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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-7292
Summary Calender

_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICKY LYNN DANIEL
Defendant-Appellant.

_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
(January 18, 1992)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:
Ricky Lynn Daniel was convicted of one count of possession
with intent to distribute methamphetamine in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B). On appeal, he claims that the
Government violated his Fourth Amendment rights in various ways.
Finding no unconstitutional search or seizure, we affirm the
judgment of the district court.
I.
On September 26, 1992, an unidentified American Airlines

employee in Memphis, Tennessee, called a Drug Enforcement
Administration (DEA) investigator and reported a "suspicious"
package that was being shipped by the airline. The employee
suspected that the package contained narcotics. The employee
noted that this was at least the second such package shipped by
the sender to the same address in a single week. Moreover, the
employee noted, the private courier's shipping fee ($55) was
rather expensive for such a small package that could just as
easily have been mailed for a fraction of the cost. A DEA
investigator, J.C. Sneed, arrived at the airport within an hour.
Upon his arrival, Sneed was shown a small cardboard box addressed
to "Lynn Neal c/o Dottie's Hair Design," a beauty saloon located
in Nettleton, Mississippi; the return address was a residence in
San Bernardino, California. The addresses on the box were
handwritten, and the return address did not contain a zip code.
Sneed also observed that all the seams in the package were
securely sealed with masking tape. According to the receipt
completed by the sender, the box contained "parts." Sneed shook
and squeezed the box. Because the box did not rattle, Sneed
questioned whether in fact it contained parts of any type. He
shared the American Airlines' employee's suspicions that the
package possibly contained illicit drugs.
In order to confirm his suspicions, Sneed summoned another
DEA investigator, Boyd Schaeffer, who handled a narcotics-
detecting dog. The second agent arrived at the airport shortly
thereafter. A dog-sniff test indicated that the box indeed
2

contained narcotics. Sneed took possession of the box and
applied for a search warrant to examine its contents. After
obtaining a search warrant soon thereafter, Sneed opened the box
and discovered plastic bags filled with a white powdery substance
that, after testing, proved to be methamphetamine. Sneed
arranged with other DEA agents and Mississippi authorities to
make a controlled delivery of the box using as undercover agent
as a delivery person.
The agents placed a beeper inside the box designed to
transmit a signal when it was opened and procured an anticipatory
warrant to search the address listed on the box. Baking powder
was substituted for the majority of the methamphetamine, and
agents placed a material in the powder that could be detected
under ultraviolet light. After the box was delivered to Daniel's
trailer and was opened by him, the agents executed the search
warrant. Agents discovered the box in a bedroom and empty
baggies by the toilet. They held a black light to Daniel's hand
that showed he had come in contact with the ultraviolet powder in
the box. Daniel waived his rights and signed a statement
indicating that he was paid $300 to receive each package and that
he had received five or six packages in the past.

II.
On appeal, Daniel argues: i) that the package was illegally
searched and seized without a warrant in the first instance,
contending Agent Sneed had no reasonably articulable suspicion
3

that the box contained an illicit substance; ii) that the search
pursuant to the first warrant issued Tennessee, which allowed
agents to open the box, was unconstitutional; and iii) as a
result, the evidence and confession derived from the Mississippi
warrant was "tainted fruit." We reject all three arguments.
A. Was there an unlawful warrantless "search" or "seizure"?
Daniel initially challenges the DEA agents' conduct prior to
obtaining the first search warrant in Tennessee. Thus, he
challenges the initial detention of the box and the dog-sniff
test. Daniel argues that the package was searched and seized in
violation of his Fourth Amendment rights because DEA Agent Sneed
had no reasonably articulable suspicion that the package
contained drugs. According to Daniel, because the package was
not shown to be distinguishable from any of the other millions of
packages placed in the mail daily, and because there was no
showing that the American Airline's employee was a reliable
informant, the package was illegally seized. We reject Daniel's
contention here for two different reasons.
First, we do not believe that Daniel possessed "a legitimate
expectation of privacy" under the Fourth Amendment, see Rakas v.
Illinois, 439 U.S. 128, 140 (1978); Rawlings v. Kentucky, 448
U.S. 98, 106 (1980), in a package addressed to "Lynn Neal." At
trial, Daniel's theory of defense was that Ricky Lynn Daniel and
4

Lynn Neal were different persons.1 If we accept this dubious
contention, then Daniel has no "standing"2 to raise a Fourth
Amendment challenge to the Government's conduct with respect to a
package addressed to someone else. See United States v. Pierce,
959 F.2d 1297, 1303 (5th 1992); United States v. Koenig, 856 F.2d
843, 846 (7th Cir. 1988). Furthermore, even if we accept the
Government's assertion that "Lynn Neal" was Daniel's alias, we
still question whether Daniel would have Fourth Amendment
"standing" to assert the claim, particularly when the use of that
alias was obviously part of his criminal scheme. See United
States v. Lewis, 738 F.2d 916, 919-20 n.2 (8th Cir. 1984).3
Nevertheless, even assuming Daniel possessed some type of
1 The Government offered evidence that "Lynn Neal" was
simply an alias of Ricky Lynn Daniel, including evidence that
Daniel had registered his trailer with a utility company in the
name of "Lynn Neally."
2 In Rakas v. Illinois, supra, the Supreme Court
"dispens[ed] with the rubric of [Fourth Amendment] standing . . .
by frankly recognizing that this aspect of analysis belongs more
properly under the heading of substantive Fourth Amendment
doctrine," leading the Court to focus "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." 439 U.S. at 138-39. Nevertheless, the
term "standing" has been used by courts since Rakas as shorthand
for the existence of a privacy or possessory interest sufficient
to assert a Fourth Amendment claim. See, e.g., United States v.
Richards, 638 F.2d 765, 769 (5th Cir. 1981).
3 As the Lewis court stated in a case involving an
analogous factual situation, "[t]he opening of the tax bill
addressed to [Lewis' alias] `David E. Woods' and not to Lewis
cannot be said to have infringed his reasonable privacy
expectations. . . . [Furthermore,] [a] mailbox bearing a false
name . . . used only to receive fraudulently obtained mailings
does not permit an expectation of privacy that society is
prepared to recognize as reasonable" under the Fourth Amendment.
Id.
5

legitimate expectation of privacy in connection with the package,
we believe that the DEA agents did not violate it by acting as
they did prior to obtaining the warrant permitting a full-blown
search. Our analysis here is bifurcated: we first must assess
the constitutionality of the alleged warrantless seizure of the
box; second, we must then determine if the alleged warrantless
search was in violation of the Fourth Amendment.
Contrary to the Government's claims, we agree that there
was a warrantless "seizure" within the meaning of the Fourth
Amendment. Although the initial detention of the box by the
American Airline's employee was not a seizure for Fourth
Amendment purposes -- as the employee was not acting on behalf of
the Government, see United States v. Jacobsen, 466 U.S. 109
(1984) -- we agree with Daniel that DEA Agent Sneed's actions
constituted a seizure.4 The record indicates that in the time
leading up to the dog-sniff test, Agent Sneed exercised control
over the box for approximately forty-five minutes.
The question that we must address, however, is whether that
relatively brief investigatory seizure of the package was
reasonable; if so, there was no Fourth Amendment violation. Cf.
Terry v. Ohio, 392 U.S. 1 (1968) (brief investigatory detention
4 The Government's brief is incorrect in contending that
Agents Sneed and Schaeffer arrived at the airport at the same
time and immediately proceeded to subject the box to a dog-sniff
test. Rather, as Agent Sneed testified at the pre-trial
suppression hearing, he arrived well before Agent Schaeffer and
the drug-detection dog. Prior to the arrival of Schaeffer, Sneed
physically handled the box -- squeezing and shaking it -- and
obviously exercised dominion over it.
6

of person constitutionally permissible when officer has
reasonably articulable suspicions based on particular facts that
detainee has violated law). We note that the Tenth Circuit has
addressed this precise application of the "Terry doctrine" in a
case involving facts essentially identical to the instant case.
See United States v. Lux, 905 F.2d 1379 (10th Cir. 1990), aff'g,
United States v. Hill, 701 F. Supp. 1522 (D.Ka. 1990); cf. United
States v. Van Leeuwen, 397 U.S. 249 (1970); 3 W. LaFave, Search
and Seizure, § 9.6 (2d ed. 1987) (& Supp.). The Lux court
concluded that a temporary seizure of a mailed package --
removing it from the normal flow of mail -- was not a Fourth
Amendment violation because postal inspectors acted on legitimate
suspicions. The court discussed the Postal Service's "drug
package profile," a list of traits commonly encountered in the
vast majority of illicit mailings of drugs. See Lux, 905 F.2d at
1381-82; see also United States v. Cantrall, 762 F. Supp. 875,
879-80 (D.Ka. 1991).5 Like the Lux court, we believe that while
any one of these factors standing alone might not provide
reasonable suspicion, an aggregate of factors passes muster under
the Terry doctrine. See Lux, 905 F.2d at 1382 (three factors
5 Included among those "drug package profile"
characteristics are: i) the size and shape of the package
(particularly in view of the declared contents of the package);
ii) whether the package is taped to seal all openings; iii)
whether mailing labels are hand-written; iv) whether the return
addressee and the return address listed on the package match; v)
unusual odors coming from the package; vi) whether the city of
origin and/or city of destination of the package are common "drug
source" locales; and vii) whether there have been repeated
mailings involving the same sender and addressee. See Cantrall,
762 F. Supp. at 879.
7

present); Cantrall, 762 F. Supp. at 879 (three factors present).
In the instant case, although the package was not being
handled by the Postal Service, the DEA agents nevertheless
appeared to have utilized the same "drug package profile" in
articulating their suspicions justifying the temporary seizure of
the package until a dog-sniff test could be conducted. At
Daniel's suppression hearing, Agent Sneed explained that his
suspicions were aroused by the following: i) the package's size
and shape, which belied a shipment of "parts," the alleged
contents declared by the sender; ii) the fact that the package
was securely taped with masking tape all along the seams; iii)
the fact that the labels were hand-written, even though the
mailing was allegedly business-related; iv) the fact that the
American Airlines' employee reported that this was the second
such mailing in a week; v) the fact that the sender paid a hefty
fee ($55) to ship the relatively small package via private air
courier; and vi) the fact that the sender's city was a common
"drug source." Thus, we believe that, under widely accepted law
enforcement standards regarding the detection of drug-related
mailings, the DEA's suspicions in this case were reasonable. The
temporary seizure, which lasted no more than an hour, was
constitutional.6
6 Daniel argues that under United States v. Place, 462 U.S.
696 (1983), even such a brief seizure is unconstitutional. We
believe Daniel misinterprets the Court's holding in that case.
Place involved the temporary seizure of an airline passenger's
luggage during a flight. The Court stressed that law enforcement
authorities could properly temporarily detain the luggage and
subject it to a dog-sniff test without a warrant under the Terry
8

We next turn to the dog-sniff test to which the package was
subjected. In an analogous case involving luggage that was
checked with an airline, this court emphasized the distinction
between an individual's privacy interest in the interior and
exterior of his bags. We held that a passenger has a reasonable
expectation of privacy that the contents of his luggage will not
be exposed absent consent or a search warrant. United States v.
Lovell, 849 F.2d 910, 913 (5th Cir. 1988) (citation omitted).
This reasonable expectation of privacy, however, does not extend
to the airspace around the luggage. Id. Thus, a canine sniff of
the outside of a bag is not a "search" within the meaning of the
Fourth Amendment and a "`reasonable and articulable suspicion is
not required before a DEA agent may use a canine trained in drug
detection to sniff luggage in the custody of a common carrier.'"
Id. (quoting United States v. Goldstein, 635 F.2d 356, 361-62
(5th Cir.), cert. denied, 452 U.S. 962 (1981)); see also Place,
462 U.S. at 706-07.
B. Was the search and seizure pursuant to the Tennessee warrant
doctrine if there were reasonable grounds for suspicion. The
Court held that such a detention must be extremely brief. The
ninety minute seizure in Place was considered excessive. See id.
at 700-710. Place is readily distinguishable from the instant
case in that Place involved a temporary seizure of luggage from a
passenger, while the instant case involves a temporary seizure of
a shipped package which was unaccompanied by a traveler. The
holding of the Place court was premised on the violation of the
passenger's possessory interest in his luggage. Id. at 705. No
similar possessory interest is present in a package relinquished
by the sender to the airline. Furthermore, in this case, Daniel
was not even the sender, but was merely the addressee. Place is
inapposite.
9

constitutional?
Daniel also contends that the warrant issued by the
magistrate judge in Tennessee, which permitted investigators to
open the package, was defective because the affidavit supporting
the application for the warrant did not establish the reliability
of the anonymous informant or the accuracy of the information
provided by the informant, nor did it specify the qualifications
of the dog that sniffed the luggage.
Prior to Illinois v. Gates, 462 U.S. 213 (1983), courts
utilized a rigid two-pronged test for measuring the sufficiency
of information in an affidavit necessary for the purposes of
issuing a warrant. Under the two-prong test, a police affidavit
based on an anonymous informant's tip had to, first, adequately
reveal the informant's basis of knowledge and, second, provide
sufficient facts to establish either the veracity of the
informant or the reliability of the information. Id. at 228-29.
In Gates, the Supreme Court required a magistrate merely to
consider these two issues as part of a larger "totality of the
circumstances" analysis. Neither prong is to be considered
determinative. Id. at 230. Daniel seems to rely on the pre-
Gates standard in arguing that the American Airlines employee was
an unreliable informant. Under Gates it is not fatal that the
affidavit did not vouch for the reliability of the informant.
The focus of the inquiry is whether there were sufficient facts
as a whole to support a determination of probable cause. In this
respect, the dog sniff, when considered with the other
10

information, served to show the reliability of the informant.
A valid search warrant may be issued only upon a finding of
probable cause. United States v. Brown, 941 F.2d 1300, 1302 (5th
Cir.), cert. denied, 112 S.Ct. 648 (1991). Probable cause does
not require proof beyond a reasonable doubt, but only a showing
of the probability of criminal activity. Id. A magistrate's
findings on the issue of probable cause are entitled to great
deference. Id. This Court looks to see only whether a
magistrate had a substantial basis for concluding that a search
would uncover evidence of wrongdoing. Id. (citation omitted).
The DEA investigator's affidavit established that he was an
experienced drug investigator, that the package was suspicious
for a variety of specific reasons, that it came from a source
city for drugs, that the dog alerted to the package, and that
drug dealers often ship drugs via private common carrier. The
affidavit also specifically explained that the dog was trained to
detect the presence of controlled substances.7 This information
clearly constitutes a substantial basis for issuing a warrant.
7 Daniel's reliance on dicta in Horton v. Goose Creek
Independent School Dist., 677 F.2d 471, 486 (5th Cir. 1982), to
establish the proposition that the author of an affidavit must
demonstrate the reliability of the police dog before a warrant is
issued is misplaced. This citation of Goose Creek is not
controlling because it is premised on Goose Creek's treatment of
the dog-sniff test as a search; this part of the decision was
subsequently vacated on rehearing. Horton v. Goose Creek
Independent School Dist., 690 F.2d 470, 477 (5th Cir. 1982)
(substituted opinion on rehearing). Neither Goose Creek nor
other case law supports Daniel's theory that an affidavit must
show how reliable a drug-detecting dog has been in the past.
Further, there was trial testimony concerning the dog's
reliability -- testimony that went unchallenged by Daniel's trial
counsel.
11

We thus reject Daniel's claim.
C. Was the search and seizure pursuant to the Mississippi warrant
tainted fruit?
Daniel's final argument is that the second warrant issued --
permitting authorities to search his trailer in Mississippi --
was defective because it relied on and incorporated information
from the earlier, allegedly defective Tennessee warrant
authorizing investigators to search the package at the airport.
Daniel claims that the evidence seized by investigators and the
statements made by Daniel following his arrest are "tainted fruit
of the poisonous tree" and, thus, should have been suppressed.
See Wong Sun v. United States, 371 U.S. 471 (1963). As explained
supra, however, the initial warrant was proper. Moreover,
undoubtedly, the second search warrant was based on probable
cause. After all, the package being sent to the Mississippi
address that was ultimately searched contained pure
methamphetamine. Therefore, we reject Daniel's final claim as
well.
III.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
12