743 F.3d 44 (3rd Cir. 2014), 13-1416, United States v. Golson

Docket Nº:13-1416
Citation:743 F.3d 44
Opinion Judge:GREENAWAY, JR., Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. COREY GOLSON, Appellant
Attorney:Jeffrey A. Conrad, Esq. ARGUED, Clymer, Musser, Brown & Conrad, Lancaster, PA, Attorney for Appellant. Daryl F. Bloom, Esq. ARGUED, Office of United States Attorney, Harrisburg, PA, Attorney for Respondent.
Judge Panel:Before: GREENAWAY, JR., VANASKIE and ROTH, Circuit Judges.
Case Date:February 11, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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743 F.3d 44 (3rd Cir. 2014)

UNITED STATES OF AMERICA

v.

COREY GOLSON, Appellant

No. 13-1416

United States Court of Appeals, Third Circuit

February 11, 2014

Argued: November 7, 2013.

Petition for certiorari filed at, 05/09/2014

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[Copyrighted Material Omitted]

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. No. 1-10-cr-00339-001). District Judge: Honorable William W. Caldwell.

Jeffrey A. Conrad, Esq. ARGUED, Clymer, Musser, Brown & Conrad, Lancaster, PA, Attorney for Appellant.

Daryl F. Bloom, Esq. ARGUED, Office of United States Attorney, Harrisburg, PA, Attorney for Respondent.

Before: GREENAWAY, JR., VANASKIE and ROTH, Circuit Judges.

OPINION

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GREENAWAY, JR., Circuit Judge.

This appeal stems from the controlled delivery of a parcel containing twenty pounds of marijuana (the " Parcel" ) to the residence of Defendant-Appellant Corey Golson (" Golson" ), where upon acceptance, state and federal law enforcement agents conducted a search of Golson's home pursuant to an anticipatory search warrant (the " Anticipatory Warrant" ) issued by Pennsylvania Magisterial District Judge Mark Martin (" MDJ Martin" ). There are two primary issues to resolve.

First, Rule 41(b) of the Federal Rules of Criminal Procedure mandates that either a federal judge or a judge of a state court of record must issue a warrant in a federal prosecution. Golson claims, among other things, that the government violated Rule 41(b) because MDJ Martin was not a judge of a state court of record. In reviewing Golson's claim pursuant to a suppression motion, the United States District Court found that the Anticipatory Warrant was issued pursuant to an investigation under state law, which is not governed by the Federal Rules of Criminal Procedure. We will affirm pursuant to United States v. Bedford, 519 F.2d 650 (3d Cir. 1975).

Second, federal postal inspectors seized the Parcel for a period of four days prior to obtaining a warrant to open and search it. Since a prolonged seizure occurred, Golson claims the contents of the Parcel should be suppressed. The District Court found the seizure to be reasonable. We agree and will affirm.

I. BACKGROUND

A. Factual Background

On Wednesday, July 21, 2010, a postal inspector at the Phoenix branch of the United States Postal Inspection Service (" USPIS" ) intercepted the Parcel, which was being sent out of state, on suspicion of narcotics trafficking. The Parcel was sent from " M. Tubbs" at an address in Phoenix, Arizona to " Derek Brown" at 237 West Locust Street, Mechanicsburg, PA 17055.1

A Phoenix USPIS postal inspector deemed the package as suspicious because the return address was fictitious and non-deliverable. Additionally, based on his experience, drug traffickers often bring narcotics across the border from Mexico into Arizona, and then mail them to the east coast. (J.A. 250.)

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Phoenix USPIS contacted postal inspector Joseph Corrado (" Inspector Corrado" or " Corrado" ) at USPIS's Harrisburg, PA branch, about their suspicions concerning the Parcel. Corrado agreed to investigate, and the Phoenix USPIS sent him the Parcel in Harrisburg.

Corrado received the Parcel the next morning (July 22, 2010). That same day, with the assistance of the Pennsylvania state police, USPIS conducted various name and address verifications and other database checks concerning the Parcel's addressee and destination address. Corrado determined that " Derek Brown" was not a person known to receive mail at the residence. Corrado testified that the use of a fictitious name is indicative of narcotics trafficking. (J.A. 235.)

Since Corrado was the " only one working narcotics in Harrisburg," (J.A. 237) he relied on state police to assist with the investigation. Corrado requested the use of the state police's trained narcotics canine, which was able to detect the presence of narcotics in the Parcel. With that information, Corrado requested that the state police's criminal investigation bureau reconnoiter at the Parcel's destination, and gather intelligence about its recipients.

Corrado then presented the foregoing facts to the U.S. Attorney's Office, who, in turn, decided to apply for a search warrant to open the Parcel. Later that day, Corrado sent Assistant U.S. Attorney Daryl Bloom (" AUSA Bloom" ) a draft affidavit in support of the search warrant.

The next day (July 23, 2010), Corrado was on pre-approved leave from work, and was scheduled to return to work on Monday, July 26. AUSA Bloom arranged for United States Magistrate Judge Smyser (" U.S.M.J. Smyser" ) to review a draft of the search warrant application ahead of Monday morning, so that it could be executed as soon as Corrado returned.

On Monday morning (July 26, 2010), Inspector Corrado and AUSA Bloom conferred with U.S.M.J. Smyser, Corrado swore to the truth of his affidavit, and a search warrant for the Parcel was issued. Within a half-hour of obtaining the warrant, Inspector Corrado returned to USPIS's Harrisburg office, and opened the Parcel. The Parcel contained approximately twenty pounds of marijuana.

Following this discovery, members of the USPIS, Pennsylvania State Police, and Cumberland County Drug Task Force, assembled into a team of approximately twelve (the " Controlled Delivery and Search Team" or the " Team" ) for the purpose of carrying out a controlled delivery of the Parcel.

Before conducting the controlled delivery, the Team reconstructed the Parcel. They replaced the twenty pounds of marijuana with a " representative sample" and sham material to represent the original weight of the Parcel. (J.A. 242.) In addition, the officers placed indicator equipment, with GPS capability, into the Parcel to keep track of it, and to be alerted when the Parcel was opened.2

The same day, Pennsylvania State Trooper Brian Overcash (" Trooper Overcash" ), one of the agents assisting with surveillance and intelligence gathering and a member of the Controlled Delivery and Search Team, obtained the Anticipatory Warrant from MDJ Martin. Corrado testified that the Anticipatory Warrant was obtained by Trooper Overcash to expedite delivery of the Parcel. (J.A. 260.) Trooper Overcash's affidavit in support of the

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warrant (" Overcash's Affidavit" ) stated in relevant part:

[A] Federal Search and Seizure Warrant was executed on the parcel. The parcel contained approximately 20 pounds of suspected marijuana. The marijuana was field tested with positive results.

[] It has been the experience of [Trooper Overcash], that the amount of marijuana seized, is of a quantity consistent with possession with intent to deliver. It has also been the experience of your Affiant that persons involved in the sale of Controlled Substances also have in their possession, or close proximity, other Controlled substances, paraphernalia, and records, proceeds associated with the sale of controlled substances. [] Your affiant requests that an Anticipatory Search Warrant be granted for the residence at 237 West Locust St, Mechanicsburg, PA. This warrant will only be executed pending a successful controlled delivery of the package. (Package taken inside residence). Additionally the package will transmit an audible beep to Officer's [sic] when the package is opened.

(J.A. 177.) Trooper Overcash's Affidavit did not specify that the twenty pounds of marijuana had been replaced by a trace amount of marijuana and sham material. Nevertheless, the Anticipatory Warrant authorized a search of the residence, upon completion of the delivery of the Parcel to the residence, and once the indicator equipment alerted the Controlled Delivery and Search Team that someone had opened the Parcel.

On the same day that MDJ Martin issued the Anticipatory Warrant, a USPIS Postal Inspector disguised as a letter carrier and wearing a wire, hand-delivered the reconstructed Parcel to the residence. At the time of delivery, Elijah Small (" Small" ) answered the door, and when the undercover inspector asked for Derek Brown, Small went to find him. Golson's son, Corey Jamal Golson (" CJG" ), next appeared at the door. The undercover inspector announced to CJG, " I have a parcel here for Derek Brown. Are you Derek Brown?" (J.A. 52.) CJG replied, " Yes" ( id. at 52) and proceeded to sign for the Parcel as Derek Brown. CJG then took the Parcel into the residence.

Approximately thirty minutes later, the indicator equipment alerted the Controlled Delivery and Search Team that the Parcel was opened. Both Pennsylvania state law enforcement agents, and federal agents--all members of the Team--entered the residence. They found CJG in the kitchen next to the Parcel, and Small and Charles Richardson on the second floor of the residence. Pennsylvania state law...

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