FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30151
Plaintiff-Appellee,
v. D.C. No.
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
17162 UNITED STATES v. LOZANO
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, Anchor-
age, 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 admis-
sion of marijuana evidence, found in a mailed package
UNITED STATES v. LOZANO 17163
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 resi-
dence in Barrow, Alaska, with his son, who was on state pro-
bation. 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 con-
versation, to a search of the rest of the residence. In his bed-
room, 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 proba-
tion 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
17164 UNITED STATES v. LOZANO
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 after-
noon 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 pack-
age 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 dis-
covered 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.
UNITED STATES v. LOZANO 17165
B
A federal grand jury returned an indictment, charging
Lozano with a single count of attempted possession of mari-
juana with intent to distribute. See 21 U.S.C. §§ 841(b)(1)(D),
846. Lozano filed motions to suppress the evidence discov-
ered 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 magis-
trate 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 proba-
tion 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 dis-
tribute. 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 suffi-
cient 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
17166 UNITED STATES v. LOZANO
which would tend to make the existence of the defendant’s
knowledge more probable than it would be without the evi-
dence.” 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 evi-
dence. 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 out-
weighed 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
UNITED STATES v. LOZANO 17167
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). There-
fore, 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 discov-
ered 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 suspi-
cion that it contains contraband or evidence of illegal activi-
ty.” 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
17168 UNITED STATES v. LOZANO
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 ficti-
tious, 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). There-
fore, 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 ini-
tial detention and that at which probable cause is developed
because “[p]robable cause is sufficient to support the subse-
quent 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 Leeu-
wen, 397 U.S. 249, 252-53 (1970) (holding reasonable
twenty-nine hour delay); Hernandez, 313 F.3d at 1212 (hold-
ing 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.
UNITED STATES v. LOZANO 17169
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 unreason-
able 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 con-
veyor belt, sorted in a particular area, or stored in any particu-
lar 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 communi-
ties. 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
1
Lozano’s motion to supplement the record with exhibits presented at
trial is denied as moot because those exhibits were in the district court
record.
17170 UNITED STATES v. LOZANO
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 evi-
dence.
I
Before addressing the merits of this issue, I pause to con-
sider whether it is properly before us. I believe it is. The gov-
ernment 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 stand-
ing 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 pro-
tections of the Fourth Amendment, defendants must demon-
strate that they had an expectation of privacy in the property
searched and that their expectation was reasonable.” Reyes-
UNITED STATES v. LOZANO 17171
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, non-
precedential 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 expecta-
tion 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).
1
Several 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).
17172 UNITED STATES v. LOZANO
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 expecta-
tions 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 obstruc-
tion 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 nonaddres-
see 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 subjec-
UNITED STATES v. LOZANO 17173
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 Dan-
iel, 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 indi-
vidual 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 nonad-
dressee 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 expec-
tation 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,
17174 UNITED STATES v. LOZANO
[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 recipi-
ent 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. Villa-
real, 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, particu-
larly 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 expecta-
tions of privacy.
UNITED STATES v. LOZANO 17175
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 pack-
age.
III
Accordingly, I would affirm the denial of the motion to
suppress based on lack of Fourth Amendment standing.