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Expectation of Privacy – Mail – Fictitous Addressee

State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall

Issue/Holding: Earl did not satisfy the “initial minimal burden of establishing some reasonable expectation of privacy” in a package addressed to a fictitious recipient at a vacant residence; moreover, when Earl picked up the package from the driver he gave his own name and thus “disassociated” himself from the addressee.

¶16      We know of no case addressing whether a recipient has a legitimate expectation of privacy in a package where the sender’s identity is unknown and the recipient’s name is fictitious and the address vacant. The court’s decision inUnited States v. DiMaggio, 744 F. Supp. 43 (N.D.N.Y 1990), provides some guidance. In DiMaggio, the defendants sent drug money to the known residences of the intended recipients but using fictitious personal or business names and also received packages of cocaine addressed to fictitious names and addressed not to their places of residence but to that of a business associate. Id. at 43-44. The DiMaggio court acknowledged that the defendants “did in fact subjectively expect that the contents of the Federal Express packages would remain private”; however, the court concluded that the defendants’ expectations were not ones that society would accept as reasonable. Id. at 45. The court reasoned, “[t]he packages allegedly used in this case contained nothing on the surface to indicate that defendants had any connection with the packages.” Id. at 46; see alsoUnited States v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988) (defendant who denies ownership interest does not have standing when he is not the addressee and does not reside at the delivery address).

¶17      The package in this case involves more (or less) than just a false name. Here, Earl provided no information about the sender. The package was addressed to both a fictitious name and a vacant apartment, leaving nothing at all to link the package to Earl. After flagging down the FedEx driver, Earl identified himself, and stated that he was picking up the package for Mark Harris. The objective manifestations of Earl’s intent all lead to a conclusion that he sought to disassociate himself from the package—not that it was intended for him. Stated differently, there was nothing on the surface to indicate that Earl had any connection with the package, much less any dominion or control over it. Earl has failed to meet his burden to establish that he had a reasonable expectation of privacy in the package at the time of the search.

The court stresses that its conclusion is informed by “the coupling of a false name and a false address, along with an unknown sender and a statement that the package belongs to someone else,” ¶18. This suggests a narrow, fact-bound holding. Nonetheless, bear in mind that the court string-cites with apparent (but not explicit) approval various holdings to the effect “that even an intended recipient of an item that has been addressed and sent to another actual person has no reasonable expectation of privacy where it was the actual addressee who could control the use of and access to the item,” ¶15 n. 7.


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