United States v. Neem Shiva Dass and Ma Surina Dasi, Marvin Neer, Gerald Terpak

849 F.2d 414 57 USLW 2018 UNITED STATES of America, Plaintiff-Appellant, v. Neem Shiva DASS and Ma Surina Dasi, Marvin Neer, Gerald Terpak, Defendants-Appellees. Nos. 87-1006, 87-1091 and 87-1112. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 15, 1987. Decided June 13, 1988. Kathleen A. Felton, Dept. of Justice, Washington, D.C., for plaintiff-appellant. Hayden Aluli, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant-appellee Dass. Jack F. Schweigert, Schweigert & Associates, Honolulu, Hawaii, for defendant-appellee Neer. Philip D. Bogetto, Honolulu, Hawaii, for defendant-appellee Terpak. Appeal from the United States District Court for the District of Hawaii. Before CHOY, ALARCON and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 The government appeals these cases in which the district court granted suppression motions on the ground that the length of the warrantless seizures violated the fourth amendment. We affirm. FACTS AND PROCEEDINGS BELOW 2 In the fall of 1983, law enforcement authorities began an effort to catch marijuana growers on the Island of Hawaii who used the mail to distribute their crops. In this operation,…

The government appeals these cases in which the district court granted suppression motions on the ground that the length of the warrantless seizures violated the fourth amendment. We affirm.

FACTS AND PROCEEDINGS BELOW

In the fall of 1983, law enforcement authorities began an effort to catch marijuana growers on the Island of Hawaii who used the mail to distribute their crops. In this operation, agents collected suspicious packages at certain post offices on the Island of Hawaii for dog sniffs. If the dog sniff suggested the presence of marijuana, the agents would detain the packages until a magistrate issued a search warrant.

In October and November 1983 the agents detained packages mailed by the four appellees. Agents detained appellees’ packages for periods from seven to twenty-three days before they secured search warrants. Once they executed the search warrants, the agents found marijuana in every package. In the subsequent prosecutions, the district court granted suppression motions because it found the seizures to be unreasonable. 666 F.Supp. 1424 .

DISCUSSION

The United States claims that the length of these warrantless seizures (seven to *415 twenty-three days)…

dissenting:

I.

The question presented in this case is whether a delay of 16 to 23 days in obtaining warrants to search five packages lawfully seized from the United States mail was unreasonable in light of the totality of the circumstances. The majority has concluded that the delay was unreasonable as a matter of law on the basis of our decision in United States v. Hillison, 733 F.2d 692 (9th Cir.1984). According to the majority, in Hillison we interpreted the Supreme Court’s decision in United States v. Van Leeuwen, 397 U.S. 249 , 90 S.Ct. 1029 , 25 L.Ed.2d 282 (1970) as “creating] an outer limit of twenty-nine hours for a finding of reasonableness.” Majority at 415.

I respectfully dissent. I would reverse the district court’s order suppressing the marijuana found within the packages when they were searched pursuant to the warrants. I would hold that the delay in obtaining the search warrants was reasonable in light of the totality of the circumstances facing the government in this case.

II.

The evidence in this case is uncontrovert-ed. The defendants mailed five packages of marijuana at post offices on the island of Hawaii on October 29 thru November 5 of 1983. These…