United States v. Corey Golson , 743 F.3d 44 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-1416
____________
UNITED STATES OF AMERICA
v.
COREY GOLSON,
Appellant
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 1-10-cr-00339-001)
District Judge: Honorable William W. Caldwell
______________
Argued November 7, 2013
______________
Before: GREENAWAY, JR., VANASKIE and ROTH,
Circuit Judges.
(Opinion Filed: February 11, 2014)
1
______________
OPINION
______________
Jeffrey A. Conrad, Esq. ARGUED
Clymer, Musser, Brown & Conrad
408 West Chestnut Street
Lancaster, PA 17603
Attorney for Appellant
Daryl F. Bloom, Esq. ARGUED
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
Harrisburg, PA 17108-0000
Attorney for Respondent
GREENAWAY, JR., Circuit Judge.
This appeal stems from the controlled delivery of a
parcel containing twenty pounds of marijuana (the “Parcel”)
to the residence of Defendant-Appellant Corey Golson
(“Golson”), where upon acceptance, state and federal law
enforcement agents conducted a search of Golson‟s home
pursuant to an anticipatory search warrant (the “Anticipatory
Warrant”) issued by Pennsylvania Magisterial District Judge
Mark Martin (“MDJ Martin”). There are two primary issues
to resolve.
First, Rule 41(b) of the Federal Rules of Criminal
Procedure mandates that either a federal judge or a judge of a
state court of record must issue a warrant in a federal
prosecution. Golson claims, among other things, that the
2
government violated Rule 41(b) because MDJ Martin was not
a judge of a state court of record. In reviewing Golson‟s
claim pursuant to a suppression motion, the United States
District Court found that the Anticipatory Warrant was issued
pursuant to an investigation under state law, which is not
governed by the Federal Rules of Criminal Procedure. We
will affirm pursuant to United States v. Bedford, 519 F.2d 650
(3d Cir. 1975).
Second, federal postal inspectors seized the Parcel for
a period of four days prior to obtaining a warrant to open and
search it. Since a prolonged seizure occurred, Golson claims
the contents of the Parcel should be suppressed. The District
Court found the seizure to be reasonable. We agree and will
affirm.
I. BACKGROUND
A. Factual Background
On Wednesday, July 21, 2010, a postal inspector at the
Phoenix branch of the United States Postal Inspection Service
(“USPIS”) intercepted the Parcel, which was being sent out of
state, on suspicion of narcotics trafficking. The Parcel was
sent from “M. Tubbs” at an address in Phoenix, Arizona to
“Derek Brown” at 237 West Locust Street, Mechanicsburg,
PA 17055.1
A Phoenix USPIS postal inspector deemed the package
as suspicious because the return address was fictitious and
non-deliverable. Additionally, based on his experience, drug
1
The residence was later determined to be that of Golson.
3
traffickers often bring narcotics across the border from
Mexico into Arizona, and then mail them to the east coast.
(J.A. 250.)
Phoenix USPIS contacted postal inspector Joseph
Corrado (“Inspector Corrado” or “Corrado”) at USPIS‟s
Harrisburg, PA branch, about their suspicions concerning the
Parcel. Corrado agreed to investigate, and the Phoenix
USPIS sent him the Parcel in Harrisburg.
Corrado received the Parcel the next morning (July 22,
2010). That same day, with the assistance of the
Pennsylvania state police, USPIS conducted various name
and address verifications and other database checks
concerning the Parcel‟s addressee and destination address.
Corrado determined that “Derek Brown” was not a person
known to receive mail at the residence. Corrado testified that
the use of a fictitious name is indicative of narcotics
trafficking. (J.A. 235.)
Since Corrado was the “only one working narcotics in
Harrisburg,” (J.A. 237) he relied on state police to assist with
the investigation. Corrado requested the use of the state
police‟s trained narcotics canine, which was able to detect the
presence of narcotics in the Parcel. With that information,
Corrado requested that the state police‟s criminal
investigation bureau reconnoiter at the Parcel‟s destination,
and gather intelligence about its recipients.
Corrado then presented the foregoing facts to the U.S.
Attorney‟s Office, who, in turn, decided to apply for a search
warrant to open the Parcel. Later that day, Corrado sent
Assistant U.S. Attorney Daryl Bloom (“AUSA Bloom”) a
draft affidavit in support of the search warrant.
4
The next day (July 23, 2010), Corrado was on pre-
approved leave from work, and was scheduled to return to
work on Monday, July 26. AUSA Bloom arranged for United
States Magistrate Judge Smyser (“U.S.M.J. Smyser”) to
review a draft of the search warrant application ahead of
Monday morning, so that it could be executed as soon as
Corrado returned.
On Monday morning (July 26, 2010), Inspector
Corrado and AUSA Bloom conferred with U.S.M.J. Smyser,
Corrado swore to the truth of his affidavit, and a search
warrant for the Parcel was issued. Within a half-hour of
obtaining the warrant, Inspector Corrado returned to USPIS‟s
Harrisburg office, and opened the Parcel. The Parcel
contained approximately twenty pounds of marijuana.
Following this discovery, members of the USPIS,
Pennsylvania State Police, and Cumberland County Drug
Task Force, assembled into a team of approximately twelve
(the “Controlled Delivery and Search Team” or the “Team”)
for the purpose of carrying out a controlled delivery of the
Parcel.
Before conducting the controlled delivery, the Team
reconstructed the Parcel. They replaced the twenty pounds
of marijuana with a “representative sample” and sham
material to represent the original weight of the Parcel. (J.A.
242.) In addition, the officers placed indicator equipment,
5
with GPS capability, into the Parcel to keep track of it, and to
be alerted when the Parcel was opened.2
The same day, Pennsylvania State Trooper Brian
Overcash (“Trooper Overcash”), one of the agents assisting
with surveillance and intelligence gathering and a member of
the Controlled Delivery and Search Team, obtained the
Anticipatory Warrant from MDJ Martin. Corrado testified
that the Anticipatory Warrant was obtained by Trooper
Overcash to expedite delivery of the Parcel. (J.A. 260.)
Trooper Overcash‟s affidavit in support of the warrant
(“Overcash‟s Affidavit”) stated in relevant part:
[A] Federal Search and Seizure Warrant
was executed on the parcel. The parcel
contained approximately 20 pounds of
suspected marijuana. The marijuana was field
tested with positive results.
[] It has been the experience of [Trooper
Overcash], that the amount of marijuana seized,
is of a quantity consistent with possession with
intent to deliver. It has also been the experience
of your Affiant that persons involved in the sale
of Controlled Substances also have in their
possession, or close proximity, other Controlled
substances, paraphernalia, and records,
proceeds associated with the sale of controlled
substances.
2
Corrado obtained a tracking warrant from U.S.M.J. Smyser
on July 26 at 11:05 a.m. (J.A. 258.) The parties have not
raised any issues with this warrant.
6
[] Your affiant requests that an
Anticipatory Search Warrant be granted for the
residence at 237 West Locust St,
Mechanicsburg, PA. This warrant will only be
executed pending a successful controlled
delivery of the package. (Package taken inside
residence). Additionally the package will
transmit an audible beep to Officer‟s [sic] when
the package is opened.
(J.A. 177.) Trooper Overcash‟s Affidavit did not specify that
the twenty pounds of marijuana had been replaced by a trace
amount of marijuana and sham material. Nevertheless, the
Anticipatory Warrant authorized a search of the residence,
upon completion of the delivery of the Parcel to the residence,
and once the indicator equipment alerted the Controlled
Delivery and Search Team that someone had opened the
Parcel.
On the same day that MDJ Martin issued the
Anticipatory Warrant, a USPIS Postal Inspector disguised as
a letter carrier and wearing a wire, hand-delivered the
reconstructed Parcel to the residence. At the time of delivery,
Elijah Small (“Small”) answered the door, and when the
undercover inspector asked for Derek Brown, Small went to
find him. Golson‟s son, Corey Jamal Golson (“CJG”), next
appeared at the door. The undercover inspector announced to
CJG, “I have a parcel here for Derek Brown. Are you Derek
Brown?” (J.A. 52.) CJG replied, “Yes” (id. at 52) and
proceeded to sign for the Parcel as Derek Brown. CJG then
took the Parcel into the residence.
Approximately thirty minutes later, the indicator
equipment alerted the Controlled Delivery and Search Team
7
that the Parcel was opened. Both Pennsylvania state law
enforcement agents, and federal agents—all members of the
Team—entered the residence. They found CJG in the kitchen
next to the Parcel, and Small and Charles Richardson on the
second floor of the residence. Pennsylvania state law
enforcement issued Miranda rights to all three individuals
and took them into their custody.
Acting on the Anticipatory Warrant, the Controlled
Delivery and Search Team searched all three floors of
Golson‟s residence. The following items were seized from
CJG‟s bedroom: a handgun, a sawed-off /short-barreled
shotgun, and ammunition. (J.A. 179-80.) The Team found
the following items in the recording studio room adjacent to
CJG‟s bedroom: ammunition, including hollow point bullets,
704 packets of heroin packaged for distribution, forty grams
of raw heroin, a cutting agent, packaging material consistent
with drug distribution, a heat sealer, heat sealable bags, a
scale, rubber examination gloves, and masks. (Id.) In the
second floor bedroom, determined to be that of Golson, the
Team found the following items: a handgun, a shotgun, 100
packets of heroin, rolling papers, and a marijuana grinder.
(Id.) The heroin and marijuana field-tested positive. The
Pennsylvania State Police took custody of all the seized
items.
The record reflects that the Parcel was intended for
Golson, and although CJG represented himself as Derek
Brown to the undercover inspector, he did so only under
Golson‟s instruction. (J.A. 117.)
Ultimately, the U.S. government brought charges
against CJG, although, initially there was a state prosecution.
CJG cooperated with law enforcement by agreeing to testify
8
against Golson in the instant case. CJG received a 78-month
term of imprisonment as a result of his cooperation.3
B. Procedural Background
Golson entered a plea of not guilty on a three-count
indictment charging him with: (1) criminal conspiracy to
distribute and possess with intent to distribute marijuana and
heroin, in violation of 21 U.S.C. § 846; (2) distribution and
possession with intent to distribute marijuana and heroin, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D) and
18 U.S.C. § 2; and (3) possession of a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A), (c)(1)(B)(I).
Golson filed a motion to suppress the seizure of
evidence allegedly obtained through two separate Fourth
Amendment violations. First, Golson argues that the search
of the residence: (1) violated Rule 41(b) because MDJ
Martin, who is not a federal judge or a judge of a state court
of record, issued the Anticipatory Warrant; and (2) was
unreasonable under the Fourth Amendment because the
warrant was obtained based on Trooper Overcash‟s Affidavit
that contained misleading material facts. Second, Golson
argues that because Inspector Corrado retained possession of
the Parcel for four days before seeking a warrant to open it,
the seizure was unreasonable.
After the suppression motion was denied, Golson
entered a conditional guilty plea to the three-count indictment
3
The Commonwealth of Pennsylvania also brought charges
against Small and Richardson.
9
pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
Procedure. Under the conditional plea, Golson reserved the
right to appeal the adverse determinations of his motion to
suppress.
The District Court sentenced Golson to 161 months of
imprisonment, three years of supervised release, and issued
an assessment fee of $300.00 and a fine of $1,000.00.
Golson‟s appeal of the District Court‟s denial of his motion
for suppression is now before us.
II. JURISDICTION
The District Court had jurisdiction to hear this case
pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
III. ANALYSIS
A. Suppression of Evidence Obtained Pursuant to the
Anticipatory Warrant
The Fourth Amendment protects individuals from
unreasonable searches and seizures. U.S. Const. amend. IV.
“It remains a cardinal principle that searches conducted
outside the judicial process, without prior approval by judge
or magistrate, [i.e., without a warrant,] are per se
unreasonable under the Fourth Amendment.” California v.
Acevedo, 500 U.S. 565, 580 (1991) (internal quotation marks
and citations omitted); United States v. Robertson, 305 F.3d
164, 167 (3d Cir. 2002) (“Generally, for a seizure to be
reasonable under the Fourth Amendment, it must be
effectuated with a warrant based on probable cause.”).
10
“[T]he ultimate measure of the constitutionality of a
governmental search is reasonableness[,]” Maryland v. King,
133 S. Ct. 1958, 1969 (2013) (internal quotation marks
omitted); however, absent special circumstances, law
enforcement agents must obtain a warrant from a neutral
magistrate based on probable cause. See id.; Treasury
Employees v. Von Raab, 489 U.S. 656, 667 (1989). For
federal prosecutorial purposes, a valid warrant must also
comply with the Federal Rules of Criminal Procedure. See
Fed. R. Crim. P. 1(a).
Golson contends that the District Court erred in failing
to suppress the evidence obtained pursuant to the
Anticipatory Warrant. In support of this contention, Golson
reiterates his arguments from the original suppression
hearing. First, the warrant is invalid because the government
failed to have a federal judge or a judge of a Pennsylvania
court of record issue the warrant, as required by Rule 41(b).
Second, the Anticipatory Warrant is invalid because the
warrant application contained a material misrepresentation of
fact. Because both of these arguments lack merit, we will
affirm the District Court‟s denial of Golson‟s motion to
suppress.
a. The Anticipatory Warrant is not Subject to Rule
41(b)
We begin with Golson‟s first argument that the
government violated Rule 41(b) when it obtained the
Anticipatory Warrant from MDJ Martin. As a threshold
matter, we must consider whether Rule 41(b) is applicable to
the Anticipatory Warrant, as the government contends, and if
so, whether MDJ Martin is a judge of a state court of record.
Fed. R. Crim. P. 41(b). Because these questions require the
11
interpretation of Rule 41(b), we exercise plenary review.
United States v. Toliver, 330 F.3d 607, 610 (3d Cir. 2003).
For the reasons set forth below, we find that the Anticipatory
Warrant is not subject to the mandates of Rule 41(b); as such,
the dispute as to whether MDJ Martin is a judge of a state
court of record is moot.4
To put this dispute in context, Rule 41(b) grants the
authority to issue search warrants to federal judges and judges
of state courts of record. Fed. R. Crim. P. 41(b).5 In a federal
prosecution, Rule 41(b) will apply, by its own terms, to a
search warrant made “[a]t the request of a federal law
enforcement officer or an attorney for the [federal]
government[.]” Fed. R. Crim. P. 41. In the Third Circuit,
Rule 41(b) also applies to warrants made at the request of a
non-federal law enforcement officer or non-government
attorney, if the federal court reviewing the warrant deems the
4
Parenthetically, MDJ Martin is not a judge of a state court
of record. See 42 Pa. Const. Stat. §§ 301, 321 (2006).
5
Specifically, Rule 41(b) provides that:
[a]t the request of a federal law enforcement
officer or an attorney for the government: (1) a
magistrate judge with authority in the district—
or if none is reasonably available, a judge of a
state court of record in the district—has
authority to issue a warrant to search for and
seize a person or property located within the
district.
Fed. R. Crim. P. 41.
12
search to be “federal” in character.6 See United States v.
Bedford, 519 F.2d 650, 654 n.1 (3d Cir. 1975). Indeed “[i]f
the search is deemed federal in character, the legality of the
search would be conditioned upon a finding that the warrant
satisfied federal constitutional requirements and certain
provisions of Fed. R. Crim. P. 41 designed to protect the
integrity of the federal courts or to govern the conduct of
federal officers.” Id. at 656 n.1 (internal quotation marks and
citations omitted) (emphasis added).
On the other hand, Rule 41(b) will not apply to a
search warrant made at the request of someone other than a
6
The Fourth, Eighth, and Tenth Circuits similarly interpret
Rule 41(b) to apply where a search made pursuant to a
warrant is “federal” in character. See United States v.
Johnson, 451 F.2d 1321, 1322 (4th Cir. 1971); United States
v. MacConnell, 868 F.2d 281, 283 (8th Cir. 1989); United
States v. McCain, 677 F.2d 657, 662 (8th Cir. 1982) (“Rule
41 applies only where a warrant is sought by a federal law
enforcement officer or where the search can otherwise be
characterized as federal in character”); United States v.
Bookout, 810 F.2d 965, 967 (10th Cir. 1987).
On the other hand, the Fifth Circuit reads Rule 41(b)
literally, and requires compliance with the mandates of Rule
41 only when a warrant is made “[a]t the request of a federal
law enforcement officer or an attorney for the government.”
United States v. McKeever, 905 F.2d 829, 832(5th Cir. 1990)
(citing Fed. R. Civ. P. 41(b)(1)).
Under either approach, Rule 41 does not apply to the
Anticipatory Warrant here.
13
federal law enforcement officer or government attorney when
the resulting search is “state” in character, even if the fruits of
that warrant are later entered into evidence in a federal
prosecution. Id. at 653-54. In that situation, “the warrant,
assuming proper issuance under state law, need only conform
to federal constitutional requirements.”7 Bedford, 519 F.2d at
654 n.1.
Whether a search can be characterized as either state or
federal is a fact-intensive inquiry that looks at “the extent [to
which] federal officers were involved in the search and
seizure.” Id. at 654 n.1 (citing Lustig v. United States, 338
U.S. 74, 81 (1949); Byars v. United States, 273 U.S. 28, 32
(1927) (“[T]he court must be vigilant to scrutinize the
attendant facts with an eye to detect and a hand to prevent
violations of the Constitution by circuitous and indirect
methods.”)).
To determine the warrant‟s validity, we must focus on
the facts regarding the character of the search in their totality.
Bedford, 519 F.2d at 654 n.1. In Bedford, although agents
from both the state and federal government assisted in
executing the search warrant, we deemed the search state in
character based on assessing the following eight factors:
(1) the warrant was issued under state law and
directed to state officers; (2) the warrant was
predicated on probable violation of state
7
Pennsylvania law grants MDJ Martin the authority to issue
search warrants, and the parties do not otherwise contest that
the warrant is invalid under state law. See 42 Pa. Const. Stat.
§ 1515 (2006).
14
narcotics laws; (3) there was no evidence of bad
faith on the part of either the state or federal
officers; (4) federal agents did not assist in the
obtaining of the warrant; (5) there was no
evidence that federal agents instigated or
supervised the search; (6) defendant was
initially arrested by local police officers; (7) the
majority of the evidence was found by local
officers; and (8) the products of the search,
placed in the custody of local police, formed the
basis of a state prosecution.
Id. at 654. The Bedford Court was “more inclined to view the
search as a „state‟ undertaking in which federal agents
participated solely to supply additional manpower for the
execution of the warrant.” Id. at 654 n.1.
Applying the factors set forth in Bedford, we find that
the search of Golson‟s residence was state in character. The
Anticipatory Warrant was issued by MDJ Martin upon state
Trooper Overcash‟s application (factor 1); the Anticipatory
Warrant indicated that there was a violation of Pennsylvania‟s
Controlled Substance, Drug Device and Cosmetic Act, 35 Pa.
Cons. Stat. § 780-113 (2004) (factor 2); Golson failed to
show bad faith of federal or state officers in obtaining the
Anticipatory Warrant in state court (factor 3); while federal
officers may have assisted in laying the groundwork for the
Anticipatory Warrant, Trooper Overcash championed the
effort to obtain the warrant (factor 4); there is no indication
that federal agents supervised the search (factor 5); and lastly,
despite federal and state officers working together during the
search of the residence, the seized evidence was placed into
the custody of the state police (factors 7 and 8). In
consideration of all the above factors, we agree with the
15
District Court that the search was state in character. Based on
this finding, the Anticipatory Warrant is not subject to Rule
41 scrutiny.
b. There was a Substantial Basis for MDJ Martin to
Find Probable Cause to Issue the Anticipatory Warrant
Golson‟s second argument regarding the Anticipatory
Warrant is that Trooper Overcash‟s Affidavit in support of the
Anticipatory Warrant cannot sustain a finding of probable
cause.
A reviewing court may not conduct a de novo review
of a probable cause determination. Illinois v. Gates, 462 U.S.
213, 236 (1983); United States v. Conley, 4 F.3d 1200, 1205
(3d Cir. 1993). Here, we must apply the same deferential
standard as the District Court in reviewing MDJ Martin‟s
initial probable cause determination. Conley, 4 F.3d at 1205.
Our duty is “to ensure that the magistrate had a substantial
basis for . . . conclud[ing] that probable cause existed.” Id. at
1205 (alterations in original) (internal quotation marks
omitted). In making a probable cause determination, the
judge issuing the warrant looks at whether “there is a fair
probability that contraband or evidence of a crime will be
found in a particular place,” Gates, 462 U.S. 238, and thus,
here, we must “uphold the warrant as long as there is a
substantial basis for a fair probability that evidence will be
found.” Conley, 4 F.3d at 1205; see also United States v.
Stearn, 598 F.3d 540, 554 (3d Cir. 2009).
Here, Golson submits that Trooper Overcash‟s
Affidavit, (1) omits the fact that law enforcement agents
replaced the twenty pounds of marijuana found in the Parcel
with trace amounts of marijuana, and (2) “lacks a specific
16
triggering condition sufficiently specific to comply with [all
the warrant requirements.]” (Appellant Br. 16-17.) Both of
these arguments fail.
First, MDJ Martin‟s finding of probable cause is not
undermined by Trooper Overcash‟s omission from his
affidavit that the Parcel would contain only a trace amount of
marijuana at delivery. As discussed below, even when we
“remove the falsehood created by [the] omission by supplying
the omitted information to the original affidavit[,]” U.S. v.
Yusuf, 461 F.3d 374, 384 (3d Cir. 2006) (internal quotation
marks omitted), a substantial basis existed for MDJ Martin to
find probable cause. See Wilson v. Russo, 212 F.3d 781, 789
(3d Cir. 2000) (reasoning that if the affidavit excised of
offending inaccuracies, and including omitted facts, has
probable cause, then “even if there had not been omissions
and misrepresentation[s],” the warrant would have been
issued).
Golson‟s second argument, that the Anticipatory
Warrant “lacks a specific triggering condition sufficiently
specific to comply with [warrant requirements]” also fails.
(Appellant Br. 17.) An anticipatory search warrant is “a
warrant based upon an affidavit showing probable cause that
at some future time (but not presently) certain evidence of
crime will be located at a specified place.” United States v.
Grubbs, 547 U.S. 90, 94 (2006) (internal quotation marks and
citations omitted).
For an anticipatory warrant based on a triggering
event, the Supreme Court requires satisfaction of two
“prerequisites of probability” to comply with the Fourth
Amendment‟s probable cause requirement. Grubbs, 547 U.S.
at 96. The first prerequisite of probability requires that,
17
“based on facts existing when the warrant is issued[,]” there is
“probable cause to believe the contraband, which is not yet at
the place to be searched, will be there when the warrant is
executed.” United States v. Loy, 191 F.3d 360, 365 (3d Cir.
1999); see also Grubbs, 547 U.S. at 96-97 (“[I]f the
triggering condition occurs there is a fair probability that
contraband or evidence of a crime will be found in a
particular place[.]”) (internal quotation marks and citation
omitted). This requirement ensures that there is a sufficient
nexus between the contraband to be seized and the place to be
searched. Grubbs, 547 U.S. at 96.
The second prerequisite of probability is that there is
probable cause to believe that the triggering event will
actually occur. Grubbs, 547 U.S. at 97. “The supporting
affidavit must provide the [judge] with sufficient information
to evaluate both aspects of the probable-cause determination.”
Id. at 97.
Here, the first probable cause requirement is met. In
addition to the trace amount of marijuana certain to be present
in the residence at the time of the warrant‟s execution, there
was also a fair probability that “other controlled substances,
paraphernalia, and records . . . associated with the sale of
controlled substances” would be present. (J.A. 177); see
Stearn, 597 F.3d at 559-60 (stating the nexus may be
established by “the conclusions of experienced officers
regarding where evidence of a crime is likely to be found[.]”);
see, e.g., Grubbs, 547 U.S. at 97 (finding the successful
controlled delivery of contraband consisting of a videotape of
child pornography would “plainly establish” probable cause
for the search).
18
Because Trooper Overcash possessed the Parcel
containing trace amounts of marijuana and had definite plans
to deliver the Parcel to the residence, the second probable
cause requirement is also met, as there was a fair probability
that the triggering event, i.e., the Parcel‟s entrance into the
residence after a successful controlled delivery and the
subsequent alert of the indicator equipment, would actually
occur.8 See Grubbs, 547 U.S. at 97. In Grubbs, the Supreme
Court found that the successful delivery of contraband
consisting of videotapes of child pornography to defendant‟s
residence by an undercover agent would satisfy the second
probable cause requirement because, while it was “possible
that [defendant] could have refused delivery of the videotape
he had ordered, that was unlikely.” Id. at 97. Similarly, here,
while it was possible the occupants of the residence would
refuse delivery of the Parcel, or accept delivery but leave the
Parcel unopened, it was more probable they would accept and
open.
B. Suppression of Evidence Obtained After Four-Day
Warrantless Seizure
Golson‟s second argument on appeal is that the
District Court erred in finding the four-day warrantless
seizure of the Parcel to be reasonable. 9 (Appellant Br. 21.)
8
Trooper Overcash‟s Affidavit states: “This warrant will only
be executed pending a successful controlled delivery of the
package. (Package taken inside residence). Additionally the
package will transmit an audible beep to Officer‟s [sic] when
the package is opened.” (J.A. 177.)
9
The government argues for the first time on appeal that
Golson lacks standing to challenge the search of the Parcel
19
The District Court disagreed, and held that the “four-day
because he has no privacy interest in it; Golson neither sent
the parcel nor was it addressed to him. The government
evokes the general principles of Fourth Amendment standing
established in United States v. Padilla, 508 U.S. 77 (1993),
and Rakas v. Illinois, 439 U.S. 128, 143 (1978), to support
this argument. However, these cases cannot overcome or
conflict with our precedent that the government may not raise
a Fourth Amendment standing argument for the first time on
appeal. United States v. Stearn, 597 F.3d 540, 552 n.11 (3d
Cir. 2010). “The „standing‟ inquiry, in the Fourth
Amendment context, is shorthand for the determination of
whether a litigant‟s Fourth Amendment rights have been
implicated.” United States v. Mosley, 454 F.3d 249, 253 n.5
(2006). As we previously explained:
Fourth Amendment standing is one element of a
Fourth Amendment claim, and does not
implicate federal jurisdiction. Consequently,
standing can be conceded by the government,
and it is also subject to the ordinary rule that an
argument not raised in the district court is
waived on appeal.
Id. at 552 n.11 (internal citations and quotation marks
omitted); see, e.g., United States v. Navedo, 694 F.3d 463,
478 n.3 (3d Cir. 2012) (“[W]hether [defendant] possessed a
reasonable expectation of privacy—a necessary predicate to
his invocation of the exclusionary rule—might have presented
a close question in this case. But the Government waived this
standing argument by failing to raise it in the District Court.”)
(internal citations omitted).
20
delay due to the investigation, scheduled leave, and the
weekend is reasonable in the present case.” (J.A. 6.) We
review the District Court‟s factual findings for clear error,
and exercise plenary review over the District Court‟s
determination that the seizure did not violate the Fourth
Amendment. United States v. Johnson, 592 F.3d 442, 447
(3d Cir. 2010) (citing United States v. Myers, 308 F.3d 251,
255 (3d Cir. 2002); United States v. Bonner, 363 F.3d 213,
215 (3d Cir. 2004)). We agree that the four-day seizure was
reasonable.
Postal authorities may seize and detain mailed items
for a reasonable amount of time, if they have a reasonable
suspicion of criminal activity.10 United States v. Van
Leeuwen, 397 U.S. 249, 251-52 (1970). We look at the
totality of the circumstances in determining whether the
length of the detention was reasonable. See Id. at 252 (“The
nature and weight of the packages, the fictitious return
address, and the British Columbia license plates of respondent
who made the mailings in this border town certainly justified
10
Golson does not dispute that the detention of the Parcel was
based on reasonable suspicion, nor could he, because
reasonable suspicion to detain the Parcel is supported by the
record: the Parcel‟s return address was fictitious and non-
deliverable, and based on the past experience of the USPIS
inspectors involved, narcotics are often brought across the
border from Mexico into Arizona and then mailed to the east
coast. Moreover, the addressee, Derek Brown, was not a
person known to receive mail at the address listed, which is
one possible indicia of narcotics trafficking.
21
detention, without a warrant, while an investigation was
made.”).
Here, the length of the delay was reasonable because it
was due to the investigation, scheduled leave, and the
weekend, when postal operations, in ordinary course, cease or
slow down considerably. See United States v Lux, 905 F.2d
1379 (10th Cir. 1990) (detaining a package for approximately
a day and a half, when one of those days was a Sunday, was
reasonable); United States v. Mayomi, 873 F.2d 1049 (7th Cir.
1989) (detaining letters over a weekend for the sole purpose
of subjecting them to a canine sniff test was not
unreasonable); United States v. Gill, 280 F.3d 923 (9th Cir.
2002) (six-day delay where postal worker who was on leave
for three days, was not unreasonable). Therefore, Golson‟s
argument is without merit and we will affirm the District
Court‟s finding that the Parcel was not unreasonably seized.
IV. CONCLUSION
For the reasons discussed above, we will affirm the
District Court‟s suppression of evidence discovered in
Golson‟s residence, and in the Parcel.
22