United States of America, Plaintiff-Appellee-Cross-Appellant v. Dwan Bernard Gill, Defendant-Appellant-Cross-Appellee

280 F.3d 923 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Dwan Bernard GILL, Defendant-Appellant-Cross-Appellee. No. 00-30296. No. 00-30318. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 18, 2001. Filed February 6, 2002. 1 COPYRIGHT MATERIAL OMITTED Stephan R. Illa, Law Offices of Stephan R. Illa, Inc., Bainbridge Island, Washington, for the defendant-appellant-cross-appellee. 2 Demetra Lambros, United States Department of Justice, Washington, DC, for the plaintiff-appellee-cross-appellant. 3 Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CR-99-00464-RSL. 4 Before: KLEINFELD and GOULD, Circuit Judges, and ROLL, District Judge. * 5 ROLL, District Judge. 6 Appellant Dwan Bernard Gill appeals from the district court's denial of his motion to suppress evidence seized pursuant to a search warrant and its imposition of consecutive sentences for conspiracy to distribute phencyclidine (PCP) and attempted possession of PCP with intent to distribute. The government cross-appeals the district court's ruling that drug quantity had to be proven beyond a…

Appellant Dwan Bernard Gill appeals from the district court’s denial of his motion to suppress evidence seized pursuant to a search warrant and its imposition of consecutive sentences for conspiracy to distribute phencyclidine (PCP) and attempted possession of PCP with intent to distribute. The government cross-appeals the district court’s ruling that drug quantity had to be proven beyond a reasonable doubt for sentencing guidelines purposes. For the reasons set forth below, the district court correctly denied the motion to suppress but this matter is remanded for resentencing.

FACTUAL BACKGROUND

On Thursday, August 5, 1999, shortly before 6:00 p.m., Gill entered a post office near Los Angeles International Airport, carrying an eight inch square package. From the video monitor in his office, postal police officer Norbert Jaworowski noticed the size of the package and the excessive amount of tape used on it. When he went to the post office lobby for a closer look, he observed that Gill appeared nervous, turned sideways in an apparent attempt to avoid the visible surveillance cameras, and sent the package by express mail. When Gill left the post office, Officer Jaworowski followed…

concurring:

Our opinion applies the “reasonable and articulable, suspicion of criminal activity” test in evaluating the postal authorities’ detention of mail in this case. The government in briefing and in oral argument expressly accepted that the reasonable suspicion standard applied to the postal authorities’ investigatory actions. Reasonable suspicion was shown, as the opinion explains. Nonetheless, the standard to be applied may have significance in other cases. I suggest that the reasonable suspicion standard is not required for postal authorities to detain mail where the detention is unintrusive and does not significantly delay delivery.

When people send mail, they reasonably expect that it will not be searched and that it will reach its intended destination in about the same time that it takes other mail. If a letter or parcel is singled out and inspected, but is still delivered when other mail would have been, then no “seizure” has taken place within the meaning of the Fourth Amendment to the United States Constitution. The same is true if *932 there is a minimal delay. And where, as here, a parcel is placed temporarily in a separate room, as opposed to being left with…