Thursday, February 7, 2002
Post Office May Hold Express Mail to Obtain Search Warrant—Court
By a MetNews Staff Writer
The Postal Service did not violate the Fourth Amendment when it held an express mail package for six days before obtaining a warrant to search it for drugs, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed Dwan Gill’s conviction on charges of conspiracy to distribute PCP and possession of PCP with intent to distribute. It also found that U.S. District Judge Robert S. Lasnik of the Western District of Washington misapplied the sentencing laws and sent the case back for a hearing that could result in an increase in Gill’s eight-year prison term.
Gill was arrested after postal authorities identified him as the sender of package mailed from Los Angeles to the Seattle suburb of Kent, Wash. A postal police officer who observed Gill on his video monitor said he became suspicious because of the size of the package, about eight inches square, and the amount of tape used on it.
The officer took down Gill’s license plate number, obtained his photo, checked his criminal history—which showed a firearms arrest and gang affiliations—and alerted postal police in Seattle.
An officer there determined that the recipient address was a vacant house—a dodge often used when contraband is sent. The package was held while a search warrant request was reviewed by an assistant U.S. attorney and the investigation continued.
The investigator determined that the utilities at the vacant house were in the name of a convicted drug offender named Venita Tatum, and that a woman meeting her description had picked up mail at the house.
After getting the warrant, the investigator opened the package and found 25 ounces of PCP. He then replaced the substance with a liquid that looked like PCP, placed a tracking device in the package, and had it delivered to the woman.
When she opened the package, the device went off and police rushed in. Tatum, who tried to wash the contents of the bottle down her bathroom sink, later testified that she had purchased PCP from Gill in the past, totaling more than 100 ounces.
Gill was convicted and sentenced to 97 months in prison. He argued on appeal that because the package was sent express mail, its detention for nearly a week was unreasonable.
But U.S. District Judge John Roll of Arizona, sitting by designation on the Ninth Circuit, said that whatever expectation of privacy the sender had was not heightened by the speed of the anticipated delivery. The Ninth Circuit, he noted, has previously held delays of up to five days in mail delivery while warrants were obtained to be reasonable.
He distinguished United States v. Dass, 849 F.2d 414 (9th Cir. 1988), holding that delays of between 7 and 23 days in obtaining warrants to search packages to which drug-sniffing dogs had alerted were unreasonable.
In Dass, Roll noted, the appellate panel found substantial evidence to support the district judge’s conclusion that the police lacked diligence in their pursuit of the warrants. “This case bears little resemblance to Dass,” Roll concluded, rejecting the defense suggestion that the investigation was conducted at a “leisurely pace.”
The officers, he noted, “tracked down various leads” in order to identify Gill and Tatum, locate their criminal histories, and verify that Tatum received mail at the recipient address. Reasonable delays, Roll said, were attributable to the facts that the assistant U.S. attorney received the warrant request on a Friday and took it home to review over a weekend, Tatum’s mail carrier was off on Friday, Saturday, and Sunday, and the magistrate judge was not available to issue the warrant the following Tuesday.
“Even with express mail, Gill’s predominant interest was in the privacy of the package and not merely prompt delivery,” the judge wrote. “On these facts, the delay was not unreasonable.”
Judges Andrew J. Kleinfeld and Ronald M. Gould joined in the opinion.
The case is United States v. Gill, 00-30296.
Copyright 2002, Metropolitan News Company