at 140.

Going on, the law is fairly well established, at least as

far back as Katz v. United States, 389 U.S. 347 (1967),

that the Fourth Amendment protects people, not places,

and one may assert a valid claim under the amendment

only if one enjoys a legitimate expectation of privacy in

a searched item, like the package here. Rakas, at 143.

Determining whether defendants possess a legitimate

expectation of privacy involves a two-part inquiry: (1) did

they demonstrate a subjective expectation that the contents of the package would remain free from public intrusion, and (2) are their subjective expectations of privacy
20 Nos. 01-3643 & 01-3644

“one[s] that society is prepared to recognize as ‘reasonable.’ ” Id. (quoting Katz v. United States at 361).

Our case is just like United States v. DiMaggio, 744

F.Supp. 43 (N.D.N.Y. 1990), where a perceptive district

judge (Munson) observed that the “expectation of privacy

vanishes, however, when the identity of the sender and

intended recipient is not indicated . . . on the package.” Id.

at 46. Neither our sender nor our recipient have announced, because they used phony names, that either

claims a privacy interest that our society is prepared to

recognize as reasonable. While “James Reed, Sr.” of Sacramento (as the sender) and “James Reed, Jr.” of Moline

have a privacy interest, they don’t actually exist. So I

think it makes good sense to conclude that even though

Pitts and Alexander created them, they cannot successfully hide behind them.

But what about people who have legitimate reasons

for using a nom de plume, someone like the late Esther

Pauline Lederer who, for years, dispensed advice as a

syndicated columnist? Could she lose her privacy rights

were we to take the route to affirmance I suggest? No.

Because Esther Lederer is Ann Landers. Just as her twin

sister, Pauline Esther Phillips, is fellow advice-to-thelovelorn dispenser Abigail (“Dear Abby”) Van Buren. They

are their alter egos in a way society recognizes as legitimate. No amount of pushing and shoving, however, can

turn Pitts and Alexander into the fictitious “Mr. Reeds” in

the same way. The denial of the defendants’ motion to

suppress, I submit, would be better grounded on the

basis I, and Judge Mihm, suggest.
Nos. 01-3643 & 01-3644 21

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-4-03