                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 13-4830
                                     _____________


                            UNITED STATES OF AMERICA

                                             v.

                                   RICHARD HAYES,
                                                              Appellant


                            On Appeal from the District Court
                        for the Western District of Pennsylvania
                        (District Court No.: 2-11-cr-00069-001)
                    District Judge: Honorable Terrence F. McVerry


                       Submitted under Third Circuit LAR 34.1(a)
                                on November 17, 2014

             Before: RENDELL, JORDAN and NYGAARD, Circuit Judges

                             (Opinion filed: March 27, 2015)



                                      O P I N I O N*



RENDELL, Circuit Judge,


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant Richard Hayes appeals from the District Court a denial of his Motion to

Suppress Evidence of a mailed package containing marijuana. The seizure of this

package led the authorities to discover another package containing cocaine, and upon

such discovery, Hayes was charged with conspiracy to distribute and possess with intent

to distribute 500 grams or more of a mixture and substance containing a detectable

amount of cocaine.

       Hayes appeals on the basis that a postal service worker’s removal of a package

from the mailstream to inspect it was not supported by reasonable suspicion, and once

removed from the mailstream, the amount of time it took for the package to arrive at its

destination was not reasonable and therefore, constituted an unreasonable seizure.

       Hayes contends that because the postal service worker had no personal knowledge

of the smell of raw marijuana, and her only knowledge of the smell of burnt marijuana

from a college party she attended over 30 years ago, her suspicions of the package did not

amount to the reasonable suspicion necessary to remove the package from the

mailstream. Hayes also contends that as a result of this removal, the package did not

arrive at its final destination for another four days, which was an unreasonable delay and

therefore constituted an illegal seizure.

A. Reasonable Suspicion to Remove Package from Mail Stream for Inspection

       Petitioner argues that Kathleen Wells, the postal service worker who was on duty

at the time his package was removed from the mailstream for inspection, did not have the

reasonable suspicion required to do so. He points out that Wells lacked the knowledge to

detect the smell of raw marijuana based on her memory of the odor of burnt marijuana

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approximately 30 years ago at a college party she attended. He also asserts that the

Postal Service Inspector on duty, Steven Celletti, erred in failing to inquire about Wells’

experience and qualifications in being able to identify raw marijuana before he instructed

her to keep the package secure overnight, thereby keeping it out of the mailstream.

         Postal authorities may seize and detain mailed items for a reasonable amount of

time, if they have a reasonable suspicion of criminal activity. United States v. Van

Leeuwen, 397 U.S. 249, 251-52 (1970). Reasonable suspicion that a mail parcel contains

contraband for purposes of temporary detention is evaluated under a totality of the

circumstances standard. United States v. Colon, 386 F. App’x 229, 230-31 (3d Cir.

2010).

         Petitioner’s arguments that Wells and Celletti lacked reasonable suspicion are

unavailing. First, “the smell of marijuana alone, if articulable and particularized, may

establish not merely reasonable suspicion, but probable cause.” United States v. Ramos,

443 F.3d 304, 308 (3d Cir. 2006). Several postal employees handling mail on the floor at

the time Petitioner’s mail was removed from the mailstream smelled marijuana coming

from the package, as it had come partly open in transit. They notified Wells, the postal

service worker on duty, of the smell. She approached the package, and also smelled what

she believed to be marijuana. She contacted Celletti, who instructed her to keep the

package overnight. He inspected the package the next morning, and identified the odor

emanating from it as marijuana. This smell, as identified by several individuals who

handled the package, on its own established the reasonable suspicion necessary to remove

the package from the mailstream.

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       However, many other factors, taken in totality, pointed to the existence of

reasonable suspicion here. In Van Leeuwen, the Court upheld the authorities’ detention

of a package because they had reasonable suspicion based on: (1) the nature and weight

of the packages; (2) the fictitious return address on the packages; and (3) the foreign

license plates of the person placing the packages into the mail. 397 U.S. at 252. Several

facts, as observed by Wells, Celletti and Brian Plants, Celletti’s colleague, establish

reasonable suspicion here: (1) multiple individuals believed the package smelled like

marijuana, (2) its contents were wrapped in a black plastic bag, also an indicator of a

narcotics shipment, (3) it contained scented dryer sheets, typically used by narcotics

traffickers to mask the smell from canines, (4) the package contained a California source

address, a known source of narcotics, and (5) no known individual by the name on the

parcel was known to reside at the destination address. But, specifically in response to

Hayes’s argument that Wells did not have reasonable suspicion to take the package out of

the mailstream in the first place, the fact that she and others who handled the package

believed that it smelled like marijuana was, by itself, sufficient to establish the requisite

reasonable suspicion.

       Petitioner objects to Celletti’s reliance on Wells’ belief that she smelled marijuana

in the package in his decision to instruct her to hold the package overnight before he

could verify the smell. The Government is correct, however, that Wells’ role could be

analogized to that of a known informant, whose tip provided a law enforcement officer

such as Celletti with sufficient information to establish reasonable suspicion. United

States v. Torres, 534 F.3d 207, 211 (3d Cir. 2008). Under Torres, this Court evaluates an

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informant’s credibility by examining (1) whether the tip was relayed face-to-face such

that the officer had the opportunity to appraise the witness’s credibility through

observation, (2) the person providing the tip can be held responsible if her allegations

turn out to be fabricated, (3) the content of the tip is not information that would be

available to any observer, (4) and the person providing the information has recently

witnessed the alleged criminal activity, and (5) the tip predicts what will follow, which

allows the police a means to test the informant’s knowledge or credibility. 534 F.3d at

211. All but one of these factors weigh in favor of Wells’ credibility, and therefore

validate Celletti’s decision to trust her observations.

B. Length of Delay in Retaining Package Was Reasonable

       Petitioner objects to the four-day delay in the delivery of the parcel to its

destination address as an unreasonable seizure in violation of the Fourth Amendment.

The temporary detention of packages for purposes of investigation does not run afoul of

the Fourth Amendment provided there is reasonable suspicion. Van Leeuwen, 397 U.S.

at 251. Van Leeuwen held a 29-hour delay reasonable due to the reasons for the delay—

the suspicious nature of the packages and the difficulty in contacting a distant recipient

address for one of them. Id. at 253. In United States v. Golson this Court held a four-day

delay not to be unreasonable where the delay was due in part to “investigation, scheduled

leave, and the weekend.” 743 F.3d 44, 55 (3d Cir. 2014). The delay in delivering the

parcel in Petitioner’s case was also due to investigation, an extended holiday weekend,

and the unavailability of the Duty Magistrate Judge to provide a warrant when offices

opened on the Tuesday after the long weekend. Therefore, it was not unreasonably long.

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       Petitioner is correct that “in assessing the effect of the length of the detention, we

take into account whether the police diligently pursue their investigation.” United States

v. Place, 462 U.S. 696, 709 (1983). Defendant argues that Celletti’s one-day delay in

arriving at the mail distribution center to examine the package, his handing off the

investigation to Plants, and Plants’ lack of effort to obtain a warrant over the holiday

weekend evinced lack of diligence and unreasonably prolonged the warrantless seizure of

the package. These facts do not demonstrate a lack of diligence. Celletti inspected the

package in person the morning after its discovery in the mailstream because he knew that

the steps necessary to either release the package for delivery or engage in a controlled

delivery with law enforcement could not be accomplished that evening. After verifying

that the package smelled like marijuana, Celletti handed the investigation to Plants due to

Celletti’s heavy workload. Plants reinstated the investigation as soon as he was back

from the weekend, and obtained a warrant the next day, the earliest that the Magistrate

Judge was available to issue one. This case is hardly a situation, as Defendant suggests,

where law enforcement officials obtained a search warrant “at their leisure”. United

States v. Dass, 849 F.2d 414, 415 (9th Cir. 1988) (finding that 7 to 23 days of delay in

seeking warrants after removing packages from the mail was unreasonable).

                                      CONCLUSION

       For the reasons stated above, we affirm the District Court’s ruling.




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