This 17-day delay in holding a package for investigation and developing probable cause for a search warrant was not unreasonable. There was reasonable suspicion for the initial detention, and, despite the delay, it was still reasonable. United States v. Martinez, 2022 U.S. App. LEXIS 2887 (5th Cir. Feb. 1, 2022). This is noteworthy:
In this case, the postal employee observed several drug package profile characteristics. Specifically, (1) the information on the shipping labels was handwritten, (2) the postage fees were paid in cash, allowing the sender to remain anonymous or avoid detection by law enforcement; (3) the Southern District of California is known as a source region for controlled substances; and (4) at least one of the men mailing a package appeared to be anxious or nervous. Finally, although the handwriting on the shipping labels for the two packages appeared identical, as though the same person filled out both shipping labels, the purported senders’ names on the labels were different. Based on this aggregate of factors, and contrary to Martinez’s contentions, the postal employee had reasonable suspicion to detain the packages.
Martinez next argues that the 17-day delay between the detention of the package and its search constitutes an unreasonable, warrantless seizure in violation of the Fourth Amendment. He asserts that the delay “required a heightened finding of probable cause.” In so asserting, Arias fails to acknowledge that probable cause actually was established on March 20, 2019, eight days after the packages were intercepted. In any event, we agree with the district court that the eight-day delay in establishing probable cause and the eight-day delay in obtaining search warrants were not unreasonable, as set forth below.
Although there is no bright-line rule regarding how long a package may be detained lawfully prior to obtaining a search warrant, the Supreme Court has noted that “detention of mail could at some point become an unreasonable seizure of ‘papers’ or ‘effects’ within the meaning of the Fourth Amendment.” In Beard, we noted that “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.” We further noted that “these factors are always considered in the context of the specific facts of the case under review.”
Arias received the packages on March 14, 2019, two days after the postal employee intercepted them. He observed that the handwriting on the labels appeared identical, yet the senders’ names and addresses were different. Arias could locate the senders’ and recipients’ addresses through his database research, but he was unable to associate the purported senders’ and recipients’ names with those addresses. Based on his experience, Arias knew that drug traffickers will enter false or fictitious sender and recipient names and/or addresses in order to avoid detection by law enforcement. He also learned from the USPS database that someone with a Mexican IP address attempted to track both packages after they were intercepted. Based on his experience, Arias also knew that drug traffickers use the USPS because the tracking website allows them to search for their packages.
On March 20, 2019, six days after he received the packages, Arias contacted a border patrol officer to perform a canine sniff of the packages. The dog alerted to both packages, indicating that he detected the odor or aroma of one or more controlled substances emanating from the packages. At that point, as the magistrate judge and district court determined, reasonable suspicion was elevated to probable cause to search the packages.
The above facts establish that Arias was diligent in his investigation of the two packages after receiving them. Furthermore, we agree with the magistrate judge and district court that the eight-day delay in obtaining canine sniffs of the packages to establish probable cause was not unreasonable. It was undisputed that during those eight days, which included a weekend, Arias was required to work on other cases and missed work due to illness. Under these facts, the eight-day delay in obtaining probable cause to search the packages did not amount to an unreasonable seizure.
We next examine whether the additional eight-day delay between the establishment of probable cause and obtaining the search warrants was unreasonable. Again, the factors this Court examines in determining reasonableness are investigatory diligence, the length of the detention, and whether there were circumstances beyond the investigator’s control. …
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)