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United States v. Xiong

United States District Court, Ninth Circuit

August 29, 2013

UNITED STATES OF AMERICA Plaintiff,
v.
NOU XIONG, Defendants.

REVISED RECOMMENDATION REGARDING MOTION TO SUPPRESS Docket No. 22.

JOHN D. ROBERTS, Magistrate Judge.

Defendant NOU XIONG moves for an order suppressing evidence seize during the execution of search warrants 3:12-MJ-00355 and 3:12-MJ-00356 on grounds that the officers executing the warrants exceeded the scope of the warrants and no applicable exception to the warrant requirements applies. Docket 22. The motion is opposed by the government. Docket 23. An evidentiary hearing was conducted before the Magistrate Judge on July 25, 2013. For reasons stated below the Magistrate Judge recommends that the Motion to Suppress be DENIED.

Procedural History

Inspectors with the United States Postal Service on or about November 14, 2012 intercepted two suspicious packages that had been mailed to Anchorage from the same address in Sacramento, California. The agents sought and obtained federal search warrants for the packages. See Search Warrant applications 3:12-mj-353 and 3:12-mj-354. The affidavit and orders entered were identical except for identifying the respective packages. Upon executing the warrants the agents discovered heroin concealed in one package and methamphetamine concealed in the other. Officers conducted controlled delivery of the two packages. the packages were taken to 905 Muldoon, Space A78. After entering the residence officers seized firearms and arrested the defendant. The defendant was charged with being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). Docket 2.

Findings of Fact

The postal inspector sought and obtained an order authorizing the installation of monitoring of an electronic alerting device and tracking device as a physical surveillance aid for each of the packages on November 15, 2012. Each affidavit describes the execution of a federal search warrant for opening the parcels and what each subject parcel was found to contain.

The first parcel was found to contain about four pounds of a white crystal substance concealed in two layers of zip lock bags and tin foil inside a "sunbeam heater." The second parcel was found to contain about two pounds twelve ounces of a brown substance concealed in two layers of balloons inside jars of "Skippy" Peanut Butter. The substance in the first parcel tested positive for methamphetamine whereas the substance in the second parcel tested presumptively for heroin.

Application for Controlled Delivery

Postal Inspector Kimberly Dallas applied for and received court orders allowing law enforcement to place electronic monitoring and tracking devices inside each of the packages. These devices allowed law enforcement to track the packages once they were delivered and to notify law enforcement when and if the packages were opened.

Officers of the law installed the tracking devices and then delivered the packages to two separate addresses in Anchorage. Officers executed the court's orders and seized evidence of drug trafficking.

In her affidavits for the tracking warrants the postal inspector requested the following:

"An order for the installation and monitoring of electronic alerting device and tracking device in the subject parcel for three (3) days, to aid the officers in detecting when the suspect(s) open the subject parcel to examine or revoke (sic) the placed sham controlled substance and to track the subject parcel if they are moved from the delivery address to a different location. In addition, I request that the Order allow officers to monitor the electronic alerting device and tracking device on either public or private property, including the location of initial delivery and any other property to which the subject parcels are transported. After the electronic alerting device goes into "alert" mode, indicating that the subject parcel was open, or if it is determined that the altering device or tracking device are malfunctioning, or if the alerting device does not go into "alert" mode within two hours after delivery. United States Postal Inspectors and other law enforcement officials seek authorization to retrieve the subject parcel, whether on private or public property." (Emphasis supplied).

The affidavits then contained the following statement: "United States Postal Inspectors and other law enforcement officials will only use a properly functioning electronic alerting device and tracking device. If necessary, law enforcement officers then plan to secure the location and submit any necessary further applications."

Order for Controlled Delivery

Each of the orders authorizing the use of a monitoring device recited a finding of probable cause to believe that a person using the name of the addressee residing at the address on the package was engaged in violations of Title 21 U.S.C. § § 841(a)(1), 843(b), 846 and Title 18 U.S.C. § 1716. The order stated that there was probable cause to believe that an electronic alerting device and tracking device installed in the subject express mail package will assist law enforcement officers in conducting surveillance of the express mail parcel and determining the moment which the parcel was opened and to monitor the movement of the parcel if is moved to a difference location than the delivery address.

The Order contained the following language:

"IT IS FURTHER ORDERED, on the basis of the aforementioned Application and Affidavit, and pursuant to Title 18 USC 3117(a), that members of the United States Postal Inspection Service, in conjunction with local enforcement, may install, monitor, utilize, and retrieve an electronic alerting device and tracking device within the above described package, either on public or private property, for a period of three (3) days, or whenever the investigation may end, whichever is sooner. Should the electronic alerting device indicate that the package has been opened, or if the electronic alerting device malfunctions, law enforcement officers may retrieve the package and devices, either on public or private property. ...

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