The package tracking order did not specify when the package and tracking device could be retrieved. Here, there was no alert that the package was opened, and the government could not enter to retrieve it without that. United States v. Nou Xiong, 2013 U.S. Dist. LEXIS 105063 (D. Alaska July 25, 2013),* As Revised August 29, 2013:<\/p>\n
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The government recognizes that the order does not use the exact language contained in the affiant’s application. The evidence does not explain whether the omission of this language was intentional or merely overlooked. To authorize the officers’ entry, the government relies upon the language in the orders wherein members of the Postal Inspection Service were authorized to retrieve an electronic alerting device during a period of three days unless the investigation ended sooner. See language underscored on page 5. The statement in its literal form authorizes law enforcement officers to install, monitor, utilize and retrieve an electronic alerting device for a period of three days. It does not describe the manner or conditions in which the alerting device may be installed, monitored, utilized or retrieved.<\/p>\n
The second sentence of the last paragraph of the order addresses some conditions in which the package may be retrieved by the officers. If the alerting device indicates that the package has been opened then officers may retrieve the package. If the electronic alerting device malfunctions during the three days or earlier if the investigation terminates, the officers may retrieve the package. The order does not address the retrieval of the package based upon a duration of time after delivery of the package and the alerting device neither indicates that the package has been opened or the electronic alerting device has malfunctioned. Although the postal inspectors sought an authorization to retrieve the subject parcel if the alerting device does not go into alert mode within two hours after delivery this authority was not granted in the order.<\/p>\n
Case law interpreting the Fourth Amendment requires courts to give a practical reading to a search warrant when the terms describing the scope of the warrant are ambiguous. Here, the government argues that the officers were entitled to rely upon the language in the warrant to retrieve the monitoring device. Although the warrant describes with particularity two circumstances under which the monitoring device may be retrieved, neither of these circumstances were present. Because the entry was not justified under the warrant the government must rely upon a recognized exception of the warrant requirement to justify the entry and subsequent seizure of evidence.<\/p>\n
. . .<\/p>\n
The execution of the beeper warrants exceeded the limits of the warrants. The Leon good faith exception does not save the warrants. No showing has been made that the warrants were invalid; rather the execution of the warrants was not done with a reasonable belief of what was authorized. In light of this conclusion, the court need not address the lawfulness of the protective sweep, the manner of search for the packages inside the residence or whether the guns were found in plain view. Because of the Fourth Amendment violation, the jury will not be able to consider tainted evidence in assessing the guilt or innocence of defendant who experienced the Fourth Amendment violation.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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