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United States v. Lozano

October 18, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROBERT LOZANO, SR., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Alaska. Ralph R. Beistline, Chief District Judge, Presiding. D.C. No. 4:08-cr-00009-RRB.

Per curiam.

FOR PUBLICATION

Argued and Submitted July 28, 2010 -- Anchorage, Alaska.

Before: Mary M. Schroeder, Diarmuid F. O'Scannlain and Richard R. Clifton, Circuit Judges.

Opinion; Concurrence by Judge O'Scannlain

OPINION

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


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