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Delay of eight days from seizure of postal package based on reasonable suspicion to obtaining warrant was reasonable

Facts

Jeff Gordon, Houston, Texas, narcotics investigator for U.S. Postal Inspection Service, was investigating Clarence Beard for sending illegal pills in the mail. Gordon learned that Beard, who lived in Houston area, had used the alias “Nick Johnson” to mail packages and that several sources told him that Beard was shipping drugs via the mail.

Gordon put an alert on the address of Kelly McAllister in Hammond, Louisiana, after learning that McAllister had wired numerous structured payments of $1,000 to Beard.  Gordon suspected that Beard was mailing manufactured pills to McAllister and that McAllister was wiring payments back to Beard.

On January 8, 2018, an automated alert advised that a “Nick Johnson” mailed a package to McAllister. It had a handwritten label, was mailed from a post office in Houston that Beard frequented, and had a fake return address. Based on the above, Gordon submitted a request on January 8, 2018, that this package be pulled from the mail stream.

The package was flagged and arrived in Hammond, Louisiana, on January 11, 2018. Gordon called Louisiana postal officials and requested that the package be located and pulled and it was sent back to Houston, Texas. Gordon chose to send it back to Houston instead of continuing the investigation in Louisiana because 1) getting a canine sniff in Louisiana would cause further delays by getting New Orleans region LEO up to speed, 2)  it would involve new AUSA, and 3) Houston had a relationship with a laboratory that prioritized and safely screened opioids.

Gordon received the package in Houston on the afternoon of January 17, 2018, got a canine inspection (positive hit) on January 18, 2018, and got the warrant signed on January 19, 2018.  Beard did not object to the reasonable suspicion for the package but argued that the delay between the seizure of the package based on reasonable suspicion and obtaining the warrant (probable cause) was unreasonable.

The District Court denied the motion to suppress.  It found 1) the seizure date was on January 11, 2018 (when package pulled in Hammond), 2) the delay in return to Houston involved a weekend, 3) once it arrived in Houston, a warrant was obtained within 48 hours, and 4) although it took longer anyone expected for the package to return, it was not unreasonable.

The 5th circuit court of appeal affirmed the ruling of the district court and denied the motion to supress.

Analysis

A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property. With respect to the seizure of a package, in United States v. Van Leeuwen, 397 U.S. 249 (1970), the U.S. Supreme Court held that if the Government has reasonable suspicion that a package contains contraband or evidence of criminal activity, the package may be detained without a warrant while an investigation is conducted.

The court stated, however, that “detention of mail could at some point become an unreasonable seizure of ‘papers’ or ‘effects’ within the meaning of the Fourth Amendment.  The supreme court did not adopt a bright line rule regarding how long a package could be detained lawfully prior to obtaining a search warrant (in Van Leeuwen, a 29 hour delay was deemed reasonable).

The 5th circuit has little precedent for determining the reasonableness of the detention of a package under Van Leeuwen.  In other circuit decisions that have addressed this issue, the relevant factors to consider in determining reasonableness include: investigatory diligence, the length of the detention, and whether there were circumstances beyond the investigator’s control.

The 5th noted that 1) Gordon testified that normally packages are mailed back by express mail and take a day or two,  2) delays would have been encountered to obtain a canine sniff if Gordon had to get other investigators in Louisiana up to speed, 3) new AUSAs would also have delayed the process, 4) sending the package to Houston where it had extensive connections made sense and 5) Gordon acted quickly (within 48 hours) to obtain a warrant once he obtained the package.

Thoughts

  1. If you have a similar issue, where does it make the most sense to perform further investigation (in some cases, it might be quicker to do everything where package is currently located rather then sending back first);
  2. Have conversation with people who will send package back so you know how much time it should take (Court in this case noted the investigator expected it to take 1 or 2 days);
  3. If you do send package to another location, ensure the new location has a strong nexus to your case (as Houston did here);
  4. Once package arrives at new location, it is imperative that you move quickly to develop . probable cause (in this case it took under 48 hours)

 

https://cases.justia.com/federal/appellate-courts/ca5/20-20116/20-20116-2021-10-22.pdf?ts=1634945413