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United States v. Moss

United States Court of Appeals, First Circuit

August 26, 2019

UNITED STATES OF AMERICA, Appellee,
v.
DUSTIN MOSS, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge]

          Simon R. Brown, with whom Preti Flaherty PLLP was on brief, for appellant.

          John S. Davis, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE.

         Dustin Moss ("Moss") appeals from the district court's denial of his motion to suppress approximately twenty pounds of methamphetamine that a postal inspector discovered in two United States Postal Service Priority Mail Express packages, as well as any evidence resulting from the searches of those packages. After careful review, we affirm.

         I. BACKGROUND

         A. Factual Background

         1. The 730 Package

         On April 18, 2017, U.S. Postal Inspector Bruce Sweet ("Sweet") singled out from a list of incoming mail a package scheduled to arrive from Las Vegas, Nevada, to Manchester, New Hampshire. Since October 2016, Sweet had been participating in the investigation of a drug conspiracy in which packages containing methamphetamine were sent from Las Vegas to New Hampshire and, in return, packages containing money were sent from New Hampshire to Las Vegas. According to postal databases, the singled-out package weighed twenty-six pounds; was addressed to Brian O'Rourke at 3 Blackberry Way, Apt. 108, Manchester, New Hampshire; and bore the tracking number EL810533730US (the "730 Package"). More importantly, it had "328 Florrie Ave."[1] in Las Vegas as the return address, which matched the "Florrie Ave." return address used in other packages identified throughout the drug conspiracy investigation. Based on these characteristics and his knowledge of the investigation, Sweet deemed the 730 Package suspicious.

         Accordingly, the night before the package's arrival, Sweet drafted an affidavit in support of a warrant to search the 730 Package and e-mailed it to Assistant United States Attorney William Morse ("AUSA Morse"). Sweet's affidavit included an attachment labelled "Attachment A," which accurately described the 730 Package as a "black 'Kicker Speaker' cardboard box," and detailed the package's weight and dimensions. The attachment also identified the 730 Package's addressee, O'Rourke, as well as the package's final destination.

         Sweet collected the 730 Package and placed it in a canine drug-sniff lineup shortly after the package arrived in Manchester on the morning of August 19, 2017. After the drug-sniffing dog alerted on the 730 Package, Sweet secured the package in the United States Postal Inspection Service's parcel inspection room.[2] Sweet effectively separated the 730 Package from all other mail held in the postal facility given that there were no other packages in the parcel inspection room at this point.

         AUSA Morse proceeded to e-mail Sweet's affidavit to court personnel that same morning. AUSA Morse's e-mail indicated that his office was still working on the associated paperwork. Within an hour of the e-mail's delivery, AUSA Morse and Sweet arrived at the magistrate judge's chambers with a complete search warrant packet consisting of: (1) the search warrant application; (2)Sweet's affidavit and its two accompanying attachments; and (3)the proposed search warrant. In the space provided for a description of the property to be searched, the warrant application stated: "See Attachment A to Affidavit of U.S. Postal Inspector Bruce A. Sweet which is incorporated herein by reference.". As mentioned above, Attachment A of Sweet's affidavit provided an accurate and detailed description of the 730 Package. After reviewing the search warrant application and Sweet's affidavit, the magistrate judge issued the search warrant.[3]

         However, due to a clerical error in the U.S. Attorney's Office, the document identified as "Attachment A" that was appended to the search warrant was different from the one attached to Sweet's affidavit and reviewed by the magistrate judge. The issued warrant's Attachment A did not describe the 730 Package, a twenty- six-pound cardboard box, but rather a five-ounce envelope Sweet had searched during the course of an unrelated investigation from November 2016. [4] The warrant, nevertheless, still included information reflecting its relation to the 730 Package. Specifically, its caption correctly read:

In the Matter of the Search of (Briefly describe the property to be searched . . .)
USPS Priority Mail Express Package Bearing Tracking Number EL810533730US.

         In other words, the issued warrant included the 730 Package's exclusive tracking number, despite the description of another package in its Attachment A.

         Unaware of the mistakenly appended attachment, Sweet proceeded to search the 730 Package. Inside the package, he found a large speaker and, inside the speaker, twelve zip-top bags, each containing almost exactly one pound of a white crystalline substance later identified as methamphetamine. Sweet then replaced the narcotics with miscellaneous items to bring the box to its original weight, repackaged the speaker, resealed the package, and delivered it to the post office for the next stage of the government's operation -- apprehension of the 730 Package's addressee, Brian O'Rourke.

         O'Rourke was a crack cocaine addict. His supplier was Sabrina Moss ("Sabrina"), defendant-appellant Moss's sister. O'Rourke, Sabrina, and Moss had all been in the same hotel room with other drug users about a week prior to the arrival of the 730 Package. O'Rourke and Moss did not know each other and did not speak to each other in that hotel room. Their interaction was limited to what can be described as a mutual acknowledgement of each other's presence: They waved at each other after Sabrina pointed out Moss to O'Rourke. Sabrina then asked O'Rourke if he was willing to receive a package at his apartment on Moss's behalf in exchange for three-and-a-half grams of crack cocaine.[5] O'Rourke agreed.

         But the terms of this agreement were never fleshed out any further. O'Rourke left the hotel room without Sabrina telling him when to expect the package to arrive or the number of packages he would receive. Nonetheless, from their conversation's reference to "a package," O'Rourke understood that their arrangement was limited to the receipt of a single piece of mail. O'Rourke believed everything would transpire in a simple, quick manner: The package would arrive at his apartment, Moss would pick it ...


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