United States v. Neem Shiva Dass and Ma Surina Dasi, Marvin Neer, Gerald Terpak , 849 F.2d 414 ( 1988 )

O’SCANNLAIN, Circuit Judge:

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 twenty-three days) failed to violate the fourth amendment. The government argues that: (1) despite the delay, the seizures remained reasonable; (2) the fourth amendment does not protect contraband; and (3) the government did not benefit from the delay. We review these arguments de novo. See United States v. Miller, 769 F.2d 554, 556 (9th Cir.1985) (a warrantless seizure is a mixed question of law and fact subject to de novo review). United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986) (we review motions to suppress de novo).

The Supreme Court and this circuit have found short delays in obtaining a search warrant for mailed packages to be reasonable. In United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), the Supreme Court upheld a twenty-nine hour seizure of a mailed package prior to the issuance of a search warrant. However, when upholding this warrantless seizure, the justices narrowly limited their decision to the facts. They wrote:

The rule of our decision certainly is not that first-class mail can be detained 29 hours after mailing in order to obtain the search warrant needed for its inspection. We only hold that on the facts of this case — the nature of the mailings, their suspicious character, the fact that there were two packages going to separate destinations, the unavoidable delay in contacting the more distant of the two destinations, the distance between Mt. Vernon and Seattle — a 29-hour delay between the mailings and the service of the warrant cannot be said to be “unreasonable” within the meaning of the Fourth Amendment.

Id. at 253, 90 S.Ct. at 1032-33.

In United States v. Hillison, 733 F.2d 692 (9th Cir.1984), this circuit affirmed a warrantless seizure of nine hours on the basis of Van Leeuwen. In the process, Hillison suggested that Van Leeuwen created an outer limit of twenty-nine hours for a finding of reasonableness. The panel wrote: “[T]he period of detention of the package prior to the search was nine hours, far less than the 29 hours held reasonable in Van Leeuwen.” Id. at 696.

Here, the delays far exceeded the 29 hours found reasonable in Van Leeuwen —the shortest delay lasted seven days and the longest more than three weeks. Moreover, according to the district court, the delays could have been much shorter (36 hours) if the police had acted diligently. The government, in effect, asks us to hold that law enforcement officials may obtain search warrants for mailed packages at their leisure.

We decline the government’s invitation and we conclude that these seizures violate the fourth amendment. This conclusion is compelled by the Supreme Court’s holding in Van Leeuwen. In that case the Supreme Court expressly avoided validating the proposition that authorities can detain mailed packages until they can obtain a search warrant even though the delay lasted only 29 hours. Van Leeuwen, 397 U.S. at 253, 90 S.Ct. at 1032. Instead, the Court upheld the 29 hour detention on the facts. Id. Therefore, as Hillison suggests, we are reluctant to extend the Van Leeuwen outer boundary of 29 hours to a period not measured in hours, but rather in days and weeks.

We also reject the government’s assertion that there is a contraband exception to the fourth amendment. See United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984) (“a warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered”). Fourth amendment protection is not premised upon the nature of the item ultimately discovered, but rather upon the seizure itself. See United States v. Place, 462 U.S. 696, 700, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983). See also United States v. Mendez-Jimenez, 709 F.2d 1300, 1304 (9th Cir.1983); United States v. Kaiyo Maru No. 53, 699 F.2d 989, 994 (9th Cir.1983).

Finally, we reject the government’s argument that it did not benefit from the delay. The police established probable cause at the moment of the dog sniff; therefore, it argues, the government’s “constitutional position” did not change as the seizure continued. Such a contention undercuts two goals of the fourth amendment — deterring unreasonable police behavior, Steagald v. United States, 451 U.S. 204, 215, 101 S.Ct. 1642, 1649, 68 L.Ed.2d 38 (1981) (the fourth amendment is designed to prevent, not simply redress, unlawful police action), and judicial determination of probable cause. Id. at 212, 101 S.Ct. at 1647. The government’s theory would allow an unlimited period of seizure without judicial intervention; to accept its argument would nullify the seizure portion of the search and seizure clause of the fourth amendment. This we will not do.