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 packages, along with a group of more than 1,000 others, were seized in the fall of 1983 by members of “Operation Pele,” a joint state/federal task force assembled to interdict the shipment of marijuana by mail from the state of Hawaii. The packages were seized at ten selected post offices on the island of Hawaii on the basis of a nine-point profile developed by the Postal Inspection Service to identify packages likely to contain controlled substances. The defendants acknowledge that the seizure of the packages pursuant to the profile was lawful.

Within two days of their seizure, the packages were transported to a police station in Hilo, Hawaii where they were exposed to a dog trained in narcotics detection. The dog “alerted” on an overwhelming number of packages. The task force members decided to seek search warrants for 441 (including the five mailed by the defendants), and to return the rest to the mail so as to allay suspicions on the part of drug dealers that packages were being seized. The defendants acknowledge that the government had probable cause to obtain search warrants for the packages on the basis of the dog alert.

Task force members in Hilo prepared the search warrant applications at a rate of approximately 75 per week. They had originally anticipated that they would need to prepare only 10-20 warrant applications per week and hence had only been assigned one full-time secretary. To bring the total to 75, they enlisted the aid of another secretary and devised a standardized affidavit form. Once the applications were prepared, they were sent to the United States Attorney’s office in Honolulu on the island of Oahu for review. The United States Attorney’s office corrected the warrants and sent them back to the task force in Hilo for retyping. When the correction process was complete, the warrant applications were submitted to a magistrate. All told, between 16 and 23 days elapsed between the time the dog alerted to the packages and the issuance of the search warrants.

*417 III.

The district court found that the 16-23 day delay in obtaining the warrants was “not the product of bad faith on the part of the government,” but instead resulted from the unanticipated flood of packages which were alerted to by the dog. Nevertheless, the district court suppressed the evidence obtained in the searches of the packages because “the diligence exhibited by the government ... was less than ideal, even given the circumstances.” According to the district court, “[o]ther than the request for an additional secretary, the government was unresourceful in its response to the unexpected circumstances it encountered.”

The district court failed to apply the proper standard to measure compliance with the requirements of the fourth amendment. The test for determining whether a delay is violative of the fourth amendment is not whether the government acted “idealPy],” but “ ‘whether, under the totality of the circumstances, it is reasonable.’ ” United States v. Anderson, 663 F.2d 934, 941 (9th Cir.1981) (quoting United States v. Richards, 500 F.2d 1025, 1029 (9th Cir.1974)). Moreover, a finding of reasonableness does not hinge upon a determination that the government pursued the least intrusive course of action. As the Supreme Court recently reiterated in Colorado v. Bertine, 479 U.S. 367 107 S.Ct. 738, 742 , 93 L.Ed.2d 739 (1987), “ ‘[t]he real question is not what “could have been achieved,” but whether the Fourth Amendment requires such steps ... The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means.’” (quoting Illinois v. Lafayette, 462 U.S. 640, 647 , 103 S.Ct. 2605, 2610 , 77 L.Ed.2d 65 (1983)).

If we apply the reasonableness test to the efforts of the task force members to comply with the fourth amendment warrant requirement, it is clear that the defendants’ rights were not violated by the delay which occurred in this case. It is uncontroverted that the delay resulted not from bad faith or sloth on the part of government officials but because of the unanticipated number of suspicious packages that appeared to contain marijuana. The government took reasonable steps to cope with this unexpected situation by requesting and receiving additional help, and by standardizing procedures.

The seizure of the packages implicated at most only a tenuous possessory interest in the marijuana. See Van Leeuwen, 397 U.S. at 252-53 , 90 S.Ct. at 1032 ; see also United States v. Manbeck, 744 F.2d 360 , 374 n. 16 (4th Cir.1984) (“there is some doubt concerning the extent to which one may claim a property interest in contraband”) ce rt. denied sub. nom., O’Hare v. United States, 469 U.S. 1217 , 105 S.Ct. 1197 , 84 L.Ed.2d 342 (1985); but see United States v. Jeffers, 342 U.S. 48, 52-54 , 72 S.Ct. 93, 95-96 , 96 L.Ed. 59 (1951) (one may claim a property interest in contraband for the purposes of the exclusionary rule). Furthermore, the impact of the seizure on that tenuous possessory interest was minimal. See United States v. Place, 462 U.S. 696 , 718 n. 5, 103 S.Ct. 2637 , 2650 n. 5, 77 L.Ed.2d 110 (1983) (Brennan, J., concurring) (“ ‘the mere detention of mail not in the ... [defendant’s] custody or control amounts to at most a minimal or technical interference with his person or effects, resulting in no personal deprivation at all' ”) (quoting United States v. Place, 660 F.2d 44, 52-53 (2d Cir.1981) aff'd, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983)).

Finally, the bulk of the delay came after the government had established probable cause to search the packages. This period of delay “is arguably ... [less] significant for assessing the reasonableness of the delay.” Hillison, 733 F.2d at 696 n. 1. The district court found that the more significant period of delay — the two-day delay which occurred prior to the establishment of probable cause to search by exposure of the packages to the dog — was reasonable.

The majority concludes that our decision in Hillison, 733 F.2d 692 , established a 29-hour bright-line test to determine the reasonableness of governmental delay in obtaining a warrant to search a package seized from the mails. Majority at 415. I believe that the majority has misread Hilli- *418 son. In Hillison , the defendants contended that the government violated their fourth amendment rights by delaying 9 hours before obtaining a warrant to search a package lawfully seized from the mails. 733 F.2d at 695-96 . We held that the 9-hour delay in obtaining the warrant was reasonable in light of the totality of the circumstances. Id. at 696 . To buttress this conclusion, we noted that the 9-hour delay was “far less than the 29 hours held reasonable in Van Leeuwen.” Id. We did not, however, interpret Van Leeuwen as establishing an “outer boundary” of reasonableness at 29 hours. We utilized the 29-hour period as a benchmark, not a boundary.

Indeed, the Supreme Court in Van Leeu-wen specifically stated that it was not establishing a bright-line test of reasonableness at 29 hours:

Van Leeuwen, 397 U.S. at 253 , 90 S.Ct. at 1032-33 (emphasis added); see Place, 462 U.S. at 705 n. 6, 103 S.Ct. at 2643 n. 6 (Van Leeuwen “[ejxpressly limit[ed] its holding to the facts of the case”); see also Anderson, 663 F.2d at 938 (interpreting Van Leeuwen as providing that “[t]he legality of the continuing detention of [validity seized] luggage depends on whether such detention is reasonable, in light of all the surrounding circumstances ” (emphasis added); United States v. Martell, 654 F.2d 1356, 1360 (9th Cir.1981) (holding that Van Leeuwen did not place “an outer time limit on the detention of impersonal objects”), cer t. denied, 463 U.S. 1213 , 103 S.Ct. 3551 , 77 L.Ed.2d 1397 (1983). Thus Van Leeuwen compels us to review each case to determine whether the delay was unreasonable in light of all the facts and circumstances confronting the government. By creating a rigid outer limit for determining whether a delay is reasonable, the majority has failed to address the totality of the circumstances that caused the delay, contrary to the instruction of the Supreme Court in Van Leeuwen .

In light of the totality of the circumstances faced by the task force officers in this case, I would hold that the delay in obtaining the search warrants was reasonable. The evidence shows legitimate and practical reasons for the delay in processing the flood of warrants to search the suspicious packages seized pursuant to the profile. Indeed, the 16 to 23 day delay which occurred in this case would be reasonable even if Van Leeuwen had established an “outer boundary” at 29 hours. In Van Leeuwen , the Supreme Court found that a 29-hour delay in obtaining one search warrant was reasonable. Here, the government was able to process 441 search warrants in only 23 days (or 552 hours) — a rate of one warrant every 75 minutes! The officers’ remarkable achievement in processing this number of warrants under extraordinary circumstances in a valiant effort to comply with the fourth amendment should be commended — not rewarded with suppression of the evidence.