2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-2014

USA v. Corey Golson

Precedential or Non-Precedential: Precedential

Docket No. 13-1416

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1416

____________

UNITED STATES OF AMERICA

v.

COREY GOLSON,

 Appellant

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

______________

Argued November 7, 2013

______________

Before: GREENAWAY, JR., VANASKIE and ROTH, 

Circuit Judges.

(Opinion Filed: February 11, 2014)
2

______________

OPINION

______________

Jeffrey A. Conrad, Esq. ARGUED

Clymer, Musser, Brown & Conrad

408 West Chestnut Street

Lancaster, PA 17603

Attorney for Appellant

Daryl F. Bloom, Esq. ARGUED

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

Harrisburg, PA 17108-0000

Attorney for Respondent 

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 
3

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 

 

1

The residence was later determined to be that of Golson. 
4

traffickers often bring narcotics across the border from 

Mexico into Arizona, and then mail them to the east coast. 

(J.A. 250.) 

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.
5

The next day (July 23, 2010), Corrado was on preapproved 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, 
6

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 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.

 

2 Corrado obtained a tracking warrant from U.S.M.J. Smyser 

on July 26 at 11:05 a.m. (J.A. 258.) The parties have not 

raised any issues with this warrant. 
7

[] 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
8

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 

enforcement issued Miranda rights to all three individuals 

and took them into their custody. 

Acting on the Anticipatory Warrant, the Controlled 

Delivery and Search Team searched all three floors of 

Golson‟s residence. The following items were seized from 

CJG‟s bedroom: a handgun, a sawed-off /short-barreled 

shotgun, and ammunition. (J.A. 179-80.) The Team found 

the following items in the recording studio room adjacent to 

CJG‟s bedroom: ammunition, including hollow point bullets, 

704 packets of heroin packaged for distribution, forty grams 

of raw heroin, a cutting agent, packaging material consistent 

with drug distribution, a heat sealer, heat sealable bags, a 

scale, rubber examination gloves, and masks. (Id.) In the 

second floor bedroom, determined to be that of Golson, the 

Team found the following items: a handgun, a shotgun, 100 

packets of heroin, rolling papers, and a marijuana grinder.

(Id.) The heroin and marijuana field-tested positive. The 

Pennsylvania State Police took custody of all the seized 

items. 

The record reflects that the Parcel was intended for 

Golson, and although CJG represented himself as Derek 

Brown to the undercover inspector, he did so only under 

Golson‟s instruction. (J.A. 117.)

Ultimately, the U.S. government brought charges

against CJG, although, initially there was a state prosecution. 

CJG cooperated with law enforcement by agreeing to testify 
9

against Golson in the instant case. CJG received a 78-month 

term of imprisonment as a result of his cooperation.

3

 

B. Procedural Background

Golson entered a plea of not guilty on a three-count 

indictment charging him with: (1) criminal conspiracy to 

distribute and possess with intent to distribute marijuana and 

heroin, in violation of 21 U.S.C. § 846; (2) distribution and 

possession with intent to distribute marijuana and heroin, in 

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D) and 

18 U.S.C. § 2; and (3) possession of a firearm during and in 

relation to a drug trafficking crime, in violation of 18 U.S.C. 

§ 924(c)(1)(A), (c)(1)(B)(I). 

Golson filed a motion to suppress the seizure of 

evidence allegedly obtained through two separate Fourth 

Amendment violations. First, Golson argues that the search 

of the residence: (1) violated Rule 41(b) because MDJ 

Martin, who is not a federal judge or a judge of a state court 

of record, issued the Anticipatory Warrant; and (2) was 

unreasonable under the Fourth Amendment because the 

warrant was obtained based on Trooper Overcash‟s Affidavit 

that contained misleading material facts. Second, Golson 

argues that because Inspector Corrado retained possession of 

the Parcel for four days before seeking a warrant to open it, 

the seizure was unreasonable. 

After the suppression motion was denied, Golson 

entered a conditional guilty plea to the three-count indictment 

 

3

The Commonwealth of Pennsylvania also brought charges 

against Small and Richardson. 
10

pursuant to Rule 11(a)(2) of the Federal Rules of Criminal 

Procedure. Under the conditional plea, Golson reserved the 

right to appeal the adverse determinations of his motion to 

suppress. 

The District Court sentenced Golson to 161 months of

imprisonment, three years of supervised release, and issued 

an assessment fee of $300.00 and a fine of $1,000.00. 

Golson‟s appeal of the District Court‟s denial of his motion 

for suppression is now before us.

II. JURISDICTION

The District Court had jurisdiction to hear this case 

pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant 

to 28 U.S.C. § 1291. 

III. ANALYSIS 

A. Suppression of Evidence Obtained Pursuant to the 

Anticipatory Warrant

The Fourth Amendment protects individuals from 

unreasonable searches and seizures. U.S. Const. amend. IV. 

“It remains a cardinal principle that searches conducted 

outside the judicial process, without prior approval by judge 

or magistrate, [i.e., without a warrant,] are per se 

unreasonable under the Fourth Amendment.” California v. 

Acevedo, 500 U.S. 565, 580 (1991) (internal quotation marks 

and citations omitted); United States v. Robertson, 305 F.3d 

164, 167 (3d Cir. 2002) (“Generally, for a seizure to be 

reasonable under the Fourth Amendment, it must be 

effectuated with a warrant based on probable cause.”).
11

“[T]he ultimate measure of the constitutionality of a 

governmental search is reasonableness[,]” Maryland v. King, 

133 S. Ct. 1958, 1969 (2013) (internal quotation marks 

omitted); however, absent special circumstances, law 

enforcement agents must obtain a warrant from a neutral 

magistrate based on probable cause. See id.; Treasury 

Employees v. Von Raab, 489 U.S. 656, 667 (1989). For 

federal prosecutorial purposes, a valid warrant must also 

comply with the Federal Rules of Criminal Procedure. See 

Fed. R. Crim. P. 1(a). 

Golson contends that the District Court erred in failing 

to suppress the evidence obtained pursuant to the 

Anticipatory Warrant. In support of this contention, Golson 

reiterates his arguments from the original suppression 

hearing. First, the warrant is invalid because the government 

failed to have a federal judge or a judge of a Pennsylvania 

court of record issue the warrant, as required by Rule 41(b). 

Second, the Anticipatory Warrant is invalid because the 

warrant application contained a material misrepresentation of 

fact. Because both of these arguments lack merit, we will 

affirm the District Court‟s denial of Golson‟s motion to 

suppress.

a. The Anticipatory Warrant is not Subject to Rule 

41(b) 

We begin with Golson‟s first argument that the

government violated Rule 41(b) when it obtained the 

Anticipatory Warrant from MDJ Martin. As a threshold

matter, we must consider whether Rule 41(b) is applicable to 

the Anticipatory Warrant, and if so, whether MDJ Martin is a 

judge of a state court of record. Fed. R. Crim. P. 41(b). 

Because these questions require the interpretation of Rule 
12

41(b), we exercise plenary review. United States v. Toliver, 

330 F.3d 607, 610 (3d Cir. 2003). For the reasons set forth 

below, we find that the Anticipatory Warrant is not subject to 

the mandates of Rule 41(b); as such, the dispute as to whether 

MDJ Martin is a judge of a state court of record is moot.4

To put this dispute in context, Rule 41(b) grants the 

authority to issue search warrants to federal judges and judges 

of state courts of record. Fed. R. Crim. P. 41(b).5 In a federal 

prosecution, Rule 41(b) will apply, by its own terms, to a 

search warrant made “[a]t the request of a federal law 

enforcement officer or an attorney for the [federal] 

government[.]” Fed. R. Crim. P. 41. In the Third Circuit, 

Rule 41(b) also applies to warrants made at the request of a 

non-federal law enforcement officer or non-government

attorney, if the federal court reviewing the warrant deems the 

 

4

 Parenthetically, MDJ Martin is not a judge of a state court 

of record. See 42 Pa. Const. Stat. §§ 301, 321 (2006).

5

Specifically, Rule 41(b) provides that: 

[a]t the request of a federal law enforcement 

officer or an attorney for the government: (1) a 

magistrate judge with authority in the district—

or if none is reasonably available, a judge of a 

state court of record in the district—has 

authority to issue a warrant to search for and 

seize a person or property located within the 

district.

Fed. R. Crim. P. 41.
13

search to be “federal” in character.

6

 See United States v. 

Bedford, 519 F.2d 650, 654 n.1 (3d Cir. 1975). Indeed “[i]f 

the search is deemed federal in character, the legality of the 

search would be conditioned upon a finding that the warrant 

satisfied federal constitutional requirements and certain 

provisions of Fed. R. Crim. P. 41 designed to protect the 

integrity of the federal courts or to govern the conduct of 

federal officers.” Id. at 656 n.1 (internal quotation marks and 

citations omitted) (emphasis added).

On the other hand, Rule 41(b) will not apply to a 

search warrant made at the request of someone other than a 

 

6

The Fourth, Eighth, and Tenth Circuits similarly interpret 

Rule 41(b) to apply where a search made pursuant to a 

warrant is “federal” in character. See United States v. 

Johnson, 451 F.2d 1321, 1322 (4th Cir. 1971); United States 

v. MacConnell, 868 F.2d 281, 283 (8th Cir. 1989); United 

States v. McCain, 677 F.2d 657, 662 (8th Cir. 1982) (“Rule 

41 applies only where a warrant is sought by a federal law 

enforcement officer or where the search can otherwise be 

characterized as federal in character”); United States v. 

Bookout, 810 F.2d 965, 967 (10th Cir. 1987). 

On the other hand, the Fifth Circuit reads Rule 41(b) 

literally, and requires compliance with the mandates of Rule 

41 only when a warrant is made “[a]t the request of a federal 

law enforcement officer or an attorney for the government.” 

United States v. McKeever, 905 F.2d 829, 832 (5th Cir. 1990) 

(citing Fed. R. Crim. P. 41(b)(1)). 

Under either approach, Rule 41 does not apply to the 

Anticipatory Warrant here. 
14

federal law enforcement officer or government attorney when 

the resulting search is “state” in character, even if the fruits of 

that warrant are later entered into evidence in a federal 

prosecution. Id. at 653-54. In that situation, “the warrant, 

assuming proper issuance under state law, need only conform 

to federal constitutional requirements.”7 Bedford, 519 F.2d at 

654 n.1.

Whether a search can be characterized as either state or 

federal is a fact-intensive inquiry that looks at “the extent [to 

which] federal officers were involved in the search and 

seizure.” Id. at 654 n.1 (citing Lustig v. United States, 338 

U.S. 74, 81 (1949); Byars v. United States, 273 U.S. 28, 32 

(1927) (“[T]he court must be vigilant to scrutinize the 

attendant facts with an eye to detect and a hand to prevent 

violations of the Constitution by circuitous and indirect 

methods.”)).

To determine the warrant‟s validity, we must focus on 

the facts regarding the character of the search in their totality.

Bedford, 519 F.2d at 654 n.1. In Bedford, although agents 

from both the state and federal government assisted in 

executing the search warrant, we deemed the search state in 

character based on assessing the following eight factors:

(1) the warrant was issued under state law and 

directed to state officers; (2) the warrant was 

predicated on probable violation of state 

 

7

Pennsylvania law grants MDJ Martin the authority to issue 

search warrants, and the parties do not otherwise contest that 

the warrant is invalid under state law. See 42 Pa. Const. Stat. 

§ 1515 (2006).
15

narcotics laws; (3) there was no evidence of bad 

faith on the part of either the state or federal 

officers; (4) federal agents did not assist in the 

obtaining of the warrant; (5) there was no 

evidence that federal agents instigated or 

supervised the search; (6) defendant was 

initially arrested by local police officers; (7) the 

majority of the evidence was found by local 

officers; and (8) the products of the search, 

placed in the custody of local police, formed the 

basis of a state prosecution.

Id. at 654. The Bedford Court was “more inclined to view the 

search as a „state‟ undertaking in which federal agents 

participated solely to supply additional manpower for the 

execution of the warrant.” Id. at 654 n.1.

Applying the factors set forth in Bedford, we find that

the search of Golson‟s residence was state in character. The

Anticipatory Warrant was issued by MDJ Martin upon state 

Trooper Overcash‟s application (factor 1); the Anticipatory 

Warrant indicated that there was a violation of Pennsylvania‟s 

Controlled Substance, Drug Device and Cosmetic Act, 35 Pa. 

Cons. Stat. § 780-113 (2004) (factor 2); Golson failed to 

show bad faith of federal or state officers in obtaining the 

Anticipatory Warrant in state court (factor 3); while federal 

officers may have assisted in laying the groundwork for the

Anticipatory Warrant, Trooper Overcash championed the

effort to obtain the warrant (factor 4); there is no indication 

that federal agents supervised the search (factor 5); and lastly, 

despite federal and state officers working together during the 

search of the residence, the seized evidence was placed into

the custody of the state police (factors 7 and 8). In 

consideration of all the above factors, we agree with the 
16

District Court that the search was state in character. Based on 

this finding, the Anticipatory Warrant is not subject to Rule 

41 scrutiny. 

b. There was a Substantial Basis for MDJ Martin to 

Find Probable Cause to Issue the Anticipatory Warrant 

Golson‟s second argument regarding the Anticipatory 

Warrant is that Trooper Overcash‟s Affidavit in support of the 

Anticipatory Warrant cannot sustain a finding of probable 

cause. 

A reviewing court may not conduct a de novo review 

of a probable cause determination. Illinois v. Gates, 462 U.S. 

213, 236 (1983); United States v. Conley, 4 F.3d 1200, 1205 

(3d Cir. 1993). Here, we must apply the same deferential 

standard as the District Court in reviewing MDJ Martin‟s 

initial probable cause determination. Conley, 4 F.3d at 1205.

Our duty is “to ensure that the magistrate had a substantial 

basis for . . . conclud[ing] that probable cause existed.” Id. at 

1205 (alterations in original) (internal quotation marks 

omitted). In making a probable cause determination, the

judge issuing the warrant looks at whether “there is a fair 

probability that contraband or evidence of a crime will be 

found in a particular place,” Gates, 462 U.S. 238, and thus,

here, we must “uphold the warrant as long as there is a 

substantial basis for a fair probability that evidence will be 

found.” Conley, 4 F.3d at 1205; see also United States v. 

Stearn, 598 F.3d 540, 554 (3d Cir. 2009). 

Here, Golson submits that Trooper Overcash‟s 

Affidavit, (1) omits the fact that law enforcement agents 

replaced the twenty pounds of marijuana found in the Parcel 

with trace amounts of marijuana, and (2) “lacks a specific 
17

triggering condition sufficiently specific to comply with [all 

the warrant requirements.]” (Appellant Br. 16-17.) Both of 

these arguments fail.

First, MDJ Martin‟s finding of probable cause is not 

undermined by Trooper Overcash‟s omission from his 

affidavit that the Parcel would contain only a trace amount of 

marijuana at delivery. As discussed below, even when we 

“remove the falsehood created by [the] omission by supplying 

the omitted information to the original affidavit[,]” U.S. v. 

Yusuf, 461 F.3d 374, 384 (3d Cir. 2006) (internal quotation 

marks omitted), a substantial basis existed for MDJ Martin to 

find probable cause. See Wilson v. Russo, 212 F.3d 781, 789 

(3d Cir. 2000) (reasoning that if the affidavit excised of 

offending inaccuracies, and including omitted facts, has 

probable cause, then “even if there had not been omissions 

and misrepresentation[s],” the warrant would have been 

issued). 

Golson‟s second argument, that the Anticipatory

Warrant “lacks a specific triggering condition sufficiently 

specific to comply with [warrant requirements]” also fails. 

(Appellant Br. 17.) An anticipatory search warrant is “a 

warrant based upon an affidavit showing probable cause that 

at some future time (but not presently) certain evidence of 

crime will be located at a specified place.” United States v. 

Grubbs, 547 U.S. 90, 94 (2006) (internal quotation marks and 

citations omitted). 

For an anticipatory warrant based on a triggering 

event, the Supreme Court requires satisfaction of two 

“prerequisites of probability” to comply with the Fourth 

Amendment‟s probable cause requirement. Grubbs, 547 U.S. 

at 96. The first prerequisite of probability requires that, 
18

“based on facts existing when the warrant is issued[,]” there is 

“probable cause to believe the contraband, which is not yet at 

the place to be searched, will be there when the warrant is 

executed.” United States v. Loy, 191 F.3d 360, 365 (3d Cir. 

1999); see also Grubbs, 547 U.S. at 96-97 (“[I]f the 

triggering condition occurs there is a fair probability that 

contraband or evidence of a crime will be found in a 

particular place[.]”) (internal quotation marks and citation 

omitted). This requirement ensures that there is a sufficient 

nexus between the contraband to be seized and the place to be 

searched. Grubbs, 547 U.S. at 96.

The second prerequisite of probability is that there is 

probable cause to believe that the triggering event will 

actually occur. Grubbs, 547 U.S. at 97. “The supporting 

affidavit must provide the [judge] with sufficient information 

to evaluate both aspects of the probable-cause determination.” 

Id. at 97.

Here, the first probable cause requirement is met. In 

addition to the trace amount of marijuana certain to be present 

in the residence at the time of the warrant‟s execution, there 

was also a fair probability that “other controlled substances, 

paraphernalia, and records . . . associated with the sale of 

controlled substances” would be present. (J.A. 177); see 

Stearn, 597 F.3d at 559-60 (stating the nexus may be 

established by “the conclusions of experienced officers 

regarding where evidence of a crime is likely to be found[.]”); 

see, e.g., Grubbs, 547 U.S. at 97 (finding the successful 

controlled delivery of contraband consisting of a videotape of 

child pornography would “plainly establish” probable cause 

for the search). 
19

Because Trooper Overcash possessed the Parcel 

containing trace amounts of marijuana and had definite plans 

to deliver the Parcel to the residence, the second probable 

cause requirement is also met, as there was a fair probability

that the triggering event, i.e., the Parcel‟s entrance into the 

residence after a successful controlled delivery and the 

subsequent alert of the indicator equipment, would actually 

occur.

8

 See Grubbs, 547 U.S. at 97. In Grubbs, the Supreme 

Court found that the successful delivery of contraband 

consisting of videotapes of child pornography to defendant‟s 

residence by an undercover agent would satisfy the second 

probable cause requirement because, while it was “possible 

that [defendant] could have refused delivery of the videotape 

he had ordered, that was unlikely.” Id. at 97. Similarly, here, 

while it was possible the occupants of the residence would 

refuse delivery of the Parcel, or accept delivery but leave the 

Parcel unopened, it was more probable they would accept and 

open. 

B. Suppression of Evidence Obtained After Four-Day 

Warrantless Seizure

Golson‟s second argument on appeal is that the 

District Court erred in finding the four-day warrantless 

seizure of the Parcel to be reasonable. 9 (Appellant Br. 21.) 

 

8

Trooper Overcash‟s Affidavit states: “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.) 

9

The government argues for the first time on appeal that 

Golson lacks standing to challenge the search of the Parcel 
20

The District Court disagreed, and held that the “four-day 

 

because he has no privacy interest in it; Golson neither sent 

the parcel nor was it addressed to him. The government 

evokes the general principles of Fourth Amendment standing 

established in United States v. Padilla, 508 U.S. 77 (1993), 

and Rakas v. Illinois, 439 U.S. 128, 143 (1978), to support 

this argument. However, these cases cannot overcome or 

conflict with our precedent that the government may not raise 

a Fourth Amendment standing argument for the first time on 

appeal. United States v. Stearn, 597 F.3d 540, 552 n.11 (3d 

Cir. 2010). “The „standing‟ inquiry, in the Fourth 

Amendment context, is shorthand for the determination of 

whether a litigant‟s Fourth Amendment rights have been 

implicated.” United States v. Mosley, 454 F.3d 249, 253 n.5 

(2006). As we previously explained: 

Fourth Amendment standing is one element of a 

Fourth Amendment claim, and does not 

implicate federal jurisdiction. Consequently, 

standing can be conceded by the government, 

and it is also subject to the ordinary rule that an 

argument not raised in the district court is 

waived on appeal.

Id. at 552 n.11 (internal citations and quotation marks 

omitted); see, e.g., United States v. Navedo, 694 F.3d 463, 

478 n.3 (3d Cir. 2012) (“[W]hether [defendant] possessed a 

reasonable expectation of privacy—a necessary predicate to 

his invocation of the exclusionary rule—might have presented 

a close question in this case. But the Government waived this 

standing argument by failing to raise it in the District Court.”) 

(internal citations omitted).
21

delay due to the investigation, scheduled leave, and the 

weekend is reasonable in the present case.” (J.A. 6.) We 

review the District Court‟s factual findings for clear error, 

and exercise plenary review over the District Court‟s 

determination that the seizure did not violate the Fourth 

Amendment. United States v. Johnson, 592 F.3d 442, 447 

(3d Cir. 2010) (citing United States v. Myers, 308 F.3d 251, 

255 (3d Cir. 2002); United States v. Bonner, 363 F.3d 213, 

215 (3d Cir. 2004)). We agree that the four-day seizure was 

reasonable. 

Postal authorities may seize and detain mailed items

for a reasonable amount of time, if they have a reasonable 

suspicion of criminal activity.10 United States v. Van 

Leeuwen, 397 U.S. 249, 251-52 (1970). We look at the 

totality of the circumstances in determining whether the 

length of the detention was reasonable. See Id. at 252 (“The 

nature and weight of the packages, the fictitious return 

address, and the British Columbia license plates of respondent 

who made the mailings in this border town certainly justified 

 

10 Golson does not dispute that the detention of the Parcel was 

based on reasonable suspicion, nor could he, because

reasonable suspicion to detain the Parcel is supported by the 

record: the Parcel‟s return address was fictitious and nondeliverable, and based on the past experience of the USPIS 

inspectors involved, narcotics are often brought across the 

border from Mexico into Arizona and then mailed to the east 

coast. Moreover, the addressee, Derek Brown, was not a 

person known to receive mail at the address listed, which is 

one possible indicia of narcotics trafficking.
22

detention, without a warrant, while an investigation was 

made.”). 

Here, the length of the delay was reasonable because it 

was due to the investigation, scheduled leave, and the 

weekend, when postal operations, in ordinary course, cease or 

slow down considerably. See United States v Lux, 905 F.2d 

1379 (10th Cir. 1990) (detaining a package for approximately 

a day and a half, when one of those days was a Sunday, was 

reasonable); United States v. Mayomi, 873 F.2d 1049 (7th Cir. 

1989) (detaining letters over a weekend for the sole purpose 

of subjecting them to a canine sniff test was not 

unreasonable); United States v. Gill, 280 F.3d 923 (9th Cir. 

2002) (six-day delay where postal worker who was on leave 

for three days, was not unreasonable). Therefore, Golson‟s 

argument is without merit and we will affirm the District 

Court‟s finding that the Parcel was not unreasonably seized.

IV. CONCLUSION

For the reasons discussed above, we will affirm the 

District Court‟s denial of Golson‟s motion to suppress

evidence discovered in Golson‟s residence, and in the Parcel.